Equal Emp't Opportunity Comm'n v. Ford Motor Co.

• Decision Date: 10 April 2015
• Docket Number: No. 12–2484.,12–2484.
• Citation: Equal Emp't Opportunity Comm'n v. Ford Motor Co., 782 F.3d 753, 31 A.D. Cases 749 (6th Cir. 2015)
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v. FORD MOTOR COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

782 F.3d 753

31 A.D. Cases 749

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant

v.FORD MOTOR COMPANY, Defendant–Appellee.

No. 12–2484.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 3, 2014.

Decided and Filed: April 10, 2015.

ARGUED:Gail S. Coleman, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Helgi C. Walker, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellee. ON BRIEF:Gail S. Coleman, Lorraine C. Davis, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Helgi C. Walker, Jonathan C. Bond, Gibson, Dunn & Crutcher LLP, Washington, D.C., Elizabeth P. Hardy, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, Michigan, for Appellee. Ann Elizabeth Reesman, Norris, Tysse, Lampley & Lakis LLP, Washington, D.C., William S. Consovoy, Consovoy McCarthy PLLC, Arlington, Virginia, for Amici Curiae.

Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, and STRANCH, Circuit Judges.^*

KEAGUE, J., delivered the opinion of the court in which BOGGS, BATCHELDER, GIBBONS, ROGERS, SUTTON, GRIFFIN, and KETHLEDGE, JJ., joined. MOORE, J. (pp. 770–86), delivered a separate dissenting opinion in which COLE, C.J., CLAY, WHITE, and STRANCH, JJ., joined.

OPINION

McKEAGUE, Circuit Judge.

The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris's highly interactive job. Ford's papers and practices—and Harris's three past telecommuting failures—backed up its business judgment.

Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC's attention. The district court granted summary judgment to Ford on both claims. We affirm.

I

The Ford Motor Company employs about 224,000 employees worldwide. True to its founder's vision, Ford uses its employees in assembly lines to perform independent yet interconnected tasks. Resale buyers of steel come early on the lines—before any assembling begins. They purchase raw steel from steel suppliers and then, as their name suggests, resell the steel to parts manufacturers known as “stampers.” The stampers then supply the steel parts to the vehicle assemblers, who put together the vehicles.

As an intermediary between steel and parts suppliers, the resale buyer's job is highly interactive. Some of the interactions occur by email and telephone. But many require good, old-fashioned interpersonal skills. During core business hours, for example, resale buyers meet with suppliers at their sites and with Ford employees and stampers at Ford's site—meetings that Ford says are most effectively performed face to face. And Ford's practice aligns with its preaching: It requires resale buyers to work in the same building as stampers so they can meet on a moment's notice. This high level of interactivity and teamwork is why, in Ford's judgment, “a resale buyer's regular and predictable attendance in the workplace” is “essential to being a fully functioning member of the resale team.” R. 60–2 at ¶ 11.

A former Ford resale buyer with irritable bowel syndrome takes center stage in this case: Jane Harris. Her job performance was, on the whole, subpar. Early on in her six-plus year tenure, she won a few awards, and Ford recognized her for her “strong commodity knowledge” and “diligent[ ]” work effort. R. 66–2 at 2; R. 60–14 at 6. But over time, the awards and compliments morphed into low ratings and criticisms. Harris placed in the bottom 22% of her peer group in her fourth full year (2007) and in the bottom 10% in her fifth year (2008). It got worse. By her last year (2009), Harris “was not performing the basic functions of her position.” R. 60–2 at ¶ 14. Ford said she lacked interpersonal skills, delivered work late, didn't show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.

In addition to performing poorly while at work, she repeatedly missed work entirely. In 2008, she missed an average of 1.5 work days per week; in 2009, she was absent more than she was present. And when she didn't miss work, she would often come in late and leave early. As her coworkers and supervisors put it, Harris worked on a “sporadic and unpredictable basis,” R. 60–8 at ¶ 4, and had “chronic attendance issues,” R. 60–2 at ¶ 8; R. 60–4 at ¶ 3.

