No

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST....................................................................... 1

STATEMENT OF THE ISSUES.................................................................... 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings.......................................... 3

2. Statement of Facts..................................................................................... 3

3. District Court's Decision............................................................................ 7

STANDARD OF REVIEW............................................................................. 9

ARGUMENT

Summary Judgment Was Improper Because Reasonable Minds Could Differ as to Whether Pfizer Could Have Provided a Reasonable Accommodation Enabling Stephenson to Continue Working as a Pharmaceutical Representative.. 10

A. Reasonable minds could differ as to whether driving oneself was an essential function of the pharmaceutical representative job................................ 11

B. Reasonable minds could differ as to whether supplying a driver could be a reasonable accommodation for Stephenson’s disability....................... 20

C. It would be inappropriate to affirm summary judgment on the alternative ground that supplying a driver would cause Pfizer undue hardship..... 26

CONCLUSION.............................................................................................. 28

CERTIFICATE OF COMPLIANCE.............................................................. 29

CERTIFICATE OF SERVICE

ADDENDUM

EEOC: A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (Jan. 1992) (excerpt)

TABLE OF AUTHORITIES

CASES Page(s)

Borkowski v. Valley Cent. Sch. Dist.,

63 F.3d 131 (2d Cir. 1995)............................................................ 22-23, 24

Crabill v. Charlotte Mecklenburg Board of Education,

423 F.App’x. 314 (4th Cir. Apr. 20, 2011)(unpublished)........................ 25

Dicino v. Aetna U.S. Healthcare,

2003 WL 21501818 (D.N.J. June 23, 2003)(unpublished)....................... 18

Durning v. Duffens Optical,

1996 WL 67640 (E.D. La. Feb. 14, 1996) (unpublished).......................... 18

Giebeler v. M&B Associates,

343 F.3d 1143 (9th Cir. 2003).................................................................. 22

Gillen v. Fallon Ambulance Service,

283 F.3d 11 (1st Cir. 2002)...................................................................... 15

Henry v. Purnell,

652 F.3d 524(4th Cir. 2011)................................................................. 9- 10

Holly v. Clairson Industry,

492 F.3d 1247 (11th Cir. 2007)........................................................... 17-18

Johnson v. McGraw-Hill Companies,

451 F.Supp.2d 681 (W.D. Pa. 2006)........................................................ 15

Kielbasa v. Illinois EPA,

2005 WL 2978717 (N.D. Ill. Nov. 3, 2005)(unpublished)............ 8-9, 18-20

Keith v. County of Oakland,

703 F.3d 918 (6th Cir. 2013)............................................................... 14-15

Lovejoy-Wilson v. NOCO Motor Fuel,

263 F.3d 208 (2d Cir. 2001)..................................................................... 15

Lusby v. Metropolitan Washington Airports Authority,

1999 WL 595355 (4th Cir. Aug. 9, 1999)(unpublished)........................... 12

Martinson v. Kinney Shoe Corp.,

104 F.3d 683 (4th Cir. 1997).............................................................. 12, 24

Mathews v. Trilogy Communications,

143 F.3d 1160 (8th Cir. 1998).................................................................. 18

Minnihan v. Mediacom Communications Corp.,

987 F.Supp.2d 918 (S.D. Iowa 2013)....................................................... 18

Nelson v. Thornburgh,

567 F. Supp. 369 (E.D. Pa. 1983),

aff’d, 732 F.2d 146 (3d Cir. 1984)............................................................ 23

