STEPHENSON v. PFIZER INC.
Filing
52
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/08/2014; that the Defendant's motion for summary judgment (Doc. 24 ) be GRANTED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WHITNEY C. STEPHENSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
PFIZER INC.,
Defendant.
1:13cv147
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before
judgment,
the
which
court
is
raises
two
Defendant’s
issues
under
motion
the
for
summary
Americans
with
Disabilities Act, 42 U.S.C. § 12111 et seq. (“ADA”): whether
driving is an “essential function” of Plaintiff’s job as a sales
representative and, because Plaintiff is legally blind, whether
her employer has a duty to provide a driver or transportation
for her as an accommodation.
forth
below,
function
of
the
court
Plaintiff’s
(Doc. 24.)
finds
job
requested need not be provided.
For the reasons set
that
driving
and
that
is
the
an
essential
accommodations
Therefore, Defendant’s motion
for summary judgment will be granted and the case dismissed.
I.
BACKGROUND
The undisputed facts, viewed in the light most favorable to
Plaintiff Whitney Stephenson (“Stephenson”), as the non-moving
party, are as follows:1
Stephenson has worked for Pfizer, or its predecessor, since
1984.
(Doc.
36-1
¶ 5.)
Specifically,
she
has
been
a
pharmaceutical sales representative, sharing information about
Pfizer’s
(Id.
pharmaceutical
¶¶ 6–7.)
products
with
medical
professionals.
By all accounts, she was very successful.
(Id.
¶¶ 8-10.)
In October 2008, Stephenson developed a serious disorder in
her left eye and was diagnosed with non-arteritic ischemic optic
neuropathy, due to a lack of blood flow to her optic nerve.
(Id. ¶ 16.)
She lost significant vision in that eye but was
able to continue working at Pfizer without accommodation.
In
with
October
her
vision
2011,
in
however,
her
Stephenson
right
eye.
(Id.
developed
¶ 14.)
(Id.)
problems
She
was
diagnosed with the same condition in that eye and, following
unsuccessful treatment, her vision significantly deteriorated to
the point that it became unsafe and no longer possible for her
to drive.
damage
is
(Id. ¶¶ 15–18, 26.)
irreversible.
The decline stabilized, but the
(Id.
¶ 16.)
Unable
to
drive,
Stephenson filed for disability benefits with Pfizer and sought
1
Throughout her briefing, Stephenson fails to provide any pinpoint
citation to a particular page or paragraph, providing instead only
cites to whole documents generally. This practice violates Local Rule
7.2(a)(2), substantially burdens the court with the obligation of
investigating the basis of claimed facts – a task the court need not
do, and renders a party’s position subject to rejection on this basis
alone.
See Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL
906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014).
2
an accommodation through Pfizer’s human resources department.
(Id. ¶¶ 19, 26.)
Stephenson’s job required her to meet with physicians in
person
to
sell
Pfizer
products.
(Doc.
25-2
at
52.)
She
typically met with approximately eight to ten physicians per
day, covering a large territory in Forsyth County and nearby
cities in other counties.
(Id. at 44, 52.)
Because she spent
up to 90% of her time traveling, Pfizer did not provide her with
an office but with a company car.
(Id. at 53–55.)
Stephenson
could not rely on public transportation to do her job, and she
does not believe she can presently do her job without some form
of
arranged
Stephenson,
transportation.
like
all
of
(Id.
at
Pfizer’s
56–57,
North
92,
187–88.)
Carolina
sales
representatives, had always performed her job by driving herself
between doctors’ offices.
After
Stephenson’s
(Id. at 55.)
vision
declined,
she
requested
accommodations from Pfizer for her disability in the form of
magnifying
glasses
for
reading
and
special
computer, both of which Pfizer granted.
25-8 at 2.)
third-party
software
for
her
(Doc. 25-3 at 5; Doc.
Stephenson also requested that Pfizer employ a
driver
to
transport
(Doc. 25-3 at 5; 25-4 at 3.)
her
to
physicians’
offices.
The driver would assist Stephenson
on a permanent, full-time basis.
(Doc. 25-2 at 95–96.)
rejected this accommodation as unreasonable.
3
Pfizer
(Doc. 25-8 at 2.)
Communication between Stephenson and Pfizer representatives
continued, with Stephenson continuing to seek a driver as an
accommodation
Pfizer
and
Pfizer
recommended
continuing
that
Stephenson
to
reject
apply
the
for
proposal.
various
other
positions within the company, including a telecommuting position
that would not require her to drive or leave her home.
