Sharp, David v. Stoughton Trailers, Llc

Brief in Support of 24 Motion for Summary Judgment

W.D. Wis.August 8, 2016

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN DAVID J. SHARP, Plaintiff, vs. STOUGHTON TRAILERS, LLC, Defendant. Case No. 15-cv-598 DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Defendant, Stoughton Trailers, LLC (“Stoughton”) submits this Brief in Support of Motion for Summary Judgment, seeking judgment on the entirety of the disability discrimination complaint of the Plaintiff, David J. Sharp (“Sharp”). Stoughton is entitled to summary judgment for three reasons. First, Sharp has not presented and cannot present a prima facie case of disability discrimination. Second, even if he has presented a bare prima facie case, he cannot rebut the legitimate and non-discriminatory reasons proffered by Stoughton for its termination decision. Third, Sharp’s claim that Stoughton failed to provide a reasonable accommodation or engage in the interactive process must be denied, because the undisputed facts show that Stoughton accommodated him by allowing him to work a modified schedule and that Sharp did not request a work-from-home accommodation until after he had engaged in the conduct upon which Stoughton based its termination decision. STATEMENT OF FACTS A full statement of the material, undisputed facts is set forth in Defendant’s Proposed Findings of Fact, which accompanies this Brief. Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 1 of 18 2 STANDARD FOR SUMMARY JUDGMENT The standard for summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure directs the Court to enter summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As the Seventh Circuit has noted, “a summary judgment motion is like a trial motion for a directed verdict and [the word] ‘genuine’ allows some quantitative determination of the sufficiency of the evidence.” Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476 (7th Cir. 1988), cert. denied, 488 U.S. 852 (1988). Summary judgment gives courts a mechanism to weed out “weak factual claims.” Id. The Seventh Circuit does not require the Court to deny summary judgment on the basis of speculative theories or improbable plots, for neither creates a genuine issue of material fact. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1184 (7th Cir. 1993) ("[F]anciful speculations would not defeat a motion for directed verdict and therefore cannot stave off a motion for summary judgment either."). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "[A] party must produce 'specific facts showing that there remains a genuine issue for trial' and evidence 'significantly probative' as to any [material] fact claimed to be disputed." Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988). "If the evidence is merely colorable, or is not Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 2 of 18 3 significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Nor may "[a] party to a lawsuit ... ward off summary judgment with an affidavit or deposition based on rumor or conjecture. 'Supporting and opposing affidavits shall be made on personal knowledge....' " Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989) Summary judgment is not rare or disfavored in civil rights cases. The Seventh Circuit has recognized that the process of filing discrimination complaints is often abused, and that this abuse can and should be stemmed by the proper use of Rule 56. In Palucki, 879 F.2d at 1572-73, the Court reasoned that:1 The workload crisis of the federal courts, and realization that Title VII is occasionally or perhaps more than occasionally used by plaintiffs as a substitute for principles of job protection that do not yet exist in American law, have led courts to take a critical look at efforts to withstand defendants' motions for summary judgment. A district judge faced with such a motion must decide, subject of course to plenary appellate review, whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a verdict. If not, the motion should be granted and the case dismissed. The Seventh Circuit explained the role of summary judgment in discrimination cases in Mills v. First Federal Savings & Loan Ass'n, 83 F.3d 833, 846 (7th Cir. 1996)(citations omitted): This court has sometimes stated that "caution is required in granting summary judgment," especially in age discrimination cases such as this one, where the plaintiff is entitled to a jury trial and "intent and credibility are crucial issues." Nevertheless, it is also true that summary judgment "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Similarly, the Supreme Court has emphasized that summary judgment is not a "disfavored" remedy. Celotex, 477 U.S. at 327. Trial courts should not “treat discrimination 1 See also Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991). Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 3 of 18 4 differently from other ultimate questions of fact.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993). ARGUMENT In this discriminatory discharge case, Plaintiff bears the burden of proving: (1) Sharp has a disability under the ADA2; (2) Sharp was qualified to perform the essential functions of his job, with or without reasonable accommodation; and (3) As to his termination claim, that Sharp experienced an adverse employment action because of his disability, or (3) As to his failure to accommodate claim, that Stoughton failed to provide him with reasonable accommodation. Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005), and Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011). Sharp’s claim falls short on elements (2) and (3). As to element (2), the evidence shows that Sharp was not otherwise qualified for his position at Stoughton. As to element (3), Stoughton did not discharge Sharp because of his disability, but rather because of performance issues, including, e.g., Sharp’s verbal attack of a subordinate employee during a March 26, 2014 meeting and his failure to complete his own tasks or lead his team as the plant manager. Sharp cannot show that Stoughton’s assertion that he was being removed from his position due to the aforementioned issues was a pretext for discrimination. Additionally, Sharp cannot show that Stoughton denied his request for accommodation. For all these reasons, Sharp’s case should be dismissed on summary judgment. 2 For purposes of summary judgment, Stoughton is not challenging whether Mr. Sharp has a disability. Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 4 of 18 5 A. Sharp’s performance issues and violation of work rules made him unqualified. “[T]he ADA applies only to those who can do the job.” Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003). To this point, the ADA prohibits discrimination against only a “qualified individual” with a disability, i.e., “an individual 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). Sharp has the burden of proving he was a “qualified individual” with a disability. See Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 863 (7th Cir. 2005) ("Under the ADA, the employer avoids all liability if the plaintiff would have been fired because incapable of performing the essential functions of the job, and the burden of proof on the issue of capability is not on the employer but on the plaintiff.")(quoting Miller v. Illinois Dep't of Corr., 107 F.3d 483, 484 (7th Cir. 1997)); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997) (“[A] plaintiff must establish first that he was a ‘qualified individual with a disability’” before court considers disparate treatment). The “ADA does not shelter disabled individuals from adverse employment actions if the individual, for reasons unrelated to his disability (such as a poor work ethic, carelessness, bad attitude, insubordination or unprofessional demeanor), is not qualified for the job or is unable to perform the job's essential functions or fulfill the requirements of the position as prescribed by the employer or ‘fails to meet his employer's expectations.’” Hammel, 407 F.3d at 862 (7th Cir. 2005) (emphasis added)(citing Williams v. United Ins. Co. of Am., 253 F.3d 280, 282 (7th Cir. 2001); Tyler v. Ispat Inland Inc., 245 F.3d 969, 972 (7th Cir. 2001); McPhaul v. Bd. of Comm'rs, 226 F.3d 558, 563-64 (7th Cir. 2000)). In Hammel, the Seventh Circuit thoroughly rejected the plaintiff’s argument that the district court erred when it considered evidence of his poor attitude, careless behavior and Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 5 of 18 6 deficient work performance in concluding that he was not a “qualified individual" capable of performing the job's “essential functions." 407 F.3d at 862. The plaintiff claimed that this so- called "non-disability-related evidence" of an individual's inability to perform up to an employer's expectations should not factor into the determination of whether or not an individual is a "qualified individual with a disability." Id. The Court explained that the ADA “provides no protection for a disabled worker who … for reasons unrelated to his disability performs in such an unsatisfactory manner (whether it be for reasons of carelessness, insubordination or obstinence) that he fails to keep up with the production pace and abide by the quality-control standards that [the employer] has established as a benchmark for all its employees.” Id. at 863. The following are specific examples of unsatisfactory performance highlighted by the Court in Hammel: irresponsible behavior; failure to follow company rules and policies, e.g., making personal phone calls on work time; taking unauthorized cigarette breaks; failure to adhere to factory-wide safety policies; and insubordination. Id. Similarly, in the instant case, the ADA cannot shelter