Oliva v. Pride Container Corp.,

81 F.Supp.2d 907 (N.D. Ill. 2000)............................................................ 18

Pandazides v. Virginia Board of Education,

13 F.3d 823 (4th Cir. 1994)................................................................ 12, 20

Ray Communications v. Clear Channel,

673 F.3d 294 (4th Cir. 2012)............................................................... 10, 26

Rorrer v. City of Stow,

743 F.3d 1025 (6th Cir. 2014).................................................................. 25

Shapiro v. Township of Lakewood,

292 F.3d 346 (3d Cir. 2002)................................................................ 21-22

Skerski v. Time Warner Cable Co.,

257 F.3d 273 (3d Cir. 2001)..................................................................... 14

Taylor v. Rice,

451 F.3d 898 (D.C. Cir. 2006).................................................................. 21

U.S. Airways v. Barnett,

535 U.S. 391 (2002)................................................................ 19, 21-22, 26

Walker v. Mod-U-Kraft Homes,

775 F.3d 202 (4th Cir. 2014).................................................................... 10

Walsh v. AT&T Corp.,

2007 WL 2034426 (N.D. Ohio July 11, 2007)(unpublished).................... 18

Wilson v. Dollar General Corp.,

717 F.3d 337 (4th Cir. 2013).................................................................... 25

STATUTES, REGULATIONS, and RULES

Title I of the Americans with Disabilities Act, as amended,

42 U.S.C. §§12101 et seq. (“ADA”)................................................. passim

42 U.S.C. §12111(8).............................................................. 11, 12, 17, 21

42 U.S.C. §12111(9)............................................................................ 22-23

42 U.S.C. §12111(10)............................................................................... 27

42 U.S.C. §12112(b)(5)(A)................................................................. 18, 21

29 C.F.R. 1630.2(n)................................................................................. passim

29 C.F.R. §1630.2(n)(1)................................................................................. 11

29 C.F.R. §1630.2(n)(2)................................................................................. 11

29 C.F.R. §1630.2(n)(3)........................................................................... 11-12

29 C.F.R. §1630.2(o)(1)(ii)............................................................................ 16

29 C.F.R. pt. 1620, App. §1630.2(n)............................................................ 12

29 C.F.R. pt. 1630, App. §1630.2(p)............................................................ 24

Federal Rule of Appellate Procedure 29(a)..................................................... 2

Federal Rule of Appellate Procedure 4(a)(1)(A).............................................. 3

OTHER AUTHORITY

136 Cong. Rec. 11451 (1990) (comments of Rep. Fish)................................ 14

Enforcement Guidance: Reasonable Accommodation and

Undue Hardship under the ADA (Oct. 17, 2002), available at www.eeoc.gov/policy/docs/accommodation/html........................................... 24

EEOC: Questions & Answers About Blindness and

Vision Impairments in the Workplace & the ADA, available at http://www.eeoc.gov/eeoc/publications/qa_vision.cfm................................... 23

EEOC: A Technical Assistance Manual on the Employment Provisions (Title I)

of the ADA at II-16 (Jan. 1992)..................................................................... 15

O*NET Online, U.S. Dep’t of Labor, Employment & Training Admin., Code #49005B, available at www.occupationalinfo.org/onet/49005b/html........................ 13-14

EEOC Brief as Amicus Curiae in Lovejoy-Wilson v. NOCO Motor Fuel, Nos.00-7919 & 7696 (2d Cir. filed Nov. 29, 2000), available at www.eeoc.gov/eeoc/litigation.briefs/lovejoy.txt 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________

No. 14-2079

_________________________

WHITNEY C. STEPHENSON,

Plaintiff-Appellant,

PFIZER, INC.,

Defendant-Appellee.

_______________________________________________

On Appeal from the United States District Court

for the Middle District of North Carolina

_______________________________________________

BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND

IN FAVOR OF REVERSAL

______________________________________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is charged by Congress with interpreting and enforcing Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§12101 et seq. (“ADA”), and other federal employment discrimination statutes. This case raises important questions concerning the meaning of the term “essential functions” in suits under the ADA. The plaintiff was a pharmaceutical representative who, after years of stellar performance, became disabled and unable to drive. The district court held that because pharmaceutical representatives normally drive themselves to meetings with physicians where they promote defendant’s products, driving is an essential function of the job. As such, the court held, the employer had no obligation to consider whether, as a reasonable accommodation for plaintiff’s disability, she could get to the meetings another way.

In the Comimssion’s view, this holding mistakenly conflates essential job functions, such as promoting defendant’s products, with other requirements, such as driving, that speak to the manner in which those job functions are performed. As a result, the court improperly narrowed the ADA’s protections for individuals with disabilities. Because of the importance of this issue to proper interpretation of the ADA, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. Did the district court err in holding that driving herself is an essential function of plaintiff’s job where a reasonable factfinder could find that it is simply one way of traveling to meetings with physicians?

2. Could a reasonable factfinder find that supplying a driver to plaintiff was a reasonable accommodation once she became visually impaired and unable to drive?

3. Should summary judgment be denied on the alternative ground that accommodating plaintiff would cause undue hardship, an affirmative defense, where defendant did not argue that below and the district court did not rule on the issue?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a final judgment dismissing this disability discrimination claim under the ADA. On February 20, 2013, plaintiff brought suit alleging that her employer refused her request for reasonable accommodation when she became legally blind and unable to drive. District court docket number (“R”) 1. The following spring, defendant moved for summary judgment (R.24), and plaintiff opposed the motion. R.35. The district court granted defendant’s motion and entered final judgment on September 8, 2014. R.52, R.53. The court held that driving herself to client meetings was an essential function of plaintiff’s job, and no reasonable accommodation would enable her to drive. Thus, despite her stellar record, defendant did not have to provide a reasonable accommodation to enable her to continue working as a pharmaceutical representative. Plaintiff timely noticed an appeal on October 7, 2014. See Fed. R. App. P. 4(a)(1)(A).

2. Statement of Facts

For 27 years, Whitney Stephenson was a highly successful pharmaceutical representative for Pfizer and its predecessor, Warner-Lambert, in the area around Winston-Salem, North Carolina. In this job, she visited the offices of medical professionals in her territory and gave presentations aimed at persuading the doctors to prescribe the drugs in her portfolio to appropriate patients. See JA467-68; JA78 (adding that meetings should be in-person); see also JA514-15 (manager’s description of job); JA546-47, JA550-51 (job descriptions, suggesting goal was to ensure appropriate use of Pfizer products and achieve the business potential of the territory; noting that representative, among other things, must promote a broad portfolio of drugs; understand and communicate the necessary technical, scientific, and product and disease management information to customers; develop superior selling, technical, and relationship building skills; and cultivate relationships with doctors).

