holding that working from home was not a reasonable accommodation where employees' duties included supervising a laboratory teamSummary of this case from Altendorfer v. Kroll Ontrack, Inc.
Civil No. 99-1925 ADM/AJB.
June 15, 2001
ANDREA F. RUBENSTEIN, Esq. Hedin Goldberg, P.A., Minneapolis, Minnesota, appeared for and on behalf of the Plaintiff.
KATHLEEN M. MAHONEY, Esq., Oppenheimer, Wolff Donnelly, LLP, Minneapolis, Minnesota, appeared for and on behalf of the Defendant.
MEMORANDUM OPINION AND ORDER
On April 20, 2001, the undersigned United States District Judge heard Defendant Minnesota Mining and Manufacturing Company's ("3M") Motion for Summary Judgment [Doc. No. 15]. Defendant 3M seeks summary judgment on Plaintiff Peter Gits' ("Gits") discrimination claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Compl. ¶ 25. For the reasons set forth below, 3M's motion is granted.
While the facts must be reviewed in the light most favorable to the non-movant on a summary judgment motion, this does not mean the court must ignore facts in the record that may be unfavorable to the non-movant. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996); Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 857 n. 1 (7th Cir. 1997); Patel v. Allstate Ins. Co., 105 F.3d 365, 367 (7th Cir. 1997) ("[The court] will not ignore facts in the record merely because they are unfavorable to [the non-movant].").
Gits suffers from a condition known as "multiple chemical sensitivities," which he developed while employed at 3M. Gits experienced sinus and respiratory difficulties while working as a chemical engineer. After unsuccessful attempts to find a suitable work environment that did not pose health problems for Gits within its facilities, 3M terminated him.
3M manufactures, among other things, adhesive products. A class of chemicals called acrylates are used in 3M's pressure sensitive adhesive products, including Post-it TM Notes and retro-reflective sheeting on traffic signs. After a piece of paper or reflective sheeting is coated with a pressure sensitive adhesive, it will adhere to a surface when pressure is applied. Many of 3M's products in the Traffic Control Materials and Diamond Grade lines contain acrylate adhesives. See Gits Dep., at 176.
In 1987, 3M hired Gits as a chemical engineer, under the title Senior Product Development Engineer. In 1992, Gits transferred to 3M's Traffic Control Materials Division ("TCM"), as the Team Leader of the Diamond Grade Quality Improvement Team, and Laboratory Co-Chair. Much of his work was completed on a computer. Gits' duties included product development, product improvement, and laboratory responsibilities for the TCM and Diamond Grade products. See Mahoney Aff. Exs. 4, 30. Mark Fiegan ("Fiegan") was his supervisor. Gits held this position for the remainder of his employment.
On May 24, 1994, Gits wrote a memo to his 3M supervisors concerning his allergy symptoms and sinus problems experienced while working in Building 582. See Mahoney Aff. Ex. 6. In the memo, Gits expressed his suspicions regarding the building materials and air systems. Id. Gits believed that he was allergic to something in the environment of Building 582. Id. 3M discussed the issue with Gits and conducted an analysis of the air quality in his work area, searching for contaminates or allergans. See Fiegan Dep., at 18-19. The analysis found no problems with the air. Id. Although Gits continued to work in 3M's Building 582, he occasionally attended meetings in Building 553, a building leased by 3M and other tenants. In February 1995, another tenant in Building 553 accidentally released an innocuous green pepper gas. See Gits Dep., at 54-55; Campbell Dep., at 7-8. The fetid pepper gas caused 3M to evacuate Building 553. 3M's investigation determined that the gas was a malodorous but harmless compound that posed no health threat. See Mahoney Aff. Ex. 11-12; Campbell Dep., at 8. Nevertheless, Gits experienced burning eyes, sinuses and lungs. See Mahoney Aff. Ex. 11. 3M allowed Gits to take more than one week off after this incident. Id. When Gits returned to work, he requested to be excused from meetings in Building 553. 3M restricted Gits from working in Building 553 until it identified the source of his irritation and determined the appropriate action to take. See id. Ex. 13; Gits Dep., at 46-47.
