Opinion
CAUSE NO. IP99-0496-C-B/S.
December 22, 2000.
ENTRY DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Patricia Wininger (Wininger) brought suit against her former employer, General Electric Appliances (GE), alleging that GE failed to reasonably accommodate her disability and fired her due to her disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. GE moved for summary judgment on the grounds that Wininger has not demonstrated the existence of an issue of material fact about whether she could perform the essential functions of her actual or desired position, so that no reasonable jury could conclude that Wininger was a "qualified individual with a disability" under the ADA.
Factual Background
Wininger began working as an hourly laborer at GE's Bloomington, Indiana, plant in January of 1994. Facts ¶ 1. In 1995, an on-the-job foot injury forced Wininger to take time off from work. When she returned, GE's doctor gave her temporary work restrictions and GE placed her in a light duty position (the "re-work area"). Id. ¶ 2. In addition to her foot problems, Wininger developed "RSD" (or "RSDS"), short for reflex sympathetic dystrophy, a condition that affects her nervous system. Wininger Dep. at 157. She experiences pain in her foot, left leg, lower back, tailbone and spine and has difficulty climbing stairs. Dep. at 158; Facts ¶ 20. During the period that Wininger had temporary medical restrictions, GE assigned her to various jobs that caused her pain and she complained frequently to her supervisors that the jobs violated her restrictions. Facts ¶¶ 25-36. When Wininger received permanent restrictions (sit-down jobs and limited or no stair-climbing) in late 1995 or early 1996, GE informed Wininger that she had thirty days to bid on a job that would not violate those restrictions. Facts ¶ 3. Wininger bid on several jobs and GE assigned her to a job in Cost Center 89 after evaluating the position to ensure that it would not violate her restrictions. Id.; Dep. at 20, 49. The record is somewhat incomplete and confusing regarding Wininger's experience in Cost Center 89 and which job(s) she felt able to do in the Center despite her disability. Wininger testified that she thought her position in Cost Center 89 would be on the "mezzanine" level, though she did not know which specific position on that level she would fill. Dep. at 71. She would not have to climb stairs to go to the restroom or the break room because these were located on the same level. Id. at 72. It seems that, at first, GE assigned Wininger to a mezzanine-level, non-rotation job connecting wires that Wininger was able to perform, sitting down, with no problems or violations of her restrictions. Id. However, for reasons hinted at but not disclosed in the record, GE apparently decided to remove Wininger from that position and have her rotate through various jobs on a different level of the Cost Center.
Citations are to Wininger's deposition and the numbered paragraphs of the parties' Statements of Material Facts and the responses thereto.
The record contains two exhibits that purport to be Wininger's permanent restrictions; one indicates restrictions of sit-down work with no stair-climbing and the other lists sit-down work with limited stair-climbing. See Exs. E and F. Both are dated 12-18-96 and it appears (though we cannot be sure) that the same doctor signed them. Exhibit E, the "no-climbing" version, has a check in the "re- classification" box. However, Wininger's testimony indicates that her restrictions allowed her to use stairs to get to and from her workplace. See Dep. at 93.
Wininger's condition worsened after her termination and her restrictions were revised to include sedentary work only. She admitted that she did not know of any jobs at GE that she could do as of the time of her deposition.
See Pl.'s Dep. at 153: Q: Did you ever tell Mitchell that you had been told you were sent down from the mezzanine because the other workers didn't want to rotate with you up there? A: I don't remember if I told him or not. Q: Did anybody from management ever tell you that's why you were changed from the mezzanine to the first floor? A: I don't think so. Q: But the job you had on the mezzanine was okay? A: Yeah. I mean, I was feeling pain, but I was doing better up there than I was downstairs.
In this new job, Wininger did not always have access to a restroom and had to use stairs to reach the break room. Dep. at 88-89. In addition, Wininger was not able to perform all of her new tasks while sitting down because she was not trained and she "just was not able" to do the jobs in the sitting, versus standing, position. Id. at 40, 89. Wininger did not work standing-up; she worked sitting down but could not keep up with the line. Id. at 41. She complained to her co-workers and coordinator (a supervisor ranking below the "BTL" in authority) that she could not do her job from a sitting position. Id. at 40. Wininger's BTL, Russ Mitchell, "came down and watched [her] do the job," after which he said that "he was going to see if they could reevaluate the job, because he didn't know if it was hurting [her] more than accommodating [her] restrictions." Id. at 41, 75.
