Koss v. Lincare, Inc.

Filing 21

Opinion and ORDER granting 11 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ROBIN KOSS,
Plaintiff,
Case Number 11-11932
Honorable Thomas L. Ludington

v.
LINCARE, INC.,
Defendant.
______________________________________ /

OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This employment discrimination case arises out of the ending of Plaintiff Robin Koss’s
employment with Defendant Lincare, Inc.

While working as a sales representative for

Defendant, Plaintiff aggravated her lymphedema. Her doctor ordered her not to lift objects
weighing more than ten pounds. Because of her disability, Plaintiff contends, her employment
was terminated. Defendant responds that it terminated Plaintiff’s employment not because of her
disability, but because she could not perform the essential functions of her job. Defendant notes
that it has consistently judged the setting up of oxygen tanks and concentrators (which both
weigh more than ten pounds) as essential functions of a sales representative.

The work

experience of past and present sales representatives has included these functions. And the
published job description provides that sales representatives “must frequently lift and/or move up
to 10 pounds and occasionally lift and/or move up to 25 pounds.”
Following her termination, Plaintiff filed suit in this Court alleging a violation of the
Americans with Disabilities Act. Defendant now moves for summary judgment. ECF No. 11.

Because Defendant is correct that Plaintiff could not perform the essential functions of her job,
the Court will grant Defendant’s motion.
I
A
Plaintiff is a breast cancer survivor. To treat her cancer, lymph nodes were removed.
When the lymph nodes were removed, lymph vessels that carry fluid from the arm to the rest of
the body were also removed. As a result, Plaintiff suffers from lymphedema in her right arm.
Fluid accumulates, causing swelling. To treat her lymphedema, Plaintiff wears a compression
sleeve (a garment that compresses the arm to cause the fluid to flow out of the limb). While
Plaintiff was required to monitor the status of her arm prior to her employment with Lincare, she
had no lifting restrictions.
Defendant is in the business of supplying medical equipment, such as oxygen tanks and
compressors, to doctors and patients. Nationwide, it operates more than thirteen hundred offices
(or “centers”). Centers are staffed by five to fifteen employees filling five positions. Managers
run the centers.

Customer service representatives perform administrative tasks.

Service

representatives make scheduled equipment deliveries. Health care specialists act as in-house
licensed health care providers. And sales representatives, as their job title suggests, sell products
and services.
Some of the specific duties of sales representatives’ are listed in a written job description,
which provides in pertinent part:
ESSENTIAL DUTIES AND RESPONSIBILITIES include the following. Other
duties may be assigned.
Establish and maintain a relationship with referral sources in the medical
community. Responsible for obtaining a predetermined number of oxygen
referrals per month.
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Identify and develop new referral sources. Responsible for obtaining a
predetermined number of oxygen set-ups from new referral sources each month.
Prepare for and participate in trade shows, exhibits and advertising campaigns.
Conduct[] in-service for referral sources educating them in the use and application
of Lincare equipment. . . .
May be required to set-up patient where allowed by state regulation. . . .
PHYSICAL DEMANDS . . . The employee must frequently lift and/or move up
to 10 pounds and occasionally lift and/or move up to 25 pounds.
Pl.’s Resp. Mot. Summ. J. Ex. 7, at 1–2, ECF No. 15-8. In Michigan, state regulations permit
sales representatives to set up medical equipment in a patient’s hospital room or home.
B
In January 2010, Plaintiff applied for a job as a sales representative in Defendant’s
Houghton Lake center. The center’s manager, Tina Reeds, interviewed Plaintiff. During the
interview, Ms. Reeds brought up the requirement that Houghton Lake staff be “on-call” to
deliver equipment to patients outside normal business hours. As the office had only five people
(including the manager), each employee was on call one week each month (except the manager,
who filled in as needed). During Plaintiff’s deposition, she was asked:
Q:
A:
Q:
A:
Q:
A:
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A:
Q:
A:
Q:
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Did you have an understanding as to what on call meant at that time?
Meant I would be available for calls after hours.
What kind of calls?
Calls for patients to receive equipment from us.
And that’s what Tina explained at the first interview?
That was my understanding.
And what else? What did you say when she asked if you would be available?
I said I would be available.
Okay. Did she say anything about the type of equipment that might be
relevant to this on-call issue?
It would be the equipment we provided to our patients.
Oxygen?
Um-hmm.
Yes?
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A: Yes.
Q: Did she say anything about having equipment available in your car during that
first interview?
A: She might have.
Q: Okay. You don’t recall one way or the other?
A: I do not.
Q: Did you eventually learn something about that before you took the job?
A: I’m sure I did, yes, somewhere along there.
Q: So you think you learned that maybe at the second interview?
A: I don’t know if it was the first or second.
Q: Regardless of when it was, the first or second, what did you learn about
having equipment available?
A: I would have to have equipment available.
Q: What kind of equipment?
A: Oxygen.
Q: And “available” means what?
A: In my car.
Q: What kind of oxygen; in other words, what kind of an oxygen package? Was
it a tank or something else?
A: Oh, probably a medium size tank and a concentrator.
Pl.’s Dep. 34:1–35:14, Oct. 28, 2011, attached as Def.’s Mot. Summ. J. Ex. A, ECF No. 11-7.
The “most frequent set up” involves a medium size oxygen tank that weighs eleven
pounds. See Morrison Aff. ¶ 6, attached as Def.’s Mot. Ex. J; see also Def.’s Mot. Ex. F (listing
oxygen tank weights). The lightest of Defendant’s compressors weighs about thirty pounds.
Pl.’s Dep. 32:14–17.
In Ms. Reeds’s deposition, she was also asked about the first interview. She recalled that
after discussing a sale representative’s job requirements, the conversation turned to the Houghton
Lake center in particular. She was asked:
Q: Tell me what you recall about your interview with Robin Koss?
A: . . . We discussed that we were a small center, that we all shared responsibility
for on-call, that we’re not a typical office where we close at 5:00 o’clock, that
we are 24/7 including holidays, and that we all share in the responsibility of
that. I had reviewed her resume which read very well to me, but had a gap,
and I just asked I’m interested you had a gap in work, what happened here,
because I took time off when my children were born, so I was curious. And
she volunteered the information that she had been through — she had breast

