Summary
noting that Mays did not flatly reject the theory that a lifting restriction can amount to a disability
Summary of this case from Arnold v. Janssen Pharmaceutica, Inc.Opinion
Case No. 1:03-cv-1005-DFH-TAB.
January 4, 2005.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Defendant Acuity Lighting Group, Inc., which does business as Lithonia Lighting, Inc./Hi-Tek Group ("Lithonia"), manufactures large light fixtures for industrial and commercial use. Plaintiff Jarrod Nicholas was working for Lithonia as a Group Leader on its factory production lines when he injured his back while lifting a 70-pound light fixture. Lithonia initially accommodated a 20-pound lifting restriction but then ended Nicholas's active employment after his physician made the lifting restriction permanent. Nicholas has sued Lithonia for violating the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by firing him and failing to accommodate his disability.
Defendant Lithonia has moved for summary judgment. As explained below, the motion is denied. The central questions before the court — whether Nicholas is disabled under the law and whether Lithonia failed to reasonably accommodate his disability — depend on genuine issues of fact that cannot be resolved on a motion for summary judgment. Also, Lithonia's affirmative defense of failure to mitigate damages could serve to limit the relief available to Nicholas, but not to avoid the need for trial on the issue of liability. The fact that Nicholas participated in a vocational rehabilitation program after Lithonia fired him because it believed he could not handle the physical demands of his job does not bar his ADA claim as a matter of law.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the nonmoving party. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In deciding a motion for summary judgment, the court is not authorized to choose between conflicting testimony or to resolve credibility issues.
Undisputed Facts
In light of the summary judgment standard and the parties' submissions, the court assumes the following facts are true for purposes of the defendant's motion. Plaintiff Nicholas was hired at Lithonia in November 1998, initially as a manufacturing operator. After about a year, he became a Group Leader. During his employment, it was the stated policy of Lithonia to require all members of its factory production staff, including Group Leaders, to rotate among all positions throughout the plant. Workers would move from one job to another so that all workers would spend some time at every position throughout the day. Shaw Aff. ¶¶ 5, 9. The primary stated goals of this policy were to minimize workers' exposure to the risk of repetitive-motion injuries and to enhance the versatility of the workforce. Shaw Aff. ¶ 6.
A Group Leader at Lithonia functioned as a "working foreman" among the production staff. Group Leaders adhered to a less regular schedule of rotation than the typical production worker. Group Leaders filled in at various positions according to need when other workers took breaks, sick leave or vacation, or other such circumstances. Shaw Aff. ¶ 15.
Some of the production positions at Lithonia at times required lifting in excess of 50 pounds, depending on the fixture being manufactured. These positions were in the regular rotation. Each worker, including Group Leaders, could expect to spend some time performing at such positions and lifting in excess of 50 pounds. Shaw Aff. ¶¶ 10-11.
In June 2001, plaintiff injured his back lifting an approximately 70-pound fixture. A physician placed him on a temporary restriction under which he was not to lift weight in excess of 20 pounds or to bend or twist repetitively. With this restriction, on July 2, 2001, plaintiff returned to his regular duties as a Group Leader. The parties dispute whether plaintiff was officially placed in a "light duty" position. From plaintiff's point of view, the company assigned him to his regular job, with his 20 (and later 25) pound lifting restrictions, and without giving him special instructions about how to do his job within those restrictions.
To accommodate his restrictions, plaintiff as Group Leader sometimes altered the regular rotation by switching posts with other workers whenever the rotation or his duty to take the place of an absent worker would have placed him at a post where he might have had to lift weight in excess of his restrictions. When a regular line worker whose post required heavier lifting needed to take a break, plaintiff would often call on a "tester" to fill that position briefly, and he would fill in for the tester. Testers did not rotate through the line positions as a matter of course. The parties dispute whether this practice was unknown to Lithonia management and contrary to policy, or whether it was within the discretionary authority of a Group Leader and known and tacitly approved by management. Plaintiff is entitled to the benefit of the doubt on these questions at the summary judgment stage, of course, so the court must assume that Lithonia management knew what plaintiff was doing to work within his weight-lifting limitations. While plaintiff had the temporary lifting restrictions, he also was assigned to a position called "relock," and then to inventory return control. These positions did not require rotation of tasks and did not require lifting more than 20 pounds.
