Blevins v. AT&T Services, Inc.
Filing
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OPINION, MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, [Doc. No. 66 ] is GRANTED. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 12/26/2017. (AAS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LATANYA D. BLEVINS,
Plaintiff,
v.
AT&T SERVICES, INC.,
Defendant.
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) CASE NO. 4:15CV496 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgement, [Doc. No. 66]. Plaintiff opposes the Motion. For the reasons set forth
below, the Motion is granted.
Facts and Background
Plaintiff worked for AT&T Services, Inc. (“AT&T” or “Defendant”) from
2004-2012. She worked at a call center in Olivette, Missouri. Plaintiff’s first
position at AT&T was a service representative, and then she became a senior
consultant. A senior consultant performs the following tasks: 1) handling customer
calls regarding sales and service, 2) responding to customer requests or inquiries
about services, products, and billing, 3) making notations via computer terminal, 4)
utilizing different mechanized systems to initiate and complete service orders, 5)
working to meet revenue goals, service commitments, and other deadlines, and 6)
wearing a headset. A senior consultant in Plaintiff’s department would talk to the
customer and type at the same time. In a typical day, a senior consultant would
talk to a customer through a headset and type all day long.
Plaintiff was diagnosed with multiple sclerosis (MS) in 2009. In December
of 2011, Plaintiff went on short-term disability. At the time, she was having
headaches, swollen hands, numbness, hearing loss, trouble with fine motor skills,
and fatigue. There was concern that these symptoms were related to typing and use
of a headset.
In 2012, Blevins sought accommodations for permanent restrictions, which
were 1) unable to use a headset, 2) unable to type, other than to sign in and out of
the computer, 3) need to sit or stand at will, and 4) inability to work over 40 hours
per week.
While Plaintiff was on short-term disability, there was a conference call
which included members of management, HR, Plaintiff, and Plaintiff’s union
representative to discuss Plaintiff’s restrictions and possible accommodations. At
the time, the restrictions were no headset, and no typing other than to log on and
log off of the computer. There were no disagreements about the restrictions. On
the phone call, Plaintiff was asked what she thinks could happen that would allow
her to do her job. Plaintiff’s union representative, Pamela Farrell, made a
recommendation for a voice-activated system. A representative of AT&T’s HR
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department told Plaintiff and her union representative that AT&T would look into
such a system – including the cost and whether it would affect customer privacy.
Defendant explored the possibility of using a voice-activated system for
Plaintiff’s computer to accommodate Plaintiff’s inability to type (other than to log
in and log out), but found that there was no system that would be feasible at the
call center because 1) all voice-activated systems at the time required some typing,
and 2) due to the multiple systems used by a senior consultant/service
representative, there was no voice-activated system that would be compatible with
AT&T’s multiple systems. AT&T Services, Inc. explored the possibility of
allowing Ms. Blevins to use a speakerphone instead of a headset, but had privacy
concerns with the speakerphone.
There was another phone call which included Plaintiff, her union
representative, and an HR representative to discuss Plaintiff’s restrictions and
possible accommodations. The call participants discussed voice-activated systems.
The HR representative said that even the best voice-activated products require
some typing. Plaintiff does not know whether the best voice-activated systems
require some typing. Plaintiff’s union representative, Pamela Ferrell, testified that
she had no reason to question that the specific voice-activated software she
proposed required some typing. She also testified that she had seen some software
that eliminated typing.
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Plaintiff does not use a voice-activated computer system. She does not know
whether a voice-activated system would be able to access the different AT&T
systems from voice commands and be able to automatically type in customer
information given.
Plaintiff’s department at the call center told her they could not accommodate
her restrictions of not being able to type (other than to log in and out) and not being
able to use a headset.
Plaintiff began the process of looking for other open jobs at AT&T. Plaintiff
was looking for a clerical job.
Plaintiff’s union representative gave her a binder with jobs in St. Louis.
Based on this binder of jobs, Plaintiff applied for some jobs. Plaintiff does not
remember the jobs for which she applied..
At her deposition, Plaintiff described a job at AT&T that involved filing
hard copy papers and printing paperwork. She does not know whether that was an
open position. Plaintiff filled out two documents tilted “job vacancy request.” She
signed this document on July 26, 2012. She listed desired job titles, and listed
interest in Missouri and the St. Louis metropolitan area. In the two forms, she
identified a total of six job positions she was interested in if there were any
openings: central office clerk, business services instructor, S-2 clerical, supplies
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attendant, S-1 clerical, and SS-2 clerical. Plaintiff does not recall filling out any
documents where she requested a job anywhere other than the St. Louis metro area.
