Peggy H. TERRELL, Plaintiff-Appellant, v. USAIR, Defendant-Appellee.
No. 96-2345.
United States Court of Appeals, Eleventh Circuit.
Jan. 6, 1998.
132 F.3d 621
Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.
Vasilis C. Katsafanas, Cabaniss & Burke, P.A., Orlando, FL, for Defendant-Appellee.
Plaintiff-Appellant appeals the district court‘s grant of summary judgment on her claim under the Americans with Disabilities Act (“ADA“). Plaintiff argues that the district court erred in concluding as a matter of law (1) that she was not disabled and (2) that, in the alternative, USAir had reasonably accommodated her as required by the ADA. We hold that, even assuming Plaintiff had a disability аs defined by the ADA, USAir reasonably accommodated Plaintiff‘s disability. Because summary judgment was proper on the reasonable accommodation issue, we affirm.
I.
Plaintiff Peggy H. Terrell has been employed by USAir (or its predecessor, Piedmont Aviation) since 1982 as a reservations sales agent. She is currently employed at USAir‘s Orlando Reservations Center. As a reservations agent, Plaintiff sits at a computer terminal, takes calls from people making inquiries or seeking to make flight arrangements, provides information and makes passenger reservations. The job requires Plaintiff to type constantly on a keyboard or telephone keypad.
In 1991, Plaintiff filed a workers’ compensation claim alleging she had developed carpal tunnel syndrome (“CTS“) because of her job. Plaintiff‘s physician, Dr. White, prescribed restrictions on the hours which Plaintiff could work each day. During 1991 and 1992, Plaintiff made four requests fоr schedule modifications based on Dr. White‘s advice; and USAir modified Plaintiff‘s schedule each time as requested.1
In 1992, a second physician, Dr. Foncea, recommended surgery for Plaintiff‘s condition and also recommended that the four-hour restriction on her workday continue. While on leave for her surgery, Plaintiff continued to receive her full-time salary until 8 February 1993, under USAir‘s salary continuance program, which pays the difference between worker‘s сompensation benefits and the employee‘s full-time salary. Following her surgery on 9 December 1992, Plaintiff was unable to return to work until 19 April 1993. After Plaintiff‘s return to work in April 1993, Dr. Foncea recommended that she remain restricted to four-hour days, which USAir accommodated. Beginning in April 1993, Plaintiff was compensated only for the hours she actually worked.
While Plaintiff was on medical leave for her surgery, Dr. Foncea also requested that USAir modify Plaintiff‘s work station “accоrding to advice.” Plaintiff understood the modifications to include a drop keyboard.2 When Plaintiff returned to work in April 1993, she was not provided with a drop keyboard, but was told to use a work station with a drop keyboard when it was available. When a drop keyboard was unavailable and Plaintiff complained to her supervisor about increased pain, she was told just to listen in on other agents’ calls.
By 28 May 1993, Plaintiff had exceeded the sixty-day limit allowed by USAir for injured еmployees to work on “limited duty” (meaning fewer hours than the employee‘s scheduled shift); and, USAir placed her on unpaid medical leave. At that time, USAir had no permanent part-time reservations agents at the Orlando Center because the part-time employees had been furloughed during 1990 and 1991. In late 1993, however, USAir reconsidered using part-time reservations agents at its Orlando Center and contacted Plaintiff, along with other former part-time reservations agents who had been furloughed in 1990 and 1991, about whether she was interested in working part-time at USAir. Plaintiff responded that she was interested, and she was recalled as a part-time reservations agent in April 1994. After she re-
In 1994, Plaintiff sued USAir for discrimination in violation of the ADA and the Age Discrimination in Employment Act (“ADEA“). The district court granted summary judgment for Defendant USAir on both claims.3 On Plaintiff‘s ADA claim, the district court concluded that Plaintiff had not presented a triable issue of fact on whether she was disabled and that, even if Plaintiff was disabled, she had not presented a triable issue of fact on whether USAir failed to accommodate reasonably her disability. Plaintiff challenges both of these conclusions on appeal.
II.
We review the district court‘s grant of summary judgment de novo, viewing the facts in the light most favorable to Plaintiff. Parks v. City of Warner Robins, Ga., 43 F.3d 609, 612-13 (11th Cir.1995).
