No. 15-3754

__________________________________

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

__________________________________

 

RAYMOND SEVERSON,

 

Plaintiff-Appellant,

 

v.

 

HEARTLAND WOODCRAFT, INC.,

 

          Defendant-Appellee.

__________________________________________________

 

On Appeal from the United States District Court for the

Eastern District of Wisconsin, Civil No. 14-cv-1141

Hon. Lynn Adelman, District Court Judge

__________________________________________________

 

BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS AMICUS CURIAE

IN SUPPORT OF

PLAINTIFF-APPELLANT AND REVERSAL

__________________________________________________

 

P. DAVID LOPEZ                                      EQUAL EMPLOYMENT

General Counsel                                  OPPORTUNITY COMMISSION

                                                          Office of General Counsel

JENNIFER S. GOLDSTEIN             131 M Street, N.E., 5th Floor

Associate General Counsel                Washington, D.C.  20507

                                                          (202) 663-4791

MARGO PAVE                                 susan.oxford@eeoc.gov

Assistant General Counsel

                                               

SUSAN R. OXFORD

Attorney

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES............................................................................. ii

 

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

 

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

 

STATEMENT OF THE CASE......................................................................... 3

 

A.  Statement of Facts ............................................................................... 3

B.  District Court Decision ........................................................................ 7

 

ARGUMENT

I.  Severson Met His Burden to Prove He Was a Qualified Individual

under the ADA .......................................................................................... 8

 

A. When an employee requests a temporary leave of absence as a

reasonable accommodation, the employee’s ability to perform the

essential job functions should be assessed as of the projected end

   of the leave ............................................................................................. 9

 

   B. The accommodation Severson requested—a time-limited leave,

   requested in advance, and likely to enable him to perform the

   essential job functions—was reasonable ............................................... 19

 

II. Heartland’s Evidence Does Not Establish Undue Hardship ............... 27

 

CONCLUSION............................................................................................... 31

 

CERTIFICATE OF COMPLIANCE…………………………………………….32

 

CERTIFICATE OF SERVICE

 

TABLE OF AUTHORITIES

     Page(s)

Cases

Basden v. Prof’l Transp., Inc.,
714 F.3d 1034 (7th Cir. 2013)............................................................. 11, 15

Basith v. Cook County,
241 F.3d 919 (7th Cir. 2001)..................................................................... 15

Byrne v. Avon Prods., Inc.,
328 F.3d 379 (7th Cir. 2003)..................................................... 8, 22, 23, 24

Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
155 F.3d 775 (6th Cir. 1998)..................................................................... 16

Cloe v. City of Indianapolis,
712 F.3d 1171 (7th Cir. 2013)..................................................................... 9

DeLon v. Eli Lilly & Co.,
990 F. Supp. 2d 865 (S.D. Ind. 2013)........................................................ 23

Donelson v. Providence Health & Servs.-Washington,
823 F. Supp. 2d 1179 (E.D. Wash. 2011).................................................. 12

EEOC v. Midwest Indep. Transmission Sys. Operator, Inc.,
2013 WL 2398956 (S.D. Ind. May 30, 2013)............................................ 23

EEOC v. United Airlines, Inc.,
693 F.3d 760 (7th Cir. 2012)......................................................... 20, 21, 28

EEOC v. Yellow Freight Sys., Inc.,
253 F.3d 943 (7th Cir. 2001) (en banc)...................................................... 25

Garcia-Ayala v. Lederle Parenterals, Inc.,
212 F.3d 638 (1st Cir. 2000).................................................... 16, 17, 18, 26

Hamm v. Exxon Mobil Corp.,
223 F. App’x 506 (7th Cir. 2007).............................................................. 24

Haschmann v. Time Warner Entm’t Co.,
151 F.3d 591 (7th Cir. 1998)............................................................... passim

Jelsma v. City of Sioux Falls,
744 F. Supp. 2d 997 (D.S.D. 2010)........................................................... 26

Kauffman v. Petersen Health Care VII, LLC,
769 F.3d 958 (7th Cir. 2014)..................................................................... 18

Mobley v. Allstate Ins. Co.,
531 F.3d 539 (7th Cir. 2008)..................................................................... 19

Nowak v. St. Rita High Sch.,
142 F.3d 999 (7th Cir. 1998)..................................................................... 21

Nunes v. Wal-Mart Stores, Inc.,
164 F.3d 1243 (9th Cir. 1999)....................................................... 15, 16, 17

Rascon v. US West Commc’ns, Inc.,
143 F.3d 1324 (10th Cir. 1998), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742 (2001)................................................................... 16

Reserve Supply Corp. v. Owens-Corning Fiberglas Corp.,               971 F.2d 37 (7th Cir. 1992)........................................................................................... 28

Severson v. Heartland Woodcraft, Inc.,
2015 WL 7113390 (E.D. Wis. Nov. 12, 2015).................................... passim

Sluga v. Metamora Tel. Co.,
2015 WL 1811823 (C.D. Ill. Apr. 17, 2015).............................................. 23

Solomon v. Vilsack,
763 F.3d 1 (D.C. Cir. 2014)....................................................................... 19

Stern v. St. Anthony’s Health Ctr.,
788 F.3d 276 (7th Cir. 2015)..................................................................... 10