It is undisputed that Stephenson loved her job and was extremely good at it. Beginning with the Rookie-of-the-Year Award in 1986, Stephenson regularly won national, state, and local contests. In 2000, she became one of fewer than 100 representatives inducted into the Pfizer Hall of Fame; she subsequently won two other contests and was named a Pfizer Master, awarded to senior representatives with sales and leadership achievements. JA468-69. Her territory generated millions of dollars in sales; she consistently exceeded her sales goals and ranked as a top salesperson in the region. Id.

Stephenson attributed her success in large part to her practice of carefully preparing for client meetings; doing extensive research into disease states and her products as well as those of her competitors; and conveying that information clearly and efficiently to her clients. JA467-68. She stated that her “in-depth knowledge” earned clients’ respect, allowing her to “interact with physicians on their level” and “generally afford[ing her] more and longer opportunities to converse with customers.” JA468.

Stephenson estimated that a typical workday lasted about ten hours. JA78. She agreed with defense counsel that she spent the “bulk” of the time — perhaps, 90% — “on the road,” visiting between eight and ten doctors a day. JA76-78 (visited some four to ten locations since multiple doctors might be in one office). In addition, she estimated that she spent another two hours at her home office doing research and preparation as well as paperwork. JA77-78.

In 2008, Stephenson developed an eye disease that left her legally blind in her left eye. Three years later, she developed the same condition in her right eye. By the end of October 2011, she could no longer see well enough to drive herself to appointments. There is no public transportation in the area, so for the next week, her manager and other colleagues drove her to appointments and reported that once there, she performed up to her usual high standards. JA470-71; JA517-18 (manager: describing her performance as “flawless”).

Shortly thereafter, Stephenson went out on short-term-disability leave. JA471. While on leave, she researched reasonable accommodations and found an EEOC technical assistance document, which lists hiring a driver as a possible accommodation for people with visual disabilities. Stephenson proposed this option to Pfizer and identified a driver who could take her to appointments at what she considered to be a reasonable cost. JA473-75. Both she and her husband agreed that, had cost been an impediment, they would have considered offering to share the cost. JA475-76; JA532-37 (Wes Stephenson Aff.) (describing search for and interactions with proposed driver, adding that he and Stephenson had not ruled out cost-sharing).

But Stephenson and Pfizer never explored the pros and cons of hiring a driver. Between November and February, they exchanged various emails and had two conference calls, in December and January, about her request for reasonable accommodation. On November 28, however, even before the calls, Stephenson received an email denying her request for a driver. [2] The email stated that driving herself was an essential function of the job; that the company was not required to hire anyone to do that essential function; and that supplying a driver was inherently unreasonable as it would expose the company to “significant increased risk and liability related to vehicular accidents, workers compensation, and misappropriation of and/or lost drug samples.” JA593-94 (HR director’s email); see also JA476. According to Stephenson, her manager told her privately that the company wanted to avoid creating a precedent that might encourage employees without Stephenson’s track record to seek a driver as a reasonable accommodation. JA481.

Since no accommodation other than a driver would enable Stephenson to continue working as a pharmaceutical representative, Pfizer suggested that she consult the in-house job website and apply for any vacancies for which she was qualified. JA479. Stephenson testified that she checked the website numerous times but found nothing comparable in her area. Id. Pfizer also began exploring the possibility of reassigning her to a “tele-detailing” position involving internet vaccine sales, but it is unclear whether the company actually offered Stephenson this job, which was based in Pennsylvania. In any event, she was not interested because, according to her, it was largely administrative, required only a high-school diploma (Stephenson had a degree from Duke University in biology and psychology (JA467)), and paid less than half what she had been earning. JA479-80, JA482.

This suit followed.

3. District Court’s Decision

The district court granted summary judgment to the defendant. According to the court, the facts were not disputed; the parties simply disagreed about whether driving is an essential function of the job. JA1298. Although Pfizer argued that it was an essential function, Stephenson took the position that travelling is an essential function but that driving, as one “mode of travel,” is not. Id.

The district court noted that EEOC regulations list factors relevant to determining whether a function is essential. JA1298-99 (citing 29 C.F.R. 1630.2(n)). In the court’s view, the “uncontroverted evidence shows that these factors strongly favor Pfizer.” JA1299. The court acknowledged that there is a “genuine dispute” as to whether Pfizer’s posted job descriptions explicitly require a job candidate to be able to drive. JA1300. However, the court noted, Pfizer management testified that driving oneself is essential, and Stephenson acknowledged that this was Pfizer’s position. In addition, according to the court, Stephenson’s deposition concedes that she spent the “bulk” — up to 90% — of her day travelling between doctors’ offices, and other sales representatives in North Carolina do their own driving. Finally, Stephenson agreed that she could not do her job unless transportation were arranged for her. JA1293, JA1299-JA1301. On the “complete record,” therefore, the court concluded that “driving is an essential part of the job of a Pfizer sales representative in Stephenson’s territory.” JA1301.

