Whitney Stephenson v. Pfizer, Incorporated

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00147-TDS-LPA Copies to all parties and the district court/agency. [999766231].. [14-2079]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2079

WHITNEY C. STEPHENSON,
Plaintiff – Appellant,
v.
PFIZER, INCORPORATED,
Defendant – Appellee.
-----------------------------DISABILITY RIGHTS NORTH CAROLINA; NATIONAL DISABILITY RIGHTS
NETWORK; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION,
Amici Supporting Appellant,
EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA; NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER,
Amici Supporting Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cv-00147-TDS-LPA)

Argued:

October 27, 2015

Decided:

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

March 2, 2016

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Vacated and remanded by unpublished per curiam opinion.

ARGUED: Robert Mauldin Elliot, ELLIOT MORGAN PARSONAGE, PLLC,
Winston-Salem, North Carolina, for Appellant. Stephanie E. Lewis,
JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.
Barbara L. Sloan, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C. for Amicus Curiae.
ON BRIEF: Daniel C. Lyon,
ELLIOT MORGAN PARSONAGE, PLLC, Winston-Salem, North Carolina, for
Appellant. Jonathan A. Roth, JACKSON LEWIS P.C., Greenville, South
Carolina, for Appellee. P. David Lopez, General Counsel, Carolyn
L. Wheeler, Acting Associate General Counsel, Jennifer S.
Goldstein, Acting Assistant General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus U.S. Equal
Employment Opportunity Commission.
Lisa Grafstein, Katherine
Slager, DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina,
for Amici Disability Rights North Carolina, National Disability
Rights Network and National Employment Lawyers Association.
Kathryn Comerford Todd, Warren Postman, U.S. CHAMBER LITIGATION
CENTER, INC., Washington, D.C., for Amicus Chamber of Commerce of
the United States of America; Rae T. Vann, NORRIS, TYSSE, LAMPLEY
& LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council; Karen R. Harned, Elizabeth Milito, NATIONAL
FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER,
Washington, D.C. for Amicus National Federation of Independent
Business Small Business Legal Center.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Whitney C. Stephenson appeals from the district court’s award
of summary judgment to Pfizer, Incorporated, in an action under
the Americans with Disabilities Act (the “ADA”).

Stephenson —

who worked as a pharmaceutical sales representative for Pfizer
until November 2011, just after an eye disorder rendered her unable
to operate an automobile — contends that the company violated the
ADA

by

summarily

denying

her

request

for

a

driver.

Pfizer

maintains that driving an automobile is an essential function of
Stephenson’s job that she must perform personally, and the court
awarded summary judgment to Pfizer on that basis.

As explained

below, we vacate and remand because summary judgment was not
warranted.

I.
A.
In February 2013, Stephenson filed her complaint in the Middle
District of North Carolina, alleging that Pfizer had contravened
the ADA by denying a reasonable accommodation that would have
allowed her to return to her position as a pharmaceutical sales
representative.

The summary judgment record — which includes

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depositions, affidavits, and exhibits — provides the factual
background of this dispute. 1
1.
Stephenson

began

her

career

as

a

pharmaceutical

sales

representative in 1984, after graduating from Duke University.
For nearly thirty years, Stephenson worked for Pfizer or its
predecessor Warner-Lambert as a sales representative in and around
Winston-Salem, North Carolina.

That position required her to make

in-person presentations about pharmaceutical products, with the
goal of convincing medical professionals — generally primary care
physicians — to prescribe those products for their patients. 2
Stephenson was, by all accounts, an exemplary salesperson.
Early in her career, in 1985, she was named “Rookie of the Year”
by her employer.