There were "somewhere between five and seven jobs," including "a couple" that Wininger could not perform sitting down and "a couple" that Wininger could not perform quickly enough because GE required the worker to "get up and go get" her own parts. Dep. at 41. Although GE provided a chair at every station, Wininger could not do three of these "sitting" positions while she was sitting down. That left two to four of the "sitting" tasks that Wininger could perform while sitting. Id. at 42. Wininger testified that one job in Cost Center 89 in particular, which entailed putting a piece of tubing "on," hooking an air hose to it, and "push[ing] a hand button for it to go on" did not cause her any problems. Id. at 48. She complained to the coordinators and once talked to the shop steward about her problems with the three difficult jobs. Id. at 47. There were two additional tasks that the other workers in Wininger's area were required to do; but, GE never required Wininger to rotate through those positions, which were standing-only (presumably without chairs). Id. at 42. Workers generally spent the same amount of time performing each job in the rotation. Id. at 48.
Exhibit G, which purports to be type-written notes or some sort of "letter" written by Wininger, recounts a slightly different version of events. We note that it, like Exhibits C and D, is partially illegible due to poor copying. It does not mention the "mezzanine" position or any part of the job in Cost Center 89 that Wininger found acceptable. Discussing jobs that she bid on, Wininger says "[th]ey only evaluated 80 which they approved even though [it ha]d stairs going to the break room and restroom for C89. [Th]e restroom on the same floor was an individual restroom [whi]ch you could not always get into. . . ."See Ex. G.
The first of the three "sitting" positions that Wininger was unable to perform required the worker to "put clips on" refrigerators. Dep. at 43. Wininger testified that other people could perform the clip job while seated, but that she could not because it was on an assembly line and she hadn't been trained well enough: "it was the type of job you had to use a clamp, a tool to get these clamps on, and I could not do it with one hand, because I could not use my feet, and I had nothing to balance myself on to put these parts on." Id. at 43-44. When asked how more training would have helped her to do the job from a seated position, Wininger answered, "You're supposed to be trained for a minimum of two weeks with someone standing there to help you and tell you better ways, or help you to do better ways, of doing the job." Id. at 43. According to Wininger, GE tells workers when they are hired that they will receive two weeks of training before they must do a job on their own. Id. at 43-44. The second job that Wininger could not perform from a seated position involved transferring air compressors sitting on large trays between conveyor lines. Dep. at 44. While men could do the job from a seated position, Wininger could not because the trays and air compressors were "very heavy." Id. at 41. She needed to brace herself to perform the lifting but could not use her feet due to her disability and she lacked anything else with which to brace herself. Id. at 44, 45. She could have performed the job if working from a standing position. Id. at 39, 44.
The third "sitting" job that Wininger was unable to do required workers to place copper tubing on various models of compressors. Dep. at 45. Workers performing this job were required to get up and walk approximately 10 or 12 feet to retrieve handfuls of parts. Id. at 45, 46. Wininger's disability slowed her movement so that she did not have time to get up, get her parts, stack them, and put them on the compressor. Id. at 45. The number of times and frequency that Wininger was on her feet varied, depending on how often the compressor models changed on the line and how long her parts lasted (on average, a half an hour). Id. at 45-46.
After Wininger had been in the rotating-task job for four to eight weeks, Wininger's supervisor (Mitchell) scheduled a meeting with Wininger, Kenny Frazier (the union ADA representative), Ruth Ann Allen, a nurse from GE's clinic, and an ergonomics technician to re-evaluate Wininger's position in light of Wininger's restrictions. Dep. at 20, 49, 51, 75-76. The meeting to reevaluate Wininger's job was scheduled to take place the day before Wininger began personal leave to undergo surgery unrelated to her foot or RSD. Id. at 20, 51. When the appointed time arrived, the only person Wininger saw was Frazier, who told her that everyone except Allen had assembled for the re-evaluation, but that they were waiting for Allen. Id. at 51, 76. Allen failed to appear and the re-evaluation did not take place. Id. at 76.