25-11 at 2; Doc. 25-2 at 119–21.)
Stephenson
to
apply
for
any
of
(Doc.
In addition, Pfizer invited
the
company’s
internal
job
postings; at any given time “hundreds” of such vacant positions
exist.
(Doc. 25-6 at 27.)
Stephenson decided not to apply for
any open positions because she thought they required
accept
a
substantial
decrease
in
salary
and
commensurate with her level of skill and experience.
at 124, 127–28, 136–37; Doc. 36-1 at ¶¶ 48–49.)
her to
were
not
(Doc. 25-2
Instead, either
on her own or at the prompting of a supervisor, she proposed two
possible
accommodations
in
the
form
of
new
positions
within
Pfizer that did not yet exist (a trainer and a “key contacts”
representative).
there
was
(Doc. 25-2 at 130–32.)
insufficient
proposed jobs.
business
to
Pfizer determined that
create
(Doc. 25-6 at 58–60.)
either
of
these
Stephenson also emailed
the Chief Executive Officer of Pfizer under the company’s open
door
policy
to
report
her
disagreement
decision not to hire a driver for her.
25-14.)
with
company’s
(Doc. 25-2 at 148–52;
The company stood by its decision.
4
the
Following a period
of
short-term
disability
coverage,
Pfizer
ultimately
placed
Stephenson on long-term disability with 60% of her pay and has
not terminated her.
(Doc. 25-2 at 175–78.)
Stephenson filed the present complaint alleging one cause
of action - disability discrimination under the ADA.
In her
complaint, Stephenson alleges that Pfizer discriminated against
her because of her disability by failing to engage in a goodfaith, interactive process to reach a reasonable accommodation;
by failing to consider reassignment to a comparable position;
and by denying her proposed accommodations.
After
discovery,
Pfizer
summary judgment.
(Doc. 24.)
35)
reply
and
Pfizer’s
filed
the
(Compl. ¶ 44.)
present
motion
for
With Stephenson’s response (Doc.
(Doc.
45),
the
motion
is
ripe
for
consideration.
II.
ANALYSIS
A.
Standard of Review
A court must grant a motion for summary judgment “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The moving party bears the burden of
establishing that no genuine dispute of material fact remains.
Where, as here, the non-moving party has the burden of proof,
the
moving
demonstrates
party
that
is
entitled
the
to
non-moving
5
summary
judgment
party’s
if
evidence
it
is
insufficient to establish an essential element of her claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325 (1986).
the
purposes
statements
of
as
this
true
motion,
and
the
draws
court
all
regards
inferences
For
Stephenson’s
in
her
favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But
she must establish more than the “mere existence of a scintilla
of evidence” to support her position.
evidence
is
“merely
colorable,
or
Id. at 252.
is
not
probative, summary judgment may be granted.”
If the
significantly
Id. at 249-50.
Ultimately, summary judgment is appropriate where the non-movant
fails to offer evidence on which the jury could reasonably find
for her.
B.
Id. at 252.
ADA
Under
the
discriminate
protection
ADA,
against
under
the
it
a
is
unlawful
disabled
Act.
for
employee
Unlawful
an
who
employer
qualifies
discrimination
to
for
against
qualifying, disabled employees includes an employer’s failure to
make “reasonable accommodations” of known disabilities, except
where the employer can show that the accommodation “would impose
an undue hardship” on the employer’s business operations.
42
U.S.C. § 12112(b)(5)(A).
To state a prima facie case against an employer for failure
to accommodate a disability under the ADA,
establish four elements:
an employee must
(1) the employee was an individual
6
with a disability within the meaning of the statute; (2) the
employer
had
notice
of
the
employee’s
disability;
(3)
the
employee could perform the essential functions of his or her job
with reasonable accommodation; and (4) the employer refused to
make such accommodations.
Wilson v. Dollar Gen. Corp., 717 F.3d
337, 345 (4th Cir. 2013).
There is no dispute in this case that
Stephenson’s blindness is a qualifying disability under the Act
and that Pfizer knew of it.
Rather, the parties differ on
whether (1) Stephenson could “‘perform the essential functions
of
the
job,
i.e.,
functions
that
bear
more
than
a
marginal
relationship to the job at issue,’ and (2) if not, whether ‘any
reasonable accommodation by the employer would enable [her] to
perform those functions.’”
