Henschel v. Clare Cnty. Rd. Comm'n

Decision Date10 February 2014
Docket NumberNo. 13–1528.,13–1528.
Citation737 F.3d 1017
PartiesWayne HENSCHEL, Plaintiff–Appellant, v. CLARE COUNTY ROAD COMMISSION, Defendant–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit


ON BRIEF:Julie A. Gafkay, Travis I. Dafoe, Gafkay & Gardner, PLC, Frankenmuth, Michigan, for Appellant. Thomas H. Derderian, Michael R. Kluck & Assoc., Okemos, Michigan, for Appellee.

Before: COOK and STRANCH, Circuit Judges; CARR, District Judge. *


JANE B. STRANCH, Circuit Judge.

Wayne Henschel was working as an excavator operator for Clare County Road Commission (CCRC) when he lost his left leg above the knee in a motorcycle accident. Because he was not allowed to return to work, Henschel asserts that CCRC discriminated against him on account of his disability in violation of the Americans with Disabilities Act (ADA). The district court granted CCRC's motion for summary judgment, finding that Henschel could not perform the essential functions of the excavator operator position and that no reasonable accommodation was possible. Because genuine issues of material fact exist as to the essential functions of the excavator operator position, we AFFIRM IN PART and REVERSE IN PART.

I. Background

Henschel started working for CCRC in February 2007. His position was covered by a collective bargaining agreement (CBA) between CCRC and the American Federation of State, County and Municipal Employees (AFSCME) under which CCRC retained the right to manage its services and equipment and to hire, fire, and otherwise manage personnel. The CBA provided for seniority rights based on the length of employment. Henschel applied for and was assigned to CCRC's excavator operator position shortly after he was hired. Then in August 2009, Henschel was involved in a motorcycle accident that resulted in the amputation of his left leg above the knee. He was off work for a few months recovering from his injuries during which time he was fitted for a prosthetic leg. While recovering he told others that he wanted to return to work. In the meantime, CCRC advertised for and hired a temporary excavator operator to fill Henschel's position until he could return.

As excavator operator, Henschel ran an excavator—a piece of heavy equipment used for digging ditches and trenches—that was delivered to work sites on a trailer pulled by a manual transmission semi-truck. Over the past decade, employees in various CCRC positions hauled the excavator to the work site. Lee Schunk, a former long-term CCRC employee, operated the excavator for two years before Henschel took that job. Schunk testified that during his tenure as an excavator operator, a semi-truck driver was responsible for transporting the excavator, allowing Schunk to drive an automatic-transmission pick-up truck to the work site. As excavator operator, Henschel hauled the excavator to the work site 70 percent of the time and other CCRC employees, often the semi-truck driver, 30 percent. During Henschel's tenure as excavator operator there was one regular semi-truck driver; during Schunk's tenure there were two.

CCRC specified the duty to haul equipment as a function assigned to its job description for Truck/Tractor Driver. CCRC did not include the hauling function in its Operator–Excavator job description; it did include in that description an “Other duties assigned” task, which could cover any CCRC task assigned. The person holding the Truck/Tractor Driver position was referred to as the semi-truck driver because his primary responsibility was to pull trailers in a semi-truck. Robert Fisch, who held the Truck/Tractor Driver position when Henschel sought to return to work, testified that he considered hauling the excavator to the work site to be one of the semi-truck driver's job duties. While the semi-truck driver sometimes has all-day tasks that would limit his availability to haul the excavator, Schunk testified that there were a number of other CCRC employees qualified to drive a semi-truck, as Henschel had been, and who could potentially haul the excavator.

The excavator was generally moved only when it needed to be brought to a new work site and, according to Henschel's testimony, 90 percent of the time it stayed at the work site. It was used at various work sites throughout the year for varying lengths of time; sometimes it was operated at the same site for weeks and other times the jobs were completed in a day. During the winter, the excavator was generally not in use and the excavator operator plowed snow using a blade truck or a grader.