Pamela Ferrell, Plaintiff’s union representative, assisted Plaintiff with the
job vacancy request (JVR) form. After an employee fills out a job vacancy request
listing positions in which he or she is interested, if a job becomes available, the
employee is placed on a candidacy list and will be considered for that position.
Plaintiff was contacted to undergo testing for a premises technician position,
but did not pass.
Plaintiff was unable to secure an open position at AT&T for which she was
qualified, with or without an accommodation.
On August 21, 2012, Plaintiff received a letter from AT&T’s Integrated
Disability Service Center (IDSC). It notified Plaintiff that her short-term disability
payments would expire December 9, 2012, and that she may be eligible for longterm disability benefits as of December 10, 2012. The letter explained that to
qualify for long-term disability benefits, an individual must be totally disabled as
defined by the plan. Plaintiff filled out and signed an application for long-term
disability benefits through AT&T on August 28, 2012. Plaintiff understood that she
was filling out and signing an application for long-term disability benefits from
AT&T. Nobody forced Plaintiff to apply for long-term disability payments from
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AT&T. Plaintiff understood that the long-term disability application was a
voluntary process. She had a choice about whether to apply or not.
Plaintiff’s request for long-term disability benefits was approved. Her shortterm disability benefits ended on December 9, 2012 and her long-term disability
benefits began December 10, 2012. She received her first long-term disability
benefit check at the end of December, 2012. Under the long-term disability plan,
Plaintiff is provided 50 percent earnings protection.
Plaintiff must complete a questionnaire every year for AT&T’s long-term
disability benefit program. While on long-term disability, the IDSC continues to
monitor Plaintiff’s medical condition. Plaintiff has provided updates and
information to the IDSC for over four years.
On August 15, 2013, Plaintiff filled out and signed the first long-term
disability questionnaire for AT&T after her original application for long-term
disability. On the questionnaire, Plaintiff was asked “in your own words tell us
why you cannot work in your own or any occupation.” Plaintiff responded: “The
reason I can’t work is because stress triggers MS. I don’t want to have MS attack
that puts me in an immobile state.” At her deposition, Plaintiff explained that this
answer did not encompass all of the health challenges that she is facing. Plaintiff
stated, “It shouldn’t have just been one thing pinpointed. It should have been the
overall health issue, period. It should have been my health, my life, my—you
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know, those things that I said earlier. But at this particular time I was just sick and
just wanted to do what I needed to do to get better. So that’s why the statement
went to oh, I’m stressed. But it was more than that.”
On December 15, 2014, Plaintiff filled out and signed another questionnaire
regarding her long-term disability benefits. On the questionnaire, Plaintiff was
asked “in your own words tell us why you cannot work in your own or any
occupation.” Plaintiff responded: “I am sick and lately my symptoms have
increased. I don’t want to have any relapses if avoidable.”
Plaintiff is currently receiving long-term disability benefits through AT&T.
Other than a “little period” where Plaintiff did not receive short-term disability
benefits due to the delay in obtaining complete medical records (which she was
subsequently paid for), Plaintiff has continuously been getting either short-term or
long-term disability payments from AT&T from 2011 to the present.
The supervisor’s manual applicable during Plaintiff’s employment at AT&T
states that “employees who leave the service of the company immediately
following the expiration of sickness disability benefits are not entitled to payment
in lieu of vacation.” Plaintiff does not claim that this policy was violated.
Plaintiff never waived short-term or long-term disability payments. Plaintiff
has been paid far more in long-term disability payments than the value of four
weeks of vacation.
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Plaintiff applied to the Social Security Administration (SSA) for disability
insurance benefits under Title II of the Social Security Act on October 16, 2012,
alleging a disability since December 4, 2011. Plaintiff’s application for social
security disability benefits was completed on December 5, 2012. Id. at p. 4. In her
application, Plaintiff claimed: “I became unable to work because of my disabling
condition on December 4, 2011” and “I am still disabled.” In Plaintiff’s application
with the SSA, Plaintiff verified:
I know that anyone who makes or causes to be made a false statement or
representation of material fact in an application or for use in determining a
right to payment under the Social Security Act commits a crime punishable
under federal law by fine, imprisonment or both. I affirm that all information
I have given in connection with this claim is true.