Furthermore, the court continued, this conclusion is “in harmony with the judgments of other federal courts finding driving to be an essential function of sales representatives.” JA1301-02 (listing cases). In particular, the court noted that the “precise distinction” that Stephenson attempted to draw between driving and travelling between clients’ offices was raised and rejected in Kielbasa v. Illinois EPA, 2005 WL 2978717 (N.D. Ill. Nov. 3, 2005). JA1301-03. The court agreed with the Kielbasa court’s concern that if it were 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.’” JA1302-03 (quoting Kielbasa, 2005 WL 2978717, at *8) (alterations in Stephenson decision).

The court also noted that even if travelling and selling Pfizer products are essential functions in Stephenson’s position, “it would not preclude a finding that driving is an additional essential function.” JA1303-04. Stephenson, however, did not propose any reasonable accommodation that would enable her to perform the essential function of driving. And, the court continued, because the company need not exempt her from performing an essential function or reallocate the requirement to another employee, any request that she be provided a driver or other means of transportation was unreasonable. JA1305-06.

STANDARD OF REVIEW

This Court reviews a grant of summary judgment de novo, applying the same legal standards as the district court. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011). “Summary judgment is appropriate only if taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, no material facts are disputed and the moving party is entitled to judgment as a matter of law.” Id. (citation omitted). “While summary judgment is appropriate in cases where the facts are clearly insufficient to satisfy the standard, when there is a close question and reasonable minds could differ when weighing all the facts against the law, then summary judgment is inappropriate.” Walker v. Mod-U-Kraft Homes, 775 F.3d 202, 208 (4th Cir. 2014) (citation omitted).

Where the moving party seeks summary judgment on an affirmative defense, such as “undue hardship,” it must conclusively establish all essential elements of the defense and may prevail only when it has produced credible evidence that would entitle it to a directed verdict if not controverted at trial. Ray Commc’ns v. Clear Channel, 673 F.3d 294, 299 (4th Cir. 2012) (citation omitted).

ARGUMENT

The main question in this case is whether Pfizer had a duty to consider providing a reasonable accommodation for Whitney Stephenson, one of Pfizer’s star pharmaceutical representatives, when she became legally blind and could no longer drive. The answer turns, in large part, on whether driving herself is an “essential function” — a fundamental job duty and reason why the job exists — or simply a method by which Stephenson accomplished the essential function of meeting with doctors and persuading them to prescribe Pfizer products. In the Commission’s view, on this record, that is not something that can be resolved on summary judgment. Nor is summary judgment appropriate on the related issues of reasonable accommodation or undue hardship. The judgment, therefore, should be reversed.

A. Reasonable minds could differ as to whether driving oneself was an essential function of the pharmaceutical representative job.

As defined in the ADA, an individual is “otherwise qualified” if she can perform the “essential functions” of a job, with or without reasonable accommodation. 42 U.S.C. §12111(8). “Essential functions” refer to job duties — tasks — that are “fundamental,” rather than “marginal.” 29 C.F.R. §1630.2(n)(1). A job function may be considered essential because (1) the position exists to perform that function; (2) there are a limited number of employees available among whom the performance of that job function can be distributed; or (3) the function is highly specialized so that the incumbent in the position is hired for her expertise or ability to perform the particular function. Id. §1630.2(n)(2).

In determining whether a task is essential, the ADA instructs that “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. §12111(8). Other relevant factors include: (1) the amount of time spent doing the function; (2) the consequences of not requiring the plaintiff to perform the function; and (3) the work experience of past and present incumbents in this job or similar jobs. See 29 C.F.R. §1630.2(n)(3). Whether a function is essential is a question of fact that must be decided on a case-by-case basis. 29 C.F.R. pt. 1630, App. §1630.2(n); Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 833 (4th Cir. 1994).

A finding that a function is essential is important because an employer need not eliminate, reassign, or hire someone else to do an essential function. Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997); see also Lusby v. Metro. Wash. Airports Auth., 1999 WL 595355, *6 (4th Cir. Aug. 9, 1999) (no need to eliminate or exempt plaintiff from essential function, hire another person to do essential function). If the individual cannot do the function even with accommodation, she is not otherwise qualified for that job.

In this case, the undisputed essential functions of Stephenson’s job include visiting doctors’ offices and striving to convince the doctors to prescribe to appropriate patients the Pfizer drugs in Stephenson’s portfolio. See, e.g., JA467 (“primary role” was to “share product and disease state knowledge, prescribing information, and correct patient targets”; “goal” was to “encourage medical professionals to prescribe Pfizer products”). In addition, Stephenson and Pfizer agree that “travelling”(Stephenson) or “travelling by motor vehicle” (Pfizer) to and from the doctors’ offices is another essential function of the job.