While Wininger was on leave for her surgery, her attorney, Michael Bonnell, wrote to Jane Terrell at GE in Lexington, Kentucky complaining about Wininger's position in Cost Center 89 and requesting that GE assign Wininger to the re-work (light duty) area because Wininger was experiencing pain in her foot and strain to her back and stomach. Dep. at 50. The letter discussed worker's compensation issues and concluded:
Due to the poor quality of the reproduction, we cannot discern the date. We have placed the illegible portions that we could decipher from the context of the sentence in brackets and substituted a [?] for the other illegible excerpts.
Although I am not sure in[sic] is your responsibility, I also want to make you aware that the current work [assign]ment Trisha is assigned to is causing her medical problems. She is straining her back and stomach [to com]pensate for not being able to use her feet. While I realize this was a result of her request for a reasonable accommodation, it is not working out and she is requesting to be moved, at least temporarily [?] the medical issue is resolved, back to Re-Work. Is this something you can help us with? If not, [pleas]e advise who I should contact at the GE plant. Ex. C (Def.'s Dep. Ex. 4).
This letter is also partially illegible due to poor copying; unfortunately, we cannot tell which letter was written first. The second letter contains the end of a date line, "18, 1997," that has been crossed out and "28" written in. The first letter appears to be dated "-5, 1997." We cannot tell if the letters were written in the same month.
[?] my understanding that Trisha does not feel comfortable going back to work unless she is given [tem]porary medical restrictions and allowed to work in the Re-Work Area, also known as Cost Center [?].
[?] current work assignment, in Cost Center #89, is not a reasonable accommodation for her medical [condi]tion. She is experiencing extreme pain in her back, tailbone and foot that is exacerbated by this [?work] assignment. Furthermore, Trisha has been informed by the union ADA coordinator that the plant [?nurse] has not re-evaluated her job in Cost Center #89 as requested. Ex. D (Def.'s Dep. Ex. 6).
Terrell, GE's coordinator for worker's compensation benefits, is not responsible for ADA issues at GE. See Facts ¶ 7. However, the record does not reflect who, if anyone, was responsible for GE's ADA compliance or that Terrell referred Bonnell to the proper person or forwarded his request that GE help Wininger address her disability-related difficulties. Nonetheless, the parties seem to agree that in response to Bonnell's letters, GE advised Wininger that the company wanted her to come back to work and wanted to re-evaluate her ability to perform her job. Dep. at 50.
Wininger returned to work from her surgery in March of 1997, found that her job had not been re-evaluated during her absence as her attorney had requested, and went with Frazier to speak with Allen. Dep. at 50-51. Although the designated evidence does not provide a coherent picture of what transpired, it appears that Wininger asked Allen why the job had not been re-evaluated during the two weeks Wininger was gone and why she (Allen) did not show up for the previous meeting. Id. at 51-52, 55-56. Allen replied that she had higher priority things to do.Id. at 52-53. Wininger said, "I can believe she said that," and "thank you, goodbye." Id. at 53-54. It is unclear whether Wininger asked Allen to perform the evaluation of her job that day or whether Allen refused to do so; Allen did not offer to perform the evaluation. Id. at 53-54, 56-57.
Portions of Wininger's testimony indicate that she believed the re-evaluation should have been completed during her leave, while in other places she agreed that GE told her it wanted to re-evaluate her, on the job, when she returned. The record does not specify the exact nature of the job evaluation and its purpose; it appears that Allen was the person designated by GE to match employees' medical restrictions with the physical requirements of various jobs. We are unsure if Allen could have conducted the re-evaluation by watching other employees perform the tasks and considering the job requirements in light of Wininger's restrictions, with which Allen was presumably familiar, or if Allen needed to observe Wininger performing the job to see how her limitations interacted with the requirements of the position in practice, not just in theory.
