Riel v. Elect Data System ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40965
LARRY RIEL
Plaintiff-Appellant,
versus
ELECTRONIC DATA SYSTEMS CORPORATION
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
November 1, 1996
( )
Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This is a suit under the Americans with Disabilities Act, 42
U.S.C. §§ 12102-213 (West 1994). The district court granted
summary judgment to the employer, and the employee appeals. We
review de novo. Finding questions of material fact, we reverse and
remand.
I.
We take plaintiff’s summary judgment evidence as true and draw
all reasonable inferences in his favor. Rosado v. Deters, 5 F.3d
119, 122 (5th Cir. 1993).
Electronic Data Systems Corp. develops, markets, and maintains
computer-based systems for other companies. Typically, an EDS
contract with a customer defines the customer’s requirements and
the test and delivery dates for the computer system. Having
defined the customer’s needs and timetable, EDS breaks the
development and design of the system into small, discrete segments.
EDS assigns each segment to an individual or group of its
employees. Progressive segments of a project are generally built
on the prior segments. As a part of this process, EDS sets
completion dates for each segment, as well as intermediate (or
“milestone”) dates. The completion dates for the segments are
coordinated to insure that EDS meets the date for final delivery to
the customer.
Plaintiff Larry Riel worked for eight years in various
positions at EDS. Most recently, Riel worked as a systems
engineer. Riel has been a diabetic for decades. As a result, he
experiences vision and renal-system health problems. Riel alleges
that his diabetes and renal problems also cause severe fatigue,
periodically interfering with his job performance.
As a systems engineer, Riel worked on various segments of
EDS’s projects. In 1992, EDS assigned Riel to a computer project
under a new supervisor. Later in the same year, Riel began
suffering from fatigue. At that time, Riel did not know the
fatigue’s cause. Riel began to miss certain “milestone deadlines”
in his particular project. His new supervisor attributed this
failure to Riel’s tendency to socialize during work hours. Riel
attributes these failures to the fatigue caused by his renal
condition and diabetes. Whatever the cause, the parties agree that
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Riel never failed to meet the final deadline on any project; he
missed only the milestone deadlines. Riel claims that EDS adjusted
milestone deadlines for other employees when it was apparent that
a particular assignment was more burdensome than had been
previously thought, or when the employee in question needed special
accommodation.
In late 1992 and early 1993, EDS supervisors began trying to
remedy Riel’s inability to meet the milestone deadlines. After two
formal counseling sessions and a “below average” performance
rating, the supervisors resolved to place Riel on a “Personal
Improvement Plan.” The PIP included a series of several new
milestone deadlines. When they implemented Riel’s PIP, the
supervisors informed Riel that failure to meet any one of the new
milestones could constitute grounds for discharge. However, Riel
claims that in previous cases failure to meet milestone deadlines
by other employees on PIPs did not result in discharge.
Apparently consulting with an internal officer familiar with
the ADA, Riel’s supervisors also gave him a written list of what
EDS considered the essential functions of a systems engineer. The
list included the following: coding and testing programs,
responding to customer communications, interacting with other
staff, and working flexible hours. Meeting milestone deadlines was
not on the list. According to Riel, the record shows that he
performed all of the listed functions completely.
During the same month that EDS placed Riel on the PIP, Riel
had an emergency appendectomy. During surgery, doctors discovered
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that Riel’s diabetes had blossomed into renal failure. Riel and
his physician suggest that this renal failure caused his fatigue.
When EDS learned of Riel’s health problems, EDS asked Riel to see
EDS’s doctor. Riel twice complied. In the midst of these
physician visits, Riel’s direct supervisor spoke to Riel’s
physician, and listed for the doctor the essential functions of a
systems engineer; again, the list did not include meeting milestone
deadlines.
Eventually, Riel missed a total of thirteen PIP milestone
deadlines. Riel requested a transfer, but EDS refused and cited
its policy against transferring employees on PIPs or with “below
average” ratings. Then EDS fired Riel. The parties agree that EDS
fired Riel for failing to meet the milestone deadlines. The
parties dispute the extent of Riel’s progress at the time he was
fired. Accepting, as we must, Riel’s version of the record, Riel
was within two or three days of completing all of his assigned
tasks, and would have been able to complete all of them by EDS’s
scheduled final deadlines.
Following his termination, Riel sued, alleging that EDS
violated the ADA by failing to accommodate his renal failure and
accompanying fatigue. The district court applied the McDonnell
Douglas framework to analyze Riel’s contention of discrimination.