In Plaintiff’s Function Report dated January 14, 2013, which was part of her
Social Security disability application, Plaintiff was asked “What were you able to
do before your illnesses, injuries, or conditions that you can’t do now?” Plaintiff’s
answer was “I can no longer work, run for exercise, type, or multitask.” In
describing shopping in Plaintiff’s Function Report dated January 14, 2013, which
was part of her Social Security disability application, she stated:
At times, I lean on the cart for support because walking is more difficult. I
often sit down and take a break when I shop because walking and standing is
difficult. I rely on a list to remind me what to buy. I carry the light groceries
into the house after I come home. I rely on my family to carry in the heavier
grocery bags.
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In Plaintiff’s Function Report dated January 14, 2013, Plaintiff was asked to
check items that her illnesses, injuries, or conditions affect. Plaintiff marked lifting,
squatting, standing, reaching, walking, sitting, kneeling, hearing, stair climbing,
memory, completing tasks, following instructions, and using hands. In Plartintiff’s
Function Report dated January 14, 2013, which was part of her Social Security
disability application, she noted the following about her memory, “At times, I have
trouble recalling information. I forget recent conversations and instructions. I rely
on reminders to remember appointments and important tasks.”
In the same report she noted the following about her ability to complete
tasks: “I have trouble multitasking because I can only focus on one task at a time.
It takes me longer to finish tasks because of fatigue. I often take breaks before I
can finish tasks.”
She also noted the following about her ability to use her hands: “I have
trouble using my hands due to pain, numbness, and swelling in my hands. My
ability to write, type, and handle objects is much more limited now.”
In Plaintiff’s Function Report dated January 14, 2013, she noted the
following about her ability to handle stress: “whenever I feel stressed, I have an
attack, which causes my physical symptoms to worsen. I experience increased
pain, numbness, and fatigue. I try to avoid as much stress as I can to avoid these
attacks.”
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In Plaintiff’s Function Report dated January 14, 2013, she noted the
following about her ability to dress: “I sit down to get dressed to avoid standing. I
have difficulty using my hands to button buttons, snap snaps, and to zip zippers. I
wear comfortable clothes that are easier to get on and off.”
In Plaintiff’s Disability Report, she further described her condition as
follows:
I suffer with constant pain throughout my muscles and joints. The pain is
most severe in my hands and knees. I experience pain in my frontal lobe,
which radiates into my ears. Due to the shooting pain, I now suffer with
hearing loss. I experience frequent muscle spasms in my neck. I experience
frequent periods of lightheadedness and dizziness with increased fatigue. I
experience frequent weakness and excessive fatigue. I have constant tingling
and numbness in my hands and feet. I have constant swelling in my hands. I
have limited range of motion and weakness in my hands and feet.
On November 13, 2013, the Social Security Administration found that
Plaintiff was disabled within the meaning of the Social Security Act since
December 4, 2011, and Plaintiff met the insured status requirements of the Social
Security Act on December 4, 2011. The SSA found that a significant number of
jobs have not existed for the claimant in the national economy since December 4,
2011. The SSA found that Plaintiff’s “limitations in sitting, standing, and walking
so narrow the range of work she might perform that a finding of disabled is
appropriate within the framework of this rule.”
In the SSA’s Findings of Fact and Conclusions of Law, dated November 13,
2013, the SSA noted:
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The claimant [Plaintiff] stated that she has been unable to work because of
joint and muscle pain; numbness and a tingling sensation about her feet;
pain, numbness and swelling about her hands; fatigue and weakness. She
asserted that she has been unable to stand, walk or sit for a prolonged period
and that she has difficulty using her hands. She also asserted she [sic] that
she has difficulty lifting objects, reaching, squatting, kneeling and climbing
stairs, as well as remembering things. She noted that there are times when
[she] spends most of her day lying down.
Plaintiff is obligated to report certain changes to the Social Security
Administration, including if her condition improves or she returns to work (as an
employee or self-employed) regardless of the amount of earnings. Plaintiff has
never reported changes to the Social Security Administration indicating that her
condition improved or she returned to work.
Plaintiff is currently receiving social security disability benefits through the
federal government.
All of Plaintiff’s doctors agree that she should be eligible for long-term
disability benefits and social security disability benefits.