U.S. Airways, Inc. v. Barnett,
535 U.S. 391 (2002)............................................................................ passim

U.S. v. Turcotte,
405 F.3d 515 (7th Cir. 2005)..................................................................... 14

Waggoner v. Olin Corp.,
169 F.3d 481 (7th Cir. 1999)..................................................................... 25

Wood v. Green,
323 F.3d 1309 (11th Cir. 2003)................................................................. 24

Statutes

29 U.S.C. §§ 2612(a)(1).................................................................................... 4

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq............... 1

42 U.S.C. § 12111(1)(A) & (B)....................................................................... 28

42 U.S.C. § 12111(8).................................................................................... 1, 9

42 U.S.C. § 12111(9)...................................................................................... 19

42 U.S.C. § 12111(9)(A) & (B)................................................................... 9, 11

42 U.S.C. § 12111(9)(B)................................................................................. 14

42 U.S.C. §§ 12112(a).................................................................................. 1, 9

42 U.S.C. § 12112(b)(5)(A).............................................................. 1, 9, 19, 28

Regulations

29 C.F.R. § 825.702(a) & (b).......................................................................... 27

29 C.F.R. § 1630.2(m).................................................................................... 10

29 C.F.R. § 1630.2(o)(2)................................................................................. 14

29 C.F.R. Pt. 1630, App. § 1630.2(m)........................................................... 11

29 C.F.R. Pt. 1630, App. § 1630.2(o)(2)........................................................ 13

Rules

Fed. R. App. P. 29(a)........................................................................................ 1

Fed. R. Civ. P. 54(b)......................................................................................... 3

Other Authorities

H.R. Rep. No. 101-485, Part 2, reprinted at 1990 U.S.C.C.A.N. 303 (May 15, 1990).......................................................................................................... 14

“EEOC Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,”  2002 WL 31994335 (No. 915.002, Oct 17, 2002)................................................................ 13, 27

EEOC Fact Sheet on “The Americans With Disabilities Act:  Applying Performance and Conduct Standards to Employees with Disabilities,” (found at http://eeoc.gov/facts/performance-conduct.html#issues)...................... 21, 25

Moore’s Fed. Prac. 3d ed. § 56.40[1][c].......................................................... 28

                   

 

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress to interpret, administer, and enforce the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§  12101 et seq., and other federal workplace anti-discrimination laws.  The ADA prohibits disability-based employment discrimination against a “qualified individual” with a disability, and it defines qualified individuals to encompass those who can perform a job’s essential functions with a reasonable accommodation.  See 42 U.S.C. §§ 12111(8), 12112(a) & (b)(5)(A).  At issue in this appeal is whether an otherwise qualified employee who seeks a leave of absence to recover from back surgery may be a “qualified individual” under the ADA and whether his requested accommodation was reasonable.  The district court held that the plaintiff was not qualified because, at the time of his leave request, he could not perform the job’s essential functions.  The district court misunderstood how a time-limited leave request, made in advance, should be analyzed.  The court’s analysis would effectively rule out leave as a possible accommodation under the ADA.  Such a categorical exclusion is at odds with the longstanding position of the EEOC.  The Commission therefore offers its views to this Court.  See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1.       Plaintiff Raymond Severson requested two or three months of additional medical leave, at the end of which he would be able to perform the essential functions of the second-shift supervisor position.  Did the district court err as a matter of law by (a) assessing whether Severson was qualified under the ADA based on whether he could perform the essential functions while he was out on leave rather than when he was scheduled to return, and (b) holding that a leave request—made in advance, of limited duration, and likely to enable the individual to perform his job—nonetheless was not a reasonable accommodation?

2.       The ADA places the burden of proof on an employer to demonstrate that a particular accommodation would impose undue hardship on the operation of the employer’s business.  Where record evidence shows that Defendant Heartland Woodcraft maintained the status quo for the bulk of the period that Severson had requested as extended medical leave and filled Severson’s position only ten days before he was medically cleared to return to work without restriction, did the company fail to satisfy its summary judgment burden to show that a reasonable jury could only find it had established undue hardship?

 

STATEMENT OF THE CASE

This is an appeal from a final judgment under Federal Rule of Civil Procedure 54(b) granting summary judgment in favor of Defendant Heartland Woodcraft, Inc., on Plaintiff Raymond Severson’s ADA claims.

A.    Statement of Facts

Defendant Heartland Woodcraft manufactures furniture and shelving for retail establishments.  District court record number (“R.”) 65, Appendix (“App.”) A, page 1 (“A-1”).  The company hired Raymond Severson as a supervisor in 2006.  Id.  Heartland later promoted Severson to shop superintendent and then, in January 2012, to operations manager.  Id.  By summer 2013, Heartland had become dissatisfied with Severson’s performance as a manager.  App.A-2.  At the same time, the company was seeking a permanent replacement for the temporary second-shift lead, Curtis Strnad, whom Heartland did not think could handle the company’s anticipated expansion of its second-shift operations.  Id.  On June 5, 2013, Heartland’s president, Patrick Koness, and its general manager, Douglas Lawrence, met with Severson and relieved him of his duties as operations manager.  They then offered Severson the position of second-shift lead.  Id.

