Raymond Severson v. Heartland Woodcraft, Incorpora , 872 F.3d 476 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3754
RAYMOND SEVERSON,
Plaintiff-Appellant,
v.
HEARTLAND WOODCRAFT, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14-CV-1141 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 12, 2016 — DECIDED SEPTEMBER 20, 2017
____________________
Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
SYKES, Circuit Judge. From 2006 to 2013, Raymond
Severson worked for Heartland Woodcraft, Inc., a fabricator
of retail display fixtures. The work was physically demand-
ing. In early June 2013, Severson took a 12-week medical
leave under the Family Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601 et seq., to deal with serious back pain. On
the last day of his leave, he underwent back surgery, which
2 No. 15-3754
required that he remain off of work for another two or three
months.
Severson asked Heartland to continue his medical leave,
but by then he had exhausted his FMLA entitlement. The
company denied his request and terminated his employ-
ment, but invited him to reapply when he was medically
cleared to work. About three months later, Severson’s doctor
lifted all restrictions and cleared him to resume work, but
Severson did not reapply. Instead he sued Heartland alleg-
ing that it had discriminated against him in violation of the
Americans with Disabilities Act (“ADA” or “the Act”),
42 U.S.C. §§ 12101 et seq., by failing to provide a reasonable
accommodation—namely, a three-month leave of absence
after his FMLA leave expired. The district court awarded
summary judgment to Heartland and Severson appealed.
We affirm. The ADA is an antidiscrimination statute, not
a medical-leave entitlement. The Act forbids discrimination
against a “qualified individual on the basis of disability.” Id.§ 12112(a). A “qualified individual” with a disability is a
person who, “with or without reasonable accommodation,
can perform the essential functions of the employment
position.” Id. § 12111(8). So defined, the term “reasonable
accommodation” is expressly limited to those measures that
will enable the employee to work. An employee who needs
long-term medical leave cannot work and thus is not a
“qualified individual” under the ADA. Byrne v. Avon Prods.,
Inc., 328 F.3d 379, 381 (7th Cir. 2003).
With support from the EEOC, Severson urges us to re-
treat from or curtail our decision in Byrne. We decline to do
so. Byrne is sound and we reaffirm it: A multimonth leave of
No. 15-3754 3
absence is beyond the scope of a reasonable accommodation
under the ADA.
I. Background
Severson has suffered from back pain since 2005. In 2010
he was diagnosed with back myelopathy caused by im-
paired functioning and degenerative changes in his back,
neck, and spinal cord. Typically Severson’s back condition
did not hamper his ability to work. But at times he experi-
enced severe flare-ups, making it hard (and sometimes
impossible) for him to walk, bend, lift, sit, stand, move, and
work.
Severson began working for Heartland in 2006. Over time
he was promoted from supervisor to shop superintendent to
operations manager. He performed poorly in this last posi-
tion, so Heartland relieved him of his duties and moved him
to a second-shift “lead” position. According to the job de-
scription, an employee in this position performs manual
labor in the production area of the plant, operates and
troubleshoots production machinery, performs minor repairs
as necessary, maintains the building, and frequently lifts
materials and product weighing 50 pounds or more.
Heartland notified Severson of the demotion in a meeting on
June 5, 2013. He accepted it but never worked in his new
assignment.
Earlier that same day, Severson wrenched his back at
home, aggravating his preexisting condition and leaving him
demonstrably uncomfortable. He left work early due to the
pain and later requested and received FMLA leave retroac-
tive to June 5. Over the summer months, Severson submitted
periodic notes from his doctor informing Heartland that he
4 No. 15-3754
had multiple herniated and bulging discs in his lumbar
spine and was unable to work until further notice. His
doctor treated him with steroid injections, to little effect.
During this time period, Doug Lawrence, Heartland’s gen-
eral manager, and Jennifer Schroeder, the human resources
manager, remained in regular phone and email contact with
Severson and approved his requests for continuation of his
FMLA leave.
On August 13 Severson called Schroeder and told her
that his condition had not improved and he would undergo
disc decompression surgery on August 27. He explained that
the typical recovery time for this surgery was at least two
months. He requested an extension of his medical leave. But
he had already exhausted his FMLA entitlement; the maxi-
mum 12-week leave would expire on August 27, his sched-
uled surgery date.
Schroeder did not talk with Severson again until
August 26. In a phone call that day, she and Lawrence told
Severson that his employment with Heartland would end
when his FMLA leave expired on August 27. Schroeder
invited him to reapply with the company when he recovered
from surgery and was medically cleared to work.
