MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s motion for summary judgment, which raises two issues under the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (“ADA”): whether driving is an “essential function” of Plaintiffs job as a sales representative and, because Plaintiff is legally blind, whether her employer has a duty to provide a driver or transportation for her as an accommodation. (Doc. 24.) For the reasons set forth below, the court finds that driving is an essential function of Plaintiffs job and that the accommodations requested need not be provided. There
I. BACKGROUND
The undisputed facts, viewed in the light most favorable to Plaintiff Whitney Stephenson (“Stephenson”), as the non-moving party, are as follows:
Stephenson has worked for Pfizer, or its predecessor, since 1984. (Doc. 36-1 ¶ 5.) Specifically, she has been a pharmaceutical sales representative, sharing information about Pfizer’s pharmaceutical products with medical professionals.(M ¶¶ 6-7.) By all accounts, she was very successful. (Id. ¶¶ 8-10.)
In October 2008, Stephenson developed a serious disorder in her left eye and was diagnosed with non-arteritic ischemic optic neuropathy, due to a lack of blood flow to her optic nerve. (Id. ¶ 16.) She lost significant vision in that eye but was able to continue working at Pfizer without accommodation. (Id.)
In October 2011, however, Stephenson developed problems with her vision in her right eye. (Id. ¶ 14.) She was diagnosed with the same condition in that eye and, following unsuccessful treatment, her vision significantly deteriorated to the point that it became unsafe and no longer possible for her to drive. (Id. ¶¶ 15-18, 26.) The decline stabilized, but the damage is irreversible. (Id. ¶ 16.) Unable to drive, Stephenson filed for disability benefits with Pfizer and sought an accommodation through Pfizer’s human resources department. (Id. ¶¶ 19, 26.)
Stephenson’s job required her to meet with physicians in person to sell Pfizer products. (Doc. 25-2 at 52.) She typically met with approximately eight to ten physicians per day, covering a large territory in Forsyth County and nearby cities in other counties. (Id. at 44, 52.) Because she spent up to 90% of her time traveling, Pfizer did not provide her with an office but with a company car. (Id. at 53-55.) Stephenson could not rely on public transportation to do her job, and she does not believe she can presently do her job without some form of arranged transportation. (Id. at 56-57, 92, 187-88.) Stephenson, like all of Pfizer’s North Carolina sales representatives, had always performed her job by driving herself between doctors’ offices. (Id. at 55.)
After Stephenson’s vision declined, she requested accommodations from Pfizer for her disability in the form of magnifying glasses for reading and special software for her computer, both of which Pfizer granted. (Doc. 25-3 at 5; Doc. 25-8 at 2.) Stephenson also requested that Pfizer employ a third-party driver to transport her to physicians’ offices. (Doc. 25-3 at 5; 25-4 at 3.) The driver would assist Stephenson on a permanent, full-time basis.(Doc. 25-2 at 95-96.) Pfizer rejected this accommodation as unreasonable. (Doc. 25-8 at 2.)
Communication between Stephenson and Pfizer representatives continued, with Stephenson continuing to seek a driver as an accommodation and Pfizer continuing to reject the proposal. Pfizer recommended that Stephenson apply for various other positions within the company, including a telecommuting position that would not require her to drive or leave her home.
Stephenson filed the present complaint alleging one cause of action—disability discrimination under the ADA. In her complaint, Stephenson alleges that Pfizer discriminated against her because of her disability by failing to engage in a good-faith, interactive process to reach a reasonable accommodation; by failing to consider reassignment to a comparable position; and by denying her proposed accommodations. (Compl.¶ 44.)
After discovery, Pfizer filed the present motion for summary judgment. (Doc. 24.) With Stephenson’s response (Doc. 35) and Pfizer’s reply (Doc. 45), the motion is ripe for consideration.
