Emerson v. Northern States Power Co., 00-3746

• Decision Date: 26 June 2001
• Docket Number: No. 00-3746,00-3746
• Parties: (7th Cir. 2001) Loretta M. Emerson, formerly known as Loretta M. Rubenzer, Plaintiff-Appellant, v. Northern States Power Company, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 506

256 F.3d 506 (7th Cir. 2001)

Loretta M. Emerson, formerly known as Loretta M. Rubenzer, Plaintiff-Appellant, v. Northern States Power Company, Defendant-Appellee.

No. 00-3746

In the United States Court of Appeals For the Seventh Circuit

Argued March 26, 2001

Decided June 26, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 99 C 809--Barbara B. Crabb, Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Bauer and Rovner, Circuit Judges.

Bauer, Circuit Judge.

Loretta Emerson¹ sued her former employer, Northern States Power Company ("NSP") for firing her in violation of the Americans with Disabilities Act ("ADA") 42 U.S.C. sec. 12101 et seq. The district court granted summary judgment in favor of NSP on the ground that Emerson was not a qualified individual. We affirm.

I. Background

Emerson began working in NSP's Eau Claire Customer Information Center in 1994. She began as a part-time "student operator," but was promoted to a part- time "associate consultant" position within six months. Despite the part-time classification, Emerson generally worked 40 hours per week. As an associate consultant, Emerson mainly handled routine customer calls, but by her estimate roughly 5% to 10% of her job entailed processing customer calls about gas and electrical emergencies, such as gas leaks and downed power lines. The job description designated handling such calls as an "essential job function," and estimated the volume of calls to comprise 20% of an associate consultant's work. On average, Emerson handled 2 to 5 gas emergencies per week and 2 to 5 electrical emergencies per week. This number generally increased when thunderstorms occurred. In 1994 and most of 1995, Emerson performed her job at or above the satisfactory level. However, for reasons the record does not elucidate, Emerson had strained relations with one of her supervisors, Lori Krigs.

Then, on October 1, 1995, Emerson fell and hit her head while rollerblading. The fall caused head trauma, including two skull fractures and a hematoma. Dr. Michael Murphy treated Emerson, hospitalizing her twice. He referred her to a speech/language therapist who conducted two therapy sessions with Emerson and evaluated her condition using cognitive tests. The therapist concluded in part that Emerson experienced difficulty learning new information and had moderate memory impairments. At the end of October, relying on the tests the therapist administered, Dr. Murphy released Emerson to return to her associate consultant position with no medical restrictions.

Upon her return, Emerson had difficulty learning NSP's new telephone and computer systems. Her supervisors complained that she asked many questions more than once and seemed unable to retain information. Her supervisors also noted that she made mistakes when working on complex, yet routine tasks and was much more emotional than she had been before the accident. Emerson's supervisors evaluated her job performance in 1996 as needing improvement in the areas of problem- solving, information retention, and communication. Emerson continued to have difficulties with Krigs, a situation which caused her stress.

On Saturday, April 27th, Emerson experienced an anxiety attack at work. The attack, Emerson's first, included symptoms characteristic of a heart attack. Emerson spent the rest of her shift at the emergency room, but was able to return to work on Monday. Dr. Murphy prescribed anti-anxiety medication for Emerson to take when she felt the onset of an attack, but she took it infrequently. Rather, she tried to reduce stress at work by avoiding contact with Krigs. Emerson suffered another panic attack at work on June 6th. She took her medication and, with permission from NSP, went home for the day. Emerson was not handling calls when she experienced either of the attacks.

NSP was concerned that Emerson's panic attacks might prevent her from adequately handling safety-sensitive calls. It required her to be evaluated by the company's occupational medicine physician, Dr. Donald Bodeau, regarding her ability to safely perform her job, and she saw him several times during the summer of 1996. Dr. Bodeau believed that the panic attacks were related to Emerson's head trauma. After Emerson's first evaluation, Dr. Bodeau recommended placing Emerson on a paid leave of absence, which NSP did. After a follow-up exam on June 19th, Dr. Bodeau cleared Emerson to return to work in a non- safety-sensitive position. NSP placed her in a billing position for two months to fill in for an employee on maternity leave. Emerson worked the same number of hours and received the same pay as she did in her associate consultant position. She performed well in the billing department.