Wininger left after this encounter and never returned to work. Dep. at 53, 57. She received warning notices concerning her absence that contained a contact name (Mike Harris) and his phone number at GE. Id. at 57. Wininger called the designated number twice and left messages, but Harris did not return her calls.Id. at 58; Facts ¶ 45. On June 10, 1997, Bonnell wrote a letter to Terrell about worker's compensation issues that ended as follows:
Finally, there is her status as work. Trisha has received a First Warning regarding Absenteeism and a letter dated May 16, 1997 from Rosalind Brown (copies enclosed). She has also received an Insurance Continuation notice and another notice that looks like a COBRA notice (copies enclosed). Has Trisha been fired? I certainly hope not given then we are still in the process of trying to sort out her Worker's Compensation claim. Please advise. Thank you. Ex. H.
Wininger contacted the union in an attempt to "find out what I needed to do or who I needed to contact" and a grievance was filed for her, but the record does not contain further information about this proceeding. Dep. at 58. (GE's Fact Statement ¶ 13, which says that Wininger's grievance was denied because she violated GE's attendance policy, is not supported in the pages of Wininger's deposition that were cited by GE.)
Summary Judgment Standard
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted if the designated evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."See Fed.R.Civ.P. 56(c). The moving party may meet its burden of demonstrating the absence of a triable issue by demonstrating "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct. 2548, 2552, 2554, 91 L.Ed.2d 265 (1986). The party opposing a well-supported summary judgment motion may not simply rest on the pleadings, but must respond affirmatively with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In deciding a motion for summary judgment, courts construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999).
If enough evidence exists for a jury to find for the plaintiff on an issue of material fact, the defendant's motion will be denied; but, the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to avoid summary judgment. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir. 1984). "Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment."Butler v. Consolidated Rail Corp., 31 F. Supp.2d 1098, 1102 (S.D. Ind. 1998) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2505).
While we do not apply a heightened standard in employment discrimination cases, we are reminded to approach the summary judgment decision with "added rigor" because credibility and intent are often central issues. Collier v. Budd, 66 F.3d 886, 892 (7th Cir. 1995) (quoting Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994): "Affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.")
Disability Discrimination
The ADA prohibits an employer from discriminating against a qualified individual with a disability in regard to employment because of the individual's disability. See 42 U.S.C. § 12112 (a). Discrimination may take the form of a failure to accommodate an employee's disability or disparate treatment of a disabled employee in regard to employment decisions, including discharging a disabled employee because of her disability. See 42 U.S.C. § 12112(a), 12112(b)(5)(A). A plaintiff seeking protection under the ADA must show that she is a "qualified individual with a disability." This term signifies someone with a disability "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
See Discussion, infra at n. 10.
Under the ADA, the term "reasonable accommodation" may include
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9)(B).
As a practical matter, "the employer is entitled to define the . . . essential scope [of a job]." Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir. 1998). However, the employer must actually require all employees in a particular position to perform the allegedly essential functions. See DePaoli v. Abbott Lab., 140 F.3d 668, 674 (7th Cir. 1998). The ADA does not require the elimination or alteration of essential job duties as an accommodation for a disabled individual. See Miller v. Illinois Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997); England v. ENBI Indiana, Inc., 102 F. Supp.2d 1002, 1014 (S.D. Ind. 2000).
If a disabled individual cannot perform her essential job duties even with accommodation, her employer may accommodate her by reassigning her to a vacant position for which she is qualified. See Dalton, 141 F.3d at 677. However, reassignment must not impose an "undue hardship" on the employer. See 42 U.S.C. § 12112(b)(5)(A); Gile v. United Airlines, Inc., 95 F.3d 492, 498-99 (7th Cir. 1996) (citations omitted) (emphasizing "significant limitations" on duty to reassign: not required to reassign to position for which employee is not otherwise qualified, to "bump" others to create vacancy, or to create new position). The plaintiff bears the burden of demonstrating that a vacant position exists and that she is qualified for that position. See McReary v. Libby-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997).
The employer may need to initiate an "informal, interactive process" with a disabled individual in order to determine the "appropriate reasonable accommodation." 29 C.F.R. § 1630.2(o)(3). See Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000) (quoting 29 C.F.R. pt. 1630.2, app.: "[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.") However, it is worth repeating that "the interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought." Rehling, 207 F.3d at1015 (quoting Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)). In Rehling, the court held that employers who provide a reasonable accommodation cannot be held liable under the ADA based solely upon their failure to engage in the interactive process, and that "a plaintiff must allege that the employer's failure to engage in an interactive process resulted in a failure to identify an appropriate accommodation for the qualified individual." 207 F.3d at 1016.