II. ANALYSIS
A. Standard of Review
A court must grant a motion for summary judgment “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 moving party bears the burden of establishing that no genuine dispute of material fact remains. Where, as here, the non-moving party has the burden of proof, the moving party is entitled to summary judgment if it demonstrates that the non-moving party’s evidence is insufficient to establish an essential element of her claim. Celotex Corp. v. Catrett,
B. ADA
Under the ADA, it is unlawful for an employer to discriminate against a disabled employee who qualifies for protection under the Act. Unlawful discrimination against qualifying, disabled employees includes an employer’s failure to make
To state a prima facie case against an employer for failure to accommodate a disability under the ADA, an employee must establish four elements: (1) the employee was an individual with a disability within the meaning of the statute; (2) the employer had notice of the employee’s disability; (3) the employee could perform the essential functions of his or her job with reasonable accommodation; and (4) the employer refused to make such accommodations. Wilson v. Dollar Gen. Corp.,
An employee bears the initial burden of establishing that he or she could perform the essential duties of the position with reasonable accommodation.. Id. This burden is satisfied when the employee points to an accommodation that “seems reasonable on its face, ie., ordinarily or in the run of cases.” U.S. Airways, Inc. v. Barnett,
1. Essential functions of Stephenson’s position
The facts on this issue are not in dispute; the parties merely dispute how to characterize the evidence. The parties dispute whether driving is an essential function of Stephenson’s position as a pharmaceutical sales representative. Stephenson argues that “traveling” is an essential function of her position but that driving, as merely one “mode of travel,” is a marginal job duty. (Doc. 40 at 11-12.) Pfizer rejects the “travel versus driving” distinction, arguing that “traveling by motor vehicle” is essential to Stephenson’s position. (Doc. 45 at 7-8.) Whether employees may perform the essential functions of their jobs is an issue appropriate for summary judgment where the evidence is undisputed. See Martinson v. Kinney Shoe Corp.,
The Fourth Circuit has defined “essential functions of a job” as “functions that bear more than a marginal relationship to the job at issue.” Tyndall,
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(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)(i)-(vii).
The uncontroverted evidence shows that these factors strongly favor Pfizer. Stephenson does not dispute the first factor, that Pfizer considers driving essential to her job. Pfizer’s employees clearly testified that driving is essential. (See, e.g., Doc. 25-5 at 79-80; Doc. 25-6 at 53.) Stephenson also testified that Pfizer had provided her with a company car to perform her job, which corroborates such statements. (Doc. 25-2 at 55.)
There appears to be a genuine dispute as to whether Pfizer’s posted job descriptions for sales representative positions explicitly require a job candidate to be able to drive. (See Doc. 40 at 10 & n. 3; Doc. 25 at 13.) Some of Pfizer’s current job postings for new sales representatives and other internal descriptions of the position explicitly require a valid driver’s license. (Doc. 36-1 at 29 (“Applicant must have a valid U.S. driver’s license and a driving record in compliance with company standards.”); Doc. 25-17 at 2 (“Must be able to safely operate a motor vehicle in accordance with company policy and applicable driving rules and regulations.”).) Yet other current job postings for new sales representatives are silent on the ability to drive. (See Doc. 36-1.) But as the Fourth Circuit has noted, the absence of a purported essential function from a posted job description is not dispositive. See Ro-han v. Networks Presentations LLC,
The third, fourth, and seventh factors weigh heavily in favor of Pfizer. Stephenson conceded in her deposition that the “bulk” of her time each day is spent traveling between doctors’ offices, so much so that she does not even have an office within Pfizer. (Doc. 25-2 at 53-54.) It is also undisputed that Stephenson cannot perform her job unless a driver or other transportation is arranged for her. (Id. at 92, 187-88.) There is also no dispute that all other Pfizer sales representatives in North Carolina perform their jobs by driving themselves between doctors’ offices— and so, too, had Stephenson before her disability arose. (Id. at 55.)
Considering the complete record, the court concludes that driving is an essential part of the job of a Pfizer sales representative in Stephenson’s territory. This conclusion is in harmony with the judgments of other federal courts finding driving to be an essential function of sales representatives. See, e.g., Mathews v. Trilogy Commc’ns, Inc.,
Stephenson, however, urges this court to define the essential functions of her job more broadly, finding that “traveling” is essential to her job, but that driving, as the particular method of travel, is not. (Doc. 40 at 11-12.) Other courts have considered this precise distinction in the sales representative context. In Kielbasa, the plaintiff was a sales representative whose vision deteriorated to the point that he became “irreparably, legally blind.”