Applying the factors in the statute and regulations would also lead to the conclusion that these tasks are essential functions. Most importantly, the reason the job exists is to convince medical personnel to prescribe Pfizer drugs in order to increase sales. In addition, Pfizer judges these tasks to be essential and rewards employees, such as Stephenson, who perform them extremely well. The tasks are also spelled out in detail in applicable job descriptions that existed before this case arose. For example, the Pfizer Job Requisition for Professional Healthcare Representative (“PHR”) notes that a PHR has “responsibility for sales targets and physician relationships within a specific geography,” and must “demonstrate a strong understanding of necessary disease states,” be able to communicate this information effectively, and “provide the most current information pertaining to Pfizer products and the approved use of these products and achieve the business potential of the territory.” JA546-47 (forwarded to plaintiff in 2011), JA550-51 (forwarded to plaintiff in 2011). [3]

Furthermore, employees spend most of their time doing these tasks, and the consequences of not requiring employees to do them would most likely be decreased sales of Pfizer drugs and less informed decisions by doctors about which drugs work best for which patients and conditions. See 29 C.F.R. §1630.3(n)(3). Thus, Pfizer pharmaceutical representatives must be able, with or without reasonable accommodation, to promote Pfizer products and persuade doctors in face-to-face meetings to prescribe these products to appropriate patients.

It is further undisputed that Stephenson could do these functions with an accommodation that would enable her to travel to the meetings. However, the district court held that pharmaceutical representatives must also be able to do their own driving; that is, that driving themselves is another essential function of the job. JA1301; see also JA1303-04 (stating that driving may be additional essential function). It may be true that driving is an essential function of some jobs, such as truck driving, since that is the reason the position exists. But whether driving is an essential function is a factual question to be answered on a case-by-case basis.

And the answer is not so clear for pharmaceutical representatives. Driving is certainly not the reason the position exists. Moreover, while driving themselves is one way of accomplishing essential functions in that it enables representatives to get to the offices of the doctors with whom they are scheduled to meet on a particular day, there may be other ways to accomplish that result.

As the Third Circuit explained, the “‘essential function requirement focuses on the desired result rather than the means of accomplishing it.’” Skerski v. Time Warner Cable Co., 257 F.3d 273, 280-81 (3d Cir. 2001) (quoting 136 Cong. Rec. 11451 (1990) (comments of Rep. Fish)). Other courts have also distinguished between an essential function and other requirements that address how the function is accomplished. See, e.g., Keith v. Cty of Oakland, 703 F.3d 918, 925-28 (6th Cir. 2013) (while most lifeguards communicated orally, a jury could find the plaintiff, who was deaf, could perform the essential function of “communication” by using gestures, extra eye contact, notecards bearing key phrases, and sign-language interpreter for meetings and trainings); Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 27 (1st Cir. 2002) (ability to lift 70 pounds with two hands might not be an essential function of an EMT position if a one-armed individual could safely lift that weight with one hand); Johnson v. McGraw-Hill Cos., 451 F.Supp.2d 681, 702-04 (W.D.Pa. 2006) (factual dispute whether challenged job requirements “fall into narrower ‘essential function’ category”); cf. Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 217-18 (2d Cir. 2001) (most assistant managers drove when making bank deposits, an essential function, but plaintiff whose epilepsy prevented her from driving could accomplish task by, e.g., having employer hire a driver).

The Commission’s long-standing position has likewise been that inquiries into whether a task is an essential function should “focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed.” See EEOC: A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act at II-16 (Jan. 1992). Although it may be essential that the function be performed, it is often not essential that it be done in a particular way. Id. Thus, an individual with a disability “may be qualified to perform the function if an accommodation would enable the person to perform the job in a different way, and the accommodation would not impose an undue hardship.” Id. Indeed, the Commission made such an argument with respect to driving in an amicus brief in Lovejoy-Wilson v. NOCO Motor Fuel, Nos. 00-7919 & 7696 (2d Cir. Brief filed Nov. 29, 2000), available at www.eeoc.gov/eeoc/litigation.briefs/lovejoy.txt. See also 29 C.F.R. §1630.2(o)(1)(ii) (listing, as possible accommodations, “modifications or adjustments ... to the manner or circumstances under which the position ... is customarily performed” as well as readers and sign-language interpreters).

Drawing a similar distinction here, reasonable minds could disagree with the district court that driving herself was an essential function of Stephenson’s job as a pharmaceutical representative. While she and her colleagues had always driven themselves to client meetings, it was not necessarily essential that the job be done that way.

Analysis of the factors in the statute and regulations would not compel a finding that driving herself was an essential function of Stephenson’s job. As noted above, driving is not the reason the position exists, and Stephenson was not hired due to some special expertise as a driver. Nor is there evidence that Pfizer rewards employees for their excellent driving, as it does their excellent sales ability.

