William L. Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
______________________ JULY 17, 2001
THOMAS K. KAHN
CLERK
No. 00-14323
______________________
D.C. Docket No. 97-03837-CV-CAP-1
WILLIAM L. LUCAS,
Plaintiff-Appellant,
versus
W. W. GRAINGER, INC.,
Defendant-Appellee.
______________________
Appeal from the United States District Court for the
Northern District of Georgia
______________________
(July 17, 2001)
Before CARNES, COX and NOONAN*, Circuit Judges.
CARNES, Circuit Judge:
*
Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
William Lucas appeals the district court’s grant of summary judgment in
favor of W.W. Grainger, Inc. on his claims under the Americans with Disabilties
Act. He contends the district court erred in concluding that he was not disabled
within the meaning of the statute. He also contends the district court erred in
concluding Grainger did not unlawfully retaliate against him for engaging in
statutorily protected expression. On our way to affirming the district court’s
judgment, we address a number of issues about what constitutes reasonable
accommodation and a few relating to retaliation.
BACKGROUND
Grainger is an industrial commercial supply company that distributes
maintenance, repair, and operating products from warehouses that it operates
throughout the United States. On May 22, 1993, Grainger hired the plaintiff,
William Lucas, to work as a Material Handler at its Marietta Boulevard facility in
Atlanta.
Though Lucas was hired as a Material Handler, he began training for the
position of Will-Call Service Representative soon after he was hired. Like
Material Handler, the Will-Call job consists primarily of performing physical labor
in Grainger’s warehouse. However, unlike Material Handler, the Will-Call job
also involves a significant amount of interaction with Grainger’s customers, and it
2
is considered a promotion from Material Handler. Grainger describes the job
duties of a Will-Call Service Representative as follows:
When a customer places an order with a Customer Service
Representative, a purchase order is delivered to the Will-Call Service
Representative, who picks [up] and delivers the product from the
warehouse ... to the customer upon the customer’s arrival at the
branch. Will-Call Service Representatives ... are also required to
work in the warehouse on a daily basis, which includes performing
such functions as receiving freight, stocking products, pulling orders,
loading outbound trailers, and performing maintenance activities in
the warehouse. The essential functions ... include, among other
things, bending, stooping, climbing, carrying, reaching, pushing,
pulling, lifting up to seventy pounds on a regular basis, and operating
power equipment. Lifting more than ten pounds is an essential
function ....
Lucas trained for the Will-Call job for several months after he was hired,
although his actual job title remained Material Handler. By April of 1994, though,
Grainger needed someone to handle customer telephone calls at the Marietta
Boulevard facility, and it decided to train Lucas for the job of Customer Service
Representative instead. The Customer Service Representative position is
essentially a desk job, and Lucas trained for it by performing duties such as taking
orders from customers over the phone, and filling out paperwork. The job is
considered a promotion from both Material Handler and Will-Call Service
Representative.
3
Lucas performed primarily Customer Service Representative duties for much
of 1994. During that time, several customers complained about his phone
demeanor. For example, one customer complained to Grainger that Lucas had
spoken to him in a degrading fashion and that customer said he would not do
business with Grainger as long as Lucas was answering the phone. Due to the
complaints, Grainger decided Lucas was not cut out to be a Customer Service
Representative, and moved him back to working in the warehouse, where he had
less customer contact than he had during his training for the Customer Service
Representative job.
On October 15, 1994, Grainger officially promoted Lucas to the position of
Will-Call Service Representative, and he held that title during the remainder of his
employment with Grainger.
In May of 1996 Lucas injured his back while unloading a trailer. After
seeing a doctor about the injury, he told his boss, Paul Stewart, who worked as the
Branch Manager at the Marietta Boulevard facility, that his doctor had placed him
on complete bed rest. Lucas also told Stewart that he would be unable to return to
work until June 3, 1996 and that, upon returning to work, he would have to abide
by certain work restrictions, including lifting no more than ten pounds and
refraining from repetitive bending or stooping for two weeks.
4
Stewart promptly placed Lucas on short-term medical leave, and informed
him that when he returned to work Grainger would try to temporarily assign him to
duties that did not interfere with his work restrictions. Stewart also told Lucas that
he would eventually have to return to his Will-Call job, and reminded him that, due
to previous customer complaints, Grainger would not assign him to a Customer
Service Representative position on a regular basis.