Fifteen years later, Pfizer inducted Stephenson

1

Because we are reviewing an award of summary judgment to
Pfizer, we are obliged to accept and recite the relevant facts in
the light most favorable to Stephenson. See Rhoads v. FDIC, 257
F.3d 373, 386 (4th Cir. 2001).
2

Pfizer’s Winston-Salem, North Carolina district, where
Stephenson worked, was bounded by the municipalities of Mount Airy,
Madison, Kernersville, and Mocksville, within Surry, Rockingham,
Forsyth, and Davie counties.
Approximately 2300 physicians
possess active licenses within those counties, and nearly ninety
percent of those doctors are in Forsyth County, predominately in
Winston-Salem.
See
N.C.
Med.
Bd.,
Licensee
Search,
http://www.ncmedboard.org/ (follow “Start Search” hyperlink; then
select “Physician” license type and “Active” license status; then
search by county) (last visited Feb. 16, 2016).
The two major
medical centers in the district — Wake Forest Baptist and Novant
Health Forsyth — are in Winston-Salem, where Stephenson resides.
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into its “Hall of Fame,” an honor bestowed on fewer than a hundred
sales

representatives

in

the

company’s

history.

Stephenson

subsequently earned recognition in national sales contests and was
named a “Pfizer Master” in honor of her sales and leadership
achievements.
Stephenson

attributed

her

success

as

a

Pfizer

sales

representative to fastidious preparation for sales meetings.

She

stayed on top of current medical research and developments in the
pharmaceutical industry.

Using her thorough understanding of

various diseases, her company’s products, and the products of
competitors, Stephenson prepared clear and concise presentations
that

accurately

conveyed

complex

information

to

physicians.

Stephenson’s dedication and know-how earned her credibility with
doctors,
products.

who

in

turn

were

more

likely

to

prescribe

Pfizer’s

As a result, Stephenson generated millions of dollars

in sales each year for Pfizer and consistently ranked as one of
its top sales representatives in North Carolina.
Because her job required meetings with physicians in their
offices,
facility.

Stephenson

did

not

maintain

an

office

at

a

Pfizer

Instead, Pfizer provided her with a car to travel from

her home in Winston-Salem to sales meetings.
most of the workday in meetings with doctors.

Stephenson spent
She usually worked

about ten hours a day, with eight of those away from home and “on

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the road.”

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See J.A. 78. 3

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Although Stephenson could not perform

her job without meeting with medical professionals in person, she
understood her job to require travelling, and driving an automobile
was her method of doing so.
Stephenson’s job description says nothing about driving an
automobile or even possessing a driver’s license. 4
however,

outline

Stephenson’s

position

with

It does,

Pfizer

with

substantial specificity, including the following:
[Sales representatives] may have a variety of roles,
such as the responsibility for sales targets and
physician relationships within a specific geography
. . . [;] must demonstrate a strong understanding of
necessary disease states and possess a solid ability to
communicate necessary technical, scientific, and product
and disease management information to customers . . .
[;] [and] will provide the most current information
pertaining to Pfizer products and their approved
indications in a manner which will ensure the
appropriate use of these products and achieve the
business potential of the territory.
J.A. 521. According to her job description, a sales representative
must possess business savvy, be familiar with sales reporting
software, and have a college degree or equivalent experience in
pharmaceutical sales.

A Pfizer sales representative must also

3

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
4

Stephenson’s direct supervisor, district manager Thomas
Rulon, produced and authenticated Stephenson’s job description.
His affidavit explained that the job description was “accurate as
to the qualifications and essential functions required of sales
representatives” from 2004 through 2011. See J.A. 515.
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demonstrate

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several

“core

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competencies”:

good

judgment;

accountability; self-motivation; effective problem solving; other
sales-related
physicians

skills

and

focused

executing

on

building

effective

relationships

sales

with

strategies;

commitment to Pfizer’s “culture, values and mission.”

and

See id. at

521-22.
2.
In October 2008, Stephenson developed an eye disorder called
Non-Arteritic Anterior Ischemic Optic Neuropathy (“NAION”), which
affects the flow of blood to one or both of the optic nerves.

As

a result, Stephenson lost sixty percent of the vision in her left
eye.

She was nevertheless able to continue working, without

accommodations,

for

the

next

three

years.

By

October

2011,

however, Stephenson developed NAION in her right eye and lost sixty
percent of the vision in that eye.

Due to her combined vision

loss, Stephenson could no longer drive an automobile.