Tyndall v. Nat’l Educ. Ctrs., Inc.
of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting Chandler v.
City of Dallas, 2 F.3d 1385, 1393–94 (5th Cir. 1993)).
An employee bears the initial burden of establishing that
he or she could perform the essential duties of the position
with reasonable accommodation.
Id.
when
an
the
reasonable
employee
on
its
points
face,
Airways,
to
i.e.,
Inc.
v.
This burden is satisfied
accommodation
ordinarily
Barnett,
or
535
in
that
the
U.S.
“seems
run
391,
of
cases.”
U.S.
401
(2002).
Having made this showing, the burden shifts to the
employer to show that the particular accommodation would impose
7
an
undue
hardship
circumstances.
1.
in
the
particular,
“case-specific”
Id.
Essential functions of Stephenson’s position
The facts on this issue are not in dispute; the parties
merely dispute how to characterize the evidence.
The parties
dispute whether driving is an essential function of Stephenson’s
position as a pharmaceutical sales representative.
Stephenson
argues that “traveling” is an essential function of her position
but that driving, as merely one “mode of travel,” is a marginal
job duty.
(Doc. 40 at 11–12.)
Pfizer rejects the “travel
versus driving” distinction, arguing that “traveling by motor
vehicle” is essential to Stephenson’s position.
8.)
(Doc. 45 at 7–
Whether employees may perform the essential functions of
their jobs is an issue appropriate for summary judgment where
the evidence is undisputed.
See Martinson v. Kinney Shoe Corp.,
104 F.3d 683, 687 (4th Cir. 1997).
The Fourth Circuit has defined “essential functions of a
job” as “functions that bear more than a marginal relationship
to the job at issue.”
Tyndall, 31 F.3d at 213 (quoting Chandler
v. City of Dallas, 2 F.3d 1385, 1393–94 (5th Cir.1993)).
definition
regulations:
accords
with
“The
the
term
general
essential
definition
functions
This
from
the
means
the
fundamental job duties of the employment position the individual
with
a
disability
holds
or
desires.
8
The
term
‘essential
functions’
does
position.”
not
include
the
marginal
functions
29 C.F.R. § 1630.2(n)(1) (2014).
of
the
The regulations
offer a non-exhaustive list of evidence relevant to determining
whether a job function is essential:
(i)
The employer’s judgment as to which functions
are essential;
(ii)
Written
job
descriptions
prepared
before
advertising or interviewing applicants for the
job;
(iii)
The amount of time spent on the job performing
the function;
(iv)
The consequences of not requiring the incumbent
to perform the function;
(v)
The terms of a collective bargaining agreement;
(vi)
The work experience of past incumbents in the
job; and/or
(vii)
The current work experience of incumbents in
similar jobs.
Id. § 1630.2(n)(3)(i)–(vii).
The
uncontroverted
strongly favor Pfizer.
factor,
that
Pfizer
evidence
shows
that
these
factors
Stephenson does not dispute the first
considers
driving
essential
to
her
job.
Pfizer’s employees clearly testified that driving is essential.
(See, e.g., Doc. 25-5 at 79–80; Doc. 25-6 at 53.)
Stephenson
also testified that Pfizer had provided her with a company car
to perform her job, which corroborates such statements.
25-2 at 55.)
9
(Doc.
There
appears
to
Pfizer’s
posted
positions
explicitly
drive.
job
be
a
genuine
descriptions
require
a
dispute
for
job
as
sales
candidate
to
whether
representative
to
be
(See Doc. 40 at 10 & n.3; Doc. 25 at 13.)
able
to
Some of
Pfizer’s current job postings for new sales representatives and
other internal descriptions of the position explicitly require a
valid driver’s license.
(Doc. 36-1 at 29 (“Applicant must have
a valid US driver’s license and a driving record in compliance
with company standards.”); Doc. 25-17 at 2 (“Must be able to
safely operate a motor vehicle in accordance with company policy
and applicable driving rules and regulations.”).)
Yet other
current job postings for new sales representatives are silent on
the ability to drive.
(See Doc. 36-1.)
But as the Fourth
Circuit has noted, the absence of a purported essential function
from a posted job description is not dispositive.
See Rohan v.
Networks Presentations LLC, 375 F.3d 266, 279 n.22 (4th Cir.
2004).
The third, fourth, and seventh factors weigh heavily in
favor of Pfizer.
