8th U.S. Circuit Court of Appeals finds for employer in worker's ADA

St. Louis Daily Record & St. Louis Countian, May 8, 2001 by Donna Walter

A Bloomington, Minn., company would have had to restructure the way it did business to accommodate a marketing services coordinator who could not work with carbonless paper, a majority of the 8th U.S. Circuit Court of Appeals said Thursday, finding that working with carbonless paper was an essential function of the employee's job.

The majority's decision to affirm summary judgment in favor of the employer means that employers will always win Americans with Disabilities Act claims on summary judgment by arguing that their employees can't be reasonably accommodated, predicted a dissenting judge.

In 1991, employee Lynn M. Heaser began developing health problems, which got worse while she worked at The Toro Co. She received several diagnoses for her problems, including petrochemical sensitivity, fibromyalgia, allergies and multiple chemical sensitivities. In May 1996 she began having trouble staying at work for the entire day, and she was allowed to work from home for three months. The company moved her to a different office, but Heaser's health did not improve. She went on short-term disability in September 1996, but the benefits were terminated in December. In January she asked to be allowed to work from home, but that request was denied. Toro offered to move Heaser to another location, but Heaser said that wouldn't help. She offered to discuss possible changes, including the removal of an air freshener system from one of the bathrooms, the use of nontoxic cleaners in her work area and the installation of an air purifier in a separate office for her; she also said she was concerned about working with carbonless paper. The company responded that it would be willing to remove an air purifier from one of the bathrooms and encourage the use of nontoxic cleaners. Heaser said she'd be willing to give it a try, but Toro fired her when one of Heaser's treating physicians sent a letter, at the company's request, stating it would be difficult for Heaser to succeed in gainful employment unless she could avoid plastics, carbonless paper, copiers and their fumes, exhaust fumes, other personnel who may be wearing perfumes, colognes, etc.

Heaser argued that current technology makes working from her home a reasonable accommodation, but the U.S. District Court for the District of Minnesota granted summary judgment in favor of Toro because, it said, she failed to show that that option was feasible and because she can't work with carbonless paper, printed literature and copiers.

The 8th Circuit majority agreed, interpreting an affidavit by a Toro information technology analyst as saying that the software necessary for Heaser's position could not be accessed offsite. And even though some evidence indicated the company was looking into computerizing its order-entry system, rather than using the carbonless paper, the majority said no evidence showed that that option was feasible or that it has occurred.

Heaser has presented insufficient evidence that computerizing Toro's marketing services system was a reasonable accommodation. Job restructuring is a possible accommodation, but Toro was not required to create a new part-time position or to reallocate the essential functions of Heaser's job that she could not do -- that is, work with orders on carbonless paper, wrote Chief Judge Roger L. Wollman for the majority.

But dissenting Judge Donald P. Lay warned that the majority's decision sets a bad precedent. The impact of today's decision is that an employer in an ADA case, at least in this circuit, will always win on summary judgment by simply asserting that a plaintiff-employee cannot be reasonably accommodated. Regardless of a plaintiff's request for reasonable accommodation, a mere denial by the employer will always foreclose a plaintiff's disability claim and deny a plaintiff a jury trial and an opportunity to present a factual issue as to whether the accommodation requested is feasible, he wrote.

Lay attacked the majority's decision for, among other things, finding that the use of carbonless paper was an essential function of Heaser's job, rather than a tool for her job. Nowhere does the record describe using carbonless paper as an essential function of Heaser's job, he said, stating that the majority's decision that it is essential is clearly in error.

Heaser's evidence showed that, instead of using carbonless paper, a phone, fax machine, courier or e-mail could be used to make orders. Lay said that the burden was on Toro to prove that this conversion would be too much of a burden on the business. He said there are factual disputes about whether Heaser could be reasonably accommodated but noted that the majority gave sole credibility to Toro's evidence while ignoring Heaser's evidence.

Additional evidence presented by Heaser showed that other Toro employees have been allowed to work from home, but the majority called Heaser's claim that she could be provided with adequate access to the Toro computer system conjecture and instead concluded that the software necessary for her job could not be remotely accessed even though the IT analyst's affidavit does not say that the software was necessary but only that Heaser was using it when she stopped working, wrote Lay. He added that the analyst explained that other software programs were used by employees for offsite access to the Toro system.