Duckett v. Dunlop Tire Corp.

• Citation: 120 F.3d 1222
• Decision Date: 03 September 1997
• Docket Number: No. 96-6171,96-6171
• Parties: 7 A.D. Cases 1795, 7 A.D. Cases 572, 23 A.D.D. 602, 10 NDLR P [PG350 11 Fla. L. Weekly Fed. C 470 Ken DUCKETT, Plaintiff-Appellant, v. DUNLOP TIRE CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1222

120 F.3d 1222

7 A.D. Cases 1795, 7 A.D. Cases 572,

23 A.D.D. 602, 10 NDLR P [PG350

11 Fla. L. Weekly Fed. C 470

Ken DUCKETT, Plaintiff-Appellant, v. DUNLOP TIRE CORPORATION, Defendant-Appellee.

No. 96-6171.

United States Court of Appeals, Eleventh Circuit.

Sept. 3, 1997.

Jay E. Emerson, Jr., John R. Campbell, Higgs & Emerson, Huntsville, AL, for Plaintiff-Appellant.

D. Edward Starnes, III, Lanier, Ford, Shaver & Payne, Huntsville, AL, Stanford G. Wilson, Victor J. Maya, Patrick L. Lail, Elarbee, Thompson & Trapnell, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.

PER CURIAM:

Plaintiff appeals the grant of summary judgment of his Americans with Disabilities Act ("ADA") claim. The district court held that Plaintiff failed to establish that he is an "otherwise qualified individual" within the meaning of the ADA: he was employed by Defendant as a supervisor and was no longer able to supervise. Plaintiff says that he was an otherwise qualified individual because he was qualified to perform other work for Defendant, and his employer was under an obligation to transfer him to another position for which he was qualified. Because we affirm the district court's judgment on other grounds, we decline to rule on this issue. We hold that Plaintiff has failed to present evidence sufficient to establish that Defendant discriminated against him by failing to provide a reasonable accommodation.

I.

In 1976, Plaintiff Ken Duckett began working for Defendant Dunlop Tire Corporation as a forklift operator. Approximately eight or nine months later, Defendant promoted Plaintiff to a supervisory position; and he continued to work in a supervisory position until he was terminated on March 31, 1994. In January 1993, Plaintiff was promoted to Section Manager. As such, he worked a twelve-hour shift on a rotating schedule; and supervised twelve to thirteen bargaining unit employees.

Plaintiff has experienced high blood pressure since 1983. In May 1993, Plaintiff's blood pressure became dangerously elevated; and he was sent home from work. In June 1993, Plaintiff's doctor hospitalized him for his blood pressure. He also recommended that Plaintiff be excused from work for three months to gain control of his high blood pressure. Though Plaintiff successfully completed a cardiac rehabilitation program, his blood pressure readings remained consistently above the normal range.

In May 1993, Defendant placed Plaintiff on its Salary Continuation Program, which provided for maximum benefits for a period of up to 24 weeks and lesser benefits for a period of up to 28 weeks. The program required that Plaintiff maintain contact with Defendant and inform it of his medical condition, treatment and prognosis. During one of these contacts, Plaintiff suggested that he would not be able to return to work as a Section Manager, but could return in some other capacity in the bargaining unit.

In November 1993, Plaintiff's maximum benefits expired. In February 1994, Defendant submitted a long-term disability application with its insurer on Plaintiff's behalf. Upon receiving a copy of Plaintiff's long term disability application, Defendant's Medical Director, Dr. Jan Davis, recommended that he be evaluated by a cardiologist. Pursuant to this recommendation, Defendant asked Plaintiff to visit Dr. William Cox. Plaintiff was examined by Dr. Cox, who issued a letter indicating that Plaintiff has elevated blood pressure which might be controlled or managed by a change in medical regimen.

Shortly thereafter, a representative of Defendant contacted Plaintiff and requested that he come in to meet with various people. Plaintiff was still receiving minimum benefits under Defendant's Salary Continuation Program at the time. At the meeting, Defendant's personnel manager informed Plaintiff that the manager had two medical opinions indicating that Plaintiff could return to his job as Section Manager and that the position was available. Plaintiff stated that his doctor had not released him to work and, accordingly, that he would not be able to return to work as a Section Manager. When Plaintiff refused to resign, Defendant terminated his employment.

Plaintiff filed the present action alleging a single claim under the ADA. The district court granted Defendant summary judgment, holding that Plaintiff failed to show that he is a qualified individual as Defendant "requires that its supervisors be able to supervise, and the court cannot imagine a duty more essential for the position." (Order, p. 8) (citing 29 C.F.R. § 1630.2(n)(2)(i) ("The function may be essential because the reason the position exists is to perform that function."))

II.

We review the grant of summary judgment de novo to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Wallace Community College, 49 F.3d 1517, 1520 (11th Cir.1995). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must establish that (1) he has a disability, (2) he is a qualified individual and (3) he was subjected to unlawful discrimination because of his disability. Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996).

The ADA defines "discrimination" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, ..." 42 U.S.C. § 12112(b)(5)(A). According to Plaintiff, he was "otherwise qualified" to work for Defendant in a non-supervisory position, and Defendant was required to accommodate him by either transferring him to such a position or allowing him to continue to remain on medical leave under Defendant's Salary Continuation Plan.

A. Transfer

The pertinent regulations about whether an employer is required, as a reasonable accommodation, to reassign a disabled employee to a substantially different position provide that "[r]easonable accommodation may include but is not limited to: ... (ii) ... reassignment to a vacant position." 29 C.F.R. § 1630.2(o)(2). This regulation was interpreted in Willis v. Conopco, 108 F.3d 282, 284 (11th Cir.1997), to mean that "[r]eassignment to another position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified." Also, the regulations contemplate that the issue of whether an employee is an otherwise qualified individual and whether a reasonable accommodation can be made for that employee is determined by reference to a specific position. See 29 C.F.R. § 1630.2(m) ("Qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.") (emphasis added).

We need not decide whether, and under what circumstances, the ADA requires reassignment to a substantially different position as a reasonable accommodation; nor do we need to decide whether "otherwise qualified individual" is defined as broadly as Plaintiff says it is. It is clear in this case that transferring Plaintiff would not have been a reasonable accommodation.

We are aware of no case under either the ADA or the Rehabilitation Act ¹ where an employer has been required to transfer an employee to another position where the employer (independent of concerns about disability) has a business policy against the pertinent kind of transfer. That Defendant has a policy against "rolling back" salaried employees into production positions within the bargaining unit is undisputed. It is also undisputed that the only salaried jobs available on the date of Plaintiff's termination were both supervisory positions.

As Plaintiff notes, Defen...