On June 12, 1996, Lucas returned to work and presented a note from his
doctor to Grainger. The note permitted Lucas to perform office work, i.e., work
that did not entail manual labor, so long as he adhered to certain work restrictions.
At the time, there were no openings at the Marietta Boulevard facility for office
jobs, so Stewart temporarily displaced two employees from their jobs in order to
allow Lucas to take over their office duties. The displaced employees performed
the warehouse duties that Lucas would have performed as a Will-Call Service
Representative, while Lucas performed office duties exclusively.
On June 20, 1996, Lucas informed Grainger that he had developed
degenerative disk disease and lumbar disk syndrome in his back. The next day,
while he was performing his temporary office duties, Lucas told a manager at
Grainger that he could barely keep his eyes open and felt “knotted up inside.”
Lucas left work early that day, and he did not return for several days.
5
When he returned to work on June 26, 1996, Lucas made a request to
Stewart for an accommodation in the form of a permanent job that entailed “desk
work.” This was the first time Lucas requested an accommodation for his back
impairment from Grainger, although he subsequently made the same request on at
least one other occasion. At that time there were no desk jobs available at the
Marietta Boulevard facility, so Stewart inquired into job openings at Grainger’s
other Atlanta facilities. Eventually, Stewart was able to arrange three job
interviews for Lucas. The three positions, which all existed outside of the Marietta
Boulevard facility, were Quotations Specialist, Branch Support Specialist, and
Support Specialist for Grainger’s Lockheed account. Lucas testified in his
deposition that he applied for these three positions because he was under the
impression that they did not require physical labor.
Lucas interviewed for each of the three positions, but he was not selected to
fill any of them. According to Grainger, Lucas either was not qualified or was not
the most qualified person who applied for each one. The individuals who
interviewed and evaluated Lucas for the positions did not consider his work
restrictions in deciding not to select him.
Around July 8, 1996, Lucas notified Stewart that his doctor had yet to
release him from his work restrictions, and that the doctor had recommended he
6
permanently perform “light duty” work in order to avoid further injuring his back.
Lucas also informed Stewart that he would never work in the warehouse again,
even if he became physically able to do so, because he was afraid it might further
injure his back. Stewart responded by reminding Lucas that his office assignment
was temporary and that no permanent office jobs were available at the Marietta
Boulevard facility.
Four days later Lucas informed Stewart that his back impairment had not
improved and said that he could not and would not perform warehouse work.
Grainger then placed Lucas on workers’ compensation leave effective July 15,
1996, and Lucas began receiving workers’ compensation benefits. On January 8,
1997, Lucas filed a discrimination charge with the Equal Employment Opportunity
Commission.
Lucas remained on workers’ compensation leave for nearly one year. Then,
in June of 1997, Grainger offered him a job as a Bins Sorter at its Zone
Distribution Center (“Distribution Center”) in Atlanta. Grainger had created the
Bins Sorter position by identifying certain duties from existing jobs at the
Distribution Center, and combining those duties into a job that Grainger felt Lucas
could perform given his work restrictions. The Bins Sorter job entailed sorting
7
small bin items from a cart and placing them on racks, as well as using a scan gun
to identify the items by bar code.
Lucas visited the Distribution Center in order to learn more about the Bins
Sorter job first-hand. Thereafter, Grainger sent a typed form entitled “Job
Description” to Lucas’ physician, Dr. Christopher Clare. The form briefly
described what it called the “Essential Job Functions” of the Bins Sorter position,
listed the job’s physical requirements, and indicated that modifications to those
requirements were possible.
Dr. Clare made some changes to the Essential Job Functions part of the Job
Description form. First, where the form indicated that a Bins Sorter was
“occasionally” required to squat or kneel, Dr. Clare entered “Not at all.” Second,
where the form indicated that a Bins Sorter was “occasionally” required to lift or
carry “up to 40-50 lbs.,” and was “frequently” required to lift or carry “up to 10-25
lbs.,” he again entered “Not at all.” Dr. Clare then checked a blank space marked
“Approved” at the bottom of the form, signed the form, and returned it to Grainger
in September of 1997.
The district court found that by making these changes to the Job Description
form, Dr. Clare approved Lucas for the Bins Sorter position with minor
modifications that were consistent with the job’s essential functions. Lucas, on the
8
other hand, claims Dr. Clare rejected the Bins Sorter job because its minimum
requirements exceeded his work restrictions. He also claims that sometime after he
visited the Distribution Center, Dr. Clare’s office called and informed him that he
had not been approved for the Bins Sorter position.
