RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0343p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
WAYNE HENSCHEL,
-
Plaintiff-Appellant,
-
-
No. 13-1528
v.
,
>
-
Defendant-Appellee. -
CLARE COUNTY ROAD COMMISSION,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:12-cv-11777—Thomas L. Ludington, District Judge.
Decided and Filed: December 13, 2013
Before: COOK and STRANCH, Circuit Judges; CARR, District Judge.*
_________________
COUNSEL
ON BRIEF: Julie A. Gafkay, Travis I. Dafoe, GAFKAY & GARDNER, PLC,
Frankenmuth, Michigan, for Appellant. Thomas H. Derderian, MICHAEL R. KLUCK
& ASSOC., Okemos, Michigan, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Wayne Henschel was working as an
excavator operator for Clare County Road Commission (CCRC) when he lost his left leg
above the knee in a motorcycle accident. Because he was not allowed to return to work,
Henschel asserts that CCRC discriminated against him on account of his disability in
violation of the Americans with Disabilities Act (ADA). The district court granted
CCRC’s motion for summary judgment, finding that Henschel could not perform the
*
The Honorable James G. Carr, Senior United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 2
essential functions of the excavator operator position and that no reasonable
accommodation was possible. Because genuine issues of material fact exist as to the
essential functions of the excavator operator position, we AFFIRM IN PART and
REVERSE IN PART.
I. Background
Henschel started working for CCRC in February 2007. His position was covered
by a collective bargaining agreement (CBA) between CCRC and the American
Federation of State, County and Municipal Employees (AFSCME) under which CCRC
retained the right to manage its services and equipment and to hire, fire, and otherwise
manage personnel. The CBA provided for seniority rights based on the length of
employment. Henschel applied for and was assigned to CCRC’s excavator operator
position shortly after he was hired. Then in August 2009, Henschel was involved in a
motorcycle accident that resulted in the amputation of his left leg above the knee. He
was off work for a few months recovering from his injuries during which time he was
fitted for a prosthetic leg. While recovering he told others that he wanted to return to
work. In the meantime, CCRC advertised for and hired a temporary excavator operator
to fill Henschel’s position until he could return.
As 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 past decade, employees in various
CCRC positions hauled the excavator to the work site. Lee Schunk, a former long-term
CCRC employee, operated the excavator for two years before Henschel took that job.
Schunk testified that during his tenure as an excavator operator, a semi-truck driver was
responsible for transporting the excavator, allowing Schunk to drive an automatic-
transmission pick-up truck to the work site. As excavator operator, Henschel hauled the
excavator to the work site 70 percent of the time and other CCRC employees, often the
semi-truck driver, 30 percent. During Henschel’s tenure as excavator operator there was
one regular semi-truck driver; during Schunk’s tenure there were two.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 3
CCRC specified the duty to haul equipment as a function assigned to its job
description for Truck/Tractor Driver. CCRC did not include the hauling function in its
Operator-Excavator job description; it did include in that description an “Other duties
assigned” task, which could cover any CCRC task assigned. The person holding the
Truck/Tractor Driver position was referred to as the semi-truck driver because his
primary responsibility was to pull trailers in a semi-truck. Robert Fisch, who held the
Truck/Tractor Driver position when Henschel sought to return to work, testified that he
considered hauling the excavator to the work site to be one of the semi-truck driver’s job
duties. While the semi-truck driver sometimes has all-day tasks that would limit his
availability to haul the excavator, Schunk testified that there were a number of other
CCRC employees qualified to drive a semi-truck, as Henschel had been, and who could
potentially haul the excavator.
The excavator was generally moved only when it needed to be brought to a new
work site and, according to Henschel’s testimony, 90 percent of the time it stayed at the
work site. It was used at various work sites throughout the year for varying lengths of
time; sometimes it was operated at the same site for weeks and other times the jobs were
completed in a day. During the winter, the excavator was generally not in use and the
excavator operator plowed snow using a blade truck or a grader.