In addition, even the district court acknowledged that there is, at a minimum, a factual dispute whether applicable job descriptions included driving as an essential function, at least before Stephenson needed accommodation. Because the detailed job listings from 2011 (see, e.g., JA545-47, JA 549-51), as distinguished from later ones (see, e.g., JA508-10 (dated 3/20/2014)), do not list driving, a factfinder could find that Pfizer added the requirement in response to this case. See 42 U.S.C. §12111(8) (job descriptions prepared “before advertising or interviewing applicants for the job” are evidence of essential functions).

Moreover, contrary to the court’s finding, Stephenson’s testimony, agreeing with Pfizer’s attorney that she spent the bulk of her time “on the road,” does not compel a finding that she was actually in the car, driving, all that time. Stephenson testified that she typically met with eight to ten doctors in a day, and her in-depth knowledge of the materials and her audience meant that those meetings might well have been longer and more detailed than those of her colleagues. She also averaged another two hours in her home office, doing research, preparation, and paperwork. JA76-78, JA467-68. Thus, viewing the evidence in the light most favorable to plaintiff, a factfinder could easily find that these activities, not the driving, occupied the bulk of her time and were critical to her success.

In holding that driving herself was an essential function, the district court noted that Pfizer views driving as an essential function. While the employer's view is “entitled to substantial weight in the calculus,” however, it is not “conclusive.” Holly v. Clairson Indus., 492 F.3d 1247, 1258 (11th Cir. 2007); accord Gillen, 283 F.3d at 25 (judgment “not dispositive”). If it were, “an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is ‘essential,’ avoid the clear congressional mandate that employers ‘mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.’” Holly, 492 F.3d at 1258 (original emphasis) (citing 42 U.S.C. §12112(b)(5)(A)). A factfinder could, therefore, disagree with the court that the factors “strongly favor” Pfizer’s position (JA1299).

The district court also listed several out-of-circuit, mainly unpublished district court decisions that stated that driving was an essential function of the particular job at issue there. JA1303-04 (citing cases). [4] However, whether driving was an essential function was expressly challenged only in Kielbasa v. Illinois EPA, No. 02-4233, 2005 WL 2978717 (N.D. Ill. Nov. 3, 2005), which the court here discussed and quoted at length. As the district court suggested, Kielbasa is somewhat factually similar. The plaintiff there supervised inspectors at various state automobile emissions test facilities; about 20% of his time was spent visiting the test facilities as well as picking up and delivering materials and supplies. Id. at *1-*2. After becoming legally blind, he asked the agency to supply him with a driver to take him to the test facilities.

Kielbasa is distinguishable because unlike Pfizer, the employer there initially attempted to accommodate that plaintiff’s disability by having other employees drive him, as needed. However, the employer eventually discontinued the accommodation because it violated the collective bargaining agreement. Cf. U.S. Airways v. Barnett, 535 U.S. 391, 403-04 (2002) (accommodation that violates seniority system is ordinarily unreasonable). After accepting a different job at comparable pay, Kielbasa nevertheless sued to get his job back, but the court held that driving was an essential function of the position.

The reasoning in Kielbasa is flawed in two respects. First, like the court here, the Kielbasa court failed to distinguish between driving as an essential function and driving as a means by which an essential function is accomplished. Properly analyzed, the problem for Kielbasa was not that driving was an essential function that he could not perform, but that no reasonable accommodation would enable him to do the essential function of visiting the test facilities.

Second, the court there — and here — mistakenly believed that a finding that driving was not an essential function under the facts in those cases would “necessarily” mean that driving was not an essential function of “the vast array of sales positions in which employers are chiefly responsible for selling a given product but must spend considerable time in a car to do so.” JA1302-03 (quoting Kielbasa, 2005 WL 2978717, at *8). To the contrary, whether a particular job task such as driving is essential is a question of fact that must be decided on a case-by-case basis. 29 C.F.R. pt. 1620, App. §1620.2(n); Pandazides, 13 F.3d at 833.

All sales jobs are not fungible. A court should therefore examine the specifics of the particular job, focusing on why it exists and the importance of the task in achieving that purpose. Where a salesperson must take orders and make deliveries, for example, the ability to drive a delivery van might well be considered essential. But Stephenson did neither of those tasks. Thus, a finding that driving was or was not essential to Kielbasa’s job should not compel a similar finding in this or any other case.

B. Reasonable minds could differ as to whether supplying a driver could be a reasonable accommodation for Stephenson’s disability.

Assuming driving herself is not an essential function of Stephenson’s job, the question becomes whether a reasonable accommodation would allow her to do the essential functions without causing undue hardship to the employer. See 42 U.S.C. §§12111(8); 12112(b)(5)(A). In this case, because Stephenson’s disability prevents her from driving, she clearly needs an accommodation in order to perform the essential function of meeting with doctors and persuading them to prescribe Pfizer drugs to appropriate patients. To that end, she proposed that Pfizer supply her with a driver.

