The Sixth Circuit recently reversed a summary judgment granted to an employer that asserted it had terminated the disabled plaintiff because he was no longer qualified to perform the essential functions of his excavator operator position after his left leg was amputated. Henschel v. Clare Co. Rd. Comm., 6th Cir. No. 13-1528 (Dec. 13, 2013). The appellate court held: (1) genuine issues of material fact remained regarding whether hauling the excavator by a manual transmission truck (which the plaintiff could not operate) was an essential function of the excavator operator position; (2) the district court properly determined that reassigning the plaintiff to another position, which was already occupied, was not a reasonable accommodation; and (3) the district court was required to determine whether the plaintiff was otherwise qualified, with or without accommodation, to perform the essential functions of the excavator operator position.
I. Underlying Facts
Plaintiff Henschel had been working for Defendant Clare County Road Commission (CCRC) as an excavator operator when he lost his left leg above the knee in a motorcycle accident. Because CCRC did not allow Henschel to return to work after the accident, he asserted that CCRC had discriminated against him in violation of the Americans With Disabilities Act (ADA).
Henschel’s position was covered by a collective bargaining agreement. Under the CBA, CCRC retained the right to manage its services and equipment and to hire, fire, and otherwise manage personnel.
As an excavator operator, Henschel ran an excavator — a piece of heavy equipment used for digging ditches and trenches — that was delivered to work sites on a trailer pulled by a manual transmission semi-truck. Over the preceding decade, employees in various other CCRC positions had hauled the excavator to job sites. During his tenure as an excavator operator, Henschel hauled the excavator to job sites 70 percent of the time, and other CCRC employees, often CCRC’s semi-truck driver, hauled the excavator the remaining 30 percent of the time.
CCRC had written job descriptions for its employees’ positions. The excavator operator job description did not include the hauling function, though it did include “other assigned duties.” The duty to haul equipment was included in the job description for CCRC’s truck/tractor driver position. Moreover, Lee Schunk, a former long-term CCRC employee who operated the excavator for two years before Henschel took that job, testified that during his tenure in that position a semi-truck driver was responsible for transporting the excavator to job sites. Also, Robert Fisch, who held the truck/tractor driver position when Henschel attempted to return to work, testified that he considered hauling the excavator to job sites to be a job duty of the semi-truck driver. Furthermore, Schunk testified that there were a number of other CCRC employees qualified to drive CRCC’s manual transmission semi-trucks who could haul the excavator to job sites.
After recovering from his motorcycle accident in August 2009, Henschel asked to return to work on the excavator. Before returning, Henschel was required to apply for a medical waiver to maintain the commercial driver’s license required by CCRC. The Michigan Traffic Safety Division granted Henschel a medical waiver, allowing him to retain his CDL, but limited him to automatic transmission vehicles.
CCRC decided that it did not have a position for Henschel to return to, and therefore, he was terminated. CCRC told Henschel that he was being terminated because of his inability to transport the excavator to job sites. CCRC did not ask its semi-truck driver if he would be willing and able to haul the excavator to job sites, nor did it put that question to any of its other employees who could drive the semi-truck.
Henschel filed suit against CCRC under the ADA. The district court granted summary judgment to CRCC, finding that (1) transporting the excavator to job sites was an essential function of the excavator operator position; (2) Henschel was unable to haul the excavator; and (3) reassigning Henschel to a year-round truck driver position (in an automatic transmission truck) was not a reasonable accommodation because another CCRC driver would have to be displaced.
II. Sixth Circuit’s Reversal
The Sixth Circuit conducted the required de novo review of the district court’s summary judgment to determine that the lower court had erred in granting judgment to CCRC.
A. Essential Function
To establish his claim under the ADA, Henschel was required to show that (1) he is an individual with a disability within the meaning of the ADA; (2) he is qualified to perform the essential functions of the excavator operator job, with or without accommodation; and (3) he suffered an adverse employment decision because of his disability. CCRC asserted that Henschel had failed to establish, as a matter of law, that he was capable of performing an essential function of the excavator operator job — operating a manual transmission semi-truck to haul the excavator from job site to job site.
The Sixth Circuit began its analysis by noting that determining whether a function is essential to a job is a highly fact-specific inquiry, generally not suitable for judgment as a matter of law. Pursuant to the ADA, the employer’s judgment as to whether a function is essential is given “consideration,” and an existing written job description shall be considered evidence of the essential functions of the job. In addition, regulations under the ADA set forth seven (7) non-exclusive factors to be considered to determine whether a function is essential:
the employer’s judgment
existing written job descriptions
the amount of time spent on the job performing the function
the consequences of not requiring performance of the function
the terms of a collective bargaining agreement
the experience of past incumbents in the job
the current work experience of incumbents in similar jobs
29 C.F.R. §1630.2(n)(3).
The Sixth Circuit acknowledged that CCRC’s judgment “carries weight,” but emphasized it was only one factor to be considered by the court.
In contrast, the appellate court placed great reliance on CCRC’s written descriptions: first, the duty of hauling equipment was already assigned — it was specified in the job description for CCRC’s truck/tractor driver position; and second, none of the three excavator operator job descriptions recently posted by CCRC included the functions of hauling the excavator or driving a manual transmission truck.
With respect to the other factors under the regulations, the court noted that Henschel testified that 90 percent of the time, the excavator was located at a job site — it was being hauled only 10 percent or less of the time. Moreover, CCRC’s semi-truck driver had time to haul the excavator — there would be no adverse consequences if Henschel did not perform that function. Furthermore, the experience of past incumbents in the excavator operator position was that CCRC’s semi-truck driver hauled the excavator. As a result, the appellate court concluded that there was a genuine issue of material fact as to whether hauling the excavator is an essential function of CCRC’s excavator operator position.
B. Reasonable Accommodation
The district court also had determined that CCRC had not violated the ADA by failing to reassign Henschel to a year-round blade truck (automatic transmission) driver position because that was not a reasonable accommodation.
The Sixth Circuit noted a reasonable accommodation may include reassignment to a vacant position. However, there is no requirement that an employer violate a collective bargaining agreement, create a new position, or displace an incumbent from a position. In order to transfer Henschel to a position as a year-round blade truck driver, CCRC would have had to transfer an incumbent blade truck driver to a different position in violation of its collective bargaining agreement or create an additional year-round blade truck driver position. As a result, the district court did not err in finding that there was no genuine issue of material fact that reassignment of Henschel was not a reasonable accommodation as a matter of law.
III. Lessons To Be Learned
It is crucial for an employer to have written descriptions for the essential functions of its job positions. However, the employer will live or die by those descriptions. If, as with CCRC’s written description for the excavator operator position, the description does not include a particular function, it will be virtually impossible for an employer to convince a court that the function is essential in defense to an ADA claim. Conversely, if an extant description does identify an essential function, it is likely an ADA claimant will be required to establish that he can perform that function. Thus, an employer must insure that its job descriptions accurately include all functions that are essential to the performance of a job. Moreover, if the essential functions of a job evolve over time, the employer must be vigilant to change its job descriptions as the job changes.
Disputes concerning whether a disabled person can perform essential job functions on a construction site are likely to increase in the future. The Department of Labor, Office of Federal Contract Compliance Programs, has promulgated regulations, at 41 C.F.R. Part 60-741, that require contractors on federal projects to affirmatively recruit disabled persons for their work force. The regulations set a utilization goal that 7 percent of the contractor’s work force be comprised of disabled persons. The regulations take effect on March 24, 2014.
The Henschel decision can be found at: http://www.ca6.uscourts.gov/opinions.pdf/13a0343p-06.pdf