Grainger did not offer Dr. Clare’s modified version of the Bins Sorter
position to Lucas. In fact, after Lucas visited the Distribution Center, he and
Grainger had no further contact regarding the Bins Sorter position or any other
position. Lucas maintains that he would have accepted the modified Bins Sorter
position if Grainger had offered it to him.
Lucas never returned to work with Grainger after he went on workers’
compensation leave; instead, in March of 1998 he began working for a different
company as an admissions inspector.
On December 29, 1997, Lucas sued Grainger in the Northern District of
Georgia, alleging that Grainger had violated the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq., by discriminating against him on the basis of
his impairment, by harassing him1, and by unlawfully retaliating against him.
1
Lucas has abandoned his unlawful harassment claim by not raising it in his initial brief
on appeal. See, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n.17 (11th Cir. 1999).
9
Lucas sought back pay, declaratory relief, reinstatement, front pay in lieu of
reinstatement, and compensatory and punitive damages.
Grainger responded by filing a motion for summary judgment, which the
district court granted on July 14, 2000. The court concluded that Lucas was not
“disabled” within the meaning of the ADA and, therefore, could not establish a
prima facie case for discrimination or for harassment. As for Lucas’ claim of
unlawful retaliation, the court determined that he had failed to establish a causal
link between a statutorily protected expression and any of Grainger’s alleged
adverse employment actions. Accordingly, the district court dismissed all of
Lucas’ claims and entered summary judgment in favor of Grainger.
DISCUSSION
We review the district court’s grant of summary judgment de novo, and
apply the same standards as that court. See Blake v. American Airlines, Inc., 245
F.3d 1213, 1215 (11th Cir. 2001).
A. LUCAS’ ADA DISCRIMINATION CLAIM
The ADA prohibits an employer from discriminating 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
10
employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of
discrimination under the ADA, the plaintiff must show that: (1) he is disabled; (2)
he was “qualified individual” at the relevant time, meaning he could perform the
essential functions of the job in question with or without reasonable
accommodations; and (3) he was discriminated against because of his disability.
See Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
An employer unlawfully discriminates against a qualified individual with a
disability when the employer fails to provide “reasonable accommodations” for the
disability – unless doing so would impose undue hardship on the employer. 42
U.S.C. § 12112 (b)(5)(A); 29 C.F.R. § 1630.9(a). An accommodation can qualify
as “reasonable,” and thus be required by the ADA, only if it enables the employee
to perform the essential functions of the job. See LaChance v. Duffy’s Draft
House, Inc., 146 F.3d 832, 835 (11th Cir. 1998). The plaintiff bears the burden of
identifying an accommodation, and of demonstrating that the accommodation
allows him to perform the job’s essential functions. See Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997); Willis v.
Conopco, Inc., 108 F.3d 282, 283 (11th Cir. 1997).
The ADA lists as examples of reasonable accommodations “job
restructuring, part-time or modified work schedules, reassignment to a vacant
11
position, acquisition or modification of equipment or devices, ... and other similar
accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B); see
29 C.F.R. § 1630.2(o)(2)(ii). As the list indicates, the ADA may require the
employer to “reassign,” i.e., transfer, the disabled employee to a vacant position as
a reasonable accommodation. The reassignment duty, however, does not require
the employer to bump another employee from a position in order to accommodate a
disabled employee. See Willis, 108 F.3d at 284. Nor does it require the employer
to promote a disabled employee. See EEOC v. Humiston-Keeling, Inc., 227 F.3d
1024, 1029 (7th Cir. 2000); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011,
1019 (8th Cir. 2000); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.
1998); Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996); see also Terrell v.
USAir, 132 F.3d 621, 626 (11th Cir. 1998) (citing White v. York Int’l Corp., 45
F.3d 357, 362 (10th Cir. 1995)); 29 C.F.R. pt. 1630, App. § 1630.2(o) (“It should
also be noted that an employer is not required to promote an individual with a
disability as an accommodation.”).