Shortly

thereafter, in November 2011, Stephenson went on disability leave,
which is her present status with Pfizer.
On October 27, 2011, Stephenson asked Pfizer to accommodate
her vision problems.

More specifically, she sought a driver to

take her to sales meetings, asked for magnifying software for her
computer, and requested magnifying tools to assist her in reading
documents.

While awaiting Pfizer’s response, Stephenson and her

husband researched and received pricing estimates from potential
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drivers and shuttle services that could transport her to sales
meetings. Stephenson forwarded some of that information to Pfizer,
but for about a month heard nothing regarding her accommodations
request.
By a November 28, 2011 email, Pfizer granted Stephenson’s
requests for computer software and reading tools but rejected her
request for a driver.

Pfizer did not suggest that the cost of

hiring or retaining a driver was a factor in the denial, but
maintained that the denial was based on Pfizer’s conclusions that
driving an automobile was an essential function of her sales
position

and

that

hiring

a

driver

would

be

“inherently

unreasonable.” See J.A. 593. Explaining those conclusions, Pfizer
pointed out that it would face “significant increased risk and
liability related to vehicular accidents, workers compensation,
and misappropriation of and/or lost drug samples.”

Id.

Over the next several months, Stephenson repeated her request
for a driver in phone calls and emails with Pfizer managers.
time, she received the same answer:

Each

driving is an essential

function of her sales position and providing a driver for her would
be an unreasonable accommodation.
Carolina

regional

business

Revealingly, Pfizer’s North

director,

Thomas

Salamone,

advised

Stephenson in early 2012 that Pfizer was concerned about “setting
precedent in case a future non-performing employee were to ask for
something

similar,”

explaining,
8

“Not

everyone

is

a

Whitney

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Stephenson.” See J.A. 481. Instead of discussing an accommodation
that could get Stephenson back to work meeting with doctors, Pfizer
directed her to other positions within the company that did not
require travelling.

Stephenson declined to pursue any other

positions, however, believing that her skills were best suited to
the sales representative job in which she had excelled for decades.
On April 25, 2012, Stephenson filed a charge of disability
discrimination with the Equal Employment Opportunity Commission
(the “EEOC”). In November 2012, the EEOC issued a notice informing
Stephenson of her right to sue.

These court proceedings ensued.
B.

By memorandum opinion and order of September 8, 2014, the
district court awarded summary judgment to Pfizer.
v.

Pfizer,

“Opinion”).

Inc.,

49

F.

Supp.

3d

434

See Stephenson

(M.D.N.C.

2014)

(the

The Opinion concluded that the essential functions of

Stephenson’s sales representative position with Pfizer were not
genuinely in dispute and that driving an automobile was essential
to her job.

The bases for those conclusions included:

Pfizer’s

assertion that driving is essential; Stephenson’s statement that
she

spent

“the

bulk”

of

her

day

travelling

between

doctors’

offices; Stephenson’s acknowledgement that she could not perform
her job unless she was able to travel to doctors’ offices; and
Pfizer’s

statement

that

all

of

representatives drove themselves.
9

its

North

Carolina

See id. at 440.

sales

The Opinion

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identified a number of statutory and regulatory factors that guide
an essential-function inquiry and concluded that the balance of
those factors favored Pfizer’s argument that driving was essential
to Stephenson’s position.
Notably, the Opinion recited that “[t]here 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.”

Stephenson, 49 F. Supp. 3d at 440.

The

Opinion did not, however, mention Stephenson’s job description,
which says nothing about driving. 5

In any event, the Opinion

discounted the dispute, reasoning that “the absence of a purported
essential

function

dispositive.”

from

a

posted

job

description

is

not

See id.