To establish disability discrimination with regard to her termination, Wininger must establish all three of the following elements: (1) she is disabled within the meaning of the ADA, (2) she is qualified to perform the essential functions of her job (or another vacant position) either with or without reasonable accommodation, and (3) she suffered from an adverse employment decision (i.e., termination) because of her disability. See Bekker, supra, 229 F.3d at 670; Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000). To establish that GE discriminated against her by failing to accommodate her disability, Wininger must establish the first two elements listed above, plus that her employer was aware of her disability and failed to make reasonable accommodations to her physical limitations. See 42 U.S.C. § 12112(5)(A); Bultemeyer v. Fort Wayne Comty. Sch., 100 F.3d 1281, 1284 (7th Cir. 1996).
Discussion
1. Qualified Individual with a Disability .
In its brief in support of its motion for summary judgment, GE did not dispute that Wininger is "disabled" within the meaning of the ADA. Therefore, we will assume that she has evidence that she is substantially limited in a major life activity and proceed to determine if Wininger is a "qualified individual with a disability" entitled to the ADA's protection; that is, whether she has evidence that she could perform her essential job functions (or those of a different job if she was unable to perform the functions of her position) with or without a reasonable accommodation. We consider Wininger's ability to work and medical restrictions as of the time of the events in question, not her condition at the time of her deposition. See Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 599 (7th Cir. 1998) (citing Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998)).
Wininger must show that she suffers from a disability as defined by the Act. See Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998). To do so, she must demonstrate that she (1) has "a physical or mental impairment that substantially limits one or more" of her "major life activities," (2) has "a record of such an impairment," or (3) is "regarded as having such an impairment." 42 U.S.C. § 12102(2); see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 670 (7th Cir. 2000); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1059-60 (7th Cir. 2000). Equal Employment Opportunity Commission regulations list "functions such as "walking. . .and working" as "major life activities." See 29 C.F.R. § 1630.2(i); see also EEOC Interpretive Guidance § 1630.2(i) (including "standing" in list of other major life activities).
Wininger admitted that she was unable to perform her job as it existed in March of 1997 through the time she was fired; but, she presented evidence that she could have done the job if it had been restructured or modified, perhaps by eliminating some of the stations through which she was required to rotate. GE argued, correctly, that it is entitled to define the essential functions of the job. However, it presented absolutely no evidence about what functions it considers essential. The ADA provides that
consideration shall be given to the employer's judgment as to what functions of the job are essential, and if an employer has prepared a written job 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).
EEOC regulations implementing the statute and the cases following them suggest that, in addition to the employer's judgment and written job descriptions, we also consider:(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function; . . .
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3).
Unfortunately, GE has not provided us with any of this data; our sole source of information about Wininger's job functions is her deposition testimony. The only evidence we have indicates that, contrary to the argument in its brief, GE did not consider rotation through all of the stations in the position held by Wininger to be essential to the job: when GE first assigned Wininger to the position, it did not require her to perform two of the tasks that other workers had to do. It is reasonable to infer that GE considered at least those two of the handful of tasks to be non-essential. Because GE presented no facts regarding the essential functions of Wininger's position, there is nothing to rebut the inference that further reduction in the number of positions through which Wininger was required to rotate could have served as a reasonable accommodation that would have enabled her to keep her job. The ADA includes job-restructuring as a potential form of reasonable accommodation, and there is absolutely no evidence that GE could not have modified Wininger's position so that she performed only the task(s) that she could do without difficulty.
Furthermore, Wininger stated that she may have been able to perform some more of, or all of, the tasks if she received training as to the proper or most efficient ways to operate the machines. While Wininger's after-the-fact assertions, by themselves, cannot prove that she really could have done more of her job with the help of training, her need to resort to speculation is due in large part to GE's refusal to engage in an interactive process to determine whether a collaborative accommodation could be achieved. In Bultemeyer v. Fort Wayne Community Schools, the court noted that "[the plaintiff] may have been qualified, because he may have been able to perform the essential functions of the job with reasonable accommodation. [Defendant] simply did not give him a chance to demonstrate this." 100 F.3d 1281, 1285 (7th Cir. 1996). We note that the record does not reveal the identity of the person or office, if any, that GE designated to oversee its ADA compliance nor does it indicate that GE had a procedure for dealing with its employees' requests for reasonable accommodation. Reading this record in Wininger's favor, it appears that GE failed to act on Wininger's request that her job be re-evaluated. Here, as in Bultemeyer, "we do not know what might have happened," because GE "was unwilling to engage in the interactive process and accommodate" Wininger.Id. A party should not be able to cause a breakdown in the interactive process for purposes of avoiding liability. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 634 (7th Cir. 1998).
