Hankins v. Gap, Inc.

• Decision Date: 29 May 1996
• Docket Number: No. 95-5243,95-5243
• Parties: , 5 A.D. Cases 924, 16 A.D.D. 565, 8 NDLR P 86 Frances HANKINS, Plaintiff-Appellant, v. THE GAP, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 797

84 F.3d 797

65 USLW 2027, 5 A.D. Cases 924, 16

A.D.D. 565, 8 NDLR P 86

Frances HANKINS, Plaintiff-Appellant, v. THE GAP, INC., Defendant-Appellee.

No. 95-5243.

United States Court of Appeals, Sixth Circuit.

Argued March 19, 1996.

Decided May 29, 1996.

John H. Forg (argued and briefed), Forg & Forg, Cincinnati, OH, for plaintiff-appellant.

Roger A. Weber (argued), Thomas J. Sarakatsannis (briefed), Taft, Stettinius & Hollister, Cincinnati, OH, Robert B. Craig, Taft, Stettinius & Hollister, Crestview Hills, KY, Joanne K. Garrison, The Gap, Inc., San Bruno, CA, for defendant-appellee.

Before LIVELY, MARTIN, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Plaintiff Frances Hankins appeals from the district court's summary judgment in this action under Title I of the Americans With Disabilities Act, 42 U.S.C. §§ 12111-12117. Hankins argues that her former employer, The Gap, Inc., discriminated against her on the basis of her migraine headaches. The district court, however, determined that she was not a "qualified individual with a disability." We affirm, because Hankins failed to take advantage of reasonable accommodations provided by The Gap. In addition, we affirm the district court's dismissal of Hankins's pendent state law claims.

I. BACKGROUND

Hankins was an at-will employee of The Gap from December 1980 to December 1992. During most of this period, she worked in the company's distribution center as a merchandise handler, or "picker," pulling items from the warehouse stock and placing them in containers for shipment to The Gap's various retail stores. Items were picked according to a "picking ticket," which listed the specific articles of clothing required for each store. As both parties acknowledge, accuracy and productivity in filling these orders were the most important requirements for performing the job.

To ensure accuracy, The Gap periodically checked a random sample of each picker's work. If a picker's error rate exceeded 1.25% for any given four-week period, the employee was given a warning, under a progressive discipline system. The first stage of this system was a verbal warning. If an employee's four-week error rate exceeded 1.25% within three months of receiving a verbal warning, he or she would then be given a written warning. If the employee again exceeded 1.25% within three months of a written warning, the employee received a final warning. A further incident of inaccuracy within three months of a final warning meant termination for the employee. This is what happened to Hankins in 1992. Although in prior years she had received verbal and written warnings, she had been able to bring her four-week error percentage under 1.25% before receiving a final warning. In 1992, however, she received a verbal warning on May 13, a written warning on August 5, and a final warning on September 28. On December 8, her last day of work, Hankins was again found to have exceeded the maximum allowable rate, with a four-week error calculation of 3.11%. She was told that she was going to be fired. According to The Gap, Hankins's error rate for the entire year was 1.48%. By contrast, the average rate in 1992 for all pickers was 0.58%.

Hankins claims that her inaccurate picking was attributable to headaches that she had suffered since 1988. It was only at the end of March 1992, however, that she learned these were migraine headaches. She states that she then informed her supervisors of her disability and repeatedly requested that she be transferred to another area of the warehouse, either "Pikpak" (also called "Pick-Pack") or "Shoes," which she perceived to be less stressful than her customary area and thus less likely to induce migraines. Although her supervisors had periodically transferred her and other employees to "Pikpak" on a temporary basis in the past, they allegedly refused to transfer her on many of the occasions she requested after March 1992. As a result, she claims, The Gap failed to provide reasonable accommodation for her disability. The Gap, on the other hand, denies that Hankins ever informed the company of her condition, noting that there is no written record of migraines in any of her personnel files. Moreover, it points out that other employees of The Gap who suffered from migraines were more than adequately accommodated by the company's leave and medical policies, which were also available to Hankins.

On December 8, 1992, the date she failed the final stage of the progressive discipline process, Hankins claims to have suffered another severe headache. Although she was not fired on the spot, she was informed that her termination the following week was inevitable. Her supervisor also supposedly told her that she could go home early, take the rest of the week off, and simply wait for the notice of termination. Instead, she decided to continue working that day. The following day, Hankins did not report to work; on December 10, before she was officially fired, she submitted a request for a one-month disability leave, attaching a recommendation from her physician. After some consideration, The Gap decided to grant her leave, but the company stated that she would be terminated upon expiration of the leave. During leave, Hankins was able to draw disability pay and health insurance. She then successfully obtained extensions of this leave, first for "temporary" total disability, and then "permanent" total disability. This lasted until February 1994, when The Gap finally informed her that all leave privileges had expired and that she was officially terminated. By this time, Hankins had already filed suit against The Gap in federal court.

Hankins brought her action under both the Americans With Disabilities Act (ADA) and Kentucky state law. After discovery was completed, the district court granted The Gap's motion for summary judgment, holding that Hankins was not "an otherwise qualified individual with a disability." Opinion and Order, No. 93-172, at 4-9 (E.D.Ky. Jan. 10, 1995). In addition, the district court found that plaintiff had failed to make a prima facie case of discrimination based on disparity of treatment. Having dismissed plaintiff's federal claims, the district court dismissed her state law claims without prejudice. Hankins timely filed a notice of appeal.

II. REASONABLE ACCOMMODATION UNDER THE AMERICANS WITH DISABILITIES ACT

A district court's grant of summary judgment is reviewed de novo. City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994). Considering all facts and inferences drawn therefrom in the light most favorable to the appellant, id., we reverse the judgment only upon a showing of the existence of a genuine issue of material fact, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In this case, we are faced with a claim under Title I of the ADA, which prohibits unwarranted discrimination against disabled persons in employment. See 42 U.S.C. § 12112(a). The key term, "discriminate," is defined in section 12112(b) as including several acts, of which the most relevant to this litigation is:

(5)(A) 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, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.]

A "qualified individual with a disability," in turn, is an individual who, with reasonable accommodation, "can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "Reasonable accommodation" thus lies at the heart of this case, as in most ADA cases. It is given further definition in 42 U.S.C. § 12111(9):

The term "reasonable accommodation" may include--

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Hankins argues that The Gap's refusal to transfer her to "Pikpak" or "Shoes," once it became aware of her disability, was a failure to provide reasonable accommodation. The Gap responds that neither "Pikpak" nor "Shoes" would have been a reasonable accommodation because (1) "Pikpak" was located in a hotter, brighter, busier, and noisier area than Hankins's customary assignment and was unsuitable for anyone suffering from migraines, (2) "Pikpak" operated at most once or twice a week, and even less often during the shift Hankins wanted to work, and (3) "Shoes" required even greater accuracy than Hankins's customary area, such that the probability of inaccurate picking by Hankins precluded her from working in "Shoes." Hankins does not dispute any of these points, and thus The Gap's contention that "Pikpak" and "Shoes" were not reasonable accommodation is actually quite persuasive. In reality, however, it does not matter whether "Pikpak" or "Shoes" would have been a reasonable accommodation, so long as The Gap made available other reasonable and effective accommodations to Hankins. The Appendix to the ADA regulations explains that "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. pt. 1630, app. at 415. As the Supreme Court has held in analogous circumstances, an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. See Ansonia Bd. of Educ. v. Philbrook...