On January 23, 2002, plaintiff's physician made his lifting, twisting and bending restrictions permanent, and Lithonia was informed that same day that the restrictions were permanent. Lithonia immediately suspended him from further work. Lithonia contends that plaintiff was placed on leave pursuant to a policy whereby employees who are restricted from performing essential functions of their job can return to their jobs if the restricting conditions are mitigated within two years. Plaintiff characterizes this as the equivalent of termination, given the permanence of his restrictions. In any event, plaintiff has not worked for Lithonia since that day, and the court treats it as a termination for present purposes.
Since his departure from Lithonia, plaintiff has participated in the Indiana Vocational Rehabilitation program. The authorizing legislation for the program states: "An injured employee, who as a result of an injury or occupational disease is unable to perform work for which the employee has previous training or experience, is entitled to vocational rehabilitation services necessary to restore the employee to useful employment." Ind. Code § 22-3-12-1. Pursuant to this program, plaintiff has pursued a degree in computer technology at Indiana State University. Additional facts are noted below as needed, keeping in mind the standard on summary judgment.
Discussion
The ADA requires an employer to make reasonable accommodations that will allow a "qualified individual with a disability" to perform the essential functions of his or her job. 42 U.S.C. § 12112(b)(5)(A). Lithonia seeks summary judgment on the ground that Nicholas is not a "qualified individual with a disability" under the ADA. Lithonia argues first that Nicholas's lifting restrictions do not amount to a "disability" under the ADA. Lithonia also contends that Nicholas is not a "qualified individual." Under the ADA, a qualified individual is "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." 42 U.S.C. § 12111(8). Lithonia also argues that Nicholas's qualification for the Vocational Rehabilitation program estops him from asserting his ability to perform the essential functions of Group Leader at Lithonia. Lithonia argues that the company's rotation regime means that lifting in excess of 20 pounds is an essential function of every job at Lithonia, including Group Leader. Since Nicholas will never be able to lift in excess of 20 pounds, Lithonia argues, he will never be able to perform an essential function of the job, with or without accommodation, and therefore is not a qualified individual under the statute. All of these arguments present genuine issues of material fact.
I. Disability Under the ADA
Plaintiff Nicholas has come forward with evidence that would allow a reasonable jury to find that he has a disability because he is substantially impaired in the "major life activity" of working, in light of his experience and qualifications. The ADA defines a "disability" in pertinent part as "a physical . . . impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2). "Substantially limits" means that the person is either unable to perform a major life activity or is significantly restricted in the duration, manner, or condition under which the individual can perform a particular major life activity, as compared to the average person in the general population. 29 C.F.R. § 1630.2(j); Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001).
"Major life activities" are those activities that are of central importance to daily life. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). The EEOC's regulations treat self-care and working as major life activities. 29 C.F.R. § 1630.2(i). Although the Supreme Court has said that the regulations' treatment of working as a major life activity raises a "difficult question," see Williams, 534 U.S. at 200, that aspect of the regulations has not been rejected, see Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 953 (7th Cir. 2000). Similarly, the Seventh Circuit has questioned whether weight-lifting restrictions alone are sufficient to render someone disabled, see Mays v. Principi, 301 F.3d 866, 869-70 (7th Cir. 2002), but the court has not flatly rejected the theory, let alone taken the view that a lifting restriction, as a matter of law, can never amount to a disability, especially when it is part of a broader set of restrictions on an individual's ability to work. That determination calls for a more individualized inquiry, as explained below.
To be substantially limited in the major life activity of working, the individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2(j)(3)(i); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991, 998 (7th Cir. 2000). The ADA regulations define a class of jobs as "the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii). In the regulations, a broad range of jobs is the "job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." Id.
The Seventh Circuit has recognized that "The inquiry is an individualized one: whether this plaintiff's impairment constitutes a significant barrier to his employment." Moore v. J.B. Hunt Transport, 221 F.3d at 953. "`Factors to consider include the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual's job expectations and training.'" Id., quoting Byrne v. Board of Education, 979 F.2d 560, 564 (7th Cir. 1992). As part of that individualized consideration, the Seventh Circuit has explained, "the court must consider the effect of the impairment on the employment prospects of that individual with all of his or her relevant personal characteristics." Moore v. J.B. Hunt Transport, 221 F.3d at 953, quoting Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 784 (3d Cir. 1998).