A plaintiff carries her burden on the question of reasonable accommodation by showing that a proposed accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases.” Barnett, 535 U.S. at 401. Once the plaintiff makes this showing, the burden shifts to the employer to show “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 402. At that point, the plaintiff may still prevail by showing that “special circumstances” warrant a finding that the “requested accommodation is reasonable on the particular facts.” Id. at 405. Barnett applied this third step to a case where the proposed accommodation would conflict with a seniority system, but some courts have extended it to other situations. See, e.g., Taylor v. Rice, 451 F.3d 898, 909-11 (D.C. Cir. 2006) (prospective employee’s challenge to State Department’s refusal to hire him as foreign service officer based on his HIV+ status); Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002) (noting that “if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that [it] is reasonable under the particular circumstances of the case”)(Alito, J.); cf. Giebeler v. M&B Assocs., 343 F.3d 1143, 1156-57 (9th Cir. 2003) (using Barnett’s special-circumstances analysis in reasonable accommodation claim under fair housing suit).

Here, the district court determined that driving was an essential function, thus obviating any need for Pfizer to consider reasonably accommodating Stephenson in her current job. JA1305-06. The court, therefore, did not consider whether, if driving were not an essential function, supplying a driver would be reasonable in the run of cases or under the circumstances of this case. In the Commission’s view, there is an issue of fact whether this proposed accommodation is reasonable.

The ADA explicitly includes readers and sign-language interpreters — that is, third-parties whose assistance enables disabled employees to do essential functions — in a non-exclusive list of possible reasonable accommodations. 42 U.S.C. §12111(9) (list also includes “other similar accommodations”). Barnett assumes that ordinarily, a request for one of these listed accommodations “would be reasonable within the meaning of the statute.” Barnett, 535 U.S. at 402-03. Absent undue hardship, therefore, employers may be asked to provide readers or sign-language interpreters as a reasonable accommodation to enable blind or deaf employees to do the essential functions of their jobs. See 42 U.S.C. §12111(9) (list of potential reasonable accommodations); see also Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140-41 (2d Cir. 1995) (employer may be required to provide a visually impaired employees with a reader because “what matters to that individual’s job is not the ability to read per se but rather the ability to take in, process, and act on information”; providing a reader “does not eliminate an essential function but rather permits the individual with a disability to perform that essential function”); Nelson v. Thornburgh, 567 F. Supp. 369, 382 (E.D. Pa. 1983) (requiring state to provide readers for certain blind employees), aff’d, 732 F.2d 146 (3d Cir. 1984).

While the list does not include drivers, a factfinder could find that drivers should be considered a “similar accommodation” within the meaning of the provision since, like readers, drivers could enable visually impaired individuals like Stephenson to do essential functions. See EEOC: Questions & Answers About Blindness & Vision Impairments in the Workplace & the ADA, Q/A #10 (stating that employee with visual disability may need “a driver or payment for the cost of transportation to enable performance of essential functions”), available at http://www.eeoc.gov/eeoc/publications/qa_vision.cfm. a

Moreover, even if supplying a driver were not considered reasonable in the run of cases, a factfinder could find that “special circumstances” make it reasonable in this case. Such circumstances might include Stephenson’s 27-year stellar track record; the fact her boss and other employees observed her giving outstanding presentations despite her loss of vision; the comparison between the profits her presentations typically generated and the cost of supplying a driver; her willingness to consider absorbing part of the cost; and the lack of any comparable jobs in her area. Cf. Borkowski, 63 F.3d at 138 (costs are not clearly disproportionate to expected benefits).[5] To the extent Pfizer refused to provide an accommodation out of concern for setting a precedent, this focus on special circumstances might assuage that concern.

Defendant opined that hiring a driver is not reasonable because it is “a matter of black letter law that the ADA does not require Pfizer to hire a third party to enable Plaintiff to perform an essential function.” Doc.45: Reply at 8-9. That is simply wrong. Although the ADA does not require employers to hire a third party to do an essential function that an employee’s disability prevents her from doing (see, e.g., Martinson, 104 F.3d at 687), enabling a disabled employee to do the essential functions herself is exactly what a reader or sign-language interpreter might be hired to do. Cf. Borkowski, 63 F.3d at 140-41 (holding that it may be reasonable accommodation to employ a teacher’s aide to help disabled library teacher maintain classroom order). Similarly, here, a jury could find that, absent undue hardship, Pfizer should be required to hire a third party to enable Plaintiff to do the essential functions of her job.[6]

Finally, the Commission notes that there is evidence from which a jury could find that plaintiff proposed a reasonable accommodation and Pfizer did not engage in the interactive process in good faith. See Rorrer v. City of Stow, 743 F.3d 1025, 1045 (6th Cir. 2014); Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F.App’x. 314, 322-24 (4th Cir. Apr. 20, 2011) (unpublished); see also Wilson v. Dollar Gen’l Corp., 717 F.3d 337, 347 (4th Cir. 2013) (suggesting there may be liability for failure to engage in the interactive process if, had a good-faith interaction taken place, the parties could have found a suitable reasonable accommodation). Summary judgment on reasonable accommodation grounds would thus be inappropriate.

