Today’s case is a case originating in Winston-Salem, NC that I have been following for some time. I want to thank Robin Shea, who actually works in Winston-Salem, for alerting me in a recent entry to her blog (see my blogroll), that the Fourth Circuit decision came down. The case is Stephenson v. Pfizer, Inc., an unpublished per curiam decision decided March 2, 2016. As is my usual practice, I have divided the blog entry into categories: facts; thoughts on the facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts:

In 1984, the plaintiff began her career as a pharmaceutical sales rep after graduating from Duke University. For nearly 30 years, she worked for Pfizer or its predecessor as a sales representative in and around Winston-Salem, North Carolina. The position required her to make in person presentations of biopharmaceutical products with the goal of convincing medical professionals, generally primary care physicians, to prescribe those products for their patients. She was an exemplary salesperson, and in 1985, she was named rookie of the year by her employer. 15 years later, Pfizer inducted her into its Hall of Fame, an honor bestowed on fewer than 100 sales representatives in the company’s history. She subsequently earned recognition in national sales contests and was named a Pfizer Master in honor of her sales and leadership achievements. Her job required meeting with physicians in their offices, and she did not maintain an office at a Pfizer facility. Instead, Pfizer provided her with a car for travel from her home in Winston-Salem for attending sales meetings. She spent most of the work day meeting with doctors. She usually worked about 10 hours a day, with eight of those away from home and on the road. Although she could not perform her job without meeting with medical professionals in person, she understood her job to require traveling, and driving an automobile was her method of accomplishing that. Her job description says nothing about driving an automobile or even possessing a driver’s license. It did outline what she had to do with a degree of specificity including:

[Sales representatives] may have a variety of roles, such as the responsibility for sales targets and physician relationships within a specific geography. . .[;]

must demonstrate a strong understanding of necessary disease states and possess a solid ability to communicate necessary technical, scientific, and product and disease management information to customers . . .[;]

[and] will provide the most current information pertaining to Pfizer products and their approved indications in a manner which will ensure the appropriate use of these products and achieve the business potential of the territory.

 

Further, the job description required that she:  possess business savvy; be familiar with sales reporting software; have a college degree or equivalent experience in pharmaceutical sales; demonstrate good judgment; demonstrate accountability; demonstrate self-motivation; demonstrate effective problem-solving; demonstrate sales related skills focused on building relationships with physicians and executing effective sales strategies; and demonstrate a commitment to Pfizer’s culture, values, and mission.

In October 2008, she developed an eye disorder called Non-Arteritic Ischemic Optic Neuropathy, a condition that affects the flow of blood to one or both of the optic nerves. As a result, she lost 60% of her vision in her left eye. Even so, she was able to continue working, without accommodation for the next three years. By October 2011, she had the condition in her right eye and lost 60% of the vision in that eye. As a result of her combined vision loss, she could no longer drive an automobile.

On October 27, 2011, she asked Pfizer to accommodate her vision problems by allowing her to have a driver take her to sales meetings, obtaining magnifying software for her computer, and requesting magnifying tools to assist her in reading documents. While waiting on the company’s response she and her husband researched and received pricing estimates from potential drivers and shuttle services that could transfer her to sales meetings. She forwarded that information on to the company, but for about a month heard nothing regarding the accommodations request. In a November 28, 2011, email, Pfizer granted her request for computer software and reading tools but rejected her request for a driver. Pfizer did not suggest in that denial that the cost of hiring or retaining a driver was a factor in the denial, but maintained that the denial was based upon their view that driving was an essential function of her sales position and that hiring a driver would be inherently unreasonable. In particular, Pfizer pointed out that it there was a significant increased risk in liability related to automobile accidents, workers compensation, and misappropriation of and/or lost drug samples. Over the next several months, she repeated her request for a driver through phone calls and emails and each time she received the same answer as the one previously given her. Pfizer’s North Carolina regional business director said in early of 2012 that the company was concerned about setting precedent in case a future non-performing employee would ask for something similar explaining that not everyone was someone like her. Instead of discussing accommodations that could get her back to work meeting with doctors, Pfizer just directed her to other positions within the company that did not require traveling. She declined to pursue any other positions believing that her skills were best suited to the sales representative job in which she had excelled for decades. On April 25, 2012 she filed a charge with the EEOC, and the EEOC issued a notice of right to sue in November. At the lower court level, the District Court granted summary judgment to Pfizer and she appealed.

II

Thought on the Facts

  1. When I read these facts, the first thing that struck me was Pfizer saying that the reasonable accommodation request was inherently unreasonable. In my blog entry of last week, we saw this argument. That is, the defendant there essentially raised the issue of whether the requested reasonable modification was inherently unreasonable. In that case, the court went for that argument. In this case, as we shall see, the court didn’t go in that direction.

