Rauen, Beverly J. v. US Tobacco Mfg ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3973
BEVERLY J. RAUEN,
Plaintiff-Appellant,
v.
UNITED STATES TOBACCO MANUFACTURING
LIMITED PARTNERSHIP,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6972—Milton I. Shadur, Judge.
____________
ARGUED NOVEMBER 4, 2002—DECIDED FEBRUARY 10, 2003
____________
Before BAUER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. This case involves Beverly
Rauen’s claim under the Americans with Disabilities Act
(“ADA”) that her employer, United States Tobacco (“UST”),
discriminated against her by failing to provide a reason-
able accommodation for her disability. The district court
granted UST’s summary judgment motion, holding that
Rauen was not entitled to an accommodation because,
although she was disabled, she could perform the essential
functions of her job without any accommodation. For the
reasons set forth in the following opinion, we affirm the
district court’s decision.
2 No. 01-3973
I. History
A. Rauen’s Work at UST
Rauen began working as a secretary for UST, a smoke-
less tobacco manufacturer, immediately after graduating
high school in 1968. While working for UST, she was able
to obtain a college degree in 1977 through UST’s tuition
reimbursement program. She received various promo-
tions, including one in 1987 when UST made her a soft-
ware engineer in its Nashville, Tennessee facility. After
four years of work in Nashville, Rauen moved to the com-
pany’s plant in Franklin Park, Illinois. She remained in
Franklin Park as a software engineer from approxi-
mately 1991 until the present litigation.
According to UST’s Software Engineer Position Profile,
Rauen is expected to spend 60% of her time managing
capital projects at the Franklin Park facility; 20% of her
time serving as a liaison between UST’s Nashville and
Franklin Park facilities; and the remaining 20% ensuring
that various systems and programs are performing as
designed. Both parties agree that Rauen’s primary duties
involve monitoring contractors’ work at the Franklin Park
facility, answering contractors’ questions as they arise,
and ensuring that the contractors’ work does not interfere
with the manufacturing process.
B. Rauen’s Health Problems
In April 1996, Rauen was diagnosed with rectal cancer.
She had to have several surgeries and undergo radiation
and chemotherapy treatments. Unable to work as a result
of these treatments, Rauen went on short-term disability
leave from April to October 1996, and then on long-term
leave from October to December 1996. UST held her job
open during this leave. Rauen returned to work in January
1997 and was able to work without further leaves of
No. 01-3973 3
absence or accommodations throughout that year. Unfor-
tunately, in January 1998, Rauen was diagnosed with
breast cancer and had to undergo various treatments that
again left her unable to work. UST again accommodated
Rauen’s condition by granting her short-term disability
leave from January to July 1998 and long-term disability
leave from August 1998 to January 1999. She returned
to work on January 13, 1999, and was able to work full
time, without further leave, from January 1999 through
October 2001.
According to Rauen, her sickness and treatments have
taken their toll, making it more difficult for her to per-
form various daily activities. For instance, because she
is without a portion of her small intestine and must take
in two liters of IV fluids daily, she has to use the bath-
room up to fourteen times a day. The fluid intake and
rapid flow through her system requires her to wear an
ostomy appliance that must be emptied frequently. Be-
cause of her small size, the appliance does not fit her
properly and often leaks, causing skin rashes. Her condi-
tion also produces overwhelming fatigue, forcing her to lie
down and rest often. Getting to work can be difficult be-
cause she sometimes must stop and use the restroom on
the way, and the fatigue she experiences increases her
chances of falling asleep behind the wheel.