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cancer, and she shared with me her experience and we bonded a little bit
because I had a similar scare. And she was very — I was impressed with her.
I thought if she could overcome that, she would do a great job, that she was a
fighter, and I liked that.
Reeds Dep. 25:15–26:4, Dec. 14, 2011, attached as Pl.’s Resp. Ex. 4. Plaintiff also recalled that
the topic of her cancer came up at the first interview. During Plaintiff’s deposition, she was
asked:
Q: Anything else that you can remember just before — I’m going to get out of
this first interview pretty soon here but anything else you remember
discussing with Tina at the first interview about your cancer?
A: Nothing that I remember.
Q: Do you remember telling her that occasionally your arm would swell?
A: I remember telling her that I’ve had issues with my arm, that it was
occasional.
Q: Do you remember telling her that you would wrap your arm occasionally, at
that first interview?
A: Um-hmm.
Q: You think that you did tell her that now?
A: I don’t know if I did. If I did, that would not have been inaccurate.
Q: Okay. And again, I’m just trying to get to what you remember talking about.
Do you remember Tina asking you, look, is your cancer or your arm going to
get in the way of doing the things that we’ve talked about, like the on-call
duties or the movement of equipment or anything, any of those things. Do
you recall her asking you that question?
A: I believe we talked about whether or not I would be able to do the job relative
to my arm, and I said I had no reason to believe that I couldn’t.
Q: And relative to the movement of equipment, as well?
A: Yeah.
Q: That’s why it came up?
A: Right.
Q: Okay. And you said, I think I can do it?
A: Yeah, yeah. I could — It was my understanding that I would occasionally
need to do that and I said, yes, I can occasionally do that.
Q: Did you talk about — Was the word “occasionally” used, as you recall?
A: Something [like] that — either that word or another word that meant the same
thing.
Q: All right. And by whatever word that was used, did you understand that you
weren’t going to have to haul equipment and big tanks sort of repeatedly
every day?
A: Correct.
Q: Okay. But you knew from your discussions at that first meeting that at least
periodically it was something you would be required to do?
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A: Yes.
Pl.’s Dep. 55:7–57:3.
Following the first interview, Defendant invited Plaintiff for a second. In this interview,
Ms. Reeds was joined by her supervisor, district manager Rhonda Roth. The same topics were
discussed. Again, Plaintiff did well.
C
In March 2010, Defendant offered Plaintiff a position as sales representative.

She

accepted. She then signed two documents. First, on March 15, 2010, she signed a copy of the
sales representative job description quoted above. See Def.’s Mot. Ex. B. Three days later, she
signed a “sales expectations” form. Id. Ex. C. The form provides that sales representatives are
expected to build relationships with clients, be able to set up all equipment types, and carry a
concentrator and medium oxygen tank at all times:
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Establish and maintain relationships with referral sources. . . .
Place Starter Dose Kits (monthly goals to be determined with CM). . . .
Understand and be able to set up all equipment types . . . .
Have a Concentrator, DTs, and portable system [medium oxygen tank] at all
times (two of each preferred).