Sharp from work rule violations and poor performance. Disregarding his attendance issues (as Stoughton did when it decided to terminate Sharp), the undisputed facts show that Sharp was not qualified. Mr. Sharp did not meet the company’s performance expectations, even before any significant amount of absences related to his CSD. (See Defendant’s Proposed Findings of Fact (“DPFOF”) Nos. 13-22) Then on March 26, 2014, Sharp violated Stoughton’s policies with regard to his behavior towards Kevin Weisensel, which resulted in complaints from the production managers who reported to Sharp. (DPFOF Nos. 80- 92) As described by Sharp’s direct reports, during the meeting, Sharp verbally attacked subordinate employee Weisensel in front of others. (DPFOF Nos. 80-87) Sharp admits to the Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 6 of 18 7 argument with Weisensel. (DPFOF No. 83) According to team member Thomas Smith, the meeting “turned ugly fast” when Sharp told Weisensel that he “wasn’t a team player” because Weisensel had informed the Director of Operations about a performance deficiency in the weld department—a department that Sharp was responsible for. Sharp accused Weisensel of throwing “his coworkers under the bus” and informing the Director of Operations to get Sharp “fired.” (DPFOF 85) Sharp’s behavior was so bad that he almost started a physical fight with Weisensel (attendees had to intervene). (DPFOF 84) As described by Smith, Sharp lost “respect from all [employees] that were there [at the meeting].” (DPFOF No. 86) The meeting attendees also raised numerous other concerns regarding Sharp’s performance. (DPFOF Nos. 88-92) Clearly, there was a gaping, untenable rift between Sharp and all of the production managers who reported to him, such that Stoughton’s Director of Manufacturing, Mike Doverspike, and Stoughton’s Sr. VP of HR, Kate Schieldt, became concerned that if they did not terminate Sharp, at least one of his direct reports might quit. (DPFOF No. 93) Doverspike and Schieldt met, and together, created an entire list of issues before formally issuing a termination notice to Sharp. (DPFOF No. 94) Although they were not happy with Sharp’s failure to communicate with them about his attendance (see DPFOF Nos. 39-68, discussed in additional detail below), they decided to ignore Sharp’s attendance issues and determine whether Sharp should be terminated for the other problems, standing alone. (DPFOF No. 94). The list contained more than 20 different events and issues, including his problems with managing his team and his inappropriate argument with Weisensel, as well as the following:  “Welders are ‘running’ the floor vs management managing the areas.”  “Due to critical issues not being done, others are forced to deal with situations: o Running the plant [Sharp’s plant] and assuring parts are coming to Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 7 of 18 8 Plant 6: Doverspike had to do this for months to assure that his line would have the needed parts. o Not attending nor following up when unable to make a manpower meeting. Thus others have to fill in for determining numbers. o Not addressing and defining manpower requirements, employee conduct. o Manufacturing incompletes: not addressing on timely basis”  “Failure to provide parts to line, therefore shutting down production on numerous occasions to plant 6.”  “Does not have an understanding of what should be on power and free, procedures and protocols, where to find reports = should have this understanding by this time.” As set forth in Sharp’s job description, the essential functions include, inter alia: “work and communicate in a team environment”; responsibility for “employee relations”; “employee development”; and “provide direction, development and leadership to production managers.” (DPFOF Nos. 5-6) Sharp’s inappropriate behavior towards his team members, coupled with his other performance issues, make clear that he was not qualified to perform his job. B. Stoughton Did Not Terminate Sharp Because of His Alleged Disability A plaintiff cannot establish a prima facie case of disability discrimination without establishing that his disability caused him to suffer an adverse employment action. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032-33 (7th Cir. 1999). The plaintiff must show that the disability was a "but for" cause of his termination. See Hooper v. Proctor Health Care Inc., 804 F.3d 846, 853 (7th Cir. 2015). For a plaintiff’s disability to cause an adverse action, the disability must be a “significant reason for the employer’s action. It must make such a difference in the outcome of events that it can fairly be characterized as the catalyst which prompted the employer to take the adverse employment action, and a factor without which the employer would not have Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 8 of 18 9 acted.” Foster, at 1033-34 (citing Luciano v. Olsten Corp., 110 F.3d 210, 219 (2d Cir. 1997)). Hence, a plaintiff cannot state a cause of action for disability discrimination where her employer terminated her for reasons unrelated to (i.e., not because of) her disability. Foster, at 1033 (citing Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995)). In the present case, Sharp cannot establish a prima facie case of disability discrimination because Stoughton terminated him for reasons unrelated to his disability. Sharp cannot rebut that Doverspike and Schieldt decided to ignore the issues with Sharp’s attendance for purposes of deciding whether he was deserving of termination. Stoughton did not discharge Sharp “because of” his disability, but rather “because of” his behaviors, job description, and failure to meet performance expectations. This Court should not substitute its judgment for Stoughton’s in determining whether this behavior was unacceptable. See Debs v. Northeastern Ill. Univ., 153 F.3d 390, 396 (7th Cir. 1998) (explaining that the court will not sit as a “superpersonnel” department questioning the employer’s legitimate criteria for business decisions). Sharp does not make the critical link between his disability and his discharge. Sharp’s verbal attack of team member Weisensel during the March 26, 2014 team meeting was not related to Sharp’s disability. The complaints from Sharp’s direct reports regarding his inability to meet the requirements set forth in his job description (e.g., provide direction, development and leadership to production managers) also are not alleged to be related to his disability. Hence, Sharp’s claim fails. C. Stoughton Had Legitimate, Non-Discriminatory Reasons For Discharging Sharp. Even if Sharp could articulate a bare prima facie case, Stoughton has articulated legitimate, non-discriminatory reasons for discharging Sharp which Sharp cannot rebut. His Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 9 of 18 10 poor performance, failure to fulfill his job description, inability to lead and communicate with his team, and violation of work rules had irreparably damaged his employment with Stoughton. Under the McDonnell-Douglas burden-shifting method of proof, even if a plaintiff is able to establish a prima facie case of discrimination, the employer may then articulate a legitimate and non-discriminatory reason for the complained-of action. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). If the employer fulfills this burden of production, any inference of discrimination created by the plaintiff’s prima facie case is removed. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In the present case, such analysis is unnecessary because, as discussed above, Sharp cannot establish a prima facie case. See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). However, even if he could establish a prima facie case, any inference of discrimination is destroyed because substantial evidence establishes that Stoughton acted because of legitimate and non-discriminatory reasons. As stated above, Stoughton’s judgment that Sharp’s poor performance and conduct warranted discharge is not to be second-guessed. The Court’s role is not one of “super personnel” department that reexamines an entity’s business decision. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 300 (7th Cir. 1998); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1091 (7th Cir. 2000) (“[O]ur role is not to…inquire as to whether the goals set by management demand ‘too much’ from its employees, nor to ‘make things less difficult for those who come before us, regardless of the law.’”)(citations omitted); Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003) (“Above all, we are mindful that courts do not sit as super personnel departments, second-guessing an employer's facially legitimate business decisions.”). Most importantly, even if Sharp disagrees with Stoughton’s assessment of his performance, or the potential severity of his shortcomings, such disputes are not material to the Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 10 of 18 11 issues in this case. The evidence clearly shows that Stoughton had a good faith basis for his termination. Leading up to Sharp’s April 1, 2014 termination, Stoughton had generated the above-described list of more than 20 reasons that justified Sharp’s termination. Stoughton’s reason for the termination are more than mere convenient, unsubstantiated reasons—the reasons are supported by demonstrable, corroborating, and concrete evidence. Accordingly, this Court should grant summary judgment in favor of Stoughton. D. Stoughton’s Reasons For Terminating Sharp’s Employment Were Not a Pretext For Discrimination. “Pretext,” as the Seventh Circuit has explained, “means a dishonest explanation, a lie rather than an oddity or an error.