C. Rauen’s Accommodation Request
Because of these complications, upon returning to work
in January 1999, Rauen presented UST with a letter from
her doctor stating that it would be beneficial for her to
work from a home office. In response to this letter, UST
requested that Rauen sign a release form permitting its
independent contractor health and disability consultant,
Dr. Cassidy, to obtain Rauen’s medical information in order
to review her accommodation request. Rauen, however, re-
4 No. 01-3973
fused to sign the release. Her refusal, she informs us,
stemmed from concern over the fact that Dr. Cassidy, in
addition to being a medical doctor, also held a law degree,
and she did not feel comfortable giving her medical rec-
ords to a lawyer who worked for UST. Thus, no further
action was taken by either party pursuant to this initial
accommodation request, and Rauen continued to work full
time at the office.
In May 1999, she presented UST with another letter,
renewing her request to work at home. Although she had
still not signed the medical release, UST agreed to meet
with her on May 6, 1999, to discuss possible accommoda-
tions. Rauen made detailed notes of this meeting. Both
parties agree that her notes accurately reflect the events
that transpired. The relevant portions of those notes are
reproduced below:
11. They asked how this home office would work.
How many days would I be at home. I said I would be
at the plant as needed—that my job was not routine, it
was project oriented, so that, as projects required it, I
would be here 7 days a week, that, in the past, I have
worked 20-hour days . . . . But if there were no reason
to be here, then I would be home. They said they felt
that some structure was needed, maybe coming to
work 1 day each week. I said I could see no reason to
do that for the sake of doing that. They said they felt
that things going on in the Plant would affect my
projects and that I needed to be here to know what’s
going on. I said I could do that by phone and, when I
felt it was necessary, I would go to the Plant. So they
said you want a home office in its entirety, that a
partial home office was not acceptable. I said yes . . . .
12. They asked who would determine when I came to
work. I said if John wanted me for a meeting or other
reason, I would be here. If I had meetings I would be
No. 01-3973 5
here. John said, “but you would determine when
you would be here, right. Right now, I don’t know
what time you get to work or what time you leave
work, do I.” I said no, that’s right; for the most part, I
would determine when I would be here.
17. They asked me if there was any accommoda-
tion they could make at work for me. I said No. They
said we could provide you with private facilities. I said
that would not help. They said we could give you a
place to rest during the day. I said if I want to rest I
can lay down on the floor in my office. They asked
what it was that made it difficult for me to come to
work everyday. I said that if I could stay home, there
are things that I would not have to do everyday that
I have to do now, that I get very tired, and that I have
Leukopenia.
(Def.’s Statement of Material Facts, Doc. 42, Exhibit V,
¶¶ 11, 12, 17.)
It is apparent from these notes that the accommodation
Rauen sought was a home office “in its entirety.” According
to her, she would accept nothing less than being allowed
to work from home when she thought she was not needed
at the office.
After the meeting, no further discussions about her
accommodation request took place for over a year. UST
did not inquire further about Rauen’s ability to do the
essential functions of her job at home, and it did not
formally refuse her request to do so. Rauen did not seek
further discussions, nor did she sign the medical release
form that would have allowed UST’s health and disabil-
ity consultant to review her request.
In August 1999, four months after the meeting, Rauen
filed a charge of disability discrimination with the EEOC.
She did not inform UST that she was filing the charge,
nor did she modify her initial request for a home office.
6 No. 01-3973
Rather, she immediately sought a right-to-sue letter, and,
on October 25, 1999, she filed this action alleging, among
other things, that UST violated the ADA by not granting
her a home office accommodation.
The next communication between Rauen and UST about
an accommodation occurred in September 2000, when she
sent UST another letter from her doctor asserting that it
would benefit her to work at home. The parties never met
concerning this request, each blaming the other for the
failure to get together.1
The district court granted UST’s motion for summary
judgment on the ADA claim in October 2001, basing its
decision on the fact that Rauen could and did perform all
essential aspects of her job without accommodation. Rauen
worked full-time at the office throughout the entire peri-
od from January 1999, when she returned to work follow-
ing her second leave of absence, to October 2001, when
the district court ruled against her. In fact, Rauen main-
tains, and UST agrees, that despite not receiving the
requested home office accommodation, she continued to
perform the essential functions of her job as a Software
Engineer exceedingly well. Moreover, both parties agree
that she was actually performing duties “above and be-
yond that of a software engineer,” in that she was also
doing many duties of a project engineer. (Rauen Br. at 7.)
