Marc SHELL, Plaintiff-Appellant, v. Kevin SMITH, in his official capacity as Mayor of the City of Anderson, et al., Defendants-Appellees.
No. 14-2958.
United States Court of Appeals, Seventh Circuit.
Argued March 31, 2015. Decided June 15, 2015.
789 F.3d 715
Adams admitted planning that one or more of the conspirators would be armed. His intent thus “reache[d] beyond a simple drug [theft], to an armed one.” If this had been a prosecution for aiding and abetting, there would not have been a problem under Rosemond. No more is there a problem when the charge is conspiracy. It does not matter under Rosemond, Pinkerton, or Newman, whether Adams knew how many guns would be used, who would supply them, and whether they would come in a toolbox, a holster, a car‘s secret compartment, or a picnic basket; it is enough if the criminal agreement entailed use of a firearm. Adams is not entitled to withdraw his plea.
AFFIRMED
Jeffrey A. Macey, Attorney, Macey Swanson & Allman, Indianapolis, IN, for Plaintiff-Appellant.
Anthony W. Overholt, Attorney, Frost Brown Todd LLC, Indianapolis, IN, for Defendants-Appellees.
Before KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.*
THERESA L. SPRINGMANN, District Judge.
After he was fired, Shell sued the City under the Americans with Disabilities Act (ADA) for failure to accommodate his disability, leading to the termination of his employment. He also alleged that his termination was politically motivated. The district court granted summary judgment in favor of the City.
On appeal, Shell challenges only the district court‘s entry of judgment as a matter of law on his ADA claim. We agree that a jury should decide whether the City violated the ADA.
The ADA provides that a covered employer shall not “discriminate against a qualified individual on the basis of disability.”
The issue on appeal is whether the record contains sufficient evidence from which a reasonable jury could conclude that driving a bus was not an essential function of Shell‘s job as a Mechanic‘s Helper. In deciding this question, we review the district court‘s grant of summary judgment de novo. Bay v. Cassens Transp. Co., 212 F.3d 969, 972 (7th Cir.2000). Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
The City maintains that Shell was not a qualified individual because he did not satisfy “the requisite skill, experience, education and other job-related requirements of the employment position,”
However, disposing of Shell‘s claim is not that straightforward. The City could only require Shell to have a CDL if one was necessary to perform an essential function of the Mechanic‘s Helper position. See, e.g., Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 631-32 (7th Cir.1998) (conflicting evidence on issue of whether driving a truck was an essential function of Driver Helper position precluded summary judgment in favor of an employer despite its claimed policy that Driver Helpers hold the same CDL the Drivers held). Driving a bus is the only function of the Mechanic‘s Helper position that requires a CDL. So if driving a bus is not one of the fundamental job duties of the position, the City could not use Shell‘s inability to obtain a CDL as the basis for his termination.
An essential function is a fundamental job duty required of a person in the job; a marginal duty is not an essential function. See
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.
- The employer‘s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
The current work experience of incumbents in similar jobs.
In advancing the importance of the driving requirement and the corresponding CDL requirement, the City has relied chiefly on a written job description for the Mechanic‘s Helper position. According to a job description created in 1992, the Mechanic‘s Helper is “responsible for assisting with mechanic duties, and washing, cleaning, lubricating, and refueling vehicles.” This description of the job suggests that the Mechanic‘s Helper assists only with vehicles. Several of the listed duties deal specifically with vehicles. For example, a Mechanic‘s Helper is to clean the buses, replace batteries and lights, maintain fluid levels, perform various light mechanical maintenance work on vehicles, report low quantities of automotive supplies and pick up parts, and maintain equipment, tools, and work areas in clean and orderly condition. The job description states that a Mechanic‘s Helper “may occasionally drive and deliver buses to various field locations.” Other duties listed in the job description have nothing to do with the buses or mechanical duties. The job description states that a Mechanic‘s Helper cleans “garage and office areas, including sweeping, mopping, washing windows and walls, and emptying trash; mows grass and trims around building; paints as needed.”