On this record, a reasonable jury could find that Nicholas's back injury imposed restrictions on him that disqualified him from a class of jobs and a broad range of jobs, including many that would otherwise have been consistent with his education, training, and experience before the injury. The Third Circuit's decision in Mondzelewski, which the Seventh Circuit quoted with approval in Moore, reversed summary judgment for an employer in a case similar to this one, where weight-lifting restrictions prevented an employee from doing the physically demanding work he had been doing throughout his career. The court explained the required individualized analysis:
In determining whether an individual is substantially limited in the ability to work, the proper inquiry, according to the relevant regulation, is whether the individual is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) (emphasis added). This approach requires a court to consider the individual's training, skills, and abilities in order to evaluate "whether the particular impairment constitutes for the particular person a significant barrier to employment." Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996) (citing Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986)); accord E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1099 (D. Haw. 1980) (explaining that "it is the impaired individual that must be examined, and not just the impairment in the abstract"); 29 C.F.R. Pt. 1630, App. § 1630.2(j) (stating that the determination of whether an individual is limited in working must be conducted on a case by case basis). Because a "person's expertise, background, and job expectations are relevant factors in defining the class of jobs used to determine whether an individual is disabled," Webb, 94 F.3d at 487, the court must consider the effect of the impairment on the employment prospects of that individual with all of his or her relevant personal characteristics. Forrisi, 794 F.2d at 933. Thus, a substantially limiting impairment for one individual may not be substantially limiting for another individual with different characteristics. 29 C.F.R. Pt. 1630, App. § 1630.2(j); see also McKay v. Toyota Motor Mfg. U.S.A., Inc., 110 F.3d 369 (6th Cir. 1997) (finding plaintiff with carpal tunnel syndrome not disabled because, among other things, she had a college degree); Smith v. Kitterman, Inc., 897 F. Supp. 423, 427 (W.D. Mo. 1995) (finding plaintiff with carpal tunnel syndrome had raised material issue of fact because of her limited education, training, and employment background); Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 724 (2d Cir. 1994) (finding plaintiff not hindered in her ability to work because of her advanced educational degrees).
We accept this approach — under which an individual's training, skills, and abilities are taken into account in determining whether the individual is substantially limited in the major life activity of working — because we owe "substantial deference" to the EEOC regulation in which it is set out, see [ Deane v. Pocono Medical Center, 142 F.3d 138, 143 n. 4 (3d Cir. 1998)], and because it is entirely reasonable. Indeed, because the effect that a particular impairment will have on a person's ability to work varies depending on that person's background and skills, it is not easy to envision how any other approach could be taken.162 F.3d at 784. Under this individualized approach, the same impairment might amount to a disability for one person but not another. For example, a weight-lifting restriction or other impairment limiting a person's ability to do physically demanding labor might be a disability under the ADA for a person who has done such work most of his life, while the same impairment would not be disabling for a lawyer or office worker. In light of Nicholas's work for Lithonia for several years at positions where he was expected to lift heavy weights, a reasonable jury could find that the permanent weight-lifting restrictions substantially impaired him in the major life activity of working.
Nicholas's present status as a college student and any resulting employability as a computer professional are not relevant to his training, experience and education at the time Lithonia refused to accommodate his limitations. He had some college credits before hiring on at Lithonia, but this education was limited and at introductory course levels. That education certainly does not establish as a matter of law the lack of substantial limitation in the activity of working where Nicholas had been working for several years in this physically demanding position with Lithonia.
Also, Lithonia contends that plaintiff admitted in his deposition that he had no evidence to show any class of jobs or a broad range of jobs that he would be unable to perform due to his lifting restriction, and that plaintiff's affidavit improperly attempts to contradict this testimony. Def. Reply Br. at 11. The cited deposition question was: "Do you know the type and number of jobs in Crawfordsville or in the County or perhaps even in Terre Haute, or in the county that Terre Haute is located in, that those limitations would preclude you from performing? Do you have any idea on that score?" Nicholas answered: "If I were to do a study and find out what all jobs entail, then I could give you that, but I don't know." Lithonia's attorney responded: "Fair enough. Fair enough." Nicholas Dep. at 79.