Plaintiff filed a charge of discrimination with the EEOC on June 27, 2012.
Plaintiff was aware of filing an EEOC charge on June 27, 2012. She is the one who
went to the EEOC.
On July 19, 2012, Plaintiff filed a Voluntary Petition in the United States
Bankruptcy Court, Eastern District of Missouri, Case No. 12-46957. In the
Statement of Financial Affairs, Plaintiff was asked to “List all suits and
administrative proceedings to which the debtor is or was a party within one year
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immediately preceding the filing of this bankruptcy case.” Plaintiff’s answer was
“none.” Plaintiff signed the Statement of Financial Affairs under penalty of
perjury. On July 19, 2012, Plaintiff signed a lien statement of debtor as part of her
bankruptcy case. The lien statement of debtor stated:
I ask this Court to calculate my disposable income based on a rate of 13.05
per hour at 40 hours per week rather than the calculations as set forth in my
B22 for the reason that my chronic health conditions make it unreasonable to
conclude that I will return to full-time employment at a rate of pay of 26.10.
Plaintiff testified this statement was accurate.
The bankruptcy plan in Plaintiff’s bankruptcy claim (Case No. 12-46957)
was confirmed on October 2, 2012. Plaintiff’s bankruptcy case was closed on
December 9, 2013.
Plaintiff filed this lawsuit on March 19, 2015. She was pro se. Plaintiff’s
case was based on the EEOC charge filed in June of 2012.
Defendant filed a Motion for Partial Dismissal and Answer on May 21,
2015. On June 4, 2015, Plaintiff filed a Motion for Extension of Time to respond to
Defendant’s pleadings. In that Motion, Plaintiff stated:
Plaintiff has been unable to adequately respond to Defendant’s
aforementioned motions due to her occasional relapse in having to cope with
her debilitating disease of Multiple Sclerosis, which renders her to suffer
from fatigue, numbness and tingling in the hands and feet, and severe
headaches, along with the ringing of her ears, which impairs plaintiff’s
physical abilities and cognitive thinking.
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On August 25, 2015, Plaintiff filed a second Motion for Extension of Time
to respond to Defendant’s pleadings. In this Motion, Plaintiff stated:
…she has continuously suffered from physical fatigue, numbness and
tingling in the hands and feet, and severe headaches, along with the ringing
of her ears, caused by her disease from which she is unable to adequately
prosecute her case against Defendant.
Plaintiff testified this statement was accurate when she wrote it, and is still
accurate.
On August 25, 2015, Plaintiff filed and signed a Motion for Appointment of
Counsel for Plaintiff’s Physical Incapacitation. This Motion states:
Plaintiff has continuously suffered from physical fatigue, numbness and
tingling in the hands and feet, and severe headaches, along with the ringing
of her ears, due to her disease, for which she is under continuous medical
care.
The Motion further stated, “[t]o present date, plaintiff has been physically
incapacitated to adequately and diligently prosecute her case against Defendant.”
Plaintiff attached to this Motion a letter from her doctor, which stated that Plaintiff
carries the diagnosis of MS and has “symptoms of fatigue, hearing loss, ringing in
the ears, anxiety, extremity weakness, and numbness and tingling in her
extremities. Latanya reports an increase in these symptoms beginning in March,
2015.”
On July 19, 2016, Plaintiff filed and signed a Motion for Appointment of
Counsel for Plaintiff’s Physical Incapacitation. This Motion states:
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Since having filed this case against Defendants, Plaintiff has continuously
suffered from physical fatigue, numbness and tingling in the hands and feet,
and severe headaches, along with the ringing of her ears, due to her disease,
for which she is under continuous medical care.
Plaintiff further noted “[p]laintiff has been physically incapacitated to adequately
and diligently prosecute her case against Defendant.” Plaintiff attached to this
Motion a letter from her doctor dated July 6, 2016, which stated that Plaintiff
carries the diagnosis of MS and has “symptoms of fatigue, hearing loss, ringing in
the ears, anxiety, extremity weakness, and numbness and tingling in her
extremities. Latanya reports an increase in these symptoms beginning in March,
2015”. Plaintiff attached another letter from her doctor dated July 12, 2016, which
stated that Latanya Blevins “has a chronic medical condition that causes extreme
fatigue which is worsened under stress. Due to the strain this case has placed on
her while she has been attempting to manage the case herself, she feels her medical
condition has started to worsen. As a result, she should be given a court appointed
attorney so her medical condition is not exacerbated further.”