Id.
In April 2010, Plaintiff travelled to Florida (where Defendant’s corporate headquarters
are located) for three weeks of training. The next month, she began working at the Houghton
Lake center. Plaintiff recalls, “I would go to doctors’ offices and talk to them about Lincare
products and services, review with them patient information and ask for additional referrals.”
Pl.’s Dep. 69:1–3.

Additionally, Plaintiff performed equipment set-ups for patients during

normal business hours. She explains:
I would generally have it with me, so that, as I was making sales calls, if there
was an opportunity to set up a patient if I was in the geographical area that
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Q:
A:
Q:

A:
Q:
A:
Q:
A:
Q:
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was where the patient was, I would get the phone call and say, this doctor
needs you at this location to do this for that patient.
Got you. Okay. And that’s called a setup?
Perhaps. It could have been — I mean, it depended on what the patient
needed.
Okay. If the patient needed oxygen, you would take your tank in and do the
same thing for the patient that you explained to me you would do for the guy
at the hospital; is that right?
Correct.
And what is a good word for us to call that?
You can call it a setup.
Is a setup just oxygen or does a setup include a concentrator? I just want to
make sure we’re talking the same language.
Generally, I would expect a setup would include a concentrator.
During the period of time you were at Lincare, how many setups did you do
that included the concentrator?
A setup includes a concentrator. I don’t know how many I did. . . .
How many do you recall doing?
I don’t.
Let me ask it this way. What would a customary week be?
Maybe a couple a week. Maybe one a week.

Pl.’s Dep. 109:10–110:20. Plaintiff was also placed into the on-call rotation for afterhours setups. Addressing this responsibility during her deposition, she was asked:
Q: During the period of time that you worked with Lincare, how often were you
on call?
A: I want to say every four or five weeks. . . .
Q: How many weeks do you think you were on call during the three or four
months that you worked with Lincare?
A: I think it was three times.
Q: Did you ever have to perform any official duties while you were on call?
A: Yes.
Q: How many times?
A: I don’t remember.
Q: More than five?
A: Per on call?
Q: No. I’m talking about total.
A: Total, over the three periods of time?
Q: Right.
A: I believe so.
Q: More than a dozen?
A: I don’t remember.
Q: What on-call duties do you recall you had to perform?

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A: Delivering maybe a walker to the hospital, setting up a patient with oxygen to
leave the hospital and then meeting with them at their home to set up their
concentrator.
Pl.’s Dep. 96:4–97:10.
D
Plaintiff performed a set-up in Standish, Michigan on July 1, 2010. The equipment
included one of the heavier concentrators. Plaintiff recounts what happened:

Q:
A:
Q:
A:
Q:

A:
Q:
A:

While lifting a piece of equipment, the strain on my arm created a blood clot.
What kind of equipment were you lifting?
An oxygen concentrator.
Do you know how much it weighed?
It was one of heavier ones. I would say between sixty to, you know, sixty,
seventy, [seventy-five pounds]. I don’t know, somewhere around that. . . .
Was there a trauma, do you know? I don’t know if that’s the right word but
was there an immediate reaction from the lifting that you recall or was it
something that set in later?
I was not aware of it at the time.
When did you first become aware of it?
I realized that it was — I had exacerbated — My arm began to swell over the
next couple of days.

Pl.’s Dep. 71:12–72:23.
Over the Fourth of July weekend, the swelling in Plaintiff’s right arm worsened. Plaintiff
called her doctor on Monday, July 5, and was told to contact her physical therapist. Her
therapist, Madhu Rishi, recommended a compression pump. She also recommended taking a
few days off. Plaintiff followed Ms. Rishi’s recommendations, but the swelling did not go down.
Two days later, she made an appointment with her doctor. After examining Plaintiff, the doctor
sent her to the emergency room, where an ultrasound revealed a blood clot. Plaintiff underwent
surgery that evening. The following day, she underwent a second surgery. She remained in the
hospital for about a week.