Shell urges that the job description is just one factor to consider. Indeed, as cited above, the regulations list it as just one of several. The ADA itself requires that “consideration” be given to the employer‘s judgment as to what functions are essential, and that a job description be “considered evidence of the essential functions.”
First, the language of the driving duty itself is qualified by “may” and “occasionally.”1 Second, and more importantly, the City‘s actual practices suggest that the need for a day shift Mechanic‘s Helper to drive a bus is not fundamental to the job. This same job description was in place when Shell was hired. It did not change
The City argues, without evidentiary proof, that not requiring Shell to operate CATS vehicles, and instead requiring other employees—who are not Mechanic‘s Helpers—to do so, would decrease the efficiency of CATS‘s operations. The record does not indicate how many CATS‘s employees had CDLs and were available to move a bus for repair purposes. We were advised at oral argument that many of the employees hold such a license, having started their careers as bus drivers. Certainly, all the mechanics and the drivers have CDLs. A reasonable inference is that driving a bus is not a function that only a limited number of CATS‘s employees can perform. Nor is the record developed regarding how many times a mechanic or driver might actually desire another employee to drive a bus, or for what reasons, or how much time the task might take. While the amount of time spent performing a task is but one factor to consider, a duty is “not essential if it [is] so small a part that it could be reassigned to other employees at negligible cost to the employer.” Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 962 (7th Cir.2014). Beyond its conclusory statement, the City offers no evidence of any actual burden on the operation of the transit system. This void exists despite the fact that CATS operated for more than a decade without requiring the Mechanic‘s Helper on day shift to drive a bus. Certainly, that is a sufficient length of time to realize a negative impact and be able to present some evidentiary proof of the same.
The City insists that it does have proof regarding the negative consequences, and points to the Declaration of Rick Garrett, who became the Director of Operations at the same time that Blackwell became the General Manager after the new mayor took office. Garrett explains that the employee hired to replace Shell, Darrell Rensel, has a CDL and “can perform all of the tasks identified in the Mechanic‘s Helper job description.” (See Supp.App. 105, Decl. of Rick Garrett ¶ 10.) This statement is no more pertinent to the question at hand than the equally obvious statement that Shell cannot perform all the duties identified. Additionally, stating that he “can perform” tasks provides no insight into whether he actually performs them, how often he performs them, or whether they are necessary. The Declaration does not even single out driving buses from all the other tasks listed in the job description, and certainly does not address whether CATS‘s operations would be burdened by making other arrangements for the particular duty of driving a bus. Garrett adds that “[h]aving a CDL, so Mr. Rensel can perform maintenance functions on CATS vehicles, is an essential function of the Mechanic‘s Helper position.” This conclusory statement does not have evidentiary value. Garrett does not even identify the “maintenance functions” that
The City argues that just because it restructured the job in the past and allowed Shell to perform janitorial, but not all mechanical, duties does not require it to continue to go beyond the ADA‘s requirements. The City relies on Winfrey v. City of Chicago, 259 F.3d 610 (7th Cir.2001), and Basith v. Cook County., 241 F.3d 919 (7th Cir.2001). This argument assumes that the duty at issue is an essential function of the job, and that the City previously accommodated Shell beyond what the ADA demands when it did not require him to perform the duty. If these assumptions are true, the City is correct. And while a jury could ultimately agree with the City, genuine issues of material fact preclude making these prerequisite assumptions at the summary judgment stage of this case.
In Winfrey, the city developed a revised job description for a ward clerk position to be held by an employee who had become blind. However, the supervisor for the position was not consulted and only found out the plaintiff was blind when he showed up for work. The supervisor did not know how to accommodate the plaintiff, so he only allowed him to answer phones and take messages. A few months later, consultants who worked on behalf of the blind came to the worksite to develop adjusted ward clerk duties. The supervisor prepared a list of four “partial essential” ward clerk duties he thought the plaintiff could perform. 259 F.3d at 613. The consultants prepared a recommendation for the plaintiff that concluded that he was capable of performing these ward clerk functions. However, there were other ward clerk functions that the plaintiff did not perform. Id. at 614. The city did not train the plaintiff to perform all the duties required of a ward clerk. Thus, he was not considered a full ward clerk, nor was he remunerated as one in the scaled-down job. The plaintiff desired a higher paying job, such as a full ward clerk, and sued the city under the ADA for failing to accommodate his blindness. The plaintiff argued that the city‘s willingness to create the adjusted, limited ward clerk position demonstrated that those four duties must have been the only essential duties of the full ward clerk position. Responding to this argument, we noted that it was “clear from the onset of this case that the City created a modified ward clerk position for [the plaintiff], consisting of duties that [his supervisor] believed he could perform.” Id. at 616. The creation of the modified position did not demonstrate that the four duties he performed were the only essential duties for the unmodified position. Id.
