Sieberns v. Wal-Mart Stores, Inc.

• Decision Date: 11 September 1997
• Docket Number: No. 96-4199,WAL-MART,96-4199
• Citation: 125 F.3d 1019
• Parties: 7 A.D. Cases 433, 25 A.D.D. 76, 10 NDLR P 351 Monte K. SIEBERNS, Plaintiff-Appellant, v.STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1019

125 F.3d 1019

7 A.D. Cases 433, 25 A.D.D. 76, 10

NDLR P 351

Monte K. SIEBERNS, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.

No. 96-4199.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1997.

Decided Sept. 11, 1997.

John C. Theisen (argued), Holly A. Brady, Gallucci, Hopkins & Theisen, Fort Wayne, IN, for Plaintiff-Appellant.

Maria C. Campo, Baker, & Daniels, Fort Wayne, IN, John T. Neighbours (argued), Edward Edison Hollis, Baker & Daniels, Indianapolis, IN, for Defendant-Appellee.

Before BAUER, WOOD, Jr., and MANION, Circuit Judges.

MANION, Circuit Judge.

Monte Sieberns, who is blind, applied for a cashier/sales associate position at Wal-Mart. When he did not get the job he sued in federal court claiming that Wal-Mart discriminated against him in violation of the Americans with Disabilities Act ("ADA"). The district court granted Wal-Mart summary judgment and Sieberns appeals. We affirm.

I. Background

On October 18, 1995, Monte Sieberns, who is blind, applied to the Huntington, Indiana, Wal-Mart for a job as a cashier/sales associate in the Electronics Department. He completed an application and the next day was interviewed by the personnel manager, Sandra Bromfield. Following the interview, Bromfield met with Lana McQuitty, the store manager, to discuss Sieberns' application. The two reviewed the "Wal-Mart Stores' Matrix of Essential Functions." This matrix listed functions Wal-Mart believed essential to the position of cashier/sales associate. Some of these essential functions involved checking out customer purchases, customer assistance, flagging merchandise (which required the employee to write and secure price information on signs by merchandise), merchandise stocking (which required the employee to place merchandise on the correct counter or in the correct space according to the label or instructions), zone defense (which required the employee to straighten merchandise and clean the merchandise area), changing prices (which required the employee to use mark-up or mark-down instructions to change price labels from the current price to the new price on designated merchandise, and to record as needed), and scanning the merchandise. In the Electronics Department, the location of the sales associate position in question, there was an extensive selection of merchandise that required close scrutiny for price distinctions and variations for products, and throughout the store more than 44,000 items were available. After reviewing the matrix and the duties in the Electronics Department, McQuitty and Bromfield determined that Sieberns could not perform the essential functions of the cashier/sales associate position.

Before contacting Sieberns with the bad news, however, Bromfield and McQuitty discussed the possibility of finding another position at Wal-Mart for Sieberns. They considered the positions of people greeter and telephone operator, even though those positions were currently filled. After some extensive evaluation, Wal-Mart determined that there was no position presently available for which Sieberns could perform the essential job functions. Then Bromfield notified Sieberns of the her attempts to locate a position for him and her inability to offer him a job.

Believing that disability discrimination was the real reason for Wal-Mart's rejection, Sieberns filed suit under the Americans with Disabilities Act. Following discovery, Wal-Mart moved for summary judgment, claiming that Sieberns failed to present sufficient evidence that he was a "qualified individual with a disability" under the ADA. The district court agreed and granted Wal-Mart summary judgment. Sieberns appeals.

II. Analysis

We review a district court decision granting summary judgment de novo. Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1282 (7th Cir.1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Sieberns' suit is based on the ADA, the pertinent part of which provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a).

"Discrimination" as used in the ADA encompasses two distinct types of discrimination. First, it means treating "a qualified individual with a disability" differently because of the disability, i.e., disparate treatment. See Bultemeyer, 100 F.3d at 1283 (a claim "that other employees who were not disabled were treated more favorably .... [is a] claim for disparate treatment,...."). A disparate treatment claim under the ADA--like disparate treatment claims brought under other federal anti-discrimination statutes--may be proved either directly, or indirectly using the McDonnell Douglas ¹ burden-shifting method. Id. Additionally, because the ADA defines discrimination in part as "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual ...," 42 U.S.C. § 12112(b)(5)(A), a separate claim of discrimination can be stated under the ADA for failing to provide a reasonable accommodation. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996) ("Unlawful discrimination under the ADA includes both discriminatory discharge and the failure to provide reasonable accommodation.").

No matter the type of discrimination alleged-either disparate treatment or failure to provide a reasonable accommodation--a plaintiff must establish first that he was "a qualified individual with a disability." Bombard, 92 F.3d at 563 ("The ADA proscribes discrimination against only 'qualified individual[s] with a disability.' ") (quoting 42 U.S.C. § 12112(a)); Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th Cir.1996) ("Recovery under the ADA also requires a plaintiff to establish she is a qualified individual with a disability."). "A 'qualified individual with a disability' is defined, in relevant part, as: 'an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.' " Bombard, 92 F.3d at 563 (quoting 42 U.S.C. § 12111(9)).

In this case, the district court granted Wal-Mart summary judgment, concluding that Sieberns did not present sufficient evidence that he was "a qualified individual with a disability." On appeal, Sieberns argues that had Wal-Mart provided him a reasonable accommodation he could have performed the job of telephone operator, and that Wal-Mart not only failed to provide a reasonable accommodation, but also refused to hire him because he was blind. ²

Sieberns skips an essential point--he did not apply for a telephone operator position nor was such a job even available when he applied. He applied for and was denied a position as a clerk/sales associate in the Electronics Department. Sieberns concedes that he could not perform this job with or without an accommodation. ³ This is a very reasonable concession. That job required the employee to flag, stock, and price many types of highly expensive merchandise identified by a Universal Product Code which was displayed on each individual product, as well as the corresponding Wal-Mart shelf. McQuitty concluded that to accommodate him they would have to hire someone else to help perform some duties. That clearly was beyond a reasonable accommodation. Because Sieberns admits that he could not perform the clerk/sales associate position with or...