Gits continued to complain about allergy-type symptoms while working in Building 582. On two occasions, July 28, 1995, and August 14, 1995, 3M obtained air quality samples from Gits' office space. See Mahoney Aff. Ex. 15. The analysis of the air and wipe samples showed no problems with air quality. Id. The tests indicated the presence of "typical office dust" that "could be found in any building." Id. 3M instructed Gits to report to 3M's Occupational Medicine Department ("3M Medical") whenever he experienced any severe respiratory symptoms, after which he could take sick leave or work from home, if the symptoms were extremely disturbing. See Gits Dep., at 51. Gits persisted in his requests to be transferred to another building. In October 1995, 3M allowed Gits to move his work space to Building 260. Id. at 46. There, Gits "received a terrible old desk stuck in a cramped laboratory, not a regular office for a professional at [his] level." Gits Aff. ¶ 11. Gits remained in Building 260 until November of 1996, when 3M reunited him with his TCM lab team in the newly-constructed Building 235. See Gits Dep., at 49; Mahoney Aff. Ex. 16. Gits and Fiegan discussed Gits' problems with his work environment and 3M's expectations for his position.
In a memo dated November 25, 1996, Fiegan wrote to Gits, "the situation of not being able to be located with the lab group is unworkable for your current position [and] I do not know of any other laboratory positions that can be effectively fulfilled without physically being in the lab." Mahoney Aff. Ex. 16. Also in November of 1996, Fiegan mentioned to Gits that his symptoms appeared to match those listed on the Material Safety Data Sheet ("MSDS") for acrylates. Gits Aff. ¶ 10. Until this time, Gits was unaware that the product samples around the office contained acrylates. Id. This was the first time Gits and 3M linked his health problems with exposure to acrylates.
After his move into the new lab in Building 235, Gits complained that he experienced symptoms. See Gits Dep., at 75-76. The laboratory in Building 235 stored acrylate adhesives products, such as Post-it TM Notes and retro-reflective sheeting. Gits Aff. ¶ 11. Gits believed these products caused his severe symptoms. See Gits Dep., at 176-77. In April 1997, Gits passed out while in Building 235 and Fiegan drove him to 3M Medical. From there, an ambulance rushed him to a hospital emergency room. Gits Dep., at 50, 105. Gits' condition improved as he moved away from the 3M environment. The hospital did not admit Gits, and discharged him in "excellent condition" with instructions to take "Robitussin AC . . . as needed for cough." Mahoney Aff. Ex. 18 (hospital medical report).
While investigating the cause of Gits' fainting spell, 3M reassigned Gits to Building 225, where there were no laboratory facilities containing acrylate adhesives products. See Gits Dep., at 169. 3M temporarily revised Gits' duties to allow him to be away from the laboratory in Building 235. See Mahoney Aff. Exs. 19-20. In a memo dated June 12, 1997, Fiegan requested other 3M supervisors to search for an alternative position within 3M that would allow Gits to work in a remote work space, free of acrylates. Id. Ex. 19. In this memo, Fiegan wrote, "[Gits] cannot contribute all of the value we need from a full time technical person in our laboratory . . . This is a serious, life-changing situation for [Gits] and I look forward to your sincere consideration." Id. No vacant position was located. Building 225 is an acrylate-free facility on the 3M campus. See id. Ex. 22. In the fall of 1997, air samples taken from Building 225 showed "analytically undetectable" levels of acrylates. Id. Nevertheless, while working in Building 225 Gits experienced symptoms, including headaches, fatigue, coughing, and burning eyes, nose, and lungs. He reported his health problems to 3M. See Gits Dep., at 35, 171; Gits Aff. Exs. H, J; Mahoney Aff. Ex. 23. Gits and Fiegan discussed these issues. See Gits Aff. Ex. J. Before he left on a business trip to Europe, Fiegan sent a memo to Gits discussing his predicament and contemplating:
the move to some more permanent solution to getting you a place to work that does not debilitate you the way bldgs [sic] 582, 553, 260, 235 and 225 have . . . I'll ask about getting you set up at home. Hopefully you have found some leads for a more suitable position for you. Gits Aff. Ex. K.