The district court determined that Lucas had not established a triable issue as
to whether he was disabled, and granted summary judgment in favor of Grainger
on his discrimination claim. We need not decide whether the district court
properly resolved that issue if there is another basis for affirming its judgment,
12
because we may affirm its judgment “on any ground that finds support in the
record.” Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308 (1957); see
Stewart, 117 F.3d at 1286. Assuming, without deciding, that Lucas’ back
impairment rendered him disabled, the district court’s grant of summary judgment
is still due to be affirmed, because Lucas has failed to put forth evidence sufficient
for a reasonable jury to find that Grainger discriminated against him because of his
disability.
Lucas contends that Grainger discriminated against him by failing to
reasonably accommodate his disability. According to Lucas, the ADA required
Grainger to accommodate his disability by doing one of the following: (1)
reassigning him to a Customer Service Representative position at the Marietta
Boulevard facility; (2) giving him one of the three positions for which he
interviewed; (3) reassigning him to the Distribution Representative position at the
Distribution Center; or (4) restructuring the Bins Sorter position in accordance with
Dr. Clare’s changes on the Job Description form and offering him that position.2
2
Lucas contends that Grainger failed to engage him in an “interactive process” with the
aim of identifying an accommodation that might allow him to continue working at Grainger after
he became disabled. See 29 C.F.R. § 1620.2(o)(3). However, “where a plaintiff cannot
demonstrate ‘reasonable accommodation,’ the employer’s lack of investigation into reasonable
accommodation is unimportant.” See Willis, 108 F.3d at 285 (citation omitted); accord Kennedy
v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir. 1999) (summary judgment is appropriate where
the plaintiff fails to identify a reasonable accommodation that the defendant refused to provide).
In other words, regardless of whether the ADA required Grainger to engage Lucas in an
interactive process, Lucas’ discrimination claims fail unless he can show that an accommodation
13
1. The Customer Service Representative Position
Lucas contends that Grainger discriminated by not reassigning him to the
Customer Service Representative position at the Marietta Boulevard facility. We
find no merit to this argument, because even if we assume (as we probably should
not) that Lucas was otherwise qualified to perform the duties of that position
notwithstanding the prior customer complaints about his lack of interpersonal
skills, there were no vacancies in that position, or in any other position involving
desk work, at the Marietta Boulevard facility. Indeed, the lack of vacancies there is
what prompted Stewart to set up interviews for Lucas at Grainger’s other Atlanta
facilities. Because there was no vacancy at the Marietta Boulevard facility for
Customer Service Representative, reassigning Lucas to that position would have
required Grainger to bump another employee from it, and that is not required by
the ADA.3 See Willis, 108 F.3d at 284.
reasonably could have been made. The ADA is not intended “to punish employers for behaving
callously if, in fact, no accommodation for the employee’s disability could reasonably have been
made.” Willis, 108 F.3d at 285.
3
The record reveals that when Stewart provided Lucas with a temporary office position
in June of 1996, which was just before Lucas first requested to be accommodated with a
permanent desk job, Stewart displaced two other employees from their office duties and had
them perform Lucas’ Will-Call job duties. That was more than the ADA required. Good deeds
ought not be punished, and an employer who goes beyond the demands of the law to help a
disabled employee incurs no legal obligation to continue doing so. See Terrell, 132 F.3d at 626
n.6 (“An employer that bends over backwards to accommodate a disabled worker ... must not be
punished for its generosity by being deemed to have conceded the reasonableness of so far-
reaching an accommodation.”) (internal marks and citation omitted).
14
Even if there had been an opening for Customer Service Representative at
the Marietta Boulevard facility, Grainger would not have been required under the
ADA to reassign Lucas to that position. Customer Service Representative is a step
up from Material Handler and from Will-Call Service Representative; it would
have been a promotion for Lucas. The ADA does not mandate that employers
promote disabled employees in order to accommodate them, see, e.g., Humiston-
Keeling, 227 F.3d at 1029, so Grainger’s failure to reassign Lucas to that job was
not discrimination under the ADA.