This is not a situation where a party-witness has attempted to change his testimony about an historical fact of which he has personal knowledge. Instead, a party was asked on the spot what evidence he had to support a rather subtle legal point upon which he would bear the burden of proof. That point could be supported by expert testimony or by a "study" of the kind plaintiff implied he could do but had not yet done. A plaintiff certainly can try to prove this part of his case with evidence from sources other than himself. The attorney questioning Nicholas was not testing his memory about facts, but was asking him to do on-the-spot analysis of a complex question that could be decisive in the lawsuit. Regarding this type of question, it is neither surprising nor suspicious, and certainly not, as defendant contends, "treading on nearly sanctionable conduct," for the plaintiff to give the question more thought and a more detailed answer at a later time. In short, plaintiff has presented evidence that could allow a reasonable jury to find that he was substantially impaired in the major life activity of working.
On this same subject, Lithonia also criticizes Nicholas for a statement in his affidavit that attempts to clarify some deposition testimony about what percentage of manufacturing operator positions require lifting more than 20 pounds. Lithonia goes so far as to suggest this also "borders on sanctionable conduct." Def. Reply Br. at 8. In fact, as the case Lithonia cites on the point makes clear, it is well established that a witness may explain or clarify deposition testimony, which is often taken by hostile counsel, who may not be trying to obtain the clearest and most accurate account of the relevant facts. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001) ("Where a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy."), quoting Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995). In any event, there is no contradiction here between affidavit and deposition. In his affidavit, Nicholas was explaining a contradiction between a numerical estimate he had made on the spot to HR manager Shaw when he was fired, and testimony in his deposition, after he had had more time to consider the facts. See Nicholas Dep. at 92-93. There is nothing remotely sanctionable about that effort.
II. Qualified Individual under the ADA
Lithonia argues next that Nicholas's eligibility for the Vocational Rehabilitation program "estops him from any ADA-based recovery." To be eligible for that program, a person must be an injured employee "who as a result of an injury . . . is unable to perform work for which the employee has previous training or experience." Ind. Code § 22-3-12-1. According to Lithonia:
To qualify for benefits under the state statute Nicholas had to establish that he was unable to perform essential job duties. His eligibility is inherently inconsistent with his prima facie case requirements here. Nicholas cannot be a "qualified individual with a disability" who would have been able to "perform the essential functions" of his job "with or without reasonable accommodation" from his employer, and at the same time be unable to perform his essential job duties.
Def. Br. at 28. This argument fails because it treats the eligibility criteria of the state statute and those of the ADA as identical. The Supreme Court rejected an identical argument where a plaintiff qualified as "disabled" under the Social Security Act.
In our view, however, despite the appearance of conflict that arises from the language of the two statutes, the two claims do not inherently conflict to the point where courts should apply a special negative presumption like the one applied by the Court of Appeals here. That is because there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side.
For one thing, as we have noted, the ADA defines a "qualified individual" to include a disabled person "who . . . can perform the essential functions" of her job "with reasonable accommodation." Reasonable accommodations may include: "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." 42 U.S.C. § 12111(9)(B).
By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of "reasonable accommodation" into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI.Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 802-03 (1999).
This reasoning applies directly here. As plaintiff states: "The difference between the ADA and the Vocational Rehabilitation statute is that the [latter] is designed to provide training for people with disabilities, while the ADA is designed to provide redress for individuals with disabilities who can perform their work with reasonable accommodation. Qualification for Vocational Rehabilitation does not indicate one way or the other whether the employee could have continued in his previous line of work if the employer had reasonably accommodated the worker." Pl. Br. at 26-27.
Lithonia's argument on this score attempts to force a former employee to choose once and for all between asserting a claim under the ADA and seeking help from the state's Vocational Rehabilitation program. Litigation under the ADA can take a long time, and the pitfalls for a plaintiff are many. There is no reason in law or policy to force such a choice upon a worker who has just lost his job with an employer who insists he cannot perform his job, especially in light of the different purposes and legal standards that apply to the state program and the federal statute. When Nicholas applied for the Vocational Rehabilitation program, his former employer had already refused to make what Nicholas contends are reasonable accommodations that would have allowed him to keep his job. From Lithonia's perspective, then, Nicholas is unable to perform his prior work. There is certainly no more inconsistency in plaintiff's approach than there is in Lithonia's own position in the litigation, arguing that Nicholas both (a) does not have a disability, yet (b) is physically unable to perform an essential function of his job as Group Leader. The legal standards that apply to those positions are not identical, just as the legal standards that apply to Nicholas's positions are not identical. Lithonia is not entitled to summary judgment on this basis.