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After being released from the hospital, Plaintiff called her supervisor, Ms. Reeds.
Plaintiff recalls that Ms. Reeds directed Plaintiff to bring her job description to her doctor to
clear her for work:
I think I called her just to let her know I was home and to follow up and let her
know how long they had told me I needed to stay off work; that I had a follow-up
appointment somewhere towards the end of — within a week or two, and just
asked her what I needed to do. And she said — she explained the process of them
needing to — of what I needed to do to come back to work. . . .
I sent to them — or they sent to me my job description for my doctor, to say, read
this and clear her to return to work.
Pl.’s Dep. 80:4–20. Plaintiff brought the job description to her physical therapist, who wrote that
Plaintiff could return to work with three permanent restrictions: (1) no overhead lifting; (2) no
lifting greater than ten pounds; and (3) no repetitive motion with the right arm. Pl.’s Resp. 7.
After Plaintiff sent these restrictions to Ms. Reeds, the two women had another telephone
conversation. In her deposition, Ms. Reeds was asked:
Q: Did Robin, at any time tell you she believed she could do her job with an
accommodation?
A: She did.
Q: What did she tell you, or what was that discussion?
A: She said that she felt that she could do the job with assistance of another
person.
Q: When did that conversation occur?
A: I would be guessing at a timeline. I would have to guess that it fell
somewhere between the lymphedema pump and her return to the office on the
22nd.
Q: Was this a telephone conversation with you?
A: Yes.
Q: Okay.
A: And it was in response to the physical therapist note . . . .
Q: Okay. How did this conversation come up between you and her where you
had this conversation?
A: I don’t recall how we got to that. I believe she was concerned about having a
job being off for a length of time and concerned that those restrictions were
going to be an issue.
Q: Okay. Was this a phone conversation?
A: Yes.
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Q:
A:
Q:
A:
Q:
A:

Just between you and Robin?
Yes.
And Robin felt she could do the job with the assistance of another person?
She suggested that.
Okay. And what was your response?
That — the first suggestion by Robin was that a family member accompany
her, and my response was that that would not be allowed by corporate due to
HIPAA rules. It would be a privacy issue. The second suggestion by Robin
was that it could be done by a service rep, a customer service rep, a healthcare
specialist, myself, that we could do all of the heavy lifting. Robin would do
all the talking and the paperwork.
Q: And what was your response?
A: That that’s not a decision made by me, that’s a decision made by corporate.

Reeds Dep. 60:9–61:24.
E
On July 22, Plaintiff returned to work with a copy of the physical therapist’s restrictions.
Ms. Reeds faxed the information to Defendant’s human resources department. The human
resources manager, Sheila Dilley, then set up a conference call with Plaintiff and Ms. Reeds. In
her deposition, Plaintiff was asked:
Q: During that telephone conference call, did you offer as a suggestion that you
would have a family member come and lift oxygen tanks and concentrators
for you?
A: I remember saying it one time. I don’t remember if it was during that call or
not. I remember saying, you know, gee, if I need to, I can do this. And I
don’t remember who [I] said it to or when, and they pointed out that that
would have been a HIPPAA violation for me to have a person at a patient’s
home and, so, that wasn’t an option.
Q: Okay. And do you agree with that, that —
A: Yes.
Q: — it would have been a HIPPAA violation?
A: Yes. . . .
Q: During that telephone conference call, do you remember suggesting that you
be removed from on-call?
A: I remember saying I wouldn’t be able to do that because I wouldn’t be able to
lift the concentrators.
Q: And what was the response to that, if you recall?
A: There was not a specific response to anything in that conversation from
Lincare. They said they would have to check into it and they would get back
to me.
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Q: During that telephone conference call, do you remember suggesting that
Lincare have someone, essentially, meet up with you any time there had to be
lifting involved, to do the lifting for you?
A: No.
Q: Did you make any suggestion similar to that?
A: That if they were setting up, I would be able to go where they were. If it was
a patient that I needed to — a doctor/patient relationship that I needed to be a
part of, I could accompany somebody else doing the setup but not that
somebody should have to come with me and lift for me.
Q: Okay. Did anyone from Lincare make any suggestions as to how your lifting
restriction could be accommodated during the conference call?
A: During the conference call, not that I recall.
Q: Did they ever?
A: Yes. In my conversation with Tina, she said, well, we can work around it.
Q: Okay. And the way you were going to “work around it” was to have
somebody else take a portion of what you had been doing and do that portion
of what you had been doing, referring to the on-call stuff, right?
A: I wouldn’t — yeah.
Pl.’s Dep. 137:7–139:10. Ms. Dilley was also asked about the conference call in her deposition.
She was asked:
Q: Tell me what you recall about that phone conference?
A: I most likely [initiated the call], because I have the ability to conference
somebody and call Tina, and then called Robin and then went over what the
— just to clarify what I’m looking at, the restrictions that there is no overhead
lifting, there is no lifting over ten pounds and no repetitive motion with the
right arm and that these are permanent. And then generally we discussed what
the job entails that the individual is holding. I don’t remember exactly what
was said.
Q: I don’t want to know what generally you had discussed. I want to know what
you recall discussing with Tina and Robin.
A: I don’t have exact recall.
Q: Do you remember anything you discussed with them?
A: I do remember talking about that there wasn’t any other positions within that
center and her mentioning to me that a competitor —
Q: Who’s her?
A: I’m sorry, Robin said to me that a competitor had somebody that was in a
wheelchair. And I did respond that I was not familiar with who the
competitor was. And she named the competitor. And I said I don’t know
what the requirements of their job [are] as opposed to I do know what
Lincare’s requirements are. And so we talked about that, then she also made
mention about that she was asked to lift 60 pounds and that we put her life in
jeopardy. She was very combative, that’s all. I do remember that.
Q: Anything else you remember about that phone conversation?
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A:
Q:
A:
Q:

That — not specifics.
Okay. And how did the phone conversation conclude?
I don’t recall.
Well, what was Robin’s status at the conclusion of the phone conversation?
What was the status of her employment?
A: That we would look at whether there was any kind of — I don’t recall exactly
what was stated, but with the permanent restrictions that it would not be
something that, you know, we would not be able to work with.
Dilley Dep. 22:22–24:12, Feb. 29, 2012, attached as Def.’s Mot. Ex I. Ms. Reeds was also
asked about this conference call in her deposition:
Q: And what do you recall about the discussion?
A: Sheila relayed the information to Robin that you know, we were not going to
be able to accommodate these permanent restrictions, that she was not going
to be able to perform. In their opinion she would not be able to perform the
job she was hired to do.
Q: Did Sheila say what functions she didn’t believe Robin would be able to
perform?
A: She did not say that initially. Robin responded — I believe Robin asked what
specifically. Sheila said she would not be able to perform oxygen setups, that
that would be too heavy, that the tanks that sales reps carry and deliver would
be too heavy, that nothing we do in a setup or an on-call would fall under
those restrictions. . . .
Q: Okay. Tell me what else occurred in that conversation?
A: Sheila explained, as I mentioned before that the lifting of the equipment for
setups and on-call would be outside of those restrictions.
Q: Okay. And do you remember any other response from Robin during that
conversation?
A: I remember Robin saying that she felt it was unfair, that she felt Lincare
should accommodate those restrictions as she — in Robin’s words Lincare
caused the problem.
Q: What else do you remember about that telephone conversation?
A: That’s approximately it. It was a short conversation.
Q: Okay. And what happened next?
A: Sheila, you know, said that’s all that we have to say on that. I’m sorry, it is
what we’ve discussed. You’ll need to turn your keys into Tina and any other
Lincare owned equipment. The call ended.
Q: And what did Robin do?
A: She gathered her keys, I followed her out to her car, she had a couple tanks in
her car, I unloaded the tanks, retrieved any sales materials she had, and Robin
left.
Reeds Dep. 52:3–17, 59:1–23.

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About two weeks later, Ms. Dilley wrote to Plaintiff. Def.’s Mot. Ex. E. “This letter is to
confirm our telephone conversation on July 22, 2010,” the letter began. Id. It continued:
We confirmed that the medical provider had mandated restrictions of no overhead
lifting, no lifting of more than 10 pounds, and no repetitive motion to right arm.
You confirmed that you understood them and that you understood them to be
permanent.
In review[ing] the physical requirements of your job as a Sales Representative
(frequently move/lift up to 10 pounds and occasionally move/lift up to 25 pounds)
and the permanent restriction you have, you would not be able to perform the
essential requirements which include the deliver[y] of equipment to discharge
planners and demonstrating equipment during in-services. Unfortunately there is
not any other position in the center that would be able to accommodate these
permanent restrictions.
Consequently, we are removing you from our rolls as an active employee.
Id. Ms. Dilley mailed the letter to Plaintiff on August 5. Four days later, Plaintiff faxed a letter
to Defendant. It provided:
The purpose of this letter [is] to confirm that, I am ready, willing, and able to
return to work. My physician restrictions are within my job duties. Please advise
me of a date when I can return to work.
This letter also confirms that I submitted a doctor’s release on 7/21/10. Since that
date you have not engaged in an interactive process seeking to accommodate my
restrictions. I have been told that you do not want to accommodate my
restrictions. This seems incredibly unfair because the restrictions do not appear to
interfere with my job description.
Additionally, I feel I have no choice, so I am filing a claim of discrimination with
the EEOC due to your refusal to accommodate my disability.
Pl.’s Resp. Ex. 8.
In November 2010, Plaintiff filed a claim of discrimination with the Equal Employment
Opportunity Commission. In April 2011, the EEOC issued a notice of right to sue. Plaintiff
filed suit in this Court the following month.
Defendant now moves for summary judgment.