The district court held that since Rauen could perform
the essential aspects of her job without accommodation
1
The district court noted, and we agree, that it is apparent that
neither UST nor Rauen engaged in the interactive process in
good faith. But we, like the district court, do not base our decision
on a breakdown in the interactive process.
No. 01-3973 7
that she was not entitled to any accommodation.2 Rauen
now appeals that decision. We affirm the district court’s
decision, but we reach our conclusion through different
analysis.
II. Analysis
A. Standard of Review
We review the grant of a motion for summary judg-
ment de novo, construing the evidence in the light most
favorable to the nonmoving party. Bellaver v. Quanex
Corp., 200 F.3d 485, 491-92 (7th Cir. 2000). Summary
judgment is proper if the record shows “that there is
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); see also Celotex Corp. v. Cartrett, 477
U.S. 317, 322-23 (1986). Moreover, we may affirm a
grant of summary judgment “on a ground other than
that relied upon by the district court below, so long as the
alternative basis finds adequate support in the record.”
EEOC v. North Knox Sch. Corp., 154 F.3d 744, 746 (7th
Cir. 1998) (quotation omitted).
B. The ADA Claim
The basic rule of the ADA is that an employer “shall
[not] discriminate against a qualified individual with a
2
It bears noting that the district court, contrary to what the
EEOC’s amicus brief suggests, actually did not put forth a hard-
and-fast rule, rather it stated that “[t]here may perhaps be
situations in which an employee, although capable of performing
the essential functions of her job, may be entitled to some form
of accommodation because it is wholly unreasonable to require
her to perform her work without accommodation. But Rauen’s
counsel has not made that argument.” (R. Doc. 55, p. 13.)
8 No. 01-3973
disability because of the disability of such individual . . . .”
42 U.S.C. § 12112(a). The ADA provides that the term
“discriminate” includes “not making reasonable accom-
modations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity
can demonstrate that the accommodation would impose
an undue hardship on the operation of the business . . . .”
42 U.S.C. § 12112(b)(5)(A). Therefore, to prevail on her
ADA claim Rauen must show that she has a disability,
that she is “otherwise qualified” for the job, and that her
employer refused to make a “reasonable accommodation”
for her disability.
In this appeal, the parties do not dispute that Rauen
has a disability within the ADA’s definition or that she
is “otherwise qualified.” The issue before us is whether
UST has discriminated against Rauen by failing to make
a “reasonable accommodation.” As noted above, the dis-
trict court found that Rauen was not entitled to any
accommodation because she could perform all essential
elements of her job without accommodation. In reaching
this decision, the district court relied heavily on an unpub-
lished opinion from the United States Court of Appeals
for the Sixth Circuit, which held that a plaintiff who,
though disabled, can perform all essential functions of
the job without accommodation, cannot prove the reason-
ableness of any requested accommodation. Black v. Wayne
Ctr., No. 99-1225, 2000 U.S. App. LEXIS 17567, at *9-*10
(6th Cir. July 6, 2000) (per curiam). The parties, thus, ar-
gue vigorously on appeal over whether any accommoda-
tion would be reasonable for Rauen, given her ability
to perform without one. We need not decide this broad
issue, however, because even assuming that some accom-
modations would be reasonable for a person, like Rauen,
who can perform all essential functions of a job without
any accommodation, the specific accommodation that
Rauen has requested in this case is not reasonable.
No. 01-3973 9
Rauen requested a home office as an accommodation
for her disability. Specifically, she asked that she be
allowed to work at home when she was not needed at
the office, and that generally, she would determine when
it was necessary for her to come to work. Indeed, she
plainly rejected all other possible accommodations sug-
gested by UST, including their suggestion that she come to
the office only once a week. She made clear that any sort
of “partial home office” was out of the question, and that
the only acceptable option to her was “a home office in
its entirety.” Rauen points to nowhere in the record where
she backed away from this position or ever requested
anything other than a home office on her terms. Thus, we
must decide whether this sort of home office would
have been a reasonable accommodation for Rauen.