2. The Three Positions for Which Lucas Interviewed
Lucas next contends that Grainger discriminated against him by not
reassigning him to one of the three positions he interviewed for in June and July of
1996. He insists that there is a genuine issue of material fact as to whether he was
qualified to do those jobs. Be that as it may, as we have already explained, the
ADA does not require an employer to promote a disabled employee in order to
accommodate him. The individuals who interviewed Lucas for the three jobs, as
well as Stewart, all testified that the jobs would have been promotions from the
Will-Call Service Representative position, and Lucas offered no evidence to the
15
contrary. Therefore, Grainger did not discriminate against Lucas by failing to
reassign him to one of the three positions for which he interviewed.4
3. The Distribution Representative Job
Lucas also contends that Grainger discriminated against him by not
reassigning him to the Distribution Representative position at the Distribution
Center.5 That position became vacant sometime in the summer of 1996, when the
person who held it was promoted to Branch Support Specialist, which was one of
the jobs Lucas had interviewed for but had not gotten. Gary Powers, who managed
the Distribution Center, testified in his deposition that the Distribution
4
Grainger’s motion for summary judgment characterized the three positions as
“alternative employment opportunities that were reasonably available ....” Lucas maintains that,
“as a matter of policy,” Grainger’s characterization of the three positions in its summary
judgment motion ought to preclude it from arguing on appeal that placing him in those positions
was not required under the ADA. But Grainger’s characterization of the positions simply
acknowledges that they were “reasonably available” in the sense that there was a vacancy in
each one, and it does not speak to the issue of whether a promotion of Lucas to any of those three
positions was an accommodation Grainger was required to provide under the ADA.
5
Lucas also argues that Grainger was required under the ADA to reassign him to several
other positions that were available at the Distribution Center, but he does not identify any of
them. Instead, he cites in his brief to the deposition testimony of Gary Powers, who managed the
Distribution Center. Powers testified that he was “sure” there were “several positions” open at
the Distribution Center in the summer of 1996, including “warehousing, night crew, receiving,
picking, [and] packing,” and that the majority of those jobs were part-time. This testimony,
which consists solely of Powers’ speculation regarding the existence of vacant positions at the
Distribution Center, falls far short of the evidence needed to establish that a specific reasonable
accommodation, in the form of a vacant position, actually existed at the Distribution Center. See
Willis, 208 F.3d at 286 (“[E]stablishing that a reasonable accommodation exists is a part of an
ADA plaintiff’s case.”). Further, Lucas offered no evidence that he was “otherwise qualified”
for those unidentified jobs; he put forward no evidence that he could have performed the
essential functions of whatever jobs there were with or without reasonable accommodation. See
42 U.S.C. § 12111(8).
16
Representative job involved “some office duties ... as well as ... performing some
of the duties on the packing station line,” including “[p]reparing orders for
shipment, [and] so forth.” According to Powers, the job required physical labor.
In order to have survived Grainger’s motion for summary judgment on his
discrimination claim, Lucas must have put forth evidence sufficient for a jury to
find that he was “a qualified individual with a disability” – i.e., that he was
“otherwise qualified” for the Distribution Representative job. See Stewart, 117
F.3d at 1285; Duckett v. Dunlop Tire Corp., 120 F.3d at 1222, 1225 (11th Cir.
1997). He was “otherwise qualified” for that job if he could perform its essential
functions with or without reasonable accommodation. See 42 U.S.C.§ 12111(8)
(“The term ‘qualified individual with a disability’ means 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.”); Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000).
Our first task is to identify the essential functions of the Distribution
Representative job.
Essential functions are “the fundamental job duties of the employment
position the [disabled employee] holds or desires.” 29 C.F.R. § 1630.2(n)(1).
Determining whether a particular job duty is an essential function involves a
17
factual inquiry to be conducted on a case-by-case basis. See Davis, 205 F.3d at
1305. We have previously stated that, in conducting this inquiry, “consideration
shall be given to the employer’s judgment ... and if an employer has prepared a
written description ... for the job, this description shall be considered evidence of
the essential functions of the job.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365
(11th Cir. 2000) (quoting 42 U.S.C. § 12111(8)); see also 29 C.F.R. § 1630.2(n)
(listing additional factors to consider in determining whether a particular job
function is essential).
The evidence establishes without dispute that performing some of the duties
on the packing station line, which includes preparing orders for shipment, is one of
the essential functions of the Distribution Representative job. Performing those
duties requires physical labor.6 Lucas has failed to show he was “otherwise
qualified” for the Distribution Representative position, because he has not satisfied
his burden of putting forth evidence that he could, with or without reasonable
accommodation, perform the essential function of engaging in the physical labor
necessary to prepare orders for shipment on the packing line. Not only that, but
6
In his brief, Lucas insists that physical labor is not essential to performing the duties of
the Distribution Representative position, but he has failed to provide any evidence in support of
that argument, and Granger has put in evidence to the contrary. See Martinson v. Kinney Shoe
Corp., 104 F.3d 683, 687 (4th Cir. 1997) (adopting employer’s judgment of essential function
where plaintiff did not offer any evidence at the summary judgment stage to contradict that
judgment); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (same).