Between September 15th and 29th of 1997, Fiegan was in Europe on business. See Mahoney Aff. Ex. 21. Fiegan noted during his trip that Gits had not responded to many e-mail messages at work. Upon his return, he discovered that Gits had been staying at home to work. See id. During this period Gits had failed to report to 3M Medical, or 3M management, that the severity of his symptoms required him to remain at home. Id. This unauthorized absenteeism was contrary to the arrangements 3M had established for Gits. See id.; Gits Dep., at 51. In a memo dated October 10, 1997, Fiegan reminded Gits that 3M required him to report severe symptoms to 3M Medical before taking sick leave or leaving to work the rest of the day from home. See Mahoney Aff. Ex. 21. Additionally, Fiegan informed Gits that 3M was requiring him to find, before December 1, 1997, an alternative position at 3M suitable to his capabilities and medical restrictions. Id. Fiegan explained that Gits' inability to work in the laboratory of Building 235 prevented him from performing his responsibilities as the Team Leader of the Diamond Grade Quality Improvement Team and Laboratory Co-Chair. Id. The position search turned up no vacant alternative position for Gits at 3M's facilities. 3M then terminated Gits' employment.
Gits returned to school and received a teaching certificate. See Gits Dep., at 42-44. Currently, Gits is employed full-time as a teacher at the White Bear Lake School District. Id. He teaches mathematics and physical science, which does not involve the use of chemicals. Gits is able to work at the school without experiencing adverse symptoms or reactions to that environment. Id. at 45.
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." A genuine issue of material fact does not exist "[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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant has the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant meets its Rule 56(c) burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). When weighing the evidence offered by the parties on a motion for summary judgment, this Court must review the evidence and all inferences drawn from that evidence in the light most favorable to the party opposing the motion. See Matsushita, 475 U.S. at 587. The nonmovant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586.
Gits alleges his multiple chemical sensitivities condition is a disability and that 3M discriminated against him in violation of the ADA by failing to accommodate his condition. The ADA prohibits employers from discriminating against a qualified individual with a disability because of that disability. 42 U.S.C. § 12112(a). A "qualified individual with a disability" is a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position." 42 U.S.C. § 12111(8). To establish a prima facie case of discrimination under the ADA, Gits must show that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he suffered an adverse employment action because of his disability. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc); Webb v. Mercy Hosp., 102 F.3d 958, 959-60 (8th Cir. 1996). Discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C. § 12112(b)(5)(A). 3M argues that Gits is not disabled within the meaning of the ADA and was not qualified to perform the essential functions of his job at 3M with or without reasonable accommodation.
Gits alleges that he suffers from multiple chemical sensitivities, a condition affecting the respiratory system. See 29 C.F.R. § 1630.2(h) ("Physical or mental impairment means [a] condition . . . affecting one or more of the following body systems . . . respiratory."). Gits' condition meets the ADA's definition of an impairment. Id. The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C). The determination of a person's disability for purposes of the ADA is made with reference to the mitigating measures that person employs. Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999). Gits is unable to demonstrate the existence of a genuine issue of material fact regarding whether his impairment constitutes a "disability" within any of the three definitions under the ADA.
1. Impairment substantially limits a major life activity
Several factors may be considered to determine whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its long-term impact. Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 679 (8th Cir. 2001) (citing 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). The question of whether an employee's impairment "substantially limits" one or more major life activities must be analyzed with reference to the measures taken to mitigate the impairment. Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 522 (1999). "[A] person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not `substantially limit' a major life activity." Sutton, 527 U.S. at 483. "A disability exists only where an impairment substantially limits a major life activity, not where it might, could, or would be substantially limiting if mitigating measures were not taken." Id. at 482 (internal quotations omitted).
The record demonstrates that Gits' symptoms are ameliorated or eliminated by avoiding the environment at 3M. See supra, § II. Gits alleges that acrylate adhesives products located in the 3M workplace, such as Post-it TM Notes and retro-reflective sheeting, caused his severe symptoms. His repeated requests to work from home is evidence that while in his home environment Gits did not experience symptoms that substantially limited his work activities. Gits experienced severe symptoms while at work in at least four different 3M buildings, and he apparently does not experience severe reactions outside of the 3M campus. During the incident in which he passed out in Building 235 and was taken to the hospital emergency room, his condition quickly improved and the doctor discharged him in "excellent condition," after Gits was away from 3M. Moreover, Gits' is able to teach high school without experiencing severe symptoms or reactions to such an environment. His impairment does not substantially limit him from teaching. The obvious mitigating measure here is avoiding exposure to acrylate adhesive products stored at 3M. Under the ADA, the determination whether Gits' condition "substantially limits" one or more major life activities must be made with reference to this mitigating measure. See Sutton, 527 U.S. at 482-83; Murphy, 527 U.S. at 522. Gits avers that he is substantially limited in the major life activities of breathing and working. A major life activity is substantially limited if an individual is unable to "perform a basic function that the average person in the general population can perform" or is significantly restricted in "the condition, manner, or duration under which [he] can perform a particular major life activity as compared to an average person in the general population." Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997); see 29 C.F.R. § 1630.2(j)(1).