C. It would be inappropriate to affirm summary judgment on the alternative ground that supplying a driver would cause Pfizer undue hardship.

The last step in the analysis of whether Stephenson could do her job with an accommodation is whether it would pose an undue hardship. Under the ADA, “undue hardship” means “an action requiring significant difficulty or expense” in light of factors such as the nature and cost of the proposed accommodation, the overall financial resources of the facility and overall entity, the number of employees, and the type of operation. 42 U.S.C. §12111(10). It is a fact-intensive inquiry on which the employer bears the burden of proof. See, e.g., Barnett, 535 U.S. at 402 (employer’s burden). Thus, to obtain summary judgment, an employer would have to proffer enough credible evidence to entitle it to a directed verdict if not controverted at trial. See, e.g., Ray Commc’ns, 673 F.3d at 299.

Here, however, since Pfizer took the position below that driving is an essential function, the company did not develop an argument that supplying a driver for Stephenson would cause undue hardship. Although the company alluded to concerns about insurance, worker compensation, liability — and creating undesirable precedent — there is no record evidence on undue hardship, and the district court did not address it. Because it is an issue on which the employer bears the burden of proof, summary judgment for the defendant on this alternative ground would be inappropriate.

CONCLUSION

For the foregoing reasons, the decision of the district court should be reversed.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

/s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 6,326 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

I further certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Times New Roman font, 14 point type.

Dated: March 9, 2015 /s/ Barbara L. Sloan

Barbara L. Sloan

[1] The Commission files this brief as amicus curiae to clarify the legal standard applicable to claims of discrimination under the ADA. The Commission believes the issues in this case require submission to a jury and takes no position on what the jury might conclude about whether the plaintiff suffered discrimination on the facts of this case.

[2] Pfizer did provide some special computer software and reading glasses that Stephenson requested as reasonable accommodations.

[3] This list is consistent with tasks identified as important for pharmaceutical representatives in O*NET Online, a website sponsored by the U.S. Department of Labor, Employment & Training Administration that, among other things, ranks relevant work activities for specific jobs. Under the job title of sales or pharmaceutical representative, the four most important activities are communicating with persons outside the organization, selling or influencing others, getting information needed to do the job, and establishing and maintaining relationships. Operating vehicles or equipment is in the bottom third (29-31/42) of important activities. See www.occupationalinfo.org/onet/49005b/html.

[4] See Mathews v. Trilogy Commc’ns, 143 F.3d 1160, 1164-65 (8th Cir. 1998) (plaintiff did not deny driving was essential function but argued employer fired him because of disability, not because employer’s insurer refused coverage due to his poor driving record); Walsh v. AT&T Corp., 2007 WL 2034426, *6 (N.D. Ohio July 11, 2007) (“uncontroverted record” shows that devoting substantial time to driving was essential function); Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818, *15-*18 (D.N.J. June 23, 2003) (plaintiff could not commute to work, due to disability; work-at-home option was unavailable; it was “undisputed” plaintiff could not do essential functions of other jobs with accommodation); Durning v. Duffens Optical, 1996 WL 67640, *5-*6 (E.D.La. Feb. 14, 1996) (plaintiff admitted job involved making in-person sales calls but suggested making them by phone; fired for not meeting increased sales goal). Defendant also cited Oliva v. Pride Container Corp., 81 F.Supp.2d 907, 911 (N.D.Ill. 2000) (alternatively, plaintiff argued she could do essential function of driving); and Minnihan v. Mediacom Communications Corp., 987 F.Supp.2d 918 (S.D. Iowa 2013). Like the employer in Kielbasa, the employer in Minnihan attempted to relieve plaintiff of driving duties but ended up also having to reallocate other essential functions, like responding to cable outages and doing unscheduled supervisory visits, that plaintiff could not do without driving. 987 F.Supp.2d at 927-28, 938-39 (ultimately reassigned plaintiff as reasonable accommodation).

[5] To the extent cost is an issue, funding may be available from another source, such as a state vocational rehabilitation agency, and/or tax credits may be available to offset the cost of the accommodation. 29 C.F.R. pt.1630, App. §1630.2(p) (citing legislative history).

[6] Defendant may argue that readers are distinguishable from drivers because persons with disabilities may not need a reader every day and/or permanently. This is an issue of undue hardship, not a distinction between readers and drivers. It is true that, as technology advances, blind employees may be able to rely more heavily on computer technology than on readers. But cf. Enforcement Guidance, Reasonable Accommodation & Undue Hardship under the ADA, Q/A 9, Ex.B (if blind employee requests reader because mechanical device does not allow her to read easily, employer must provide a reader, absent undue hardship) (Oct.17, 2002). However, the ADA dates from 1990, when such technology was less well-developed, and Congress nevertheless clearly contemplated that employers could be required to provide readers as a reasonable accommodation.