We have stated that the issue of “[w]hether a re-
quested accommodation is reasonable or not is a highly
fact-specific inquiry and requires balancing the needs of
the parties.” Oconomowoc Residential Programs, Inc. v.
City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). In
conducting this balance, we first note, as we held in Vande
Zande v. Wis. Dep’t of Admin., that a home office is rare-
ly a reasonable accommodation. 44 F.3d 538, 544-45 (7th
Cir. 1995). In Vande Zande, the plaintiff, who was a sec-
retary or administrative assistant, sought an accommoda-
tion to work at home for a period of eight weeks. We held
that this accommodation was not reasonable, stating:
Generally . . . an employer is not required to accommo-
date a disability by allowing the disabled worker
to work, by himself, without supervision, at home. . . .
No doubt to this as to any generalization about so
complex and varied an activity as employment there
are exceptions, but it would take a very extraordinary
case for the employee to be able to create a triable is-
sue of the employer’s failure to allow the employee to
work at home.
Id. at 544-45.
10 No. 01-3973
The reason working at home is rarely a reasonable
accommodation is because most jobs require the kind of
teamwork, personal interaction, and supervision that
simply cannot be had in a home office situation. Id. at 544(“Most jobs in organizations public or private involve team
work under supervision rather than solitary unsupervised
work, and team work under supervision generally cannot
be performed at home without a substantial reduction in
the quality of the employee’s performance.”); see also
EEOC v. Yellow Freight System, Inc., 253 F.3d 943, 948-49
(7th Cir. 2001) (“Except in the unusual case where an
employee can effectively perform all work-related duties
at home, an employee who does not come to work cannot
perform any of his job functions, essential or otherwise.”)
(quotations omitted).
Rauen’s situation does not present the type of “very
extraordinary case” where a home office would be reason-
able. The central components of Rauen’s job require her
to be at the office. Even she admits that her primary job
responsibilities involve monitoring contractors’ work,
answering contractors’ questions as they arise, and en-
suring that the contractors’ work does not interfere
with the manufacturing process. It is difficult to under-
stand how these sorts of tasks could be performed from
home. Rauen asserts that she would be at work when it
is was necessary, but she also made clear that she would
determine when it was necessary for her to be there.
Further, in the type of project and production work that
Rauen’s job involves, problems requiring immediate
resolution would undoubtedly arise on the spur of the
moment. Every description of Rauen’s duties that either
party has presented in the record shows that hers is the
kind of job that requires teamwork, interaction, and
coordination of the type that requires being in the work
place. Thus, her situation does not present the excep-
tional case where a work-at-home accommodation would
be reasonable.
No. 01-3973 11
Tipping the scales even further against the reasonable-
ness of Rauen’s home office accommodation request is
the fact that Rauen can perform all essential elements
of her job without any accommodation. As noted above,
we do not answer the question today of whether any
accommodation could ever be reasonable for an employee
who can perform all essential job functions without ac-
commodation. But Rauen’s ability to perform the essen-
tial functions of the job without accommodation surely
weighs against the reasonableness of an accommodation.
In other words, while it might not be impossible for a
person that can perform all essential functions to show
that an accommodation is reasonable, it is surely more
difficult. Therefore, given that Rauen can perform the
essential functions of her job without accommodation
and given that she seeks a home office, which we have
held is almost never reasonable, we find that the scales
of the reasonable accommodation balance weigh against
Rauen.
III. Conclusion
We reject Rauen’s claim that UST has violated the
ADA by denying her a reasonable accommodation. The
district court’s grant of UST’s motion for summary judg-
ment is therefore AFFIRMED for the reasons set forth above.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-10-03