III. Reasonable Accommodation and Essential Functions
An employer violates the ADA by failing to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A). The statute provides that the term "reasonable accommodation" may include "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." 42 U.S.C. § 12111(9)(B).
The concept of a reasonable accommodation is central to the ADA and distinguishes the Act from other employment discrimination statutes. As the statutory definition plainly implies, the ADA may require the employer to modify its preferred practices and methods of doing business. The requirement may apply even where those practices and methods seem to be most efficient and even when they serve important and legitimate purposes, such as minimizing repetitive motion injuries or making the work-force more versatile. The point of the reasonable accommodation requirement is that employers must consider possible modifications of jobs that would allow an employee with a disability to perform them. "It is plain enough what `accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work." Vande Zande v. State of Wisconsin Dep't of Administration, 44 F.3d 538, 542 (7th Cir. 1995).
To establish a reasonable accommodation claim under the ADA, Nicholas must show that he could, with or without reasonable accommodation, perform the essential functions of his position. Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). He must then show that Lithonia failed to provide a reasonable accommodation that he needed to perform the essential functions of his position. The burden remains on the employee to show that a reasonable accommodation was possible. Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996).
Nicholas contends that Lithonia refused to engage in a good faith discussion of reasonable accommodations. Such a refusal does not give rise to a claim for relief by itself, but may shift the burden of production to the employer to show that no accommodation was possible. Mays v. Principi, 301 F.3d 866, 870 (7th Cir. 2002).
Lithonia asserts that, pursuant to its rotation policy, it is an essential function of the Group Leader position to be able to perform every production task. Since some of these positions require lifting over 20 pounds, Lithonia reasons, lifting over 20 pounds is an essential function of the Group Leader position. Lithonia managers have testified in their affidavits about the advantages to Lithonia of having all Group Leaders perform the functions of all of the different positions. See, e.g., Shaw Aff. ¶¶ 6, 7. Lithonia argues that "deviation from the rotation . . . is not to be tolerated [because it] incrementally enhances the potential risk of injury to the person or persons whose rotation schedule is disrupted." Def. Br. at 7.
Nicholas argues that reasonable accommodation is possible to avoid requiring him to lift in excess of 20 pounds while not compromising the goals of the rotation policy. He has supported this argument with evidence that the ability to perform all positions in the rotation is not in fact an essential function of the Group Leader position. Most specifically, Nicholas himself worked for several months as a Group Leader with the 20 pound limitation. He did so by having "testers" fill in for the heavier lifting positions when the Group Leader might otherwise have been expected to fill in. According to plaintiff's evidence, which the court must accept for present purposes, Lithonia's management knew that he was making these adjustments. What's more, management had returned him to the Group Leader position with knowledge of his weight-lifting limitations and essentially left to Nicholas himself the task of figuring out how to manage the job within those limits. A reasonable jury could find that he in fact worked successfully as a Group Leader in this fashion for several months, with the knowledge and tacit approval of Lithonia management. He could, he argues, be allowed to "swap" positions with other workers, as he was doing in the period after his injury.
Lithonia seems to suggest that the courts must simply defer to its judgment about which functions are essential functions for a Group Leader. See Def. Reply Br. at 6, quoting Peters v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002) ("Because we do not second-guess the employer's judgment as to essential functions, we affirm the district court's determination that lifting, heavy or otherwise, is an essential function of the Operator's job."), citing in turn DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998). Despite the use of such broad language, the statute, the regulations, and the Seventh Circuit all make it clear that courts should not merely rubber-stamp an employer's judgment about which functions are essential.
Beginning with the statute, the scope of essential functions is at the heart of one of the central compromises that Congress struck between employee and employer rights. The statutory definition of a "qualified individual with a disability" includes the following instruction: "For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). Congress thus instructed courts to "consider" the employer's judgment, not to defer to it, and certainly not to rubber-stamp it.