18
there is a bushel basket of evidence to the contrary: (1) in June of 1996 Lucas
requested to be accommodated with a permanent desk job because he felt he was
unable to perform physical labor in Grainger’s warehouse due to his back injury;
(2) Lucas testified in his deposition that he applied for the three jobs that Stewart
had set up interviews for in June and July of 1996 because those jobs “didn’t
require physical labor”; (3) in July of 1996 Lucas informed Stewart that he would
never work in Grainger’s warehouse again – even if he became physically able to
do so – because he did not want to risk further injury to his back; and (4) in
September of 1997, Dr. Clare, Lucas’ physician, modified the Job Description
form for the Bins Sorter position to eliminate the duties of squatting, kneeling,
lifting, and carrying because he felt that Lucas could not perform those duties with
his back impairment. Viewing all of this evidence in the light most favorable to
Lucas, we conclude that he has not created a triable issue about whether he was
“otherwise qualified” for the Distribution Representative position.7 See 42 U.S.C.
§ 12111(8); 29 C.F.R. § 1630.2(m); Duckett, 120 F.3d at 1225; Burch v. City of
7
Powers did testify that he believed there was “a possibility” Lucas was “minimally
qualified” for the Distribution Representative job. Putting aside questions about the
insubstantiality of a mere “possibility,” the context in which this statement was made shows that
Powers was talking about whether Lucas had developed the requisite job skills and experience to
perform the Distribution Representative job, not whether he could physically withstand the
demands of the job and thereby perform all of its essential functions with or without reasonable
accommodation.
19
Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999) (“The law in this area is crystal
clear: an otherwise qualified person is one who is able to meet all of the [job’s]
requirements in spite of his handicap.”) (internal marks and citation omitted).
4. The Bins Sorter Position
Finally, Lucas contends that Grainger should have restructured the Bins
Sorter position and offered it to him. He correctly points out that “job
restructuring” is an accommodation the ADA may require the employer to make in
some cases, see 42 U.S.C. § 12111(9)(B); but job restructuring is required only
where it is reasonable, see Terrell, 132 F.3d at 626. Lucas says that if Grainger had
restructured the Bins Sorter position in accordance with the changes Dr. Clare
entered on the Job Description form, and had offered him that job, he would have
accepted it.
An accommodation is “reasonable” and necessary under the ADA only if it
enables the employee to perform the essential functions of the job. See LaChance,
146 F.3d at 835; Willis, 108 F.3d at 284. The essential functions of the Bins Sorter
position are described on the Job Description form that Grainger sent to Dr. Clare.
The form states that the position’s “Essential Job Functions” include sorting items
from a cart and placing them on racks. According to the form, those functions
required “occasionally” – meaning from 1 to 3 hours per shift – lifting or carrying
20
items that weigh up to 40 to 50 pounds, as well as squatting or kneeling, and
“frequently” – meaning from 4 to 6 hours per shift – lifting or carrying items that
weigh up to 10 to 25 pounds. In Dr. Clare’s opinion, Lucas’ back impairment
precluded him from doing any of those things, which is why Dr. Clare struck
squatting, kneeling, lifting, and carrying from the list of job functions or activities
on the form. But those were essential functions of the Bins Sorter position.
While it is true that the ADA may require an employer to restructure a
particular job by altering or eliminating some of its marginal functions, employers
are not required to transform the position into another one by eliminating functions
that are essential to the nature of the job as it exists. See Earl, 207 F.3d at 1367;
Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997); Wells v.
Shalala, 228 F.3d 1137, 1145 (10th Cir. 2000); Donahue v. Consolidated Rail
Corp., 224 F.3d 226, 232 (3d Cir. 2000); Lloyd v. Hardin County, 207 F.3d 1080,
1084 (8th Cir. 2000); Robertson v. Neuromedical Ctr., 161 F.3d 292, 295-96 (5th
Cir. 1998); Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991). The difference
between the accommodation that is required and the transformation that is not is
the difference between saddling a camel and removing its hump. Restructuring the
Bins Sorter position by eliminating squatting, bending, lifting, or carrying bin
21
items would have changed the nature of the beast, and that is not something the
ADA requires.8
B. LUCAS’ ADA RETALIATION CLAIM
The district court also granted summary judgment in favor of Grainger on
Lucas’ ADA retaliation claim. The ADA provides that “[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by [the ADA] or because such individual made a charge ....
under [the ADA].” 42 U.S.C. § 12203(a). In order to establish a prima facie case
of retaliation, Lucas must show that: (1) he engaged in a statutorily protected
expression; (2) he suffered an adverse employment action; and (3) there was a
causal link between the adverse action and his protected expression. See Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999); Stewart, 117 F.3d
at 1287.