After recovering sufficiently from his accident, Henschel asked to return to work
on the excavator. Henschel met with his supervisor John Krchmar and CCRC’s
Engineer-Manager Steve Stocking at least twice about returning to the excavator
operator position. Before returning, Henschel had to apply for a medical waiver to
maintain the commercial driver’s license (CDL) required by CCRC. Upon receiving his
medical waiver application, the Michigan Traffic Safety Division sent a letter to CCRC
requesting additional information, including “[a]n evaluation of Mr. Henschel’s ability
to perform the essential job functions of a truck driver, including driving a manual
transmission, while using his prosthetic device.” CCRC did not limit Henschel’s testing
to the essential functions of a truck driver; rather, on the direction of Stocking, Krchmar
tested Henschel’s ability to perform job functions related to every position at CCRC.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 4
After receiving the results of the testing from Stocking, the Michigan Traffic Safety
Division granted Henschel a medical waiver allowing him to retain his CDL, but limited
him to automatic-transmission vehicles.
After Henschel’s testing, CCRC did not try to return him to the excavator but
looked into assigning him to a year-round blade truck driver position in an automatic-
transmission blade truck. CCRC employed 13 blade truck drivers, one for each of its
13 automatic-transmission blade trucks; CCRC’s manual-transmission blade trucks were
used as spares but there were not any automatic-transmission spares. Following
discussions with the Union, CCRC drafted and brought to the Union a letter of
understanding whereby the Union would ask its current blade truck drivers if any would
be willing to give up his automatic-transmission truck for Henschel and if none were
willing, Henschel would be given the lowest seniority driver’s truck. CCRC did not
involve the Union in the drafting of the letter of understanding and the Union did not
take a vote on it, which step would be required to revise the CBA. Two drivers initially
volunteered to give up their trucks, but CCRC did not specify the job to which a
volunteer would be transferred. CCRC apparently intended to demote the driver giving
up his truck to the laborer pay scale. One driver withdrew his offer within a few days.
The second driver trained Henschel for a week, but then also withdrew his offer to give
up his truck because he was concerned about his work stability and had determined that
Krchmar did not intend to consider him for the open excavator operator position. After
the lowest seniority blade truck driver said that he did not want to give up his truck, the
Union withdrew the letter of understanding with CCRC. CCRC’s management decided
that it did not have a position for Henschel and ultimately that he would be terminated.
In a letter to Henschel, CCRC told him that he was being terminated because of
his inability to transport the excavator to the work site. Before terminating Henschel,
CCRC did not ask the semi-truck driver if he would be willing and able to be responsible
for hauling the excavator, nor does the record demonstrate that CCRC asked any of its
other employees who were qualified to drive the semi-truck. Henschel was officially
terminated in August 2010.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 5
Henschel filed a claim against CCRC with the Equal Employment Opportunity
Commission (EEOC). In a September 29, 2011 letter, the EEOC sent a determination
letter stating that the evidence submitted supported a finding of a violation of the ADA.
In April 2012, Henschel filed suit against CCRC under the ADA. The district court
ruled for CCRC on summary judgment, finding that transporting the excavator to the
work site was an essential function of the excavator operator position, that Henschel was
unable to haul the excavator, and that reassigning him to a year-round truck driver
position was not a reasonable accommodation.
II. Standard of Review
We review the district court's grant of summary judgment de novo. Saroli v.
Automation & Modular Components, Inc., 405 F.3d 446, 450 (6th Cir. 2005). In doing
so, we draw all reasonable inferences and view the evidence in the light most favorable
to the appellant in order to determine if there is a genuine issue of material fact.
E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 561 (6th Cir. 2001). Where there
is a genuine issue of material fact, summary judgment is not appropriate. Id. A genuine
issue for trial exists where reasonable minds could differ on a material fact. See Keith
v. Cnty. of Oakland, 703 F.3d 918, 926–27 (6th Cir. 2013).
III. Analysis
In an employment discrimination case under the ADA, a plaintiff must 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 job, with or without reasonable accommodation;
and 3) he suffered an adverse employment decision because of his disability. Gilday v.
Mecosta Cnty., 124 F.3d 760, 762 (6th Cir. 1997); 42 U.S.C. § 12111(8). CCRC
contends that Henschel’s claim fails at the second prong because Henschel is not
qualified for employment with CCRC, with or without reasonable accommodations.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 6
A. Essential Function
The determination of what responsibilities are essential functions is “typically
a question of fact and thus not suitable for resolution through a motion for judgment as
matter of law . . . .” Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 849 (6th Cir.