The Opinion also explained that the ADA does not require an
employer to reassign, reallocate, or adjust essential functions.
As a result, the Opinion concluded that Stephenson’s request for

5

Apart from Stephenson’s job description, the discovery
process revealed several job postings for sales positions at
Pfizer.
At least five job postings in 2014 for Pfizer sales
positions say nothing about driving or possessing a driver’s
license. In contrast, two other 2014 postings for Pfizer sales
positions include requirements for job applicants to “have a valid
US driver’s license and a driving record in compliance with company
standards.” See J.A. 493, 496. Pfizer also relied on an undated
document titled “Essential job functions for a Pfizer Professional
Healthcare Representative.”
That document states that a sales
representative should “be able to safely operate a motor vehicle
in accordance with company policy and applicable driving rules and
regulations.” See id. at 454.
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a driver was unreasonable as a matter of law, and that the only
accommodation Stephenson could seek from Pfizer was reassignment
to a different position.

Because Stephenson had not identified

any vacant positions she was willing to accept, she had failed,
according to the Opinion, to show that Pfizer had contravened the
ADA.

The district court thus awarded summary judgment to Pfizer.
Stephenson

timely

noted

this

appeal,

jurisdiction pursuant to 28 U.S.C. § 1291.

11

and

we

possess

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II.
We

review

de

novo

a

district

court’s

award

of

summary

judgment, viewing the evidence and the reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.

See

Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir. 2013).
Summary judgment is not appropriate unless there is no genuine
dispute of material fact, such that the moving party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56(a).

III.
A.
1.
The ADA bars an employer from discriminating “against a
qualified individual on the basis of disability.”
§ 12112(a).

See 42 U.S.C.

Such discrimination can occur when an employer fails

to accommodate the known disability of a qualified employee.
id. § 12112(b)(5).

See

In order for an employee to be a “qualified

individual” under the ADA, she must be able to “perform the
essential functions of the employment position,” either “with or
without reasonable accommodation.”
accommodation,

in

turn,

“is

Id. § 12111(8).

one

that

‘enables

A reasonable
a

qualified

individual with a disability to perform the essential functions of
a position.’”
F.3d

562,

Jacobs v. N.C. Admin. Office of the Courts, 780
580

(4th

Cir.

2015)
12

(quoting

29

C.F.R.

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§ 1630.2(o)(1)(ii)).

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Under the ADA, an employer has “a good-faith

duty to engage with [its employee] in an interactive process to
identify

a

reasonable

accommodation.”

Id.

at

581

(internal

quotation marks omitted).
Crucially, the ADA does not require an employer to reassign
any of the essential functions of a disabled employee, nor does it
require an employer to hire additional employees to perform an
essential function.

See Martinson v. Kinney Shoe Corp., 104 F.3d

683, 687 (4th Cir. 1997).

Rather, the employer must accommodate

a disabled employee only when an accommodation “would enable the
employee

to

position.”
include

job

perform

all

of

the

essential

Jacobs, 780 F.3d at 581.
restructuring,

functions

of

her

Such an accommodation can

modifications

to

a

work

schedule,

reassignment to a different position, the use or modification of
equipment that enables the individual to perform her job, or even
“the provision of qualified readers or interpreters.”

See 42

U.S.C. § 12111(9)(B).
We have construed the ADA to require a plaintiff pursuing a
failure-to-accommodate claim to satisfy four elements:

(1) that

she had a disability within the meaning of the statute; (2) that
her employer had notice of the disability; (3) that she could
perform the essential functions of her job with a reasonable
accommodation; and (4) that her employer declined to make such an
accommodation.

See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345
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(4th Cir. 2013).

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If the plaintiff proves the elements of her

failure-to-accommodate claim, the employer can yet avoid liability
by showing “that the proposed accommodation will cause undue
hardship

in

the

particular

circumstances.”

Reyazuddin

v.

Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015) (internal
quotation marks omitted).
2.
The third element of a failure-to-accommodate claim requires,
in part, an inquiry into the essential functions of the relevant
position.

In the context of the ADA, “[n]ot all job requirements

or functions are essential.”

Jacobs 780 F.3d at 579.

Instead,

the functions of a job that are essential include only those “that
bear more than a marginal relationship to the job at issue.”
Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th
Cir. 1994) (internal quotation marks omitted).

Identifying the

essential functions of a job requires a factual inquiry that is
guided by several statutory and regulatory factors.