Stephenson conceded in her deposition that the
“bulk” of her time each day is spent traveling between doctors’
offices, so much so that she does not even have an office within
Pfizer.
Stephenson
(Doc. 25-2 at 53–54.)
cannot
perform
her
job
transportation is arranged for her.
10
It is also undisputed that
unless
a
driver
or
other
(Id. at 92, 187–88.)
There
is also no dispute that all other Pfizer sales representatives
in
North
Carolina
perform
their
jobs
by
driving
themselves
between doctors’ offices — and so, too, had Stephenson before
her disability arose.
(Id. at 55.)
Considering the complete record, the court concludes that
driving
is
an
essential
part
of
the
job
representative in Stephenson’s territory.
harmony
with
the
judgments
of
other
of
a
Pfizer
sales
This conclusion is in
federal
courts
finding
driving to be an essential function of sales representatives.
See, e.g., Mathews v. Trilogy Commc’ns, Inc., 143 F.3d 1160,
1165 (8th Cir. 1998) (holding that a sales representative who
could not get driver’s insurance could not drive and thus could
not perform an essential function of his job); Walsh v. AT&T
Corp., 2007 U.S. Dist. LEXIS 50051, at *18–19 (N.D. Ohio July
11, 2007) (driving to meet with clients was essential function
of sales representative); Kielbasa v. Illinois E.P.A., No. 02-C4233, 2005 WL 2978717, at *7 (N.D. Ill. Nov. 3, 2005) (“In
short,
although
driving
is
not
the
purpose
of
the
[sales
representative] position, the record leaves no doubt that the
job
cannot
be
done
without
driving.
As
such,
driving
is
essential.”); Durning v. Duffens Optical, 1996 U.S. Dist. LEXIS
1685, at *19 (E.D. La. Feb. 14, 1996) (“Durning’s inability to
drive long distances and, as a consequence, to make in-person
sales calls to remote customers is uncontroverted.
11
Accordingly,
the
Court
finds
that
he
could
not
perform
that
urges
this
court
more
broadly,
essential
function of his position.”).
Stephenson,
essential
however,
functions
of
her
job
to
define
the
finding
that
“traveling” is essential to her job, but that driving, as the
particular method of travel, is not.
(Doc. 40 at 11–12.)
Other
courts have considered this precise distinction in the sales
representative context.
In Kielbasa, the plaintiff was a sales
representative whose vision deteriorated to the point that he
became “irreparably, legally blind.”
2005 WL 2978717, at *2.
The employer’s description of the sales representative position
stated that 20% of the position was driving.
Id.
The plaintiff
argued that driving was not an essential function of his job,
but rather that traveling between clients’ offices was the more
appropriate way to describe his duties.
disagreed,
“cannot
be
essential.”
however,
done
Id.2
noting
without
that
the
driving.
Id. at *7.
sales
As
The court
representative
such,
driving
job
is
The court went on to explain the consequences
of a different conclusion:
To hold otherwise would expand greatly the scope of
the ADA and the Rehabilitation Act. If the court were
2
This rule demonstrates why this case is not analogous to Keith v.
Cnty. of Oakland, 703 F.3d 918 (6th Cir. 2013), cited by Stephenson.
In Keith, the court found that the job of a lifeguard could be
performed without the ability to hear.
Id. at 926–27.
But in this
case, as in Kielbasa, Stephenson cannot show how she can perform her
sales representative job without the ability to drive and without
shifting a burden onto Pfizer that the ADA does not permit.
12
to find that driving is a marginal function of a
[sales representative position], then it would, for
instance, necessarily have to find that driving is a
marginal function of the vast array of sales positions
in which employees are chiefly responsible for selling
a given product but must spend considerable time in a
car to do so.
The court does not believe, and [the
plaintiff] has cited no authority to suggest, that
Congress
ever
intended
such
a
result.
Id.
at
*8.
Moreover,
even
if
the
court
were
to
accept
Stephenson’s argument that traveling and selling Pfizer products
are essential functions of her position, it would not preclude a
finding that driving is an additional, essential function.
See
Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 78 (1st
Cir.
2010)
(“The
essential
functions
of
a
position
are
not
limited to the ‘primary’ function of the position.”).
The cases cited by Stephenson are not analogous to this
case.
(2d
In Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208
Cir.
assistant
2001),
the
manager
employee
because
was
her
denied
epilepsy
a
promotion
prevented
as
her
an
from
driving to a bank to deposit receipts, which was required for
the position.