At that same meeting, Severson told Koness and Lawrence he was experiencing severe back pain and went home at Koness’s suggestion.  Id.  Severson had suffered from a back condition since 2005 (the year before he began working at Heartland).  App.A-1.  Despite this condition, Severson maintained excellent attendance during his tenure with the company.  In November 2010, he worked from home briefly following a workplace injury.  R.61, App.E-17, ¶67.  Otherwise, even when his condition flared up, he was able to return to work with limited absences from the job.  This time, however, the back pain failed to subside, and Heartland ultimately approved Severson’s request for twelve weeks of leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2612(a)(1).  App.A-2 to A-3. 

On June 9, Severson—still at home with back pain—accepted the offer to be the second-shift lead.  App.A-2.  Thereafter, Severson remained at home continuously until the end of August, attempting to resolve his back pain with non-surgical measures.  R.61, App.E-8, ¶¶31-33.   During this time, Heartland retained Strnad as second-shift lead.  App.E-24, ¶¶91-92.  Heartland contends the second shift experienced a number of problems as a result.  R.45, App.F-9 to F-10, ¶52. 

On August 13, Severson advised Heartland that non-surgical measures had been ineffective in reducing his pain and that he was scheduled to have back surgery on August 27 (the same day his FMLA leave expired).  App.A-3.  He asked Heartland to extend his medical leave another two or possibly three months for his recuperation, which Heartland understood as a request for accommodation.  Id.; R.61, App.E-8 to E-9, ¶¶33-35.  No one from Heartland asked Severson for any medical documentation or contacted him between August 13 and 26.  App.E-9 to E-10, ¶¶36, 42-43.  Heartland’s office manager, Jennifer Schroeder, who also performed human resources (HR) functions for Heartland (App.A-3; App.E-1, ¶2), consulted an outside HR professional who informed her in an email that “[t]here may be ADA considerations” concerning Severson’s request for an extension of his medical leave.  App.E-9, ¶40.  The email stated:

If [Severson] fits the ADA definition of Disability, then the company may be obligated to explore whether there is a reasonable accommodation [Heartland] can provide.  The courts have found that extending leave a bit longer can be seen as a reasonable accommodation if the person only needs a bit more recoup time in order to be able to perform the essential functions of the job.

    

Id.

Schroeder attested that the decision to discharge Severson occurred sometime between August 13 and 20.  R.54-3 (Schroeder Deposition at 71-72).  On August 26, Heartland denied Severson’s request to extend his medical leave and informed him his employment was terminated as of August 28, the day after his FMLA leave ended, because he was unable to return to work on August 28.  App.A-4.  Heartland invited Severson to apply for a new position when his doctor released him to return to work.  Id. 

Severson’s back surgery occurred as scheduled on August 27, 2013.  App.E-12, ¶52.  In mid-October, Severson’s doctor authorized him to return to work with a 20-pound lifting restriction.  App.E-14, ¶60.  On December 5, 2013, Severson’s doctor released him to return to work without restriction.  App.E-14, ¶61.  

Meanwhile, Heartland had Strnad continue to perform the duties of second-shift lead.  R.61, App.E-23, ¶88.  On September 9, the company posted the position on Craigslist and, at some point, internally.  Id.  On November 22, Heartland promoted one of its assemblers to second-shift lead effective November 25, 2013.  R.54, Exhibit N (Employee Change Form for Dan Gehrke). 

Severson filed suit alleging, inter alia, that Heartland had violated the ADA by refusing to extend his medical leave another two or three months after his FMLA leave ended.  R.1 (Complaint).  Heartland moved for summary judgment, arguing that Severson was not a qualified individual because lifting heavy items was an essential job function that could not be reassigned to other second-shift employees; Severson was wholly unable to perform heavy lifting until December 5; and “[a]n employee on leave cannot perform the essential functions of the job.”  R.44/R.64, App.B-14 to B-15.  Heartland also argued, alternatively, that granting Severson an additional two- or three-month leave of absence would have imposed an undue hardship on it.  App.B-15 to B-20. 

B.    District Court Decision[2]   

The district court granted Heartland summary judgment on Severson’s ADA claim.  Severson v. Heartland Woodcraft, Inc., 2015 WL 7113390 (E.D. Wis. Nov. 12, 2015) (R.65, App.A).  The court noted that Heartland did not dispute that “Severson was disabled within the meaning of the ADA, or that he satisfied the basic prerequisites for the second-shift lead position, ‘such as possessing the appropriate educational background, employment experience, skills, licenses, etc.’”  App.A-7.  The court held, however, that Severson failed to create a dispute of material fact concerning Heartland’s contentions that (1) an ability to lift heavy items was an essential function of the second-shift lead position and (2) at the time he was terminated, no reasonable accommodation would have allowed Severson to perform that function.  App.A-13 to App.A-21. 

The court rejected Severson’s contention “that he was a qualified individual because he could have eventually performed the essential functions of the second-shift lead position, including lifting,” if Heartland had allowed him to continue his medical leave for another two or three months to recuperate from back surgery.  App.A-14.  The court cited a Seventh Circuit decision stating that “a person is not a ‘qualified individual’ if his disability prevents him from performing the essential functions of his job for months at a time” or prevents him from coming to work “regularly.”  Id. (citing Byrne v. Avon Prods., Inc., 328 F.3d 379, 380-81 (7th Cir. 2003), other citations omitted).  The district court reasoned that the proper time for determining whether Severson met the ADA’s qualification requirement was when Heartland terminated him, at which point Severson had been unable to lift the requisite weight for three months and had sought another two or three months of leave.  Id.  Having concluded, on this basis, that Severson was not a “qualified” individual, the court declined to consider Heartland’s alternative argument that extending Severson’s leave another two or three months would have caused it undue hardship.  App.A-15 n.5.