The regulations take a similar approach, providing a more detailed definition of "essential functions":
(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n). As even a casual reading shows, the employer's judgment as to which functions are essential is evidence on the point, but it is not necessarily controlling. The court should also consider the other types of evidence, including actual experience in the job and the consequences of not requiring the incumbent to perform the function. Also, of course, the regulatory list of types of evidence is not intended to be an exhaustive list. The regulation plainly does not invite courts to rubber-stamp an employer's judgment about which functions are essential. This definition is consistent with the statute and with the legislative history of the ADA, in which the key committee report noted that reasonable accommodations could include "job restructuring," which could include "eliminating nonessential elements of the job; redelegating assignments; exchanging assignments with another employee; and redesigning procedures for task accomplishment." H.R. Rep. No. 101-485(II) at 62, reprinted in 1990 U.S.C.C.A.N. 303, 344-45.
The Seventh Circuit also has made clear that the courts should not simply defer to the employer's judgment. Lithonia has quoted the broad language in Peters, 311 F.3d at 845, which cited as support DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998). In DePaoli, the appellate court affirmed summary judgment for an employer, finding that a factory worker with repetitive motion injuries was not able to perform the essential functions of her job, even with accommodation, and because there were no vacant positions to which she could have transferred. On the issue of essential functions of the job, the Seventh Circuit wrote:
DePaoli's case ultimately fails because she must do more than establish that she is disabled. She must also show that she was a "qualified" individual with a disability, meaning that she could perform the job either with or without reasonable accommodations. See 42 U.S.C. § 12112(a); 42 U.S.C. § 12111(8). An employer would not, of course, be entitled to announce that the lack of any ADA disability was a "qualification" for a job, nor would it be entitled to create pretextual qualifications. Cf. Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir. 1997) (qualifications must be established for "valid" reason). However, because there are no allegations here that Abbott has engaged in such improper conduct, the statute directs us to focus on the employee's ability to perform the "essential functions" of the position. See 42 U.S.C. § 12111(8). Although we look to see if the employer actually requires all employees in a particular position to perform the allegedly essential functions, see Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) and 29 C.F.R. Pt. 1630, App. § 1630.2(n), we do not otherwise second-guess the employer's judgment in describing the essential requirements for the job. See E.E.O.C. v. Amego, Inc., 110 F.3d 135, 147 (1st Cir. 1997) (inquiry into essential functions is not intended to second-guess employer's business judgment); Riel v. Electronic Data Systems, Corp., 99 F.3d 678, 682 (5th Cir. 1996) ("substantial deference" to be given to employer's written descriptions of "essential functions"); 42 U.S.C. § 12111(8) (consideration should be given to employer's written description of "essential functions"); 29 C.F.R. Pt. 1630, App. § 1630.2(n). Cf. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678-79 (7th Cir. 1998).140 F.3d at 674.
A close look at this passage and the cited sources shows that the Seventh Circuit did not intend for "consideration" of an employer's judgment to drift off into abdication or the proverbial rubber-stamp. Most instructive is Riel, in which the Fifth Circuit held that the employer's judgment about which functions were essential did not entitle the employer to summary judgment. The plaintiff Riel was an engineer who suffered from a renal condition that caused fatigue. His illness sometimes caused him to miss interim or "milestone" deadlines on his projects, but the parties agreed that he had never missed a final deadline on a project. The decisive issue was whether meeting the interim milestone deadlines was an essential function of the engineer's job, as the employer claimed. The plaintiff responded with evidence showing that other engineers missed milestone deadlines, which were often adjusted when projects turned out to be more challenging than expected. Also, the written and oral job descriptions had not listed meeting milestone deadlines as an essential function.
The Fifth Circuit paid close attention to the language of the regulation, with its multiple factors, and found that the district court erred in deciding the issue in favor of the employer on summary judgment. 99 F.3d at 682-83. Although the Fifth Circuit introduced the phrase "substantial deference" to paraphrase the statutory phrase "consideration shall be given to the employer's judgment" in 42 U.S.C. § 12111(8), it actually applied the law in such a way that conflicting evidence from the employee about the way the job was actually performed could support a contrary conclusion. 99 F.3d at 683.