NSP asked Emerson to be re-evaluated by Dr. Bodeau on July 17th. Dr. Bodeau noted that Emerson felt relaxed in the billing position, but when she spoke of returning to her position as an associate consultant, she became agitated and believed that Krigs was conspiring against her. Emerson continued to show signs of memory loss and difficulty communicating. Dr. Bodeau sent Emerson to Dr. Thomas, a psychologist, for further neurological testing. Dr. Thomas concluded that while her test results were within normal limits, she suffered from acute anxiety disorder and probable panic attacks. He noted that Emerson's condition would likely improve over the next one to two years, although he could not offer assurances that she would recover fully, and recommended that NSP reinstate her to the associate consultant position. Dr. Murphy and Dr. Bodeau agreed that Emerson suffered from an anxiety disorder, although Dr. Bodeau thought it was fairly mild.

On August 16th, Emerson met with her supervisors from NSP to discuss returning to work as an associate consultant. At that meeting, NSP gave Emerson a written warning, the second step in the disciplinary process, memorializing its concern about her performance. NSP had not given Emerson a level one warning, but had the discretion to skip disciplinary steps. Emerson indicated that in case of a panic attack, she would need to talk to her supervisor and take a break. At Dr. Bodeau's recommendation, NSP allowed Emerson five minutes to collect herself in case of a panic attack. Emerson consulted Dr. Murphy who informed NSP that a five minute break might be insufficient time for Emerson to regain her composure. He could not, however, specify how much time she would need. Because of NSP's concern, Emerson suggested that safety-sensitive calls could be routed away from her, or that a co-worker could take over for her in case she had a panic attack while dealing with a safety-sensitive call. NSP rejected these options because of the uncertainty that another consultant or supervisor would be available to take the call. Further, Emerson suggested that her stress level would be reduced if Krigs stopped supervising her. NSP declined to make this arrangement.

Dr. Bodeau unsuccessfully attempted to reach Dr. Murphy to discuss his recommendation that five minutes was not enough time for Emerson to recover from a panic attack. Dr. Bodeau then recommended that Emerson be transferred out of her safety-sensitive position. Further, based on his prediction that it would take Emerson up to two years to fully recover, NSP concluded Emerson would have to leave her consultant position. NSP identified an available full-time administrative assistant job, but required Emerson to apply for it because Emerson's associate consultant position was classified as part-time despite its usual full-time hours. Emerson was not interviewed or hired for this position. NSP offered Emerson a temporary, part-time cash processor position, which she turned down. Toward the end of October, a supervisor notified Emerson that an associate consultant position with no safety-sensitive calls was available in Minnesota. Emerson did not apply. Emerson's employment was terminated effective October 31, 1996. NSP did not notify Emerson about any other available positions for which she qualified, although some existed. A vocational rehabilitation expert who later evaluated Emerson concluded that her head injury, which sensitized her to stress and increased her need for routine, precluded her from 47% of all occupations and rendered her disabled.

After Emerson's termination, she worked briefly scheduling factory workers, but left because scrambling every morning to find substitute workers for absent employees was too stressful. Emerson subsequently performed office work and maintenance for a housing management com pany for three years, and supplemented her income by working temporary jobs as a booking agent and order processor. Emerson left these jobs to become a property manager. She has had difficulty finding a job that pays as much as NSP paid her.

Emerson sued NSP for monetary and injunctive relief under the ADA, arguing that NSP failed to offer her a reasonable accommodation and fired her because she was disabled. The district court found that an issue existed as to Emerson's disability in the major life activities of learning and working. However, the court granted summary judgment in favor of NSP finding that Emerson was not a qualified individual under the ADA because she was unable to handle safety- sensitive calls with or without reasonable accommodation.

II. Discussion

We review the district court's grant of summary judgment de novo. See Sinkler v. Midwest Property Mgmt., Ltd. P'ship., 209 F.3d 678, 682 (7th Cir. 2000). To persuade us to reverse the district court, Emerson must marshal the pleadings, depositions, answers to interrogatories, and affidavits to create an issue of material fact regarding the challenged factors, or she must show that NSP is not entitled to judgment as a matter of law. See id. at 683. The ADA prohibits covered entities such as NSP from discriminating against a qualified individual...