ARGUMENT

I.           Severson Met His Burden to Prove He Was a Qualified Individual Under the ADA.

 

Severson alleged that Heartland violated the ADA by failing to reasonably accommodate his disability when it denied his request to extend his medical leave of absence.  R.1 (Complaint) at 18.  The ADA prohibits discrimination against a “qualified individual on the basis of disability” and defines such discrimination to include “not making reasonable accommodations to the known physical … limitations of an otherwise qualified individual with a disability” unless the employer demonstrates “undue hardship.”  42 U.S.C. §§ 12112(a), 12112(b)(5)(A).  The statute incorporates the concept of reasonable accommodation into the definition of qualified:  it defines “qualified individual” as someone who, “with or without reasonable accommodation, can perform the essential functions” of the job the individual holds or desires.  42 U.S.C. § 12111(8). 

The ADA does not define “reasonable accommodation” but instead provides a non-exhaustive list of what it may include.  42 U.S.C. § 12111(9)(A) & (B).  Although “leave” is not listed, ample and longstanding authority removes any doubt that in appropriate circumstances, a temporary leave of absence can be a reasonable accommodation under the ADA.  The district court’s analysis of Severson’s leave request shows the court misunderstood this statutory framework and, consequently, erred as a matter of law in granting summary judgment.

A.   When an employee requests a temporary leave of absence as a reasonable accommodation, the employee’s ability to perform the essential job functions should be assessed as of the projected end of the leave period. 

“[T]o establish a prima facie case of failure to accommodate under the ADA, a plaintiff must show that: (1) [he] is a qualified individual with a disability; (2) the employer was aware of [his] disability; and (3) the employer failed to reasonably accommodate the disability.”  Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013) (citation and internal quotation marks omitted).  Heartland contended that Severson could not establish the first prong—that he was a qualified individual with a disability.  In assessing this contention, the district court erred by considering whether Severson could perform the essential functions of the second-shift lead as of the date Heartland denied his requested accommodation and discharged him.  Instead, the court should have made this assessment as of the date Severson’s doctor projected he could return to work.    

This Court applies a two-step test for determining whether a plaintiff has established that he or she is a qualified individual under the ADA.  Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285 (7th Cir. 2015).  The Court first “consider[s] whether the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.”  Id. (citation omitted).  If so, the Court then considers whether “the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.”  Id.  See also 29 C.F.R. § 1630.2(m).

Heartland did not dispute that Severson satisfied the basic prerequisites for the position of second-shift lead.  R.65, App.A-7.  Instead, Heartland argued, and the district court ruled, that Severson could not satisfy the second step of this Court’s test.  Specifically, the court ruled that no reasonable accommodation would have allowed Severson to perform heavy lifting on August 28—the date after his FMLA leave ended and his leave extension (had it been granted) would have begun.  App.A-13 to A-21.

The district court correctly noted (App.A-15) that whether someone is qualified under the ADA, like whether someone has a disability, is generally assessed as of the time of the relevant employment decision (here, Heartland’s August 26, 2013, decision to deny Severson’s accommodation request and to discharge him instead).  See Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013); see also 29 C.F.R. Pt. 1630, App. § 1630.2(m).  When the requested accommodation cannot be immediately fulfilled, however, the analysis must reflect that aspect of the accommodation sought.  For example, the statute lists as examples of reasonable accommodations “making existing facilities used by employees readily accessible” and “acquisition or modification of equipment or devices.”  42 U.S.C. §§ 12111(9)(A), (B).  If it would take an employer a month to modify existing facilities or to acquire and install a needed device, it would be at odds with the statutory text to deem an individual not qualified because the proposed accommodation would take time to fulfill.

So too with a leave request.  The accommodation of leave is only fully achieved at the end of the leave period.  Thus, with a leave request, the relevant inquiry is whether the employee would be able to perform the essential job functions at the end of the leave, if the time off were granted.  As one district court explained, “if an employee’s ability to perform essential job functions were evaluated solely with regard to the period of time during which [he or she was] on medical leave, no employee [who] was forced by disability to take medical leave could ever be a ‘qualified individual’ under the ADA.”  Donelson v. Providence Health & Servs.-Washington, 823 F. Supp. 2d 1179, 1189-90 (E.D. Wash. 2011) (denying summary judgment because employee was able to perform job’s essential functions before and after her medical leave).

The district court here did exactly what the court in Donelson cautioned against:  it analyzed Severson’s ability to perform heavy lifting while he was out on leave with a disabling back condition.  Heartland had granted Severson FMLA leave through August 27, 2013.  Two weeks before that date, Severson notified Heartland that he was undergoing corrective back surgery on August 27 and requested two or three additional months of medical leave to allow him to recuperate.  Heartland denied Severson’s request without even asking for medical documentation and discharged him instead. 