This Court granted Plaintiff’s Motion to Appoint Counsel on July 26, 2017.
Since going on long-term disability with AT&T in 2012, Plaintiff has not
been working. Since 2012, Plaintiff’s doctor has not given her permission to go
back to work. Plaintiff’s doctors have not released her to work. She has not been
cleared to work since August 21, 2012. Plaintiff explained that her doctors
consider a number of factors before they could release her back into the workforce,
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and Plaintiff explained that her doctors “understand if I get into the wrong thing or
go the wrong way that it can cause me my life.” Plaintiff has not had a discussion
with her doctors about what accommodations she may need to re-enter the
workforce.
Following the advice of her doctors, Plaintiff did not seek to find
employment after her employment with AT&T. Plaintiff has not applied for any
jobs since 2012. Plaintiff testified this was because her doctor told her, “…until I
tell you you can go back to work, you just need to relax until I tell you what to do.
Until we get you stable, ma’am, we’re not – we’re not doing this with your health”.
Since 2012, Plaintiff has had periods where relapses have significantly
affected her health. Since Plaintiff was diagnosed with MS, Plaintiff has had
impairments to her cognitive thinking, including short-term memory loss, “off and
on”. She describes this as “you know what you want to say but your mind drops
it.”
Summary Judgment Standard
The Eighth Circuit has articulated the appropriate standard for consideration
of motions for summary judgment, as follows:
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law. The movant bears the initial responsibility of informing the district
court of the basis for its motion, and must identify those portions of the
record which it believes demonstrate the absence of a genuine issue of
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material fact. If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts showing that there
is a genuine issue for trial. On a motion for summary judgment, facts must
be viewed in the light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Credibility determinations, the weighing
of the evidence and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. The nonmovant must do more than
simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine
issue for trial. Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for
trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011) (en banc)
(internal citations and quotation marks omitted). “Although the burden of
demonstrating the absence of any genuine issue of material fact rests on the
movant, a nonmovant may not rest upon mere denials or allegations, but must
instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate
v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008) (cited
case omitted). With this standard in mind, the Court accepts the stated facts as true
for purposes of resolving the parties' motions for summary judgment.
Discussion
The ADA makes it unlawful to discriminate against a “qualified individual
with a disability” because of the disability. Bahl v.Cty of Ramsey, 695 F.3d 778, 83
(8th Cir. 2012). In order to establish disability discrimination under the ADA,
Plaintiff must first show that she “(1) is disabled within the meaning of the ADA,
(2) is a qualified individual under the ADA, and (3) suffered an adverse
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employment action because of her disability.” Walz v. Ameriprise Fin., Inc., 779
F.3d 842, 845 (8th Cir.2015). Here, the parties dispute whether Plaintiff is a
“qualified individual.”
To be considered a qualified individual under the ADA, an employee must
“(1) possess the requisite skill, education, experience, and training for [her]
position, and (2) be able to perform the essential job functions, with or
without reasonable accommodation.” Hill v. Walker, 737 F.3d 1209, 1216
(8th Cir.2013) (quoting Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d
707, 712 (8th Cir.2003) (alteration in original)). “Discrimination includes
‘not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability ... unless
[the employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of [the employer].’ ”
Dropinski v. Douglas Cty., Neb., 298 F.3d 704, 707 (8th Cir.2002) (quoting
Heaser v. The Toro Co., 247 F.3d 826, 830 (8th Cir.2001)) (alterations in
original).
Scruggs v. Pulaski Cty., Ark., 817 F.3d 1087, 1092 (8th Cir. 2016).
“Essential functions are the fundamental job duties of the employment
position.” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 845 (8th Cir. 2015) (internal
quotations omitted). The determination of whether an individual is qualified for
purposes of the ADA should be made as of the time of the employment decision.
Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir. 1999).
To survive summary judgment, Plaintiff must show she was able to perform
the fundamental job duties as a senior consultant. “Although not conclusive, we
consider the employer's judgment of what constitutes an essential function ‘highly
probative.’ Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 786 (8th Cir.2004)
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(quoting Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir.2003)). Scruggs
817 F.3d at 1093.
This position required Plaintiff to handle customer calls regarding sales and
service, responding to customer requests or inquiries about services, products, and
billing, making notations via computer terminal, utilizing different mechanized
systems to initiate and complete service orders, working to meet revenue goals,
service commitments, and other deadlines and wearing a headset.
