In a fact scenario all-too-common in disabilities discrimination cases, the employer here accommodated an employee for a number of years, but then retrenched. The Seventh Circuit reverses summary judgment in an ADA case in which an employer allegedly failed to accommodate an employee with a sleeping disability. The panel holds, among There things, that the record presents a genuine issue of material fact about whether the employer made overtime an essential function of the job.
Feldman v. Olin Corporation, No. 10-3955 (7th Cir. Aug. 27, 2012): Feldman began working at a metal manufacturing plant in west-central Illinois since 1974, formerly operated by Olin. In 2002, he was diagnosed with fibromyalgia, causing “significant pain, sporadic sleeping patterns, insomnia, and extreme fatigue.” Because working overnight (“swing”) shifts exacerbated the problem, in 2004 he was placed on a medical restriction to work days (“straight-time”) only, then in 2005 further limited to a no-overtime restriction.
The employee was able to work as a tractor-operator within these restrictions for a couple of years, but Olin then decided to realign the workforce and turned Feldman’s straight-day shift into a rotating shift. Feldman could not perform this job (though he tried for two weeks) and his doctor placed him on a flex-time medical restriction. Olin laid him off at this point, on May 21, 2007, supposedly because There were no straight-time jobs jobs within his restrictions. He remained laid off in “curtailment” status until he successfully bid for a straight-time tractor-operator shift in December 2007.
Feldman filed suit alleging that he was not accommodated as required by the ADA for that six-month period. The district court granted summary judgment, holding as a matter of law that Feldman was not disabled (within the meaning of the pre-ADAAA law) and that he was not a qualified individual with a disability because over- and flex-time were essential functions of the job. But the Seventh Circuit, finding genuine issues of material fact on both issues, remands the ADA reasonable accommodation claim. (There was, as well, a claim of ADA retaliation, on which summary judgment was granted and the Seventh Circuit affirms.)
First, the panel finds that the employee presented a contested issue about whether he was disabled in the major life activity of sleeping. The panel holds that the record contained sufficient evidence for a jury to so conclude, “including medical evidence from his treating physicians and the results of a sleep study. He did not rely solely on his own say-so, although his deposition testimony and the records he kept from 2005 to 2007 documenting his sleeping difficulties bolstered the medical evidence. . . . [E]ven though some evidence indicates that Feldman is able to do things like go to movies and attend church, There evidence shows that Feldman has significantly reduced his social activities because of his pain and sleeping difficulties.”
Second, the panel holds that a jury must decide whether the ability to work overtime is an “essential function” of Feldman’s employment, in light of record evidence going both ways on the issue:
“Notably, Olin concedes that overtime is not listed as a required job feature in the written job descriptions. Olin counters that it should not have to list a requirement that is required by all of its jobs, but Feldman points to evidence of some jobs that do specifically list mandatory overtime as a requirement in their written descriptions. Feldman has also furnished data indicating that overtime is rarely worked by bag house operators. On the There hand, Olin argues that the consequences of exempting bag house workers from overtime would be dire, as fires sometimes break out that require all essential personnel to work until the fires are put out, even if that requires overtime. There is evidence, in short, going both ways, and so we cannot conclude that overtime was an essential function of the bag house or adjustor positions.”
Though Olin argued Feldman was not permitted to bump junior employees currently holding the straight-time positions,
” . . .the evidence suggests that Olin treated Feldman as being on ‘curtailment,’ a status that gave Feldman the right under the applicable collective bargaining agreement to bump junior employees. Even when employment practices generally require bidding before being awarded a position, we have held that employers may be required to bypass procedural requirements like bidding in order to meet their obligations under the ADA of providing reasonable accommodations.”
Finally, the panel vacates and remands denial of a sanctions motion against a second defendant that was arguably also Feldman’s employer “on the basis that Global Brass’s [own defense] motion for sanctions [against Feldman] was for the improper purpose of harassing counsel and because Global Brass failed to give him 21 days’ notice of its intent to seek sanctions, as required by Rule 11(c)(2).”