If the district court had considered Severson’s ability to perform the job with the requested accommodation of leave, it would have found Severson qualified under the ADA.  Severson sought two or three months to recover from the surgery and resume heavy lifting, and his doctor did, in fact, clear him to return to work without restriction within that time frame.  The court’s approach, on the other hand—assessing Severson’s ADA qualification as of the day he was terminated—amounts to assessing his ability to perform the job with no accommodation whatsoever.  

Interpreting the qualified requirement so as to make leave unavailable is at odds with the Commission’s consistent and longstanding interpretation of the ADA and the statute’s legislative history.  The EEOC identifies leave as a potential accommodation in the Appendix to the ADA regulations as well as in the Reasonable Accommodation Enforcement Guidance.  See 29 C.F.R. Pt. 1630, App. § 1630.2(o)(2) (“other accommodations could include … providing additional unpaid leave for necessary treatment”); “EEOC Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” 2002 WL 31994335 (No. 915.002, Oct 17, 2002) (“EEOC Enforcement Guidance”), at *14-17 (“Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.”).  

That the statute and the EEOC’s regulations do not include “leave” in their list of sample accommodations is immaterial because both expressly note that the list is non-exhaustive.  See 42 U.S.C. § 12111(9)(B) (listing possible accommodations that “[t]he term ‘reasonable accommodation’ may include”) (emphasis added); 29 C.F.R. § 1630.2(o)(2) (stating “reasonable accommodation” not limited to the specific accommodations listed).  And the ADA’s legislative history specifically mentions that “[r]easonable accommodation may also include providing additional unpaid leave days, if such provision does not result in an undue hardship for the employer.”  See H.R. Rep. No. 101-485, Part 2, at 63, reprinted at 1990 U.S.C.C.A.N. 303, 345 (May 15, 1990).  This reference in the legislative history further supports that leave is generally available as a reasonable accommodation under the ADA, subject to considerations of undue hardship.  See U.S. v. Turcotte, 405 F.3d 515, 523 (7th Cir. 2005) (where text of statute does not clearly indicate how particular provision should be read, this Court refers to, among other things, statute’s “overall structure and legislative history”).

In addition, this Court and other circuits have long interpreted the ADA’s reasonable accommodation requirement as including paid or unpaid leave, subject to an employer’s demonstration of “undue hardship.”  In Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998), for example, this Court upheld a jury’s finding that granting the plaintiff a second medical leave would have been a reasonable accommodation.  Id. at 601.  After a two week medical leave to address a flare-up of lupus, the plaintiff returned to work part-time for two weeks and then requested a second leave of “2 to 4 weeks,” which her employer denied.  Id. at 593-95.  Although she plainly could not work as of the date she was terminated (the date her leave would have begun, had it been granted), this Court nevertheless held that the jury, having heard the evidence (including her actual date of recovery, which showed she needed more leave than she originally sought), “reasonably could have concluded that [plaintiff’s] request for a short medical leave was reasonable under the circumstances.”  Id. at 602. 

Since Haschmann, this Court has continued to recognize that a leave of absence can be a reasonable accommodation under the ADA.  See, e.g., Basith v. Cook County, 241 F.3d 919, 932 (7th Cir. 2001) (agreeing that the several medical leaves the County provided Basith for months at a time “qualifies as a reasonable accommodation”); cf. Basden, 714 F.3d at 1038 (affirming summary judgment for employer in part because evidence was insufficient to support finding that plaintiff’s “regular attendance could have been expected following the leave she sought or with any other accommodation”) (emphasis added).      

Other circuits likewise recognize that “[u]npaid medical leave”—including leave lasting several months or more—“may be a reasonable accommodation under the ADA,” subject to the ADA’s undue hardship defense.  Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999).  See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647-48 (1st Cir. 2000) (holding that plaintiff’s request for extended medical leave was a reasonable accommodation under ADA and noting other cases that have reached same conclusion); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782-83 (6th Cir. 1998) (“medical leave of absence can constitute a reasonable accommodation under appropriate circumstances”); Rascon v. US West Commc’ns, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998) (“An allowance of time for medical care or treatment may constitute a reasonable accommodation.”), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001).   

In Nunes, for example, the Ninth Circuit reversed a district court’s determination that a Wal-Mart sales associate was unqualified under the ADA because she was unable to work while she was on leave recovering from a medical condition that caused her to faint.  Nunes, 164 F.3d at 1246-47.  Wal-Mart had granted Nunes several months of unpaid medical leave but then terminated her about five weeks before the date her doctors said she could return to work, ostensibly because extending her leave would have imposed a hardship for the approaching holiday season.  When Nunes filed suit under the ADA, Wal-Mart moved for summary judgment on the ground that Nunes was not a qualified individual because she could not perform the essential functions of her job on the date she was terminated.  The Ninth Circuit rejected this argument. 

“By focusing on Nunes’s disability during the period of her medical leave,” the Ninth Circuit stated, “the district court misapplied the ADA’s ‘qualified individual’ requirement.”  Id. at 1247.  The court explained that, since medical leave may be a reasonable accommodation under the ADA, the proper inquiry was “whether the accommodation sought [continuing her medical leave another month or so] would impose an undue hardship on Wal-Mart” in light of such considerations as Wal-Mart’s policy of allowing eligible employees to take up to a year of unpaid medical leave and its regular practice of hiring temporary help during the holiday season.  Id.  