The plaintiff in Basith was a pharmacy technician in a county hospital. The evidence in the case established that delivery of medications to the hospital‘s patients was essential to the functioning of the pharmacy, and that the pharmacy technician was the best position to fulfill this need. Basith, 241 F.3d at 929. The plaintiff could not deliver medications to patients, but desired to hold the pharmacy technician position anyway. One of the plaintiff‘s arguments against a finding that delivery was an essential function was that his employer had previously created a position for him that did not require delivery. We held that “[a]bsent independent evidence that the function was non-essential, we do not believe it wise to consider the special assignment as proof that delivery was not an essential function because it would punish [the defendant] for going beyond the ADA‘s requirements.” Id. at 930 (stating that the evidence showed that the job could be restructured, not that delivery was non-essential). As we noted,
In both Winfrey and Basith the employers attempted to accommodate employees who had become disabled during their terms of employment by creating special positions that required less than the full duties normally performed. These were alternative positions to the jobs the plaintiffs desired. In contrast, the City hired Shell into the Mechanic‘s Helper position knowing he had physical limitations that prohibited him from obtaining a CDL and driving a bus. Whether Shell was asked to perform less than all of the written duties is not indicative of whether the City considered the duties he was not expected to perform to be essential. Mark Baugher, who was one of the Directors of Operations during Shell‘s tenure, indicated that Shell could do everything he needed him to do as a Mechanic‘s Helper (Supp.App. 195, Decl. of Mark Baugher ¶ 11.) Having been employed in various CATS jobs since 1979, Baugher was also able to testify that the vehicle maintenance duties, such as oil changes and preventative maintenance at the garage, were performed by the mechanics themselves, not the Mechanic‘s Helpers, even when Shell was not the Mechanic‘s Helper. (Id. ¶ 12.) In contrast, the City furnished no evidence regarding how the job was performed before Shell filled it. From Baugher‘s statements and Shell‘s continuous performance of the job for twelve years, a jury could find that restructuring the task of driving a bus was a reasonable response to a non-essential function of the Mechanic‘s Helper position rather than a reassignment of an essential duty. Cf. Miller, 643 F.3d at 197 (no summary judgment because a reasonable jury could find that a plaintiff who was unable to work at heights in exposed positions was “asking only that he be allowed to work as he had worked successfully for several years” when his supervisors and coworkers permitted him to swap tasks among his fellow crew members so that he could avoid that occasional task).
Additionally, it should be noted that there was no informed “decision” that keeping Shell employed in the same position, and doing the same duties he had done for twelve years prior, was untenable because it required others to perform an essential function of the position. Blackwell, who had been on the job for one day before giving Shell the news that he would be fired unless he obtained a CDL, looked only to the job description to make this determination. Blackwell had no prior experience managing a transportation department, and did not review Shell‘s performance or duties or the past practices of CATS. Cf. Gratzl v. Office of Chief Judges, 601 F.3d 674, 680 (7th Cir.2010) (holding that when an employer decided to eliminate a special position the plaintiff held by incorporating it as one among many court reporter duties, which the plaintiff could not perform, no ADA violation occurred because an employer is not required “to maintain an existing position or structure that, for legitimate reasons, it no longer believes appropriate“). Blackwell made no attempt to provide legitimate reasons for discontinuing the existing structure of the CATS garage operations.
Because there is evidence and reasonable inferences favorable to both parties, and the factual record does not establish as a matter of law that driving a bus was an essential function of the Mechanic‘s Helper position, this case must be allowed to proceed to a jury. The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.