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II
Summary judgment should be granted if the admissible evidence 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 Court must view all facts and draw all reasonable inferences in
favor of the nonmovant and determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
III
The Americans with Disabilities Act, among its protections, prohibits an employer from
discharging a qualified individual on the basis of disability. 42 U.S.C. § 12112(a). To establish
a prima facie case of disability discrimination, a plaintiff must prove: (1) she is an individual
with a disability; (2) she is otherwise qualified to perform the job requirements, with or without
reasonable accommodation; and (3) she was discharged solely on account of her disability.
Walsh v. UPS, 201 F.3d 718, 724 (6th Cir. 2000); EEOC v. AT&T Mobility Servs., No. 10–
13889, 2011 WL 6309449, at *7 (E.D. Mich. Dec. 15, 2011). The party opposing the motion
may not “rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed
fact,” but must make an affirmative showing with proper evidence in order to defeat the motion.
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Here, Defendant argues that Plaintiff does not establish either of the first two elements of
the prima facie case. She is not disabled, Defendant asserts, because “a ten pound lifting
restriction does not constitute a substantial limitation on a major life activity under the ADA.”
Def.’s Mot. 10. Next, Defendants argue, even if Plaintiff is disabled, she does not establish the

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second element because she does not establish that she is capable of performing the essential
functions of her job. As the second argument is dispositive, it is taken up first.
A
“Essential functions of a job,” this Court recently noted, “are those functions which the
individual who holds the position must be able to perform and that could not be removed without
fundamentally altering the position.” AT&T Mobility Servs., 2011 WL 6309449, at *7 (citing 29
C.F.R. § 1630.2(n)). “ ‘The term essential functions means the fundamental job duties of the
employment position the individual with a disability holds or desires,’ but it does not include
only marginal functions.” Hoskins v. Oakland Cnty. Sheriff’s Dept., 227 F.3d 719, 726 (6th Cir.
2000) (quoting 29 C.F.R. § 1630.2(n)(1)).
In this case, Defendant contends that essential functions of the sales representative
position include oxygen set-ups and on-call rotations. Def.’s Mot. 13. That is, salespeople are
required to do more than simply sell the equipment, they have to be able set it up too (during
regular business hours and after hours as part of the on-call rotation). Plaintiff concedes that she
is unable to perform set-ups or participate in on-call rotations, but argues that the evidence shows
“that these were not essential functions of the sales representative position.” Pl.’s Resp. 10.
Contrary to Plaintiff’s assertion, Defendant establishes that they are essential to the position of
sales representative.
1
“The inquiry into whether a function is essential,” the Sixth Circuit emphasizes, “is
highly fact specific.” Hoskins, 227 F.3d at 726. A court must “scrutinize the evidence before
determining whether the defendant’s justifications reflect a well-informed judgment grounded in
a careful and open-minded weighing of the risks and alternatives, or whether they are simply

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conclusory statements that are being used to justify reflexive reactions grounded in ignorance or
capitulation to public prejudice.” Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988)
(quoting Arline v. Sch. Bd. of Nassau Cnty., 772 F.2d 759, 764–65 (11th Cir. 1985)). In this
case, Plaintiff does not suggest that Defendant is actually prejudiced against breast cancer
survivors and is merely using the oxygen set-ups and on-call rotation requirements to justify
terminating Plaintiff’s employment. Rather, Plaintiff contends that set-ups and on-call rotations
are simply not essential functions of the sales representative position — the essential function is,
as the job title suggests, selling.
Factors for the court to consider in determining whether a particular job function is
essential include:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

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.

Hoskins, 227 F.3d at 726 (quoting 29 C.F.R. § 1630.2(n)(3)).