Likewise, the First Circuit reversed a district court’s grant of summary judgment where an employer refused to extend an employee’s medical leave another four-and-a-half months to allow her to finish recuperating from cancer treatment, after she had been on medical leave for over five months.  Garcia-Ayala, 212 F.3d at 641-42.  During Garcia’s absence, the employer filled her position with temporary employees provided by agencies, and the company continued to do so for seven months after it dismissed her.  Id. at 642-43.  The First Circuit rejected the district court’s conclusion that Garcia was not qualified under the ADA because her doctors’ inability to guarantee she would return on the designated day made her leave extension an “unreasonable” request for “indefinite leave.”  Id. at 646-47.  Chastising the lower court for apparently applying a per se rule concerning leave instead of the individualized assessment the ADA requires, the First Circuit held that Garcia’s evidence that she could return to work in the near future met her burden of demonstrating she was qualified.  Id. at 647-49 (entering judgment for Garcia where employer offered no evidence of undue hardship).

In contrast to the approach of these courts, the analysis adopted by the district court here would ensure that the reasonableness of a specific leave request, as well as the question of whether the leave would impose an undue hardship, would never be reached.  The result would be the exclusion of leave as a possible accommodation under the ADA except where it is required by some other mandate such as the FMLA.  Indeed, leave would be excluded even where an employer could readily extend it—a result at odds with the language and purpose of the ADA as well as the Commission’s guidance and judicial precedent.  Cf. Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 962 (7th Cir. 2014) (employer’s 100% healed policy, if accepted as a defense, would “read ‘reasonable accommodation’ out of the ADA”).  Because the district court incorrectly analyzed Severson’s request for additional leave, summary judgment should be reversed.

B.   The accommodation Severson requested—a time-limited leave, requested in advance, and likely to enable him to perform the essential job functions—was reasonable.

Although the district court did not expressly state that a request for an additional two or three months of leave is categorically unreasonable under the ADA, that is the clear implication of the district court’s ruling, and it is incorrect.  Severson’s advance request for time-limited leave was reasonable under these circumstances and, if granted, would have permitted Severson to perform all of the essential functions of the second-shift lead by December 5.  Therefore, Heartland was obligated to provide the requested accommodation unless it could demonstrate it would have imposed an undue hardship on the operation of its business.  42 U.S.C. § 12112(b)(5)(A).

As noted above (at pp. 9 & 13-14), the ADA provides a nonexclusive list of reasonable accommodations but does not define what “reasonable” means in this context.  See 42 U.S.C. § 12111(9); Mobley v. Allstate Ins. Co., 531 F.3d 539, 546 (7th Cir. 2008).  This is consistent with this Court’s explanation that “[t]he reasonableness of a requested accommodation is a question of fact.”  Haschmann, 151 F.3d at 601 (upholding jury verdict in ADA plaintiff’s favor challenging denial of extended leave); see also Solomon v. Vilsack, 763 F.3d 1, 9-10 (D.C. Cir. 2014) (noting that whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry and explaining that “[f]or those reasons, it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law”).    

In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-06 (2002), the Supreme Court explained how to evaluate requests for reasonable accommodation under the ADA.  The employee who seeks a reasonable accommodation “need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.”  Id. at 401-02 (citations omitted); see also EEOC v. United Airlines, Inc., 693 F.3d 760, 762-63 & n.1 (7th Cir. 2012) (citing Barnett; other citations omitted).  “Once the plaintiff has made this showing, the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”  Barnett, 535 U.S. at 402 (citations omitted).  Put another way, the employee must show only that the accommodation, “at least on the face of things,” would be “feasible” for the employer or that the accommodation was “plausible,” after which the employer must come forward with evidence establishing undue hardship.  Id. (citations omitted).[3]    

Applying Barnett here, leave is widely recognized as a facially feasible or plausible form of accommodation under the ADA.  See supra at 13-18.  In particular, leave generally is reasonable where it is of definite, time-limited duration, requested in advance, and likely to enable the employee to perform the essential job functions when he or she returns.  See cases cited supra at 14-18.

Not every leave request will satisfy these general characteristics.  The Commission has noted, for example, that, while “employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration” which “can impose an undue hardship on an employer’s operations.”  See EEOC Fact Sheet on “The Americans With Disabilities Act:  Applying Performance and Conduct Standards to Employees with Disabilities,” Question 21 (found at http://eeoc.gov/facts/performance-conduct.html#issues) (“EEOC Fact Sheet”).  See also Nowak v. St. Rita High Sch., 142 F.3d 999, 1004 (7th Cir. 1998) (ADA does not require accommodation of “an indefinite leave of absence”).

Severson’s request to extend his leave in August 2013—after an impeccable attendance record since he was hired in 2006—was not a request for indefinite leave, but was time limited, definite, and likely to allow him to engage in heavy lifting at its conclusion.  Two weeks before his twelve weeks of FMLA leave was due to end, Severson informed Heartland that he was scheduled to undergo back surgery on August 27 and that his doctor said he would be able to return to work without restriction after two or three months of recuperation.  As events later unfolded, this estimated return date was accurate:  Severson was cleared to return to work three months (and a few days) after his FMLA leave ended. 