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002); Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002) (“A pretext for discrimination means more than an unusual act; it means something worse than a business error; pretext means deceit used to cover one’s tracks.”)(quoting source omitted). To establish pretext, Sharp must produce competent evidence showing either that Stoughton’s proffered reasons did not actually motivate the action in question, or that it was insufficient to motivate that action. Wells, 289 F.3d at 1006. According to the Seventh Circuit, an employer “is allowed to determine the job responsibilities of its [employees], and it is not this court's duty to second-guess that judgment so long as the employer's reasons are not pretextual.” Basith, 241 F.3d at 929. "[W]e do not otherwise second-guess the employer's judgment in describing the essential requirements for the job." DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998) (citations omitted). As the Seventh Circuit has emphasized time and again, in conducting the pretext analysis, the court is not required to reexamine an entity’s business decision and review the propriety of the decision. See Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000). Rather, on the Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 11 of 18 12 question of pretext, the focus “is whether the employer’s stated reason was honest, not whether it was accurate, wise or well-considered.” Id. Thus, the issue is not whether the employer made the right decision, but whether the employer honestly believed the rationale for its decision. The fact that an employer’s decision was foolish, mistaken, unduly harsh, or wrongheaded is of no concern to the court in analyzing a discrimination claim. See Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002). Rather, the one and only question determinative of pretext is whether the employer “honestly believed” the proffered reason for the employment decision. See id. Sharp has no evidence, apart from speculation, that Stoughton was motivated by discriminatory animus against him, or that when the decision to discharge him was made, Stoughton did not honestly believe that Sharp’s performance failings and violation of work rules actually existed. E. Stoughton Did Not Fail To Reasonably Accommodate Sharp and Did Not Fail To Engage In The Interactive Process. In order to assert a prima facie case on a failure to accommodate claim, a plaintiff alleging reasonable accommodation must show: "(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." Kotwica, 637 F.3d at 747-48. For the reasons set forth above, Plaintiff demonstrated that he was unqualified for the VSM position; therefore, he cannot meet the first element. Further, as explained below, Plaintiff cannot meet the third element because Stoughton did not fail to reasonably accommodate his alleged disability. There is no genuine dispute of material fact regarding Sharp’s failure to accommodate claim because as of February 26, 2014, through the end of his employment, he requested only a modified work schedule as an accommodation, which Stoughton approved, but did not ask to be able to work from home. It is established law that "the standard rule is that a plaintiff must Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 12 of 18 13 normally request an accommodation before liability under the ADA attaches." Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012)(quoting Jovanovic v. Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)); see also Clark v. Whirlpool Corp., 109 Fed. Appx. 750, 755 (6th Cir. 2004) ("[T]here is no question that the EEOC has placed the initial burden of requesting an accommodation on the employee. The employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation."); Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 689 (8th Cir.1998) ("it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed"). As asserted by the court in Mole v. Buckhorn Rubber Products, Inc., a plaintiff cannot “expect the employer to read [his] mind and know [he] secretly wanted a particular accommodation and [then] sue the employer for not providing it.” 165 F.3d 1212, 1218 (8th Cir. 1999)(quoting Ferry v. Roosevelt Bank, 883 F.Supp. 435, 441 (E.D. Mo. 1995)). In Mole, the plaintiff failed to advise the employer that “she needed additional accommodation, much less what accommodation specific to her position and workplace was needed.” Id. at 1217. The employer had been aware of plaintiff’s disability and had provided plaintiff’s requested accommodations in the past; however, the plaintiff argued that the employer should have “should have learned more about accommodating MS by consulting informational pamphlets and discussing her condition with her doctors” even though plaintiff never made an additional accommodation request. Id. at 1218. The court found that “only Mole [the plaintiff] could accurately identify