Plaintiff argues Defendant failed to accommodate her. It is Plaintiff’s
burden to make “a facial showing that a reasonable accommodation would enable
her to perform her essential job functions.” Dropinski v. Douglas Cty., Neb., 298
F.3d 704, 709 (8th Cir.2002).
At the time Plaintiff and her union representative met with representatives
from Defendant, Plaintiff’s restrictions were no headset and no typing other than to
log on and off the computer. Plaintiff claims Defendant failed to accommodate her
by not allowing her to use a voice-activated system. Defendant researched these
possibilities and found that the voice-activated system still requires some computer
use, and it was not compatible with its software. Regarding the no headset issue,
Defendant considered a speakerphone and determined that it was not feasible based
on privacy concerns and distractions.
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An employer is not required to provide the specific accommodation
requested or preferred by an employee. Cravens v. Blue Cross & Blue Shield of
Kan. City, 214 F.3d 1011, 1019 (8th Cir.2000). Rather, an employer only has to
provide an accommodation that is reasonable. Id. Plaintiff’s proposed
accommodations were not reasonable in that the voice-activated system would still
require Plaintiff to do some typing and the speakerphone had privacy and
distraction issues.
Even if the Court were to find that using these accommodations were
reasonable accommodation under the ADA, Plaintiff did not carry her burden to
show that she could perform the essential functions of her job with that
accommodation. See Alexander v. Northland Inn, 321 F.3d 723, 727 (8th
Cir.2003)) (it is the ADA plaintiff's burden to show that she could perform the
essential functions of her job with a reasonable accommodation). Plaintiff has
presented no evidence that her doctors cleared her for work; all of the medical
records indicate that her doctors in fact advised her not to work, and she was on
short term (and later long term) disability because of her MS, which precluded her
from working. “The ADA does not require an employer to permit an employee to
perform a job function that the employee's physician has forbidden.” Id. It is not
reasonable to expect an employer to disregard an employee's treating physician's
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opinion expressly imposing physical restrictions. Id. Plaintiff has failed to show
that a reasonable accommodation was available.
Plaintiff argues Defendant failed to engage in an interactive process to
determine whether a reasonable accommodation was possible. But “[u]nder the
ADA, if no reasonable accommodation is available, an employer is not liable for
failing to engage in a good-faith interactive process.” Battle v. United Parcel Serv.,
Inc., 438 F.3d 856, 864 (8th Cir.2006). As outlined above, Plaintiff did not meet
her burden to show there was a reasonable accommodation available that would
not place an undue burden on Defendant. Scruggs, 817 F.3d 704, 707, (citing
Dropinski, 298 F.3d at 710).
Plaintiff also sought a possible reassignment. The Eighth Circuit has
recognized that reassignment may not be required of employers in every instance,
but under certain circumstances, may be necessary as a reasonable
accommodation. Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d
1011, 1018 (8th Cir. 2000). The scope of an employer's reassignment duty is
limited by certain constraints. Id. at 1019. For example, the position sought by the
employee must be vacant. Id. An employer is not required to ‘bump’ another
employee in order to reassign a disabled employee to that position.'' Id. In addition,
the employee must be otherwise “qualified” for the reassignment position. Id. “To
be considered qualified for this job, the individual must satisfy the legitimate
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prerequisites for that alternative position, and...be able to perform the essential
functions of that position with or without reasonable accommodations ....” Id.
(internal quotations omitted).
In this case, Plaintiff was looking for a clerical job and she was given a
binder of jobs. She filled out two documents titled “job vacancy request.” She
listed the job titles and interest in Missouri and the St. Louis metropolitan area.
Plaintiff was contacted to undergo testing for a premises technician position, but
did not pass. She was unable to secure an open position for which she was
qualified, with or without accommodation. There were no positions open within
Defendant’s business for which Plaintiff was qualified, with or without
accommodation.
Conclusion
Based upon the foregoing, the Court concludes that Plaintiff has failed to
establish that she could perform the essential functions of her job, and therefore
was not a “qualified individual” under the ADA. Defendant is entitled to judgment
as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment, [Doc. No. 66], is GRANTED.
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A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 26th day of December, 2017.
/s/ Henry Edward Autrey
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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