In rejecting Severson’s claim, the district court relied on precedent of this Court that it erroneously interpreted as concluding categorically that “a person is not a ‘qualified individual’ if his disability prevents him from performing the essential functions of his job for months at a time.”  See R.65, App.A-14 (citing Byrne, 328 F.3d at 381 (“Inability to work for a multi-month period removes a person from the class protected by the ADA.”)).  The district court seemed to assume the outcome might be different if Severson had requested a shorter leave.  Indeed, the court expressly stated that a worker who requires “occasional time off for ‘brief periods,’ such as a few days or a couple of weeks,” may be a qualified individual, and that granting that leave may be a reasonable accommodation.  Id. (citing Byrne, 328 F.3d at 380-81). 

Byrne does not support the district court’s imposition of a categorical rule.  Granted, Byrne contains language that, viewed outside the context of the decision as a whole, could appear to suggest a broad rule concerning leave requests that exceed one month.  The Commission does not believe, however, that this Court intended such a rigid construction of the ADA.  Cf. EEOC v. Midwest Indep. Transmission Sys. Operator, Inc., 2013 WL 2398956, at *4 (S.D. Ind. May 30, 2013) (declining to find Byrne dispositive of employee request for multi-month leave and instead applying Barnett analysis to what it described as “the ‘highly fact-specific’” reasonable accommodation inquiry).[4] 

Byrne involved a plaintiff who, unbeknownst to the employer, suffered from major depression that caused him to sleep for hours and hours while on the job, miss a few days of work, and skip a meeting to discuss his work problems.  Byrne, 328 F.3d at 380.  Only after the employer fired him and the plaintiff got several months of treatment did he argue that his employer should have allowed him simply not to work.  Id. at 380-81.  That post-hoc, indefinite “no work” accommodation was what this Court rejected in its holding.  See also, e.g., Hamm v. Exxon Mobil Corp., 223 F. App’x 506, 508 (7th Cir. 2007) (affirming summary judgment on the ground that the employee was not qualified under the ADA where the employee, after being on leave for most of the prior three years, failed to demonstrate that he would have succeeded in returning to work with one additional month’s leave).

          Here, by contrast, Severson did not suddenly go out on leave with no advance warning and no indication of how long he would be out, as was the case in Byrne.  See 328 F.3d at 380-81.  Nor was he seeking to extend an almost-three-year leave by another month, with no assurance he could actually return to work at the end of that month, as did the plaintiff in Hamm.  See Hamm, 223 F. App’x at 507-08.  And Severson was not seeking intermittent and unpredictable leave of unknown frequency and duration, as some courts have held made an employee’s request unreasonable under the ADA.  See, e.g., Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003) (noting “a leave of absence might be a reasonable accommodation in some cases,” but holding that Wood’s request for yet another  leave of indefinite duration was not reasonable because there was no indication he would be able to work reliably thereafter).  In contrast to the leave requested in those cases, a reasonable jury could find here that Severson’s request was specific (and, as it turned out, accurate) concerning the expected duration of his recuperation and that he provided Heartland with sufficient advance notice to plan for this absence.[5]      

That Severson was unsure in mid-August whether he would need two months or three, or that he ended up needing a few days beyond three months, did not convert his leave request to one that was indefinite or open-ended.  When the plaintiff in Haschmann requested her second leave, for example, she was uncertain whether she would need two weeks or four (and she in fact ended up needing two months), but this Court held that a jury could find her request was sufficiently specific to constitute a “reasonable accommodation” under the ADA, moving the focus to the question of undue hardship.  Haschmann, 151 F.3d at 601-02.  See also Garcia-Ayala, 212 F.3d at 648 (“Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite.”).  Thus, applying the proper analytical framework, the district court should not have found Severson unqualified under the ADA as a matter of law, because his advance request for a specific amount of additional medical leave to recuperate from his August 27 back surgery was a reasonable accommodation that would have allowed him to perform the job’s essential functions upon his projected return to work.

Furthermore, the fact that Heartland had already provided Severson with twelve weeks of FMLA leave did not mean the company had no further obligation under the ADA.  See Jelsma v. City of Sioux Falls, 744 F. Supp. 2d 997, 1017 (D.S.D. 2010) (“Congress designed the FMLA and ADA to dovetail together to protect American workers.”).  Contrary to Heartland’s characterization below (e.g., R.44/R.64, App.B-1, B-9), Severson was not seeking to “extend” his “FMLA leave”; he had already taken the statutory maximum of twelve weeks.  Rather, Severson sought to extend his medical leave under the separate protections afforded by the ADA, a request requiring Heartland to conduct a separate evaluation.  See 29 C.F.R. § 825.702(a) & (b) (FMLA and ADA rights “must be analyzed separately”); EEOC Enforcement Guidance, at Question 21 (because ADA and FMLA are complementary, an employer covered under both statutes has affirmative obligation to “determine an employee’s rights under each statute separately”).   

In sum, the evidence here was sufficient for a jury to find that Severson’s requested extension of his medical leave was a reasonable accommodation that would have enabled him to perform the essential functions of the second-shift lead by December 5.  Consequently, Severson was a qualified individual, and the ADA required Heartland to provide the requested leave unless Heartland could demonstrate that doing so would impose an undue hardship on the operation of its business.  The district court erred in granting summary judgment to Heartland without reaching the question of undue hardship. 