In this case, no collective

bargaining agreement exists between the parties. After drawing all reasonable inferences in
Plaintiff’s favor, the remaining factors establish that set-ups and on-call rotations are essential
functions of sales representatives at the Houghton Lake center.
First, Defendant has consistently judged these two tasks to be essential functions. Before
Plaintiff was hired, Defendant informed Plaintiff during each of her two interviews that sales
representatives are required to perform oxygen set-ups and participate in on-call rotations. When
Defendant inquired whether Plaintiff would be able to perform these tasks, Plaintiff responded
that she would. “I believe we talked about whether or not I would be able to do the job relative
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to my arm,” Plaintiff testified, “and I said I had no reason to believe that I couldn’t.” Pl.’s Dep.
56:4–6. Likewise, Defendant’s regional manager testifies “Sales Representatives must perform
equipment set ups, particularly oxygen set ups, as part of their essential job functions” and “It is
customary for a Sales Representative to have ‘on-call’ duties in smaller Centers, such as the
Houghton Center, as part of his/her essential job functions.” Morrison Aff. ¶¶ 6–7. After
Plaintiff was hired, she acknowledges, she repeatedly performed oxygen set-ups and performed
on-call service calls.

See Pl.’s Dep. 96:4–97:10 (quoted above).

Defendant’s consistent

judgment as demonstrated by its course of conduct thus suggests that these two functions are
essential.
Second, the written job description Defendant prepared before interviewing Plaintiff
specifies that oxygen set-up is an essential part of a sales representative’s job. Under the heading
“essential duties,” the job description provides: “May be required to set-up patient where allowed
by state regulation.” Pl.’s Resp. Ex. 7, at 1. And in Michigan, the parties agree, state regulations
permit patient set-ups. The job description also provides under the heading “physical demands”
that “The employee must frequently lift and/or move up to 10 pounds and occasionally lift and/or
move up to 25 pounds.” Id. at 2. The parties agree that Plaintiff’s lifting restriction means that
she is unable to meet the physical demands listed in the job description. Plaintiff signed a copy
of this job description when she was hired. Def.’s Mot. Ex. B. She also signed a “sales
expectations” form. Id. Ex. C. That form provides that sales representatives are expected to “be
able to set up all equipment types” and “[h]ave a Concentrator, DTs, and portable system
[medium oxygen tank] at all times (two of each preferred).” Id. Defendant’s published policies,
enacted before hiring Plaintiff, thus suggest that set-up is an essential function.

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Third, these functions formed a regular part of the time Plaintiff spent working for
Defendant. Plaintiff was required to spend one week each month on-call. And while she could
not recall the precise number of times she actually responded to a call, she estimated it to be
more than five, perhaps more than a dozen.

See Pl.’s Dep. 96:17–97:4 (quoted above).

Moreover, although Plaintiff could not recall the precise number of times she performed a set-up,
she acknowledged that she averaged “[m]aybe a couple a week. Maybe one a week.” Pl.’s Dep.
110:20. That these functions formed a regular part of Plaintiff’s work schedule (in the case of
the on-call rotation, a substantial part of the schedule) suggest that they were not marginal, but
essential functions.
Fourth, oxygen set-ups and on-call rotations are vital, not discretionary, activities.
“Because meeting patients’ respiratory needs is involved,” Defendant’s regional manager notes,
“Lincare is a 24 hour/7 day a week business.” Morrison Aff. ¶ 5. Plaintiff likewise recognizes
that these activities are vital, and so she asks that someone else perform them. Following her
injury, she told her supervisor that the set-ups “could be done by a service rep, a customer
service rep, a healthcare specialist, myself [i.e., Ms. Reeds], that we could do all of the heavy
lifting.” Reeds Dep. 61:17–61:20. Similarly, in her deposition Plaintiff was asked, “And the
way you were going to ‘work around it’ was to have somebody else take a portion of what you
had been doing and do that portion of what you had been doing, referring to the on-call stuff,
right?” Pl.’s Dep. 139:6–9. She responded, “yeah.” Pl.’s Dep. 139:10. The Sixth Circuit
instructs, however, that “the ADA does not require employers to accommodate individuals by
shifting an essential job function onto others.” Hoskins, 227 F.3d at 729 (citing Bratten v. SSI
Servs., Inc., 185 F.3d 625, 632 (6th Cir. 1999)). Plaintiff’s assertion that the job function is not
essential because it could have been reassigned thus lacks merit — “employers are not required