8
Lucas also contends that the ADA required Grainger to restructure his Will-Call
Service Representative job as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B)
(listing “job restructuring” as a possible reasonable accommodation). He maintains that
Grainger could have restructured that job by, for example, instituting “reasonable physical lifting
restrictions.” However, performing physical labor in Grainger’s warehouse was an essential –
indeed the core – function of the Will-Call job, and Lucas either could not or would not perform
that function. Lucas told Stewart that he would never work in the warehouse again, even if he
became physically able to do so, because he did not want to risk further injuring his back. When
asked in his deposition whether there was anything Grainger could have done after he injured his
back to help him perform his warehouse duties, Lucas answered “no.” Lucas either could not or
would not perform the essential functions of the Will-Call Service Representative job and,
therefore, he was not “otherwise qualified” to do it. See 42 U.S.C. § 12111(8); 29 C.F.R. §
1630.2(m).
22
Lucas claims that he engaged in a statutorily protected expression on June
26, 1996, when he asked Stewart for an accommodation in the form of desk work
and, again, on January 8, 1997, when he filed a charge with the EEOC. Moving
straight to the second element of a prima facie case of retaliation, we conclude that
Lucas has failed to produce sufficient evidence to permit a reasonable jury to find
that Grainger took an adverse employment action against him.
Lucas maintains that Grainger took an adverse action against him when
Stewart “actively solicited negative performance memoranda from several of ...
Lucas’ co-workers.” In August of 1996, after Grainger had placed Lucas on
workers’ compensation leave, Stewart and two other members of Grainger’s
management at the Marietta Boulevard facility submitted evaluations to Lucas’
employee file that were critical of his customer service skills.
An employment action is considered “adverse” only if it results in some
tangible, negative effect on the plaintiff’s employment. Here, the negative
performance evaluations did not result in any effect on Lucas’ employment with
Grainger. Grainger did not rely on the evaluations to make any employment
decisions regarding Lucas. Indeed, Lucas concedes in his brief to us that “Stewart
did not use [the evaluations]; he merely placed them in [my] file.” And Stewart
testified in his deposition that he “simply wanted something in the file” to support
23
his position that Lucas was not qualified to be a Customer Service Representative.
Negative performance evaluations, standing alone, do not constitute adverse
employment action sufficient to satisfy the second element of a prima facie case of
retaliation under the ADA.9 See Silk v. City of Chicago, 194 F.3d 788, 802-03
(7th Cir. 1999) (concluding that the plaintiff’s ADA retaliation claim fails because
“he provided no evidence that any injury or adverse employment action resulted
from the allegedly lower ratings [in his performance evaluations].”); Cossette v.
Minn. Power & Light., 188 F.3d 964, 972 (8th Cir. 1999) (“[T]he negative
evaluation does not by itself constitute an adverse employment action within the
ADA’s contemplation.”); see generally Davis v. Town of Lake Park, 245 F.3d
1232, 1241 (11th Cir. 2001) (“[C]ourts are wisely reluctant to treat job
performance memoranda as actionable under Title VII where they do not trigger
any more tangible form of adverse action such as a loss in benefits, ineligibility for
promotional opportunities, or more formal discipline.”).
Lucas also contends that Grainger took adverse action against him by failing
to reasonably accommodate him, by refusing to maintain him on light duty work,
and by failing to engage him in an interactive process. But this contention merely
9
Lucas also contends that Stewart took an adverse employment action against him by
harassing him and by threatening his job. However, he does not point to any evidence in support
of that contention.
24
reclothes Lucas’ ADA discrimination claim, which we have already rejected, and it
fares no better in this garb. See Stewart, 117 F.3d at 1288 (“[T]he acts Stewart
describes relate directly to her ‘reasonable accommodation’ discrimination claim,
not her retaliation claim, and accordingly provide no basis for denying summary
judgment on this issue.”).
AFFIRMED.
25