To hold otherwise would expand greatly the scope of the ADA and the Rehabilitation Act. If the court were to find that driving is a marginal function of a [sales representative position], then it would, for instance, necessarily have to find that driving is a marginal function of the vast array of sales positions in which employees are chiefly responsible for selling a given product but must spend considerable time in a car to do so. The court does not believe, and [the plaintiff] has cited no authority to suggest, that Congress ever intended such a result.
Id. at *8. Moreover, even if the court were to accept Stephenson’s argument that traveling and selling Pfizer products are essential functions of her position, it would not preclude a finding that driving is an additional, essential function. See Richardson v. Friendly Ice Cream Corp.,
The cases cited by Stephenson are not analogous to this case. In Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
Rorrer v. City of Stow,
There is no genuine dispute that driving bears more than a “marginal relationship” to Stephenson’s sales representative job. Tyndall,
2. Reasonable accommodation of Stephenson’s disability
Having found no genuine dispute that Stephenson could not perform an essential function of her job without an accommodation by Pfizer, the next issue is whether she can show that she could perform all of the essential functions of her job with a reasonable accommodation. To make out her prima facie case, Stephenson must establish a possible accommodation that is “reasonable on its face, ie., ordinarily or in the run of cases.” U.S. Airways,
Here, the accommodations that Pfizer can be required to make under the ADA are not unlimited. Pfizer is “not required to reallocate essential functions,” such as providing an assistant to perform some of the essential functions of a legally blind employee’s job. 29 C.F.R. § 1630.2(o) app. Nor is Pfizer required to hire someone to do so. See Martinson,
Ultimately, the only reasonable accommodation that Pfizer could make for Stephenson is reassignment to a different position within the company. If feasible, the reassigned position should be “an equivalent position in terms of pay, status, etc.” 29 C.F.R. § 1630.2(o) app. Pfizer’s proposed accommodation need not have been Stephenson’s preferred accommodation. Fink v. Richmond,
On a motion for summary judgment with a claim of failure to reassign under the ADA, the employee bears the burden of presenting evidence
(1) that there was a vacant, funded position; (2) that the position was at orbelow the level of the plaintiff’s former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation. If the employee meets his burden, the employer must demonstrate that transferring the employee would cause unreasonable hardship.
Donahue v. Consol. Rail Corp.,
Here, Stephenson has not met her burden. She argues in her brief that “the evidence establishes at all times plaintiff was open to reasonable accommodations which would permit her return to her position or a comparable position at Pfizer.” (Doc. 40 at 18-19.)
Instead, the undisputed evidence shows that Pfizer invited Stephenson to apply for other vacant positions within the company. (Doc. 25-11 at 2; Doc. 25-2 at 120-138.) In rebuttal, Stephenson presents her deposition and affidavit testimony that the positions paid less than half of her current salary and were undesirable because they would “pigeonhole” her into sitting at a desk all day. (Doc. 25-2 at 124, 136; Doc. 36-1 at ¶¶ 48-49.) She acknowledges that “[w]hile there were plenty of job openings at Pfizer around the country, there were no comparable positions which did not require relocation, which we were not in a position to do.” (Doc. 36-1 at ¶ 58; accord Doc. 25-2 at 137.) Ultimately, Stephenson decided not to apply for a local position because she did not find any to be commensurate with her skills or experience. (Doc. 25-2 at 127-28; Doc. 36-1 at ¶¶ 48-49.) This may be true, but as a result her claim of refusal to make a reasonable accommodation necessarily fails because she has failed to produce any evidence of a vacant position at Pfizer she was willing to accept. She has eschewed the available
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that the Defendant’s motion for summary judgment (Doc. 24) be GRANTED.
Notes
. Throughout her briefing, Stephenson fails to provide any pinpoint citation to a particular page or paragraph, providing instead only cites to whole documents generally. This practice violates Local Rule 7.2(a)(2), substantially burdens the court with the obligation of investigating the basis of claimed facts—a task the court need not do, and renders a party’s position subject to rejection on this basis alone. See Hughes v. B/E Aerospace, Inc., No. L12CV717,
. This rule demonstrates why this case is not analogous to Keith v. Cnty. of Oakland,
. Stephenson does not contend that Pfizer had any duty to create a new position for her. (Doc. 40 at 17-18.)