Discrimination under the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”
For the purpose of this appeal, we assume that Plaintiff has made a prima facie showing of disability. About reasonable accommodations, Plaintiff argues that, when she was placed on medical leave in 1993, she could perform the essential functions of her job as a reservations agent—including continuous typing on the keyboard—with the following accommodations: (1) a part-time position; (2) a drop keyboard; and (3) five-minute breaks every hour. She argues
A. Part-Time Position
Plaintiff argues that USAir failed to accommodate her reаsonably by refusing to place her in a part-time (four hours per day) position in May 1993 instead of placing her on unpaid medical leave. USAir argues that it had no duty to place Plaintiff in a part-time position as a reservations agent because no such positions existed at USAir‘s Orlando office—much less were vacant—when Plaintiff was placed on medical leave. According to the affidavit of the office administrator for USAir‘s Orlando Rеservations Center, Willetta Barr, all part-time reservations agents at the Orlando office had been furloughed during 1990 and 1991. In late 1993, USAir decided to reinstate part-time reservations agent positions and contacted former part-time agents, including Plaintiff, about returning to work. Plaintiff returned to work in April 1994 along with the furloughed part-time agents.
Plaintiff argues that a factual dispute exists about whether reservations agents worked part-time at USAir when Plaintiff was plaсed on medical leave. Plaintiff points to a statement in her affidavit that “[s]hifts come and go throughout the day at USAir, Inc. Reservation Center in Orlando, including reservations agents who are both full time and part time, and my position is not vacant the four hours per day I am unable to work.” This statement, however, does not support Plaintiff‘s argument because it refers to USAir‘s employment of part-time agents at its Orlando office in 1995 when Plaintiff made this affidavit. The relеvant factual inquiry is whether or not the Orlando office had part-time positions available in 1993 when Plaintiff was placed on medical leave. See also Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (conclusory allegations, without more, insufficient to withstand summary judgment).
Plaintiff presented no evidence in the district court that part-time reservations agent positions existed at USAir in 1993. When asked in her deposition whether there were part-time agents employed in the Orlando Reservations Center in 1991, Plaintiff responded “I don‘t think so, but I‘m not really sure.” Plaintiff also acknowledged in her deposition that, when she returned to work part-time in 1994, USAir recalled many agents who had been furloughed. Even viewing the evidence in the light most favorable to Plaintiff, the district court correctly concluded that Plaintiff has presented no issue of fact about whether part-time reservations agent positions—meaning positions requiring four hours of work or less per day—existed at USAir when she was placed on medical leave.5
Accepting that no part-time reservations agent positions existed in 1993, the question remains whether USAir had a duty to create a part-time position for Plaintiff to accommodate her CTS. The district court concluded that USAir was required to create no part-time position, relying on cases stressing that employers are not required to create
Plaintiff argues that the district court erred by relying on “light-duty” cases in holding that USAir had no duty to create a part-time position for her. She notes that one performing “light-duty,” by definition, is not as productive as one performing full-duty because, “[i]n most cases, [] ‘light-duty’ positions involve a totally diffеrent job from the job that a worker performed before the injury.” Howell, 860 F.Supp. at 1492 (quoting Equal Employment Opportunity Commission, Technical Assistance Manual § 9.4). In contrast, a part-time employee works the same job, only on a shortened schedule.
Plaintiff asserts that the ADA establishes that part-time work is per se a reasonable accommodation because the statute lists “part-time or modified work schedules” as possible accommodations.
We disagree with Plaintiff‘s characterization of her burden of showing that a reasonable accommodation existed in this case. Although both the statute and regulations list (“may include“) pаrt-time work as a potential reasonable accommodation, we do not accept that this listing means part-time work is always a reasonable accommodation. The ADA‘s “use of the word ‘reasonable’ as an adjective for the word ‘accommodate’ connotes that an employer is not required to accommodate an employee in any manner in which that employee desires.” Stewart, 117 F.3d at 1285 (internal quotations аnd citations omitted). “This is so because the word ‘reasonable’ would be rendered superfluous in the ADA if employers were required in every instance to provide employees the ‘maximum accommodation or every conceivable accommodation possible.‘” Id. (internal quotations and citations omitted). A plaintiff does not satisfy her initial burden by simply naming a preferred accommodation—even one mentioned in the statute оr regulations; she must show that the accommodation is “reasonable” given her situation. Id. at 1286.
Whether an accommodation is reasonable depends on specific circumstances. See Wernick v. Federal Reserve Bank, 91 F.3d 379, 385 (2d Cir.1996). In a specific situation, part-time employment may or may not be reasonable. In this case, where USAir had no part-time jobs when Plaintiff demanded such a position, a request for part-time employment was unreasonable.