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to assign existing employees or hire new employees to perform certain functions or duties of a
disabled employee’s job which the employee cannot perform by virtue of his disability.”
Bratten, 185 F.3d at 632 (citing Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir.
1996)). Obligated to follow the Sixth Circuit instruction on this issue, the Court cannot impose
liability on Defendant for not taking Plaintiff up on her suggestion that someone else could “do
all of the heavy lifting.”
Finally, the work experience of past and present sales representatives has included
oxygen set-ups and on-call rotations. As noted, Defendant’s regional manager has produced an
affidavit. “I have worked for Lincare for over 25 years,” he testifies. Morrison Aff. ¶ 1. He
continues: “Sales Representatives must perform equipment set ups, particularly oxygen set ups,
as part of their essential job functions,” explaining: “Sales Representatives are required to
perform set ups and/or to deliver equipment in smaller Centers (such as the Houghton Lake
Center) as a matter of course due to personnel and geographic concerns.” Id. ¶¶ 6, 8.
Turning to the on-call rotation, he writes that “it is the practice of Lincare to require Sales
Representatives to fulfill on-call duties as part of their essential functions in all such smaller
centers. . . . Sales Representatives at Centers in Northeast Michigan must perform on-call duties.
It is part of their job and one of their essential functions which they are made aware of during
their interview for the position.” Id. ¶ 7.
In sum, the evidence taken as a whole reveals that oxygen set-ups and on-call rotations
are essential functions of the sales representative position at the Houghton Lake center. Because
Plaintiff was unable to perform these essential functions of her job, she is unable to satisfy the
second elements for establishing a prima facie case of disability discrimination under the ADA.
Defendant is entitled to summary judgment.

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2
Although Plaintiff makes several arguments why these functions were not essential to her
job, none are meritorious. First, Plaintiff argues, the on-call requirements were not an essential
function because “the Sales Representative job description does not reference ‘on call’ duties in
any fashion.” Pl.’s Resp. 13. As noted, however,
The determination of whether physical qualifications are essential functions of a
job requires the court to engage in a highly fact-specific inquiry. Such a
determination should be based upon more than statements in a job description and
should reflect the actual functioning and circumstances of the particular enterprise
involved.
Hall, 857 F.2d at 1079 (internal citation omitted) (citing Arline, 772 F.2d at 764–65). While
Plaintiff is correct that the lack of reference to on-call responsibilities in the published job
description supports her argument, it does not conclusively establish it. That is, the published
job description is evidence of whether a job function is essential. But it is not the end of the
inquiry. AT&T Mobility Servs., 2011 WL 6309449, at *7 (“An inquiry into whether a particular
duty is an ‘essential function’ of the job should be based on more than statements in a job
description.”). As detailed above, the actual functioning of Defendant’s business demonstrates
that the on-call rotation was an essential part of a sales representative’s job at the Houghton Lake
center.
Next, Plaintiff argues that “she was told by Tina Reeds at her hire that once her referrals
reached a certain point, she would no longer have to participate in on-call rotation. . . . This
testimony is bolstered by that of Sheila Dilley, who confirmed that there are other locations
where Sales Representatives do not take any on-call responsibilities.”

Pl.’s Resp. 12.

Essentially, Plaintiff argues that the on-call requirement would not be an essential function of her
job if she had a different position, or worked in a different location, or both. This argument,

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however, does not address whether these two tasks were essential functions of the position
Plaintiff actually held, sales representative at the Houghton Lake center.
Third, Plaintiff argues that comments by Defendant’s human resources manager, Ms.
Dilley, suggest that set-ups and on-call rotations are not essential. Plaintiff writes:
Sheila Dilley . . . confirmed that there are other locations where Sales
Representatives do not take any on-call responsibilities. Further, with regard to
set-ups and delivery of equipment, Ms. Dilley testified that if Ms. Koss was called
upon to deliver equipment such as oxygen during working hours, it is simply a
matter of convenience to Lincare. If Robin Koss [was] unavailable to make the
delivery, the delivery would still get made, it would just be less convenient for
Lincare.
Pl.’s Resp. 12. As noted, however, Plaintiff’s assertion that another employee could have
performed these functions does not make the functions non-essential — “employers are not
required to assign existing employees or hire new employees to perform certain functions or
duties of a disabled employee’s job which the employee cannot perform by virtue of his
disability.” Bratten, 185 F.3d at 632 (citing Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913
(7th Cir. 1996)). An employer that decides to reassign the essential functions of a disabled
employee’s job to another employee may justly be praised. An employer that does not, however,
is not subject to civil liability under the ADA.
Drawing all reasonable inferences in Plaintiff’s favor, Defendant is entitled to judgment
on Plaintiff’s ADA claim.
IV
Accordingly, it is ORDERED that Defendant’s motion for summary judgment (ECF No.
11) is GRANTED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 21, 2012
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 21, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS

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