The Post-itTM Notes present at his deposition did not cause problems for Gits. See Gits Dep., at 176.
Avoiding exposure to acrylate adhesive products is similar to avoiding the consumption of foods containing peanuts. See Land v. Baptist Med. Ctr., 164 F.3d 423, 425 (8th Cir. 1999).
Breathing is a major life activity. See 29 C.F.R. § 1630.2(i). Here, there is no genuine issue of fact that Gits generally is able to perform the basic function of breathing. Gits' severe breathing difficulties occur only when he is exposed to acrylate adhesive products at 3M. When he is not exposed to the 3M environment, he is not substantially limited in breathing. See Muller v. Costello,187 F.3d 298, 314 (2d Cir. 1999) (overturning a jury verdict under the ADA because proof of plaintiff's breathing impairment must be evaluated with reference to corrective measures and there was insufficient evidence of breathing difficulty outside of work); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir. 1998) (holding that difficulties in life that do not hinder performance of required tasks are not "substantial limitation" under ADA). The duration of Gits' severe reactions was short because he does not experience problems if he avoids exposure to chemicals at 3M.
Gits' alleged multiple chemical sensitivities condition does not substantially limit his ability to breathe within the definition of disability under the ADA. See Land v. Baptist Med. Ctr., 164 F.3d 423, 425 (8th Cir. 1999) (holding that plaintiff's severe allergic reactions to peanut-laden foods did not substantially limit major life activity of breathing because her ability to breath was otherwise "generally unrestricted"); Zirpel v. Toshiba Am. Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (holding that although speaking and breathing were hampered during actual panic attack, disorder did not substantially limit plaintiff's major life activities where attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (finding that several instances of asbestosis-related shortness of breath did not substantially limit major life activity of breathing).
Assuming that working is a major life activity, a person may be "substantially limited" from working if they are "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). To be regarded as substantially limited in the major life activity of working, a person must be regarded as precluded from more than a particular job. See Murphy, 527 U.S. at 523; Miller v. City of Springfield, 146 F.3d 612, 615 (8th Cir. 1998) (holding that a limitation on a single, particular job cannot constitute a substantial limitation of the major life activity of working under the ADA); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) ("An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one."). Gits must show that because of his impairment he has suffered a significant reduction in meaningful employment opportunities. See Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996). This he has failed to do. Since 3M terminated him, Gits has been either in school full-time or employed. Gits testified that he could perform a job that did not involve exposure to industrial chemicals and that there has never been a time when he believed he could not work at all. See Gits Dep., at 173-75. Gits has not demonstrated that he is unable to perform a class of jobs or a broad range of jobs in various classes. See Coffey v. County of Hennepin, 23 F. Supp.2d 1081, 1088 (D.Minn. 1998); see also Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992) (holding that plaintiff failed to show that her sensitivities to chemicals in a laboratory substantially limited her major life activities); Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994).
The Supreme Court noted that "there may be some conceptual difficulty in defining `major life activities' to include work, for it seems to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] . . . then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap." Sutton, 527 U.S. at 492. Indeed, the EEOC suggested that working be viewed as a residual life activity, considered, as a last resort, only "[i]f an individual is not substantially limited with respect to any other major life activity." 29 C.F.R. pt. 1630, App. §§ 1630.2(j).
While Gits may be impaired, his impairment does not substantially limit a major life opportunity sufficient to constitute a disability within the ADA definition.
2. Record of such an impairment
Gits has failed to set forth sufficient evidence to establish that he has a record of a disability. As discussed above, Gits' condition does not substantially limit a major life activity. Thus, there can be no record of an impairment that substantially limits a major life activity. Although Gits' severe reactions may be evidence of an impairment, they are not evidence of a "history of a disability." Land, 164 F.3d at 425.
