Holly v. Clairson Industries, L.L.C., 06-13365.

• Decision Date: 19 July 2007
• Docket Number: No. 06-13365.,06-13365.
• Citation: 492 F.3d 1247
• Parties: Tommy E. HOLLY, an individual, Plaintiff-Appellant, v. CLAIRSON INDUSTRIES, L.L.C., a Florida Limited Liability, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

492 F.3d 1247

Tommy E. HOLLY, an individual, Plaintiff-Appellant, v. CLAIRSON INDUSTRIES, L.L.C., a Florida Limited Liability, Defendant-Appellee.

No. 06-13365.

United States Court of Appeals, Eleventh Circuit.

July 19, 2007.

George R. Baise, Jr., George R. Baise, Jr., P.A., Bradenton, FL, for Holly.

Dock Blanchard, Edwin A. Green, III, Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, FL, for Defendant-Appellee.

Daniel Vail, EEOC, Washington, DC, for Amicus Curiae, U.S. EEOC.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, MARCUS and HILL, Circuit Judges.

MARCUS, Circuit Judge:

The plaintiff, Tommy Holly ("Holly"), appeals from the district court's grant of final summary judgment in favor of his former employer, defendant Clairson Industries ("Clairson"), on Holly's claims that Clairson failed to reasonably accommodate his disability, in violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111-12117 ("ADA") and its Florida analog, the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01 ("FCRA"). After seventeen years of strong work performance during which Clairson informally accommodated Holly's disability-related tardiness, Clairson terminated Holly, pursuant to its new, no-fault punctuality policy. The district court granted summary judgment to Clairson after finding that strict punctuality, as defined by Clairson's new policy, was an "essential function" of Holly's job within the meaning of the statutes, and that Holly was incapable of performing that function "with or without a reasonable accommodation." The district court further held, in the alternative, that Holly was not the victim of unlawful discrimination because he had offered no evidence that Clairson had treated him differently from similarly-situated, non-disabled employees.

After thorough review of this record, we conclude that genuine issues of material fact exist concerning whether strict punctuality was an "essential function" of Holly's position. Accordingly, the entry of summary judgment for Clairson on this issue was improper. Moreover, it was error for the district court to have held, in the alternative, that Holly is required to present evidence that his employer treated him differently than his non-disabled co-workers. Under the plain language of the ADA and the FCRA, an employer's failure to reasonably accommodate an "otherwise qualified" disabled employee itself constitutes unlawful discrimination, unless the employer can show "undue hardship." Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. Background

The relevant facts in this summary judgment record, which we take in the light most favorable to Holly as the non-movant, see Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.2000) (per curiam), are these. Holly became a paraplegic in 1984, at the age of about 20, as a result of a motorcycle accident. Since then, Holly has been confined to a wheelchair for the majority of each day, although he is able to drive an automobile. Clairson hired Holly in 1986, shortly after Clairson's opening. Clairson is a custom plastic injections molder that manufactures, using an assembly line, industrial and medical devices such as disposable surgical tools. Holly was hired for the position of mold polisher, where for many years he worked in the tool room polishing molds after they came off the assembly line. Holly's shift ran from 7:00 a.m. to 3:00 p.m., although he normally worked more than forty, and sometimes as many as sixty, hours per week.

Although Holly has never had an attendance problem, he acknowledges that from the beginning of his employment at Clairson, his disability frequently caused him to arrive late to work.¹ Clairson employees' punctuality is recorded when they "punch in" for work on a time clock located in the break room. Employees access the break room in one of two ways: utilizing either an internal entrance from the main area of the warehouse into the break room or an external entrance from the parking lot into the break room. To avoid overtime charges, employees are not permitted to clock in prior to five minutes before the start of their shift.² Thus, Holly was required to clock in between 6:55 and 7:00 a.m. in order to be on time.

