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March 3 — A former Pfizer sales representative in North Carolina who developed an eye disorder that left her unable to drive may be able to show the company should have assigned her a driver to make sales calls, the U.S. Court of Appeals for the Fourth Circuit ruled March 2.
The decision reaffirms the importance of employers engaging in an interactive process with disabled employees in an effort to identify a reasonable accommodation, Barbara Sloan, an appellate attorney in the Equal Employment Opportunity Commission's Office of General Counsel in Washington told Bloomberg BNA March 3. It also highlights that just because a particular job function has traditionally been performed a certain way doesn't mean that's the only way a disabled worker can fulfill that duty, she said.
An employer shouldn't just dismiss an accommodation request “out of hand” and decide on its own what accommodation it believes it can or should have to provide, Sloan said. Instead, employers must work with a disabled employee to try to find a suitable accommodation that will enable the employee to stay in her job.
Rae Vann of management-side firm NT Lakis in Washington, on the other hand, questioned whether there's really much for employers to take out of the ruling, noting that it's an unpublished opinion that wasn't signed by any member of the court. Moreover, the court didn't engage in any meaningful analysis of whether “driving or traveling” was the essential function of Whitney Stephenson's pharmaceutical sales position that required accommodation by Pfizer, Vann told Bloomberg BNA March 3. Vann is also general counsel for the Equal Employment Advisory Council, a nonprofit employer association.
The EEOC supported Stephenson as an amicus in the case. The EEAC supported Pfizer as an amicus.
Ordering a trial on Stephenson's disability bias claim, the Fourth Circuit held that a jury must decide whether Stephenson's inability to drive herself to doctors' offices for sales in and around the Winston-Salem, N.C., area—as she had done for almost 30 years—meant she was no longer able to perform an essential function of her job.
A jury could find that traveling, not driving, was the essential function of Stephenson's position, the court said. It noted that driving wasn't mentioned in Pfizer's written description for the position.
The appeals court also noted that Pfizer's regional business director told Stephenson the company didn't want to provide her with a driver because it was worried about setting a bad precedent requiring it to similarly accommodate poorly performing employees.
“Not everyone is a Whitney Stephenson,” the director is alleged to have said.
Stephenson, who joined Pfizer's predecessor Warner-Lambert in 1984 after graduating from Duke University, was well decorated during her nearly 30 years with the two companies, the court said. In 1985, it noted, she was named “Rookie of the Year,” and 15 years later she was inducted into Pfizer's “Hall of Fame.”
She's one of less than 100 sales representatives in the company's history to receive the latter designation, the court said. And she was later named a “Pfizer Master” in honor of her sales performance—$1 million or more each year for Pfizer—and leadership, the court added.
Stephenson didn't have an office in any Pfizer facility, and the company provided her with a car to travel to sales meetings. According to Stephenson, she typically was “on the road” making sales calls for eight hours per day.
After developing non-arteritic anterior ischemic optic neuropathy—a condition that affects the flow of blood to optic nerves—in her left eye in late 2008, Stephenson was able to continue driving for three more years. However, when she also got the condition in her right eye in October 2011, the “combined vision loss” rendered her unable to drive.
She went on disability leave, but only after Pfizer refused her initial request for a driver, even though she provided the company with pricing estimates from potential drivers and shuttle services. Pfizer did agree to meet her other accommodation requests—providing magnifying software for her computer and magnifying tools to assist her in reading documents.
Stephenson renewed her request for a driver several times, the court noted, but the company repeatedly insisted that driving was an essential function of her job. Pfizer never mentioned cost as a reason for denying Stephenson a driver, the court said.
Under the Americans with Disabilities Act, an employer isn't required to hire an additional worker to perform an essential job function for a disabled employee, the court noted.
“Rather, the employer must accommodate a disabled employee only when an accommodation ‘would enable the employee to perform all of the essential functions of her position,' ” the court wrote.
Here, there's a factual dispute as to whether traveling or driving was essential to Stephenson's sales position, the appeals court ruled. A jury must make that determination, it said.
In granting summary judgment to Pfizer, the U.S. District Court for the Middle District of North Carolina mistakenly discounted the importance of the absence of any mention of driving in Stephenson's written job description, the appeals court found. It noted that both the statute and the EEOC's ADA regulations list an employer's written job description as a factor in determining a position's essential duties.
In finding that driving was an essential function for Stephenson, the district court relied on her statement that she spent the bulk of her time travelling between doctors’ offices, her acknowledgement that she couldn't perform her job unless she was able to travel to doctors’ offices, and the company’s statement that all of its sales representatives in North Carolina drove themselves , the appeals court noted.
If the jury finds that traveling rather than driving was the essential job function, it must also resolve a factual dispute as to whether Pfizer should have accommodated Stephenson's vision problems by hiring or retaining a driver for her, the court added.
Under the ADA, an employer can avoid liability for failing to accommodate a disabled employee if it can show that accommodating the worker would have imposed undue hardship on the employer's business, the court explained.
The court said that in seeking summary judgment, Pfizer also argued that even if driving a car wasn't essential to Stephenson's sales job, requiring the company to hire or retain a driver for her would have been unreasonable.
Sloan applauded the Fourth Circuit's handling of the issue. In our view, she said, there are other ways in which Stephenson could have performed the traveling function, including being provided with a driver or relying on Uber.
The ADA requires that employers and employees explore the different ways in which a job function might be fulfilled, Sloan said.
Vann told Bloomberg BNA that she thinks the Fourth Circuit “punted” on the issue it felt was most important—whether traveling or driving was an essential function of Stephenson's job.
“The court easily could have found that driving was the essential function and that requiring Pfizer to provide Stephenson with a driver would have been unreasonable,” she said. There were ample facts in the record to support both conclusions, Vann said.
She noted that before Stephenson developed vision problems, the company had always provided her with a car rather than an office. After her vision problems rendered her unable to drive, Stephenson didn't ask for bus fare or a bus pass, Vann said. Instead, she said, Stephenson asked for a driver, indicating the importance of driving to her ability to perform her job.
According to Vann, the appeals court “got caught up in” Pfizer's written job description for the position while at the same time acknowledging that courts are to look to an employer's judgment when determining whether a particular job function is “essential” for purposes of the ADA. An employer's judgment of what's essential may include a written job description—if there is one—or it may not, she said. The appeals court also didn't focus on the other ADA factors for assessing a job's essential functions, she added.
But Sloan thinks the Fourth Circuit struck the right balance. As the court ruled, “an employer's view of what's essential is important,” but it isn't dispositive, Sloan said.
Judges Paul V. Niemeyer, Robert B. King and Dennis W. Shedd joined the unsigned opinion.
Robert M. Elliot in Winston-Salem and Daniel C. Lyon in Charlotte, both of Elliot Morgan Parsonage, represented Stephenson. Stephanie E. Lewis and Jonathan A. Roth in Greenville, S.C., and David E. Nagle in Richmond, Va., all of Jackson Lewis P.C., represented Pfizer.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/WHITNEY_C_STEPHENSON_Plaintiff__Appellant_v_PFIZER_INCORPORATED_D.
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