Id. at 213.
However, unlike this case, the
employer never argued that driving was an essential function of
the employee’s job or that the job could only be performed by
the employee driving herself to the bank.
Id. at 217.
Nor did
the record show that driving involved a significant portion of
an assistant manager’s time.
13
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014), is
likewise inapplicable here.
In
Rorrer, the factors from 29
C.F.R. § 1630.2(n)(3) clearly favored a finding that driving is
not an essential function of being a firefighter because other
firefighters besides the plaintiff could drive without negative
consequences
for
the
city,
as
shown
by
the
firefighters never drove “as a matter of choice.”
fact
many
Id. at 1042.
In contrast, the undisputed evidence in this case shows that
other sales representatives could not drive for Stephenson while
also
performing
their
own
jobs
representatives drive themselves.
and
that
all
other
sales
(Doc. 25-2 at 51–52, 55.)
There is no genuine dispute that driving bears more than a
“marginal
job.
relationship”
to
Stephenson’s
Tyndall, 31 F.3d at 213.
sales
representative
Therefore, for purposes of the
ADA, driving is an essential function of Stephenson’s job.
2.
Reasonable
disability
accommodation
of
Stephenson’s
Having found no genuine dispute that Stephenson could not
perform
an
essential
function
of
her
job
without
an
accommodation by Pfizer, the next issue is whether she can show
that she could perform all of the essential functions of her job
with a reasonable accommodation.
To make out her prima facie
case, Stephenson must establish a possible accommodation that is
“reasonable
on
its
face,
i.e.,
14
ordinarily
or
in
the
run
of
cases.”
U.S. Airways, 535 U.S. at 401.
Here, the accommodations that Pfizer can be required to
make under the ADA are not unlimited.
Pfizer is “not required
to
such
reallocate
assistant
to
essential
perform
functions,”
some
of
the
legally blind employee’s job.
as
essential
providing
functions
of
29 C.F.R. § 1630.2(o) app.
is Pfizer required to hire someone to do so.
an
a
Nor
See Martinson, 104
F.3d at 687 (“The ADA simply does not require an employer to
hire an additional person to perform an essential function of a
disabled employee’s position.”); Hendrix v. AT&T, No. 3:09-CV2174-CMC-PJG,
2011
(“Courts
within
training
or
WL
this
2192833,
circuit
assistance
for
at
have
a
*4
(D.S.C.
held
disabled
that
June
while
employee
6,
2011)
temporary
may
be
a
reasonable accommodation, the ADA does not require an employer
to
permit
an
additional
person
permanently
to
perform
essential function of a disabled employee’s position.”).
an
And
while it is undisputed that Stephenson’s vision loss precludes
her from being able to legally operate a motor vehicle (Doc. 3612 at 5), the court may not require Pfizer to exempt her from
the essential function of driving.
See Hill v. Se. Freight
Lines, Inc., 877 F. Supp. 2d 375, 392 (M.D.N.C. 2012), aff’d,
523 F. App’x 213 (4th Cir. 2013).
that
Stephenson’s
request
that
15
Consequently, the court finds
Pfizer
provide
a
driver
or
transportation
for
her
as
a
sales
representative
is
not
reasonable in this case.
Ultimately, the only reasonable accommodation that Pfizer
could
make
position
for
within
Stephenson
the
is
reassignment
company.
If
position should be
“an equivalent
status,
C.F.R.
etc.”
accommodation
need
accommodation.
Cir. 2010).
not
feasible,
the
different
reassigned
position in terms of pay,
1630.2(o)
have
a
app.
been
Pfizer’s
Stephenson’s
proposed
preferred
Fink v. Richmond, 405 F. App’x 719, 723 (4th
However, the court cannot require Pfizer to create
a new position.
Cir. 2002).
29
to
Lamb v. Qualex, Inc., 33 F. App’x 49, 59 (4th
The proposed position must also be vacant or set to
become vacant within a reasonable amount of time, E.E.O.C. v.
Sara Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001); 29 C.F.R.
§ 1630.2(o) app., and be one for which Stephenson is qualified,
29 C.F.R. § 1630.2(o) app.
On a motion for summary judgment with a claim of failure to
reassign
under
the
ADA,
the
employee
bears
the
burden
presenting evidence
(1) that there was a vacant, funded position; (2) that
the position was at or below the level of the
plaintiff’s former job; and (3) that the plaintiff was
qualified to perform the essential duties of this job
with reasonable accommodation.