1998); Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d 719, 726 (6th Cir. 2000)
(“The inquiry into whether a function is essential is highly fact specific.”). “A job
function is essential if its removal would ‘fundamentally alter’ the position.” Kiphart
v. Saturn Corp., 251 F.3d 573, 584 (6th Cir. 2001) (quoting 29 C.F.R. § 1630.2(n) app.
at 356). According to the ADA, “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an employer has prepared a
written 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). The regulations accompanying the ADA provide seven non-exclusive
factors for determining whether a particular function is essential:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The 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); Brickers, 145 F.3d at 849.
In finding that hauling the excavator was an essential function, the district court
relied on: (1) CCRC’s testimonial opinion that hauling is an essential function of the
excavator operator position; (2) on its own conclusions that the position would
fundamentally change if that responsibility were given to another employee; and (3) that
CCRC lacked other employees to undertake the responsibility.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 7
As the employer, CCRC’s opinion that hauling is an essential function carries
weight but is only one factor to be considered. 29 C.F.R. 1630.2(n)(3)(i); see Mustafa
v. Clark Cnty Sch. Dist., 157 F.3d 1169, 1175 n.6 (9th Cir.1998) (stating that a school
district’s assertion that classroom teaching was an essential function of a teacher “does
not qualify as an undisputed statement of fact in the context of a motion for summary
judgment.”). A court also must “conduct a fact-specific inquiry into both the employer’s
description of a job and how the job is actually performed in practice.” McMillan v. City
of New York, 711 F.3d 120, 126 (2d Cir. 2013) (internal quotation marks omitted); see
also Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988) (finding that in
addition to looking to job descriptions, evaluating the essential functions of a position
“should reflect the actual functioning and circumstances of the particular enterprise
involved.”).
We next review the job descriptions created by CCRC. 29 C.F.R.
1630.2(n)(3)(ii). First, the duty of hauling equipment is already assigned; it is specified
in the job description for the Truck/Tractor Driver. Second, none of the three excavator
operator job descriptions posted by CCRC since 2007 included hauling the
excavator—or driving a manual transmission. The excavator operator job descriptions
do include “Other duties assigned” as a job duty. The district court found it important
that Clare County Manager Ron Bushong said that the other duties assigned may be
“anything from any of the other [job] categories.” However, not every other duty under
every other job category is an essential function of the excavator operator position. To
reach that conclusion would make the various job descriptions meaningless. Essential
functions are those that are fundamental to a particular position, not marginal functions.
29 C.F.R. § 1630.2(n)(1).
The remaining five factors specified in the regulations for determining if a
function is essential examine the actual functions and circumstances of the position.
Turning to those, we first examine the amount of time that the excavator operator spends
hauling the excavator and the consequences of reassigning this responsibility. 29 C.F.R.
§ 1630.2(n)(3)(iii)–(iv). The district court determined that hauling the excavator took
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 8
a substantial amount of the excavator operator’s time, relying on Henschel’s testimony
that he hauled it 70 percent of the time. That evidence, however, only addresses the
distribution of the work, not the amount of time actually spent transporting the
excavator. The excavator is not moved every day and is sometimes operated at the same
work site for weeks at a time. Henschel testified that 90 percent of the time, the
excavator stayed at the job site. The record does not address how much time Henschel
actually spent hauling the excavator to different work sites, but this obviously varies
depending on the number and location of work sites. Viewed in the light most favorable
to Henschel, there is sufficient evidence that hauling the excavator did not take much of
the excavator operator’s time and was a relatively marginal function. 29 C.F.R.
§ 1630.2(n)(3)(iii).
The district court also found that CCRC lacked employees to take on the
responsibility of hauling the excavator because CCRC previously had two regular semi-
truck drivers but during Henschel’s employment, only had one. There is evidence in the
record, however, to support the inference that even with only one regular semi-truck
driver there would be minimal consequences to CCRC’s operations if the excavator
operator no longer hauled the excavator. See 29 C.F.R. § 1630.2(n)(3)(iv). Schunk, a
former excavator operator for CCRC, testified that the semi-truck driver could have
hauled the excavator for Henschel without a problem and that there were a number of
CCRC employees other than the semi-truck driver who could do so when needed. In
Schunk’s experience as excavator operator—when CCRC had two semi-truck drivers
rather one—a semi-truck driver was responsible for hauling the excavator to the work
site and Schunk drove an automatic-transmission pickup truck to the excavator work
site. See 29 C.F.R. § 1630.2(n)(3)(vi). While the number of regular semi-truck drivers
has been reduced, Schunk’s prior experience should not be summarily dismissed, given
the evidence that hauling the excavator entailed a marginal time investment and that
other CCRC employees were qualified and capable of doing the hauling. Furthermore,
Robert Fisch, CCRC’s semi-truck driver when Henschel attempted to return to work,
testified that while he regularly had other day-long responsibilities, he would be able to
do the hauling.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 9
CCRC’s written job descriptions provide evidence that hauling the excavator was
the Truck/Tractor Driver’s job duty and not one of the excavator operator’s essential
functions. There is also sufficient evidence for a reasonable jury to find that a number
of the other factors—including the amount of time hauling takes, the consequences to
other positions, and the experiences of past incumbents—support Henschel’s position.