Severson had back surgery as planned on August 27. On
October 17 his doctor gave him partial clearance to return to
work as long as he did not lift anything heavier than
20 pounds. On December 5 Severson’s doctor removed the
20-pound lifting restriction and cleared him to return to
work without limitation. Instead of reapplying to work for
Heartland, Severson sued the company alleging that it
discriminated against him in violation of the ADA by failing
to accommodate his physical disability. He pointed to three
No. 15-3754 5
accommodations that the company could have offered him
but did not: (1) a two- or three-month leave of absence; (2) a
transfer to a vacant job; or (3) a temporary light-duty posi-
tion with no heavy lifting.
Heartland moved for summary judgment, arguing that
Severson’s proposed accommodations were not reasonable.
The district judge agreed and entered judgment for
Heartland. Severson appealed. The EEOC filed a brief as
amicus curiae in support of reversal.
II. Discussion
We review a summary judgment de novo, viewing the
evidentiary record in the light most favorable to Severson
and drawing reasonable inferences in his favor. Burton v.
Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary judg-
ment is warranted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The ADA makes it unlawful for an employer to discrimi-
nate against a “qualified individual on the basis of disabil-
ity.” § 12112(a). A “qualified individual” is “an individual
who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires.” § 12111(8).
The parties agree that Severson had a disability. They al-
so agree that frequently lifting 50 pounds or more is an
essential function of the second-shift lead position at
Heartland and that Severson was unable to perform this
function at the time he was fired. As in many ADA cases,
liability thus turns on the accommodation question: Did
6 No. 15-3754
Heartland violate the ADA by failing to reasonably accom-
modate his disability? 1
Severson identifies three possible accommodations: (1) a
multimonth leave of absence following the expiration of his
FMLA leave; (2) reassignment to a vacant job; or (3) a tempo-
rary assignment to a light-duty position that did not require
heavy lifting. The parties focus most of their attention on
whether a long-term leave of absence is a reasonable ac-
commodation within the meaning of the ADA. We do the
same.
The ADA contains a definition of “reasonable accommo-
dation,” but it tells us only what the term may include:
The term “reasonable accommodation” may
include—
(A) making existing facilities used by em-
ployees readily accessible to and usable by in-
dividuals with disabilities; and
(B) job restructuring, part-time or modified
work schedules, reassignment to a vacant posi-
tion, acquisition or modification of equipment
1 Severson also accuses Heartland of failing to engage in an interactive
process to discuss a reasonable accommodation. “Failure of the interac-
tive process is not an independent basis for liability under the ADA.”
Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1059 n.1 (7th Cir. 2014).
He argues as well that his proposed accommodations would not impose
an undue hardship on Heartland. The question of undue hardship is a
second-tier inquiry under the statute; that is, the hardship exception does
not come into play absent a determination that a reasonable accommoda-
tion was available. See 42 U.S.C. § 12112(b)(5)(A) (setting forth the
undue-hardship exception).
No. 15-3754 7
or devices, appropriate adjustment or modifi-
cations of examinations, training materials or
policies, the provision of qualified readers or
interpreters, and other similar accommoda-
tions for individuals with disabilities.
42 U.S.C. § 12111(9).
The use of the permissive phrase “may include”—rather
than “must include” or “includes”—means that the concept
of “reasonable accommodation” is flexible and the listed
examples are illustrative. But the baseline requirement found
in the definition of “qualified individual” is concrete: A
“reasonable accommodation” is one that allows the disabled
employee to “perform the essential functions of the em-
ployment position.” § 12111(8). If the proposed accommoda-
tion does not make it possible for the employee to perform
his job, then the employee is not a “qualified individual” as
that term is defined in the ADA. Id. The illustrative examples
listed in § 12111(9) are all measures that facilitate work.
Putting these interlocking definitions together, a long-
term leave of absence cannot be a reasonable accommoda-
tion. As we noted in Byrne, “[n]ot working is not a means to
perform the job’s essential functions.” 328 F.3d at 381. Simp-
ly put, an extended leave of absence does not give a disabled
individual the means to work; it excuses his not working.
Accordingly, we held in Byrne that “[a]n inability to do the
job’s essential tasks means that one is not ‘qualified’; it does
not mean that the employer must excuse the inability.” Id.;
see also Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir.
1999) (“The rather common-sense idea is that if one is not
able to be at work, one cannot be a qualified individual.”).