See Jacobs,

780 F.3d at 579.
The
particular

ADA

identifies

function

is

two

factors

essential

to

that
a

inform

position.

whether
First,

a

the

employer’s judgment of the essential functions must be considered.
See 42 U.S.C. § 12111(8).

Second, if a written job description

has been prepared ahead of advertising or interviewing candidates

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for a position, that description “shall be considered evidence of
the essential functions of the job.”

See id. 6

The applicable regulations provide additional guidance on an
essential-function inquiry.
essential

functions

as

“the

First, the regulations define the
fundamental

job

duties

of

the

employment position the individual with a disability holds or
desires,” excluding “the marginal functions of the position.”
29 C.F.R. § 1630.2(n)(1).

See

Second, the regulations identify seven

factors that are “evidence of whether a particular function is
essential”:
•

“the employer’s judgment as to which functions are
essential”;

•

“written
job
advertising or
job”;

•

“the amount of time spent on the job performing the
function”;

•

“the consequences of not requiring the incumbent to
perform the function”;

descriptions
prepared
before
interviewing applicants for the

6

In pertinent part, the applicable ADA provision concerning
the employer’s judgment and the job description specifies that
consideration shall be given to the employer’s judgment
as to what functions of a job are essential, and if an
employer has prepared a written description before
advertising or interviewing applicants for the job, this
description shall be considered evidence of the
essential functions of the job.
See 42 U.S.C. § 12111(8).

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•

“the terms of a collective bargaining agreement”;

•

“the work experience of past incumbents in the
job”;

•

“the current work
similar jobs.”

experience

See id. § 1630.2(n)(3)(i)-(vii). 7

of

incumbents

in

None of those seven factors is

dispositive, and not all of them will be relevant in every case.
See, e.g., Jacobs, 780 F.3d at 579 (considering some but not all
regulatory

factors);

Martinson,

104

F.3d

at

687

(same).

Furthermore, the list of factors is not exhaustive. See 29 C.F.R.
§ 1630.2(n)(2)(3) (explaining that proof of essential functions
includes,

“but

is

regulatory factors).

not

limited

to,”

evidence

identified

by

Thus, for example, a written job description

prepared after advertising or interviewing applicants for the job
could be relevant evidence of whether a particular function is
essential.

See Basith v. Cook Cty., 241 F.3d 919, 928 (7th Cir.

7

The regulations also provide three examples of situations
where a function can be essential:
•

the job
function;

perform

the

•

the small size of the workforce requires
employees to be able to perform the function;

all

•

the employee is hired for her expertise
performing the highly specialized function.

exists

specifically

See 29 C.F.R. § 1630.2(n)(2)(i)-(iii).
16

to

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2001) (using job description created after hiring as evidence of
essential functions).
B.
With respect to the third and fourth elements of Stephenson’s
failure-to-accommodate claim — whether she could perform her
position’s essential functions with a reasonable accommodation and
whether Pfizer declined to make such an accommodation — the
parties dispute whether the ability to drive an automobile is an
essential function of Stephenson’s sales position with Pfizer.
Pfizer

contends

that

driving

is

essential,

while

Stephenson

maintains that travelling — not driving — is the function at
issue.

Resolving that dispute is critical to Stephenson’s ADA

claim because, under the statute, an employer must accommodate
only an employee who is “qualified,” that is, able to perform her
position’s essential functions with or without an accommodation.
See 42 U.S.C. § 12111(8).
If driving is an essential function of her sales position,
Stephenson — who cannot drive no matter the accommodation — is
not qualified under the ADA and her claim fails as a matter of
law.

On the record before us, however, summary judgment is not

warranted because there is a genuine dispute of material fact as

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travelling.

the

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essential

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function

at

issue

is

driving

or

That factual dispute is for a jury to resolve. 8

IV.
Pursuant to the foregoing, we vacate the district court’s
award of summary judgment and remand for such other and further
proceedings as may be appropriate.

VACATED AND REMANDED

8

There is also a genuine dispute of material fact as to the
alternative basis proffered by Pfizer for upholding the judgment
in its favor: that, even if driving a car is not essential to
Stephenson’s job, hiring or retaining a driver would be an
unreasonable accommodation.
18