 

III

Court’s Reasoning

In a per curiam and unpublished decision, the court vacated and remanded saying that summary judgment was not warranted for the following reasons:

 

  1. A reasonable accommodation is one that enables a qualified individual with a disability to perform the essential functions of the position.
  2. An employer must accommodate an employee with a disability only when the accommodation enables the employee to perform all of the essential functions of her position.
  3. A plaintiff has to prove four elements with respect to a failure to accommodate claim: she is a person with a disability; the employer had notice of her disability; she could perform the essential functions of her job with the reasonable accommodation; and the employer declined to make such an accommodation.
  4. Essential functions of the job are those that bear more than a marginal relationship to the job at issue. More particularly, 29 C.F.R. § 1630.2(n)(1) defines essential functions as the fundamental job duties of the employment position the individual with a disability holds or desires, excluding the marginal functions of the position.
  5. The ADA at 42 U.S.C. § 12111 (8) says that a written job description that has been prepared ahead of advertising or interviewing candidates for a position shall be considered evidence of the essential functions of the job.
  6. 29 C.F.R. § 1630.2 (n)(3)(i)-(vii) identifies seven factors that are to be evaluated with respect to whether a particular function is essential including: the employer’s judgment as to which functions are essential; written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing that particular function; the consequences of not requiring the incumbent to perform the function; any applicable terms of the collective bargaining agreement; the work experience of past incumbents in the job; in the current work experience of incumbents in similar jobs.
  7. 29 C.F.R. § 1630.2(n)(2)(i)-(iii) also list three examples of situations where function can be essential including: the job exist specifically to perform the function; the small size of the workforce requires all employees to be able to perform the function; or the employee is hired for her expertise in performing the highly specialized function.
  8. While it is true that Pfizer contended that driving is essential, the plaintiff maintained that traveling and not driving was the essential function of the job. She could certainly travel with or without reasonable accommodations but could not drive the car herself with or without a reasonable accommodation.
  9. A question of fact also existed as to whether hiring or retaining a driver is an unreasonable accommodation even if one assumes that driving a car is not essential to her job.

IV

Takeaways:

  1. Just what is an essential function of the job? With respect to that question, as we have seen 29 C.F.R. § 1630.2 has a lot of helpful guidance. As I mention in my book, the most simple and straightforward approach is to think about what job duties are fundamental to carrying out that particular job’s purpose. Remember, do not confuse tasks nor major life activities with essential functions.
  2. Labeling is everything. That is, how you characterize the essential functions of the job is critical. In this case, the job description didn’t talk about driving. However, even if it did, you would still have the same argument over whether driving or traveling was the essential function of the job because the employer’s description per 42 U.S.C. § 12111 is something that must be considered but is not conclusive. While it is true that the employer is given a great deal of discretion with respect to what it has in the job description, that doesn’t mean the court will take it at face value. So, is there something inherent in the particular job description where this individual must actually physically drive a car from meeting to meeting? Keep in mind, technology is evolving rapidly here. For example, driverless cars are on the horizon. While it is true, that even a driverless car might be problematic for her, at least as it stands now, that may not always be the case. For now, one thing that readily comes to mind, is Uber and Lyft. Not too long ago, I read an article in the Atlanta Journal-Constitution where a reporter actually gave up driving for a month to see if he could save money or come out the same by just taking Uber or Lyft for a month. After he did the experiment, he found out that Uber or Lyft was cost-effective when compared to driving an automobile, but that driving an automobile had certain freedoms with it and provided a psychological lift that Uber and Lyft did not. Here, Pfizer was supplying her with a car. Also, the facts are such that her territory was bounded by the municipalities of Mount Airy, Madison, Kernersville, and Mocksville within Surry, Rockingham, Forsyth, and Davie Counties with 90% of the doctors she was responsible for being in Forsyth County, predominantly Winston-Salem. Googling Winston-Salem metropolitan area reveals that there are 1,611,243 people in the metropolitan area. Also, Winston-Salem itself has a population of 235,000, 527 people. Surely, Uber and Lyft are operating in the area. When I Googled that to make sure, I saw that Uber started operating in Winston-Salem in April 2014, and my Google research revealed that Lyft is operating there as well. In fact, it seems that both companies have a major presence in the area.
  3. Essential functions of the job is not the only area of the ADA where how you characterize things is a critical factor. In my book on pages 80-81, you see the same issue with respect to accessibility to programs and activities of governmental entities. In those situations, it is generally the rule that plaintiff lawyers need to define the program as broadly as possible, while defense lawyers need to define it as narrowly as possible. The same thing is taking place here in this case where the plaintiff is defining the essential function broadly, in terms of traveling, and the defendant is defining the essential function narrowly, in terms of driving.
  4. This case is not only unpublished, it is also a per curiam opinion. That means, no one judge wrote the particular opinion. Also, because it is unpublished, its precedential value is different than published decisions. In the Fourth Circuit, unpublished opinions are not binding precedent. Before citing to this case in your advocacy, be sure to check the rules in your Circuit with respect to how unpublished decisions work.
  5. Pfizer’s worry about nonperformance is interesting. The ADA doesn’t allow you to distinguish between non-performing employees and performing employees when it comes to deciding whether to grant reasonable accommodations. The only question is whether the person with a disability is a qualified individual. That is, does the person have a disability and is the person able to perform the essential functions of the job with or without reasonable accommodations. The level of performance has nothing to do with whether accommodations are granted and what type of accommodations would be granted.
  6. Are we beginning to see a trend where the defense will argue from time to time that an accommodation is per se unreasonable? Only time will tell. As I mentioned in my last blog entry, I don’t care for that argument because of the fact that most judges are going to be judges without disabilities and per se unreasonable absent the constrictions of the ADA may lead to an arbitrariness of results.

 

 

 

 

 

 

 

 

 

 

 

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