Although part-time work, as the statute and regulations recognize, may be a reasonable accommodation in some circumstances (particularly where the employer has part-time jobs readily available), we hold that USAir was not required to create a part-time position for Plaintiff where all part-time positions had already been eliminated from the company.6 See Whitbeck v. Vital Signs, Inc., 934 F.Supp. 9, 16 (D.D.C.1996), rev‘d on other grounds, 116 F.3d 588 (D.C.Cir.1997) (“This type of accommodation by an employer, providing an entirely nеw part-time position for a disabled employee, courts have found is not required by the ADA.“) (citations omitted). Cf. White v. York Int‘l Corp., 45 F.3d 357, 362 (10th Cir.1995) (“[T]he ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer reassign the employee to an occupied position, nor must the employer create a new position to accommodate the disabled worker.“). Whether a company will
To hold as plaintiff urges would create the anomaly that, if Plaintiff had been assigned to a part-time job one day before the part-time agents were furloughed, she would have been lawfully released with the other agents but, where she requested a part-time position soon after the part-time agents were furloughed, she would be legally entitled to a permanent part-time position. Or perhaps, Plaintiff would contend that, even under these supposed circumstances, she could keep her part-time job while all other part-time employees lost their jobs.
The intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities. See S.Rep. No. 101-116, 101st Cong., 2nd Sess. 35 (1990). Acceptance of Plaintiff‘s argument would result in the non-disabled (those part-time agents without CTS) being discriminated against—on the most basic of employment issues, that is, do you have a job at all—in favor of the disabled (those part-time agents with CTS): only part-time reservations agents with CTS would have jobs. This would be an obvious problеm. The ADA was never intended to turn nondiscrimination into discrimination. Cf. Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) (“Even viewing all the disputed evidence in favor of [the plaintiff], his ADA claim must fail because he did not show that he was treated differently from any other part-time employee whose job was eliminated.... There was no proof that the city treated him worse than it treated any other displaced employee.“); Rhodes v. Bob Florence Contractor, Inc., 890 F.Supp. 960, 967 (D.Kan.1995) (“[The plaintiff‘s] disability does not insulate him from the vagaries of the marketplace.“).
We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers. See, e.g.,
B. Drop Keyboard
Plaintiff also argues that USAir unreasonably delayed in providing her with a drop keyboard. She calculates the delay as thirteen months: 2 March 1993 (when her doctor requested that her work station be modi-
Considering the evidence in the light most favorable to Plaintiff, the delay in providing the drop keyboard was three months (two months before her leave and one month after her return). The district court did not err in concluding that this delay was reasonable, considering that Plaintiff had some access to a drop keyboard position during this time and that she was not required to type when she had no access.9
AFFIRMED.
ANDERSON, Circuit Judge, concurring:
As the opinion for the court points out, at the relevant time USAir had made a legitimate business decision not to maintain part-time positions. Plaintiff adduced no evidence to raise an issue of fact that part-time work for her was a reasonable accommodation in this particular work context. In light of this, plaintiff failed to carry her burden of identifying a reasonable accommodation. Stewart v. Happy Herman‘s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997) (a plaintiff has the burden of proving that the accommodation identified by plaintiff is reasonable). Accordingly, I concur and join the opinion for the court.
Notes
Here, the district court concluded that Plaintiff was not disabled because she had not shown that her CTS substantially limited a major life activity of working. Plaintiff makes a forceful argument that she has established a triable issue of fact on whether she is substantially limited in the major life activity of working. At the time of the district court‘s order, she was fifty-four years old; and she had been in the same position with USAir for over thirteen years. She has a high school equivalency degree but no college degree. These factors add support to her argument. We need not address this issue, however, because the district court correctly ruled that USAir reasonably accommodated Plaintiff‘s CTS.
The existence of intermediate agent positions at USAir while Plaintiff was on medical leave does not change our conclusion that Plaintiff has presented no triable issue of fact on whether “part-time” positions existed when she was placed on medical leave. In May 1993, when USAir placed Plaintiff on leave, Plaintiff‘s doctor had limited Plaintiff to working no more than four hours per day; and Plaintiff has continued to be limited to four hours of work per day until the time of oral argument in this case. Plaintiff has not shown—that is, produced insufficient evidence to create a question of fact—that reservations agents at USAir were allоwed to work four-hour shifts when she was placed on medical leave.
Many statutes and regulations exist that potentially affect an employer who has no part-time workers, but is later forced to hire рart-time employees. See, e.g.,