In EEOC v. Amego, Inc., the First Circuit borrowed the "second guess" phrase from the EEOC's Interpretive Guidance for employers, 29 C.F.R. Part 1630, App. The Interpretive Guidance states in the discussion of the definition of "essential function" in § 1630.2(n) of the regulations:
It is important to note that the inquiry into essential functions is not intended to second guess an employer's business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers to lower such standards. (See § 1630.10 Qualification Standards, Tests and Other Selection Criteria). If an employer requires its typists to be able to accurately type 75 words per minute, it will not be called upon to explain why an inaccurate work product, or a typing speed of 65 words per minute, would not be adequate. Similarly, if a hotel requires its service workers to thoroughly clean 16 rooms per day, it will not have to explain why it requires thorough cleaning, or why it chose a 16 room rather than a 10 room requirement. However, if an employer does require accurate 75 word per minute typing or the thorough cleaning of 16 rooms, it will have to show that it actually imposes such requirements on its employees in fact, and not simply on paper.29 C.F.R. Pt. 1630, App. (emphasis added). This interpretive guidance obviously leaves room for a plaintiff like to come forward with evidence contradicting the employer's claim as to whether a particular function is essential, based in part on the way the job is actually performed.
Similarly in Milton, the Tenth Circuit recognized that the employer's judgment was entitled to consideration but would not necessarily be decisive. In the absence of contradictory evidence, though, the employer's judgment turned out to be in fact decisive. The court wrote: "Although ordinarily a fact question to be decided on a case-by-case basis, see 29 C.F.R. Pt. 1630, App. § 1630.2(n), plaintiffs have presented no evidence to rebut the conclusion that speed is essential to the selector job." 53 F.3d at 1124. For present purposes, the most important point in Milton is the reminder that whether a function is essential is ordinarily a fact question to be decided on a case-by-case basis.
The evidence from plaintiff Nicholas in this case falls squarely within the reasoning of these cases and the language of the statute and regulations. As the Seventh Circuit itself wrote in DePaoli v. Abbott Labs., "we look to see if the employer actually requires all employees in a particular position to perform the allegedly essential functions." 140 F.3d at 674. Nicholas has come forward with evidence tending to show that a Group Leader can function effectively by managing his own work and the work of other employees so as to accommodate a 20-pound lifting restriction. Viewed in the light reasonably most favorable to Nicholas, moreover, the evidence would allow a jury to find that Lithonia management approved of such steps. The court recognizes that Lithonia's evidence in the litigation would support different conclusions, but that fact simply underscores the need to deny summary judgment on the question. Accordingly, the consideration to which Lithonia's judgment is entitled does not mean that it prevails on this issue as a matter of law. See, e.g., Riel, 99 F.3d at 682-83 (reversing summary judgment in favor of employer).
Lithonia relies on another ADA case in which it prevailed, Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002), to argue that its rotation policy is "ADA-approved." Def. Br. at 5-6. In Watson, the plaintiff had suffered a shoulder injury that limited her ability to do repetitive motions on the assembly line. Lithonia found work for her to do on a temporary basis, but when her restriction was deemed permanent, Lithonia fired her. The plaintiff sought relief under the ADA, arguing that she could have been accommodated with a change in assignment, including a change in Lithonia's rotation requirements. The Seventh Circuit affirmed summary judgment for Lithonia. The appellate court found that the stated purposes of Lithonia's rotation regime were legitimate. The court also concluded that Lithonia was not required to create what would be, in essence, a new position to accommodate a factory worker with repetitive motion injury.
Watson differs from this case, however, based on both the relief sought and the quality of the evidence submitted. First, Nicholas is not asking for the creation of a new position; he simply asks to be allowed to continue performing as he had been, to the apparent satisfaction of Lithonia. Second, in Watson, the plaintiff submitted an affidavit asserting that Lithonia had not actually applied its rotation requirements to all employees. As a matter of law, such evidence might undermine a claim that a function is essential, for the reasons discussed above. In Watson, however, the Seventh Circuit held that the affidavit was not sufficient to present a genuine issue of fact because the affidavit did not establish that Watson had personal knowledge such that she could testify about the matter. 304 F.3d at 751-52. Without that evidence, there was nothing to rebut Lithonia's evidence tending to show that the rotation policy was consistently applied.