It found that Riel was not a “qualified individual with a
disability” because he could not perform the essential function of
meeting milestone deadlines, with or without accommodation, and
granted summary judgment. In the alternative, the district court
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also found that the accommodations sought by Riel were not
“reasonable accommodations” within the meaning of the act, which
also justified summary judgment for EDS. Riel now appeals.
II.
The ADA provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability . . . .” 42 U.S.C. § 12112(a). The term “discriminate”
includes “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual
with a disability . . . unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” Id. at §
12112(b)(5)(A). The ADA defines “qualified individual with a
disability” 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.” Id. at § 12111(8). “Reasonable accommodation” may
include “job restructuring, part-time or modified work schedules
. . . .” Id. at § 12111(9)(B). The “undue hardship” analysis
requires courts to consider factors including “the nature and cost
of the accommodation;” the size of the facility and the business
entity involved in terms of financial resources, personnel, and
geography; and the type of operations including composition,
structure, and function. Id. at (10)(B).
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The ADA mandate that employers must accommodate sets it apart
from most other anti-discrimination legislation. Race
discrimination statutes mandate equality of treatment, in most
cases prohibiting consideration of race in any employment decision.
In contrast, an employer who treats a disabled employee the same as
a non-disabled employee may violate the ADA. By requiring
reasonable accommodation, the ADA shifts away from similar
treatment to different treatment of the disabled by accommodating
their disabilities.
The terms “reasonable accommodation” and “undue hardship”
often go hand-in-hand. Although the terms are separately defined,
see § 12111(9)-(10), the ADA provides that employers are liable for
failing to make reasonable accommodations to qualified individuals
unless the employer demonstrates that the accommodation imposes
undue hardship. § 12112(b)(5)(A). Furthermore, employers with a
“business necessity” have a defense when they impose “qualification
standards, tests, or selection criteria that . . . tend to screen
out” individuals with disabilities. § 12113(a).
Ultimately, the employer bears the burden of proof for both
“undue burden” and “business necessity” because both are
affirmative defenses under the language of the statute. Section
12112(b)(5)(A) states that “unless [the employer] can demonstrate”
an undue burden, it may not discriminate. Similarly, section
12113(a) (titled “Defenses”) begins with the phrase “[i]t may be a
defense.” In contrast, discrimination is defined to be a “failure
to implement reasonable accommodations,” suggesting that the
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plaintiff bears the burden of proof on that issue. This places the
burdens where they comfortably fit--both within the statutory
scheme and the practical administration of pre-trial and trial
proceedings. The employee must show that the employer failed to
implement a reasonable accommodation, and the employer may defend
by showing business necessity or undue burden.
A.
Riel’s condition is a disability if he has “a physical or
mental impairment that substantially limits one or more of [his]
major life activities.” § 12102(2). The ADA does not define
“major life activities.” But EEOC regulations promulgated under
the ADA define “major life activities” as “functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.” 29 C.F.R. §
1630.2(I). Riel must show that he has a physical impairment and
that it substantially limits major life activities. Because Riel
points to fatigue related to his renal condition as causing his
substantial limitations, his evidence must show that his physical
condition of renal failure caused his fatigue. An employer does
not violate the ADA when it fires an employee for inability to
perform any job function, however trivial, when that inability has
nothing to do with the employee’s disability.
The record contains ample evidence to support a finding of
fact that Riel’s renal condition caused fatigue. Riel offered
medical testimony supporting his motion for summary judgment that
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one symptom of his renal condition was fatigue. Riel also offered
affidavits tending to show that the fatigue caused his inability to
meet the milestone deadlines. As the parties agree that EDS fired
Riel for missing the milestone deadlines, Riel has offered
sufficient evidence to avoid summary judgment on this element.
B.
Riel must also demonstrate that he is a “qualified individual
with a disability.” See §§ 12111(8), 12112(b)(5)(A). He must
demonstrate that “with or without reasonable accommodation, [he]
can perform the essential functions of the employment position.”
Id. at § 12111(8). The parties agree that Riel did not meet the
milestone deadlines. On the other hand, Riel’s evidence, viewed in
the light most favorable to him, shows that he can meet final
deadlines. The question is thus whether meeting milestone
deadlines alone, without regard to final deadlines, is an essential
function of the systems engineer position.
Congress did not specify which job functions are “essential”
under the ADA. It provided that whenever an employer gives written
descriptions of the essential functions of a job, that description
is entitled to substantial deference. 42 U.S.C. § 12111(8).