If the employee meets
his burden,
the employer must demonstrate that
transferring the employee would cause unreasonable
hardship.
16
of
Donahue v. Consol. Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000).
At the least, the burden on an employee at the summary judgment
stage is to show that there was a comparable position within the
company to which she could have been reassigned.
The Third
Circuit’s holding accords with that of many sister circuits.
See, e.g., Kallail v. Alliant Energy Corporate Servs., Inc., 691
F.3d 925, 933 (8th Cir. 2012); Kotwica v. Rose Packing Co.,
Inc., 637 F.3d 744, 750 (7th Cir. 2011); Willard v. Potter, 264
F. App’x 485, 488 (6th Cir. 2008); Phelps v. Optima Health,
Inc., 251 F.3d 21, 27 (1st Cir. 2001); Jackan v. N.Y. State
Dep’t of Labor, 205 F.3d 562, 567 (2d Cir. 2000); Taylor v.
Pepsi–Cola Co., 196 F.3d 1106, 1110–11 (10th Cir. 1999); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1304 n.27 (D.C. Cir. 1998) (en
banc); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d
1278, 1286 (11th Cir. 1997); see also Reyazuddin v. Montgomery
Cnty., Md., No. DKC 11-0951, 2014 WL 1153919, at *18 (D. Md.
Mar. 20, 2014).
Placing such a burden on the employee at the
summary
stage
judgment
is
fair
given
the
“liberal
procedures of the Federal Rules of Civil Procedure.”
discovery
Jackan,
205 F.3d at 568 n.4.
Here, Stephenson has not met her burden.
She argues in her
brief that “the evidence establishes at all times plaintiff was
open to reasonable accommodations which would permit her return
to her position or a comparable position at Pfizer.”
17
(Doc. 40
at 18–19.)3
However, this argument misunderstands her burden at
this stage of the litigation.
alleged
that
Pfizer
“refused
In her complaint, Stephenson
to
reasonably
accommodate
disability by reassigning her to another position.”
¶ 34.)
[her]
(Compl.
Having completed discovery, Stephenson had the burden to
substantiate this allegation by producing evidence that Pfizer
had
a
vacant
position
at
or
below
Stephenson’s
sales
representative position for which she was qualified and could
perform the essential functions with reasonable accommodation.
Nowhere does Stephenson point to a vacant position with Pfizer
that she was willing to accept.
Instead, the undisputed evidence shows that Pfizer invited
Stephenson
company.
to
apply
for
other
vacant
positions
(Doc. 25-11 at 2; Doc. 25-2 at 120–138.)
within
the
In rebuttal,
Stephenson presents her deposition and affidavit testimony that
the positions paid less than half of her current salary and were
undesirable because they would “pigeonhole” her into sitting at
a desk all day.
(Doc. 25-2 at 124, 136; Doc. 36-1 at ¶¶ 48–49.)
She acknowledges that “[w]hile there were plenty of job openings
at Pfizer around the country, there were no comparable positions
which
did
not
position to do.”
require
relocation,
which
we
were
not
in
a
(Doc. 36-1 at ¶ 58; accord Doc. 25-2 at 137.)
3
Stephenson does not contend that Pfizer had any duty to create a new
position for her. (Doc. 40 at 17-18.)
18
Ultimately, Stephenson decided not to apply for a local position
because she did not find any to be commensurate with her skills
or experience.
(Doc. 25-2 at 127–28; Doc. 36-1 at ¶¶ 48–49.)
This may be true, but as a result her claim of refusal to make a
reasonable
accommodation
necessarily
fails
because
she
has
failed to produce any evidence of a vacant position at Pfizer
she
was
willing
to
accept.
She
has
eschewed
the
available
options in favor of her argument that Pfizer must hire a driver
or provide transportation for her.
Her desire to maximize her
skills and income is admirable, but the ADA does not oblige
Pfizer
to
accommodate
Stephenson
in
either
of
these
ways.
Therefore, Stephenson has failed to meet her burden of showing
an accommodation that was reasonable on its face, and Pfizer’s
motion for summary judgment will be granted.
III. CONCLUSION
For the reasons stated, therefore,
IT
IS
ORDERED
that
the
Defendant’s
motion
for
summary
judgment (Doc. 24) be GRANTED.
/s/
Thomas D. Schroeder
United States District Judge
September 8, 2014
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?