Moreover, it may be difficult for Gits to establish a medical record of a "disability" because the medical community does not generally accept "multiple chemical sensitivities" as a diagnosis and there are few scientific methods of evaluating it. See Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 603 (10th Cir. 1997) ("MCS is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology."); Cavallo v. Star Enter., 100 F.3d 1150, 1159 (4th Cir. 1996) (affirming a trial court's exclusion of evidence that a chemical spill "forever sensitized"a plaintiff under Daubert); Bradley v. Brown, 42 F.3d 434 (7th Cir. 1994) (affirming a trial court's exclusion of evidence of multiple chemical sensitivity syndrome); Comber v. Prologue, Inc., No. 99-2637, 2000 WL 1481300, *5 (D.Md. Sept. 28, 2000) (finding that plaintiff's evidence on "multiple chemical sensitivity syndrome" did not meet the Daubert standards of admissibility of scientific evidence); Coffey, 23 F. Supp.2d at 1086 (holding that expert testimony regarding multiple chemical sensitivities was not admissible).
3. Regarded as having such an impairment
The evidence is insufficient to show that 3M regarded Gits as disabled. The two ways in which an individual may fall within the ADA's third definition of "disability" are: (1) an employer mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) an employer mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. Sutton, 527 U.S. at 489. "In both cases, it is necessary that [the employer] entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Id. Here, there is no evidence that 3M believed Gits suffered a substantially limiting impairment. 3M searched for a suitable environment within its facilities in which Gits could work. 3M did not consider Gits unable to perform a broad class or range of jobs. "An employer's knowledge that an employee exhibits symptoms which may be associated with an impairment does not necessarily show the employer regarded the employee as disabled." Webb, 102 F.3d at 960. Neither 3M's investigations into the source of Gits' health problems, nor its relocations of Gits' workspace and temporary revisions of his responsibilities, establish that 3M regarded Gits as disabled. See Cody, 139 F.3d at 598 (stating that employers need to be able to use reasonable means to ascertain the cause of an employee's problems without exposing themselves to ADA claims); Gerdes v. Swift-Eckrich, Inc., 125 F.3d 634, 638 (8th Cir. 1997) (holding that employer did not regard the employee as disabled when it followed his doctor's medical recommendations to limit activities). 3M's expressions of concern regarding Gits' complaints about his work environment should not be penalized.
Gits is unable to identify the existence of a genuine issue of material fact regarding whether he is "disabled" within any of the three definitions under the ADA.
B. Essential Function
Even assuming Gits is "disabled" within the meaning of the ADA, he must demonstrate that he is "qualified" within the meaning of the ADA. See Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998). There is no dispute that Gits meets the necessary prerequisites for employment at 3M, such as education, experience and training. The crucial issue is whether Gits is able to "perform the essential functions of the employment position" with or without reasonable accommodation. See 42 U.S.C. § 12111 (8). An "essential function" may be established by evidence that includes:
(1) the employer's judgment as to which functions are essential;
(2) written job descriptions prepared before advertising or interviewing applicants for the job;
(3) the amount of time spent on the job performing the function;
(4) the consequences of not requiring the incumbent to perform the function; and
(5) the current work experience of incumbents in similar jobs. Moritz, 147 F.3d at 787 (internal quotations omitted). An employer's identification of a position's essential functions is given some deference under the ADA. See Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998); 42 U.S.C. § 12111(8) ("[C]onsideration shall be given to the employer's judgment as to what functions of a job are essential.").
3M classified Gits' job as a "T-3" research engineer as a "Laboratory Position." See Mahoney Aff. Ex. 30. The position description listed "Specific Responsibilities" including: "[a]ctively participates in developing project assignments . . . performing and guiding technical activities . . . [e]stablishes and cultivates an extensive network of support . . . develops an extensive knowledge and understanding of the laboratory, manufacturing, engineering, sales, and marketing functions and interfaces." Id. Gits' supervisor, Fiegan, testified that Gits' responsibilities included managing and improving the "overall cost and quality performance of the Diamond Grade product line." Fiegan Dep., at 30. Although Gits' position involved work with computers, the essential functions of the position required his physical presence at 3M's factories and laboratory, which contain product samples. See id. at 30, 67; Janulis Dep., at 11. If Gits' multiple chemical sensitivities condition prevents him from fulfilling the essential functions of his job, the ADA requires 3M to provide reasonable accommodation, unless it would impose an undue hardship on 3M. See 42 U.S.C. § 12112(b)(5)(A).