Even if Wininger were incapable of performing her essential job functions with or without a reasonable accommodation, she may still be considered a "qualified individual" under the ADA if she can demonstrate that she could have performed another job with or without accommodation. Wininger testified that, at least initially, GE placed her in a job (the position on the mezzanine level) in Cost Center 89 that satisfied her restrictions and that she could perform without any problems. There is no evidence in the record that it would have been unreasonable or caused GE undue hardship to have allowed Wininger to remain in the mezzanine level job that she held initially in Cost Center 89 or to have restored Wininger to that position when it became apparent that she was experiencing difficulties in the rotating position. There is no evidence that GE replaced Wininger after it removed her from the "mezzanine" job, so we might infer that the post remained vacant.
Wininger also contends that she could have performed a light duty position and that GE should have transferred her to one as a reasonable accommodation. However, the record does not support an inference that a vacant light duty position existed, assuming Wininger could show that GE allowed some employees to remain in light duty positions on a permanent basis. (She contradicted GE's assertion that light duty positions were temporary by listing several people who worked in the light duty Cost Center for the three or more years that she knew them.) The Bloomington plant manager's affidavit demonstrates that Cost Center 99, the light duty work center, was eliminated in March of 1997. Wininger does not dispute this, but alleges that light duty positions existed in other cost centers. It might be reasonable to infer that when GE closed Cost Center 99, the allegedly permanent light duty positions were not eliminated but were moved elsewhere; but, there is no evidence of an open position into which GE could have placed Wininger.
We conclude that Wininger has established a triable issue about whether she could perform the essential functions of her job with the reasonable accommodation of job restructuring/modification and whether GE could have returned her to her initial position in Cost Center 89.
2. Failure to Provide Reasonable Accommodation .
The record demonstrates that GE knew about Wininger's disability/medical condition. Although GE believes that it provided her with a reasonable accommodation by allowing her to bid upon vacant positions and assigning her to a job that supposedly accommodated her restrictions, Wininger has established a fact issue as to the reasonableness of this accommodation, as discussed above. According to the record, GE knew that the rotating position was not acceptable to Wininger but GE's nurse refused to even begin to work with Wininger to find a solution. A reasonable trier of fact could determine that GE is responsible for the breakdown in the interactive process that led to GE's failure to find a reasonable accommodation (to wit, job restructuring or placing Wininger back into the mezzanine position) for Wininger.
3. Termination Because of Disability .
GE claims that it fired Wininger because she stopped coming to work. However, there is evidence that Wininger could not do her job without an accommodation and that GE failed to engage in the interactive process envisioned by the ADA to determine if an accommodation could be found. It is true that Wininger did not go to work, but a jury might find that she attempted to communicate with GE regarding finding an accommodation and left messages for GE's designated contact person but received no response. It would be reasonable to find discrimination if GE had fired Wininger because, although she returned to work, she failed to keep up with the line due to GE's failure to accommodate her disability. Construing the evidence in Wininger's favor and accepting her account that GE knew she wanted to return to work but was uncooperative, it is reasonable to believe that GE intended to prevent Wininger from returning to work and to use her absenteeism-for which it was arguably responsible-as an excuse to fire her when the real reason was her disability. An employer should not be allowed to, in essence, guarantee that its disabled employees will fail to meet its expectations by ignoring their requests for reasonable accommodation. Wininger is entitled to take her case to a jury and attempt to prove that GE's actions were because of her disability.
Conclusion
For the foregoing reasons, GE's Motion for Summary Judgment is DENIED.
It is so ORDERED this day of December 2000.
SARAH EVANS BARKER, CHIEF JUDGE United States District Court Southern District of Indiana