II.        Heartland’s Evidence Does Not Establish Undue Hardship.

 

If the district court had reached the question of undue hardship, it would have been required to deny summary judgment on this record.  The ADA provides that an employer need not make a reasonable accommodation if it “can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.”  42 U.S.C. § 12112(b)(5)(A).  The ADA thus places the burden of proof for this issue with the employer.  United Airlines, 693 F.3d at 762-63.  The ADA defines the term “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of” such factors as “overall financial resources of the facility” involved; impact of the accommodation on “the operation of the facility”; overall size and financial resources of the business; and “type of operation.”  See 42 U.S.C. § 12111(1)(A) & (B) (emphasis added).  The question of undue hardship is thus a case-specific question.  See Barnett, 535 U.S. at 402 (employer “must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances”); United Airlines, 693 F.3d at 764 (same).

          Although Heartland’s summary judgment evidence might suffice to permit a jury to find in its favor at trial, it was insufficient to compel a jury to make such a finding.  See Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 42 (7th Cir. 1992); Moore’s Fed. Prac. 3d ed. § 56.40[1][c] (when movant bears burden of persuasion at trial, evidence in movant’s favor “must be so powerful that no reasonable jury would be free to disbelieve it”).  Heartland argued that extending Severson’s leave another two or three months would have imposed an undue hardship on the conduct of its business because, after Heartland decided to continue Strnad on the second shift during Severson’s initial absence from June through August, he made mistakes and exercised poor leadership.  Specifically, the company alleged that Strnad’s “poor supervision” resulted in “increased labor costs and poor second shift productivity and morale.”  R.45, App.F-9, ¶52.  Heartland contended, on this basis, that Strnad needed to be replaced as soon as possible following Severson’s exhaustion of his job-protected FMLA leave.  R.44/64, App.B-11, B-15 to B-20.  On this record, however, a jury could find that Heartland’s actions belied its representation that the situation rose to the level of undue hardship. 

After deciding sometime between August 13 and 20 to terminate Severson when his FMLA leave ended, R.54-3 (Schroeder Deposition at 71-72), Heartland waited almost three weeks before beginning to search for his replacement (placing an ad on Craigslist on September 9 and later posting the job internally), R.61, App.E-23, ¶88.  When Heartland finally replaced Severson, it was by promoting an existing employee on November 25—a full three months after it had fired Severson rather than grant his accommodation request, and only ten days before Severson was fully cleared to return to work without restriction.  R.54, Exhibit N. 

Meanwhile, Heartland kept Strnad in place (R.61, App.E-23, ¶88), notwithstanding the company’s representation that the reason it could not extend Severson’s leave was because it was untenable to have Strnad serve as second-shift lead until Severson returned.  Heartland’s summary judgment evidence described several specific difficulties that Strnad allegedly caused while serving as the temporary second-shift lead.  But most of these incidents are undated and the rest occurred during Severson’s FMLA leave.  R.45, App.F-9 to F-10, ¶52.  There is no record from which a jury could find that any of these difficulties occurred after August 27, when Severson’s extended leave would have begun, had Heartland granted it. 

Thus, on this record, Heartland has not demonstrated that extending Severson’s medical leave for another three months would have inevitably imposed an undue hardship.  Considering this evidence, a reasonable jury could find that Heartland did not meet its burden to show undue hardship.

CONCLUSION

For the foregoing reasons, we urge this Court to reverse the district court’s grant of summary judgment and remand the case for further proceedings.

Respectfully submitted,

 

                                      P. DAVID LOPEZ

                                      General Counsel

                                     

                                                JENNIFER S. GOLDSTEIN

                                      Associate General Counsel

 

                                      MARGO PAVE

                                      Assistant General Counsel

 

                                      s/ Susan R. Oxford 

                                                SUSAN R. OXFORD

                                      Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

                                      131 M Street, N.E., Room 5SW26L

                                      Washington, D.C.  20507

                                      (202) 663-4791; susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B), and the typeface requirement set forth in Seventh Circuit Rule 32(b).  This brief contains 6,780 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2010 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes.

         

s/ Susan R. Oxford 

 

                                                SUSAN R. OXFORD

                                      Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel      

                                      131 M Street, N.E., Room 5SW26L

                                      Washington, D.C.  20507

                                      (202) 663-4791

                                      susan.oxford@eeoc.gov

CERTIFICATE OF SERVICE

          I hereby certify that on March 15, 2016, I filed the foregoing amicus curiae brief with the Clerk of the Court, U.S. Court of Appeals for the Seventh Circuit, using the court’s electronic case filing (ECF) system and, on this same date, served the counsel noted below by email using the Court’s ECF system:

Jesse Dill, Esq.

Walcheske & Luzi, LLC

15850 W. Bluemound Road, Suite 304

Brookfield, WI   53005

(262) 780-1953

Counsel for Plaintiff-Appellant Raymond Severson

 

David Albert McClurg, Esq.

Petrie & Stocking

111 E. Wisconsin Avenue, Suite 1500

Milwaukee, WI   53202

(414) 223-6956

Counsel for Defendant-Appellee Heartland Woodcraft, Inc.

 

 

s/ Susan R. Oxford 

 

                                                SUSAN R. OXFORD

                                      Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel      

                                      131 M Street, N.E., Room 5SW26H

                                      Washington, D.C.  20507

                                      (202) 663-4791

                                      susan.oxford@eeoc.gov