However, none of EDS’s written descriptions mention milestone
deadlines. The EEOC regulations accompanying the ADA define
“essential functions” as “the fundamental job duties of the
employment position.” 29 C.F.R. § 1630.2(n). Though the term does
not include “marginal functions,” those functions that are
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essential are not limited to those that are not marginal. See id.
A number of types of evidence are relevant to whether a function is
“essential,” including:
(i) The employer’s judgment as to which functions are
essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job; . . .
(iv) The consequences of not requiring the incumbent to
perform the function; . . .
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar
jobs.
Id. § 1630.2(n)(3). Riel introduced evidence suggesting that only
final deadlines are important to whether a systems engineer can
function within the EDS structure. Riel also introduced evidence
that EDS often adjusted milestone deadlines according to the
ongoing needs of other employees. And, as noted, neither the
written description of the essential functions of a systems
engineer given to Riel nor the oral description given to Riel’s
physician included meeting milestone deadlines. EDS now takes the
position that milestone deadlines are essential. Given the dispute
as to this material fact, Riel is entitled to present his evidence
to a jury.
We do not here hold that the absence of milestone deadlines
from either list is conclusive. On the contrary, neither list
included other obviously essential functions, such as regular job
attendance. Meeting all deadlines might fall into this category of
obviously essential tasks, absent other evidence. But Riel’s non-
list evidence is sufficient under the plain language of the statute
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to raise an issue of fact as to whether meeting milestone deadlines
is essential to the position of a systems engineer.
C.
Given that Riel’s summary judgment evidence presents questions
of fact on the first two issues, we still must address whether Riel
has proposed a “reasonable accommodation” to his disability.
Reasonable accommodation is an element of a prima facie case of
discrimination under the ADA, § 12111(8), and Riel thus bears the
burden of proof of reasonableness. However, a reasonable
accommodation is “a method of accommodation that is reasonable in
the run of cases, whereas the undue hardship inquiry focuses on the
hardships imposed by the plaintiff’s preferred accommodation in the
context of the particular [employer’s] operations.” Barth v. Gelb,
2 F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1538
(1994) (interpreting “reasonable accommodation” under the
Rehabilitation Act) (emphasis original).
Riel proposed two alternative accommodations to EDS: further
adjustment of the milestone deadlines and transfer to another
position within EDS that does not have milestone deadlines. Riel’s
summary judgment evidence tends to establish that he was capable of
meeting final deadlines and that he had always met them in the
past. In support of his proposed accommodations, Riel offered
evidence in the summary judgment proceedings illustrating that EDS
often transferred employees and that he himself had been
transferred repeatedly. At least one job that Riel had previously
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performed, teaching new systems engineers, had no deadlines at all.
Finally, Riel’s evidence suggests that EDS often relaxed milestone
deadlines for other employees who ran into unexpected difficulty
meeting them and that this caused no disruption to EDS so long as
the systems engineers finished project segments by the final
deadlines. These facts, put forward by Riel, meet his burden to
propose “reasonable accommodations.”
EDS argues it may prevail on summary judgment by demonstrating
that Riel’s proposed accommodations were unreasonable. EDS
contends that a relaxation of milestone deadlines would cause
disruption in its working structure, but this is for the trier of
fact. EDS also argues that it could not transfer Riel because of
its policy against transferring employees on PIPs or whose ratings
were “below average.” This contention turns the focus upon Riel’s
specific circumstances. In so doing, it mistakes the burdens of
proof allocated to the parties; Riel need only show an
accommodation reasonable “in the run of cases.” The evidence of
reasonableness “in the run of cases” and undue hardship will often
be overlapping and resist neat compartmentalization. Nonetheless,
they remain distinct inquiries even if asked of similar evidence.
EDS legally enjoys the affirmative defense of “undue
hardship.” But as EDS did not plead “undue hardship” and conceded
below that it was not defending on those grounds at the summary
judgment stage, our focus is limited to whether Riel has identified
accommodations reasonable “in the run of cases.” As we conclude
that a trier of fact could conclude that neither adjustment of his
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milestone deadlines nor transfer to a teaching position without
such deadlines is unreasonable “in the run of cases,” we must find
that Riel has met his burden at this stage. EDS may not place the
burden of proof of undue hardship on Riel merely by refusing to
plead the affirmative defense and then attacking his proposed
accommodations as unreasonable in his specific circumstance;
Congress’ intent was to place that burden on the employer. Rather,
if EDS wishes to refute Riel’s proposed accommodations as
unreasonable in his specific circumstance, it must plead the
defense and offer evidence to support it. Because EDS did not
raise this issue at the summary judgment stage, we are unable to
evaluate whether a question of fact exists on the issue, and we
remand to the district court for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
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