Harris's poor performance and high absenteeism harmed those around her. When she missed work, her teammates had to pick up the slack, including by taking on the functions that Harris could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,” R. 60–8 at ¶¶ 4–5, further compounded Harris's mistakes, and frustrated suppliers.

Harris's irritable bowel syndrome of course contributed to the situation. It gave her uncontrollable diarrhea and fecal incontinence, sometimes so bad that “it” could “start[ ] pouring out of [her]” at work. R. 41–4 at 1. She occasionally couldn't even make the one-hour drive to work without having an accident. The vicious cycle continued, as her symptoms increased her stress, and the increased stress worsened her symptoms—making her less likely to come to work.

Ford tried to help. Harris's first supervisor, Dawn Gontko, for example, adjusted Harris's schedule to help her establish regular and predictable attendance. Most significantly, Gontko allowed Harris two opportunities to “telecommute on an ad hoc basis” in an “Alternative Work Schedule.” R. 60–3 at ¶ 3. Under this schedule, Harris worked four 10–hour days (known as flex time) and could telecommute as needed on her work days. Each trial lasted one to two months. But neither succeeded: Despite the ad hoc telecommuting and flexible schedules, Harris “was unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.” Id.; R. 60–7 at 2.

Ford next tried its “Workplace Guidelines”—a reporting tool specially designed to help employees with attendance issues tied to illnesses. These also failed to improve Harris's attendance or illness. So did the efforts of Harris's next supervisor, John Gordon, which included allowing Harris to telecommute both during and after core business hours. R. 60–2 at ¶ 8. When this third telecommuting attempt failed, the act repeated itself: The new supervisor, like the old, employed the “Workplace Guidelines,” and the guidelines again failed to remedy Harris's attendance problems or illness.

Undeterred by these three failed telecommuting attempts, Harris requested leave “to work up to four days per week from home.” R. 60–10 at 1. Gontko had told her, after all, that her job would be appropriate for telecommuting. Ford's telecommuting policy generally said the same thing. And several of her coworkers telecommuted. So why couldn't Harris?

Ford's practice and policy limited telecommuting for resale buyers. In practice, Ford's buyers telecommuted, at most, on one set day per week. That aligned with its policy, which makes clear that those jobs that require “face-to-face contact”—and those individuals who were not “strong performers” and who had poor time-management skills—were among those not “appropriate for telecommuting.” R. 60–11 at 4.

Before making a decision on the request, two of Ford's human-resources representatives and Gordon met with Harris. In the meeting, Gordon went through Harris's ten main job responsibilities and asked Harris to comment on how she could perform those tasks from home. Of the ten tasks, Harris admitted that she could not perform four of them from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. Harris added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.” R. 66–10 at 3 (emphasis added). Harris's higher-ups told her that they would get back to her about her request.

Ford determined that Harris's proposed accommodation was unreasonable. Management met with Harris to inform her of the decision. Gordon again listed Harris's ten job responsibilities: four that could not be performed at home; four that could not effectively be performed from home; and two that were “not significant enough to support telecommut[ing].” Id. at 4–5. Gordon explained the circumstances under which telecommuting could work: on a predictable schedule where the strong-performing employee agrees to come to the worksite as needed even on days set for telecommuting. Harris's coworkers who telecommuted fit that bill. But Harris didn't, and neither did her proposed schedule.

Even though Ford did not grant her requested telecommuting schedule, management told Harris that they could accommodate her in other ways, such as moving her closer to the restroom or looking for jobs better suited for telecommuting. Harris turned down each alternative accommodation. The second meeting ended as Ford informed Harris that it would “talk with her again if she identifie[d] another accommodation.” R. 66–10 at 6. Harris never did. Rather, she sent an email one week later claiming that the denial of her request violated the ADA. And she filed a charge of discrimination with the EEOC a day after that.

The rest of Harris's time at Ford did not go well. She felt threatened by Gordon in their weekly meetings scheduled to improve her attendance...