In this case, of course, Nicholas can point to his own experience to show that the Group Leader position can be performed to Lithonia's satisfaction within his weight-lifting restrictions. That evidence is sufficient to distinguish the two cases and to present a genuine issue of material fact as to whether strict adherence to the claimed rotation policy is truly an essential function of the job. The point of the ADA's reasonable accommodation requirement is that employers must consider possible modifications of jobs that would allow an employee with a disability to perform them. "The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work." Vande Zande, 44 F.3d at 542 (emphasis added). If one indulges the usual micro-economic assumption that a successful employer free of legal constraints will adopt the most efficient production methods, the reasonable accommodation requirement is plainly intended to require some changes away from the employer's preferred methods of production. Recall that the House committee report on the ADA explained that accommodation by "job restructuring" could include eliminating nonessential elements of the job, redelegating assignments, and exchanging assignments with another employee. 1990 U.S.C.C.A.N. at 345.
Lithonia's position in this lawsuit is that if Nicholas cannot perform every job it might want a Group Leader to perform, then he cannot perform any job as a Group Leader. When asked if it was Lithonia's "official position" that "every employee has to be able to do the hardest job in the plant," Lithonia's human resources manager responded, "That is correct." Shaw Dep. at 35. That theory presents a genuine issue of fact as to whether the absolute adherence to the rotation requirement is an essential function of the job or whether it could be modified to save an employee's job without imposing an undue hardship on the employer.
IV. Failure to Mitigate
Lithonia also argues that Nicholas, by entering college, "abandoned the labor market of his own volition, and abdicated his duty to mitigate." Def. Br. at 27-28. Lithonia cites the statutory duty to mitigate damages imposed by 42 U.S.C. § 2000-e5(g) and made applicable to ADA claims by 42 U.S.C. § 12117(a). However, the duty to mitigate damages imposed by these provisions may be relevant to questions of remedies, such as calculating back pay and accrual of back pay liability. It is not relevant on summary judgment to the question of liability itself.
V. Local Rule 56.1(b)
This court's Local Rule 56.1 establishes procedural requirements for summary judgment in this district. Rule 56.1(b) requires in pertinent part that a brief in opposition to summary judgment contain a section labeled "Statement of Material Facts in Dispute" which:
. . . responds to the movant's asserted material facts by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment. These facts shall be supported by appropriate citations to discovery responses, depositions, affidavits, and other admissible evidence either already in the record or contained in an appendix to the brief.
The plaintiff's brief did not contain a section with the prescribed heading. Lithonia argues that "Plaintiff's disregard of Local Rule 56.1(b) compels the Court to enter judgment in favor of Defendant." Def Reply Br. at 2. In a word, no. "The Court may, in the interests of justice or for good cause, excuse failure to comply strictly with the terms of this rule." S.D. Ind. Local Rule 56.1(i). As the Seventh Circuit has explained, the district court has discretion to decide, in the interests of justice, how strictly to enforce such a local rule. Harmon v. OKI Systems, 115 F.3d 477, 481 (7th Cir. 1997) (affirming this court's decision to excuse moving party's failure to comply strictly with formal requirements of Rule 56.1 where opponent and court could easily understand the legal and factual issues).
In this case, the interests of justice plainly call for some flexibility. This is a relatively straight-forward case with a limited factual record. Nicholas's brief plainly sets forth his points of disagreement with Lithonia. His affidavit provides point-by-point rebuttal to Lithonia's assertions of undisputed facts. The court did not need to search the record on its own for supporting evidence, nor did the court have difficulty understanding the parties' points of legal and factual dispute.
If the court were inclined to be as strict in enforcing these formal requirements as Lithonia suggests, its own brief is vulnerable to similar criticism. It starts out its "Statement of Material Facts Not in Dispute" with a short description of Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002), stating that the court "expressly approved the progressive treatment of temporarily and permanently disabled production workers" at the Crawfordsville facilities. The "Statement of Material Facts Not in Dispute" is obviously intended to address facts of the sort that can be supported by evidence, not a visit to the law library or the Westlaw database. Presenting this case citation and the claim about the effects of the ruling in the form of an "undisputed fact" is a plain invitation for a response that amounts to legal argument, and that is the response it drew.
Conclusion
Whether Nicholas is disabled under the law and whether Lithonia failed to provide reasonable accommodations for his disability depend on genuine issues of fact that cannot be resolved on a motion for summary judgment. Accordingly, the defendant's motion for summary judgment is denied. Trial remains scheduled for February 14, 2005.So ordered.