After recovering sufficiently from his accident, Henschel asked to return to work on the excavator. Henschel met with his supervisor John Krchmar and CCRC's Engineer–Manager Steve Stocking at least twice about returning to the excavator operator position. Before returning, Henschel had to apply for a medical waiver to maintain the commercial driver's license (CDL) required by CCRC. Upon receiving his medical waiver application, the Michigan Traffic Safety Division sent a letter to CCRC requesting additional information, including [a]n evaluation of Mr. Henschel's ability to perform the essential job functions of a truck driver, including driving a manual transmission, while using his prosthetic device.” CCRC did not limit Henschel's testing to the essential functions of a truck driver; rather, on the direction of Stocking, Krchmar tested Henschel's ability to perform job functions related to every position at CCRC. After receiving the results of the testing from Stocking, the Michigan Traffic Safety Division granted Henschel a medical waiver allowing him to retain his CDL, but limited him to automatic-transmission vehicles.

After Henschel's testing, CCRC did not try to return him to the excavator but looked into assigning him to a year-round blade truck driver position in an automatic-transmission blade truck. CCRC employed 13 blade truck drivers, one for each of its 13 automatic-transmission blade trucks; CCRC's manual-transmission blade trucks were used as spares but there were not any automatic-transmission spares. Following discussions with the Union, CCRC drafted and brought to the Union a letter of understanding whereby the Union would ask its current blade truck drivers if any would be willing to give up his automatic-transmission truck for Henschel and if none were willing, Henschel would be given the lowest seniority driver's truck. CCRC did not involve the Union in the drafting of the letter of understanding and the Union did not take a vote on it, which step would be required to revise the CBA. Two drivers initially volunteered to give up their trucks, but CCRC did not specify the job to which a volunteer would be transferred. CCRC apparently intended to demote the driver giving up his truck to the laborer pay scale. One driver withdrew his offer within a few days. The second driver trained Henschel for a week, but then also withdrew his offer to give up his truck because he was concerned about his work stability and had determined that Krchmar did not intend to consider him for the open excavator operator position. After the lowest seniority blade truck driver said that he did not want to give up his truck, the Union withdrew the letter of understanding with CCRC. CCRC's management decided that it did not have a position for Henschel and ultimately that he would be terminated.

In a letter to Henschel, CCRC told him that he was being terminated because of his inability to transport the excavator to the work site. Before terminating Henschel, CCRC did not ask the semi-truck driver if he would be willing and able to be responsible for hauling the excavator, nor does the record demonstrate that CCRC asked any of its other employees who were qualified to drive the semi-truck. Henschel was officially terminated in August 2010.

Henschel filed a claim against CCRC with the Equal Employment Opportunity Commission (EEOC). In a September 29, 2011 letter, the EEOC sent a determination letter stating that the evidence submitted supported a finding of a violation of the ADA. In April 2012, Henschel filed suit against CCRC under the ADA. The district court ruled for CCRC on summary judgment, finding that transporting the excavator to the work site was an essential function of the excavator operator position, that Henschel was unable to haul the excavator, and that reassigning him to a year-round truck driver position was not a reasonable accommodation.

II. Standard of Review

We review the district court's grant of summary judgment de novo. Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 450 (6th Cir.2005). In doing so, we draw all reasonable inferences and view the evidence in the light most favorable to the appellant in order to determine if there is a genuine issue of material fact. E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 561 (6th Cir.2001). Where there is a genuine issue of material fact, summary judgment is not appropriate. Id. A genuine issue for trial exists where reasonable minds could differ on a material fact. See Keith v. Cnty. of Oakland, 703 F.3d 918, 926–27 (6th Cir.2013).

III. Analysis

In an employment discrimination case under the ADA, a plaintiff must show that 1) he is an individual with a disability within the meaning of the ADA; 2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and 3) he suffered an adverse employment decision because of his disability. Gilday v. Mecosta Cnty., 124 F.3d 760, 762 (6th Cir.1997); 42 U.S.C. § 12111(8). CCRC contends that Henschel's claim fails at the second prong because Henschel is not qualified for employment with CCRC, with or without reasonable accommodations.

A. Essential Function

The determination of what responsibilities are essential functions is “typically a question of fact and thus not suitable for resolution through a motion for judgment as matter of law....” Brickers v....

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