8 No. 15-3754
Byrne leaves open the possibility that a brief period of
leave to deal with a medical condition could be a reasonable
accommodation in some circumstances. 328 F.3d at 381;
Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 602 (7th
Cir. 1998). For example, we noted that “[t]ime off may be an
apt accommodation for intermittent conditions. Someone
with arthritis or lupus may be able to do a given job even if,
for brief periods, the inflammation is so painful that the
person must stay home.” Byrne, 328 F.3d at 381. Intermittent
time off or a short leave of absence—say, a couple of days or
even a couple of weeks—may, in appropriate circumstances,
be analogous to a part-time or modified work schedule, two
of the examples listed in § 12111(9). But a medical leave
spanning multiple months does not permit the employee to
perform the essential functions of his job. To the contrary,
the “[i]nability to work for a multi-month period removes a
person from the class protected by the ADA.” Id.
Long-term medical leave is the domain of the FMLA,
which entitles covered employees “to a total of 12 work-
weeks of leave during any 12-month period … [b]ecause of a
serious health condition that makes the employee unable to
perform the functions of the position of such employee.”
29 U.S.C. § 2612(a)(1)(D). The FMLA protects up to 12 weeks
of medical leave, recognizing that employees will sometimes
be unable to perform their job duties due to a serious health
condition. In contrast, “the ADA applies only to those who
can do the job.” Byrne, 328 F.3d at 381.
The EEOC argues that a long-term medical leave of ab-
sence should qualify as a reasonable accommodation when
the leave is (1) of a definite, time-limited duration; (2) re-
quested in advance; and (3) likely to enable the employee to
No. 15-3754 9
perform the essential job functions when he returns. On this
understanding, the duration of the leave is irrelevant as long
as it is likely to enable the employee to do his job when he
returns.
That reading of the statute equates “reasonable accom-
modation” with “effective accommodation,” an interpreta-
tion that the Supreme Court has rejected:
[I]n ordinary English the word “reasonable”
does not mean “effective.” It is the word “ac-
commodation,” not the word “reasonable,”
that conveys the need for effectiveness. An inef-
fective “modification” or “adjustment” will not
accommodate a disabled individual’s limita-
tions. … Yet a demand for an effective accom-
modation could prove unreasonable … .
U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002). In other
words, effectiveness is a necessary but not sufficient condi-
tion for a reasonable accommodation under the ADA.
Perhaps the more salient point is that on the EEOC’s in-
terpretation, the length of the leave does not matter. If, as the
EEOC argues, employees are entitled to extended time off as
a reasonable accommodation, the ADA is transformed into a
medical-leave statute—in effect, an open-ended extension of
the FMLA. That’s an untenable interpretation of the term
“reasonable accommodation.”
Severson’s other proposed accommodations require only
brief discussion. He argues that Heartland could have
transferred him to a vacant job or created a light-duty posi-
tion for him. Reassignment to a vacant position may be a
reasonable accommodation under the statute. See
10 No. 15-3754
§ 12111(9)(B). But it was Severson’s burden to prove that
there were, in fact, vacant positions available at the time of
his termination. Kotwica v. Rose Packing Co., 637 F.3d 744, 750
(7th Cir. 2011). Severson points to five vacant positions at
Heartland in the period following the termination of his
employment but none at the time he was fired.
Finally, an employer is not required to “create a new job
or strip a current job of its principal duties to accommodate a
disabled employee.” Gratzl v. Office of Chief Judges of 12th,
18th, 19th & 22nd Judicial Circuits, 601 F.3d 674, 680 (7th Cir.
2010). Under EEOC guidance, “[a]n employer need not
create a light duty position for a non-occupationally injured
employee with a disability as a reasonable accommodation.”
EEOC Enforcement Guidance: Workers’ Compensation & the
ADA, 2 EEOC Compliance Manual (CCH) ¶ 6905, at 5394
(Sept. 3, 1996), 1996 WL 33161342, at *12. On the other hand,
if an employer has a policy of creating light-duty positions
for employees who are occupationally injured, then that
same benefit ordinarily must be extended to an employee
with a disability who is not occupationally injured unless the
company can show undue hardship. Id.The question, then, is whether Heartland had a policy of
providing light-duty positions for employees who suffered
work-related injuries. It did not. In its Return to Work
manual, Heartland retained the option, in its discretion, to
give occupationally injured employees temporary duties on
an ad hoc basis if such work was available. These temporary
light-duty assignments were infrequent and generally lasted
no longer than two days; they were essentially acts of grace.
No evidence suggests that Heartland had a policy of crafting
light-duty positions for employees injured on the job. If an
No. 15-3754 11
employer “bends over backwards to accommodate a disa-
bled worker … , it must not be punished for its generosity.”
Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 545
(7th Cir. 1995).
AFFIRMED.