Setting forth the possibility of a reasonable accommodation is an essential part of Gits' initial burden when presenting a prima facie case of disability discrimination under the ADA. See Moritz, 147 F.3d at 788; Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). Gits must show that a reasonable accommodation, allowing him to perform the essential functions of his job, is possible. Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). Gits' suggestions for a reasonable accommodation include: reassigning him to a vacant position, moving him away from products containing acrylates, or allowing him to work from home. Although reassignment to a vacate position is a reasonable request, 42 U.S.C. § 12111(9)(B), 3M's search for an alternative position for Gits was unsuccessful. Gits own efforts to find another job at 3M that suited his needs were equally fruitless. Gits' other two requests for accommodation are unreasonable. Because Gits was responsible for managing and improving the product line, it is unreasonable for him to have no contact with laboratories and facilities that contain acrylate adhesive products. An accommodation is unreasonable if it "either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program." DeBord v. Bd. of Educ., 126 F.3d 1102, 1106 (8th Cir. 1997). 3M is not required to delegate essential functions of the position to other individuals in order to accommodate Gits. See Moritz, 147 F.3d at 788.
Furthermore, the ADA does not require 3M "to create a wholly isolated work space for an employee that is free from numerous possible irritants, and to provide an unlimited absentee policy." Buckles, 176 F.3d at 1101. 3M moved Gits to several different locations throughout its facilities in an attempt to find a workspace that did not cause him severe reactions. The Eighth Circuit has observed that "there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in". Id. The ADA does not mandate the creation of an acrylate-free bubble for Gits.
Gits' request to work at home is unreasonable because of the nature of his position at 3M. Gits' job title was Team Leader of the Diamond Grade Quality Improvement Team and Laboratory Co-Chair. Such a position involves "team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance." Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 544 (7th Cir. 1995) ("an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home"). "An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones." Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1999) (internal quotations omitted). Given the circumstances of a laboratory team position, allowing Gits to work at home is not a reasonable accommodation. See Lalla v. Consolidated Edison 18 Co. of NY, No. 00-6260, 2001 WL 456248, *3-4 (S.D.N.Y. April 30, 2001) (finding that working from home was not a reasonable accommodation); Keck v. N.Y. State Office of Alcoholism Substance Abuse, 10 F. Supp.2d 194, 201 (N.D.N.Y. 1998) (holding that allowing a computer programmer, who suffered from chemical sensitivities, to work at home was not a reasonable accommodation because of the difficulty of supervising an employee working from home); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1566 (N.D.Ga. 1995) (holding that, in a case of a plaintiff suffering from multiple chemical sensitivities, plaintiff's request to work out of her home was unreasonable as a matter of law). The concept of supervising a laboratory team remotely from a computer strains even the boundaries of current technology.
The Eighth Circuit recently addressed a scenario very similar to Gits' case. See Heaser v. Toro Co., 247 F.3d 826, 828-30 (8th Cir. 2001). There, the plaintiff alleged that she suffered from various health problems, including severe allergies, fibromyalgia, and multiple chemical sensitivities. Id.
The Eighth Circuit did not address the question of whether the plaintiff was "disabled" within the meaning of the ADA.
The plaintiff argued that working from home was a reasonable accommodation because she could log on to the computer system from home and perform her tasks as marketing services coordinator. Id. She alleged that she could complete the majority of her work duties by computer or by phone. Id. Affirming the grant of summary judgment for the employer, the Eighth Circuit held that the ADA did not require her employer to change its overall manner of conducting business to accommodate the plaintiff. Id. Like Heaser, Gits has not demonstrated that working from home was a reasonable accommodation for his position. Because Gits fails to present a genuine issue of material fact regarding whether he can perform the essential functions of the employment position with reasonable accommodation, summary judgment is appropriate.
Because Gits has failed to present the possibility of a reasonable accommodation, any claim based on an interactive process theory also fails. See Heaser, 247 F.3d at 830; Cravens v. Blue Cross Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000) ("To establish that an employer failed to participate in an interactive process, a disabled employee must show . . . the employer did not make a good faith effort to assist the employee in seeking accommodation [and] the employee could have been reasonably accommodated but for the employer's lack of good faith.").
IV. CONCLUSIONBased upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that 3M's Motion for Summary Judgment [Doc. No. 15] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.