For the first fifteen years or so of Holly's employment with Clairson, absenteeism and tardiness were primarily addressed at an employee's annual review, where supervisors had some discretion over whether to alter their recommendations for retention and salary raises based on an employee's tardiness. Mold polishers are directly supervised by the Mold Shop Manager. Thus, Holly addressed the tardiness problems caused by his disability by discussing them with the Mold Shop Manager. The Mold Shop Manager from 1988 to 1996, Steve Nilson ("Nilson"), and the Mold Shop Manager from 1999 to 2004, Dennis Miller ("Miller"), collectively served as Holly's immediate supervisor for some thirteen of Holly's seventeen years with Clairson. Each gave deposition testimony in this case. According to Miller, under this "flexible" policy, "[i]f the H[uman] R[esources] people would approach me and say that a man had been tardy or late or absent or whatever, I had the authority to tell them that it was okay by me for whatever reason."

Holly testified, and the record reflects, that when he was late to work, it was usually only by a minute or so. Both Miller and Nilson testified that on these occasions—which they agreed accounted for the vast majority of his tardies—they did not notice that Holly was late, and only learned of these tardies from Human Resources prior to an annual review. Holly gave various disability-related reasons for being a minute or so late. "Occasionally," he said, one of several picnic tables in the break room had been moved in front of the time clock, blocking his access to the clock from his wheelchair. Although Clairson normally moved such tables as soon as Holly asked it to do so, Holly's supervisor from 1996 to 1999, Greg Huff, noted on some of his annual reviews that some of the tardies recorded there were due to occasions when the time clock had been blocked by a table. Miller similarly confirmed that "[t]he break area where the time clock was situated was extremely small. And due to the number of employees that the company had, they had to have a lot of tables in the breakroom to accommodate the people during their breaks and the time clock was back behind the tables. So when [Holly] came into the break area, he had to weave his way through the tables to get back to the clock. And it was like that up to, probably, six months before I left" in May of 2004.³

Holly testified that at other times, pallets of raw materials blocked the interior or exterior entrance to the break room. Because Clairson was short on storage space, he explained, it tended to store both raw materials and finished product in any dry place it could find. Holly testified that Miller often fought with Archie Mann, the person in charge of the production area in the warehouse, about the fact that "hallways, entrances, [the] tool room and occasionally the breakroom" were blocked, but that Mann would respond that he had nowhere else to place the materials, and that "more than once" Miller unblocked these places himself. Miller confirmed that Holly had complained to him "on several occasions" about various blockages and that Miller had discussed the problem with Mann, who had suggested that Holly simply arrive to work "ten or fifteen minutes earlier" to "move around our obstacles."⁴ Holly estimated that these blockages caused him to be late four or five times after the new policy went into affect.

Holly also said that "occasionally" he was unable to clock in on time because he was in a long line of fellow employees also trying to clock in.⁵ In addition, although every employee encounters the occasional car problem, he said that some types of car problems would be particularly difficult for him to fix, given his disability. Similarly, if it were raining heavily when he arrived at work, he sometimes waited in his car for the rain to subside; he had difficulty handling his wheelchair and an umbrella at the same time, and unlike his co-workers, once he was wet he would remain wet throughout the work day, since he was unable to stand up and dry off. Finally, Holly said that he sees a urologist three to four times per year for complications related to his disability, and that this, too, sometimes caused him to be late to work.

More rarely, Holly was noticeably late— by thirty minutes or more. Such lateness occurred when Holly lost bowel control while driving to work—a consequence of his disability—and had to return home to change before heading back to work again. Holly did not feel comfortable discussing this problem with Nilson, but when Holly's co-worker, Miller, was promoted to Mold Shop Manager, Holly confided in Miller.⁶ According to Miller, "what I did is, I approached my boss, Steve [Nilson], at that time, and he, in turn, approached Phil Effinger, [who] was the president of the company at the time, to express that and explain that. And that kind of helped us let some of those slide and it also helped us get him money at the end of the year when his reviews were due."

Mold Shop Managers were required to have their annual review of employees approved by Effinger. Nilson testified that Holly's number of tardies would "jump out" compared to those of other mold polishers, and that Holly sometimes did not receive a raise or received a lower raise than he otherwise deserved due to his tardiness, but that Holly "was kept on because of his job performance. In the Mold Shop Department a tardiness issue did not affect how work was done, versus, as it is in production. Manufacturing is really sensitive where mold building is not." Miller, who supervised Holly in his last several years...