the need for accommodations specific to her job and workplace,” and ruled in favor of the defendant employer. Id. Similarly, in the instant case, Stoughton had approved Sharp’s requests for a modified schedule but Sharp did not request an additional accommodation until it was far too late, i.e., Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 13 of 18 14 after Stoughton decided to terminate his employment and the damage had been done. Sharp argues that at some point (“probably” on February 4th (DPFOF No. 26)), he verbally requested from Einerson (his former supervisor) that he be allowed to work from home, but by February 27th, which he repeated on March 4th, Sharp’s written request was for a modified schedule only. (DPFOF Nos. 23 and 30) For these reasons, the EEOC rejected Sharp’s theory and found that Stoughton had not improperly denied a request by Sharp to work from home. (DPFOF Nos. 73- 79) It was not until after Stoughton had commenced the termination process and after the damage had been done that Sharp raised the idea of a work-from-home accommodation on March 27, 2014. Such eleventh-hour request did not erase the long list of violations and the demonstrated performance shortcomings, nor did it require delay of his termination or create a renewed duty to engage in the interactive process. Even if Stoughton had based its decision to terminate on Sharp’s attendance (which it did not), an after-the-fact request for accommodation would not have justified Sharp’s failure to meet the work schedule that he set. According to the EEOC and established case law, “although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.” E.E.O.C., Americans with Disabilities Act: Applying Performance & Conduct Standards to Employees with Disabilities, at #5 and n.25 (2008)3 (citing Hill v. Kansas City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999) (request for reasonable accommodation is too late when it is made after an employee has committed a violation warranting termination)); Contreras v. Barnhart, EEOC Appeal No. 01A10514 (Feb. 22, 2002) (decision rejects employee’s claim that employer should have known 3 https://www.eeoc.gov/facts/performance-conduct.html#fn25 Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 14 of 18 15 that a reasonable accommodation was not working and provided another one, rather than disciplining employee for poor performance, where employee failed to request a new accommodation and two of her doctors had indicated that the employer should continue providing the existing accommodation). In all events, Stoughton did not terminate Sharp for attendance. Perhaps in an attempt to prove pretext or a dispute of fact, Sharp chides Doverspike for attempting to manage Sharp’s attendance, by requiring Sharp to use vacation for his absences. Sharp’s assertion in this regard is, frankly, ridiculous. Sharp admits that immediately after Doverspike began supervising him, in the 11 business days leading up to his termination, he failed to report to work for the modified schedule that Sharp had set for himself on 10 of the 11 days, and did not advise Doverspike before or after that he was varying his schedule. (DPFOF 39-72) For several of those days, Sharp was out not due to his CSD, but rather, because his mother was in the hospital. Since Doverspike did not agree to allow him to work from home or an alternative location, and since Sharp did not even ask for permission to be gone on all of those days, requiring him to use vacation for those days was more than reasonable. Sharp behavior on March 27th is another good example. On that day, he called in, asked Doverspike if he could participate in a meeting by telephone (which Doverspike approved), said he would be later, and promised to call when he was heading in. (DPFOF Nos. 61-64) He then failed to show up or call in. (DPFOF No. 65-67) To add to the outrageousness, Stoughton has since discovered that Sharp spent time applying for seven jobs with other companies while at home that day. (DPFOF No. 71). Sharp’s March 27th, after-the-fact email requesting post- absence permission to work from home was effectively a request for a “second chance” and an attempt to tie what was actually a “no-show” absence that day to his disability. Doverspike Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 15 of 18 16 insistence that Sharp use vacation time on that day is, again, both reasonable and not proof of a failure to accommodate. Tellingly, the EEOC agreed: Advised her [Ms. Kramer] that the file lacks evidence that CP [Sharp] made request for RA [reasonable accommodation] of working from an alternate site to Mr. Doverspike. Advised her that this verbal request to work from an alternate site may have been made verbally to Dale Einerson (Sharp’s prior supervisor), but there is no evidence that shows that CP [Sharp] made Doverspike aware of his need of this accommodation. . . . It does not appear that CP asserts that he has a need to work at home until his March 27, 2014 email to Dovespike (which was after the days in which CP worked from alternate sites and was directed to submit vacation requests). . . . it appeared that in this email [March 27, 2014] , CP advised Doverspike of his need to work from home (some hours) for the first time, in that CP states ‘But, in general, I need you to allow me to work some hours here before I arrive at plant.’ This appears to indicate that this is a first time advisement/request of this RA [reasonable accommodation] and it was not presented until R [Respondent] had already requested CP to submit vacation requests. (DPFOF Nos. 76 and 78). If Sharp had asked to Doverspike if he could work from home (which he did not), it cannot be presumed that such a request was reasonable under the circumstances. Doverspike has credibly attested that if Sharp had made such a request, he would not have been able to simply passively grant the request. (DPFOF Nos. 35-38). This is consistent with the law and the record. The Seventh Circuit has pointed out that attendance is an essential function of nearly any job. See EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir. 2001) (en banc) (“Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job.”); Waggoner v. Olin Corp., 169 F.3d 481, 484-85 (7th Cir. 1999) (“The fact is that in most cases, attendance at the job site is a basic requirement of most jobs.”); Haschmann v. Time Warner Entm’t Co., L.P., 151 F.3d 591, 602 (7th Cir. 1998) (stating that “the excessive frequency of an employee's absences . . . may lead to a finding that an employee is unable to perform the duties of his job”). “Spotty attendance Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 16 of 18 17 by itself may show a lack of qualification.” Byrne, 328 F.3d at 381. “[I]f one is not present, he is usually unable to perform his job. This is especially true in factory positions . . . where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work.” Jovanovic v. In-Sink-Erator Div., 201 F.3d 894, 899- 900 (7th Cir. 2000) (emphasis added). As indicated by the job description and the other evidence in the record, and as admitted by Sharp, an essential function of his job was to be at work. (DPFOF No. 5-8). For example, in his February 26, 2014 email requesting a modified work schedule, Sharp specifically requested a schedule that would allow “for daily interaction with my 2nd shift crews” and described how he would arrange for supervisory “Plant 5 Back-up” when he was not at the facility. (DPFOF No. 23) Sharp’s request expressly acknowledged the need for “daily interaction” with and supervision over his crew and the plant. Again, as stated by the Seventh Circuit, attendance as an essential function is “especially true in factory positions . . . where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work.” Jovanovic, 201 F.3d at 900. Sharp’s claim that his previous supervisor Dale Einerson had allowed him to work from home on a few occasions “in the past” is a red herring and not evidence that Stoughton failed to accommodate him. As set forth in DPFOF, Sharp worked from home a total of three times (less than 10 total hours), between when Einerson allegedly approved his request and when Sharp sent his February 26th email which asked for the modified schedule and said nothing about working from home. (DPFOF Nos. 26 and 27) Clearly, such temporary accommodation is of no effect upon the fact that attendance at work is an essential function of Sharp’s position. See Rehrs v. Iams Co., 486 F.3d 353, 358 (8th Cir. 2007) (“[a]n employer does not concede that a job function Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 17 of 18 18 is `non-essential’ simply by voluntarily assuming the limited burden associated with a temporary accommodation, nor thereby acknowledge that the burden associated with a permanent accommodation would not be unduly onerous”) (quoting Laurin v. Providence Hosp., 150 F.3d 52, 60-61 (1st Cir. 1998)); Amadio v. Ford Motor Co., 238 F.3d 919, 929-30 (7th Cir. 2001) (noting that "if an employer 'bends over backwards to accommodate a disabled worker ... it must not be punished for its generosity'"). CONCLUSION For the reasons presented herein, Stoughton respectfully requests that summary judgment be granted on its behalf, on the entirety of Sharp’s Complaint. Dated this 8th day of August, 2016. MICHAEL BEST & FRIEDRICH LLP By: /s/ Amy O. Bruchs Amy O. Bruchs, SBN 1021530 Miguel A. Manriquez, SBN 1099708 One South Pinckney Street, Suite 700 P.O. Box 1806 Madison, WI 53703 Telephone: 608-257-3501 Fax: 608-283-2275 E-mail: aobruchs@michaelbest.com E-mail: mamanriquez@michaelbest.com Attorneys for Defendant, Stoughton Trailers, LLC 087347-0126\19467882.1 Case: 3:15-cv-00598-jdp Document #: 28 Filed: 08/08/16 Page 18 of 18