CCRC’s testimonial opinion is simply one factor that cuts the other way. Thus, there
exists a genuine issue of material fact concerning whether hauling the excavator is an
essential function of the excavator operator position, and summary judgment is not
appropriate.
Because the district court found that hauling the excavator was an essential
function and that Henschel was unable to perform that function, it did not address
CCRC’s second argument for summary judgment—that Henschel could not operate the
excavator safely. Whether a disabled individual is qualified for a position, with or
without reasonable accommodation, requires an individualized inquiry into the facts.
See Hall, 857 F.2d at 1078–79. The record appears to reflect a dispute of fact on this
issue. CCRC submitted evidence that Krchmar, Bushong, and John Smith—the local
AFSCME Union head at the time of Henschel’s attempted return—did not believe that
Henschel could operate the excavator safely. Henschel submitted evidence that Schunk,
a former CCRC excavator operator; Pifer, a CCRC employee who has operated the
excavator at times; and A. David Brayton, a former Michigan Occupational Safety and
Health Administration Construction Safety Inspector, all believed that Henschel could
operate the excavator safely. While we may decide an appeal of summary judgment on
an issue not decided by the district court, Yeager v. Gen. Motors Corp., 265 F.3d 389,
396 (6th Cir. 2001), “absent exceptional circumstances, we normally decline to rule on
an issue not decided below.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 576 (6th
Cir. 2013) (internal quotation marks omitted). We decline to rule here and remand to the
district court to determine in the first instance if a genuine issue of material fact exists
as to whether Henschel is qualified to operate the excavator.
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 10
B. Reasonable Accommodation
The district court also determined that CCRC did not violate the ADA by failing
to reassign Henschel to a year-round blade truck driver position because that was not a
reasonable accommodation. A reasonable accommodation is one that is objectively
reasonable “in the sense both of efficacious and of proportional to costs.” Keith, 703
F.3d at 927 (internal quotation marks omitted). If an accommodation would break an
employer, it is not reasonable. Id. “The reasonableness of a requested accommodation
is generally a question of fact.” Id.
A reasonable accommodation may include “reassignment to a vacant position.”
42 U.S.C. § 12111(9)(B); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th
Cir. 2007). However, there is no requirement that an employer violate a collective
bargaining agreement or create a new position in order to return a disabled employee to
work. Id.; Bratten v. SSI Servs., Inc., 185 F.3d 625, 634 (6th Cir. 1999). The ADA only
requires that an employee be reassigned to an open position for which the employee is
qualified, with or without accommodations. Kleiber, 485 F.3d at 869. While the
proposed letter of understanding between CCRC and the Union offered a way to return
Henschel to work as a year-round blade truck driver, that ultimately would have
required the Union to remove a more senior employee from his position without assuring
him a position at an equal pay-scale. As a result, the Union withdrew from the letter of
understanding prior to its formalization by vote. The CBA does not allow the county to
unilaterally reassign employees to different positions. In order to return Henschel to
work as a year-round blade truck driver, CCRC would have had to transfer a blade truck
driver to a different position in violation of the CBA or create an additional year-round
blade truck driver position. Under these circumstances, the district court did not err in
finding that there was no genuine issue of material fact regarding reassignment and that
reassignment was not a reasonable accommodation as a matter of law.
This analysis does not address the question of whether assigning Henschel to an
automatic transmission blade truck or grader to plow snow during the winter as part of
the excavator operator position would have been a reasonable accommodation. The
No. 13-1528 Henschel v. Clare Cnty. Road Comm’n Page 11
ADA requires job restructuring of non-essential duties as a reasonable accommodation
in appropriate circumstances. Bratten, 185 F.3d at 632. The CBA allows CCRC some
authority to allocate machinery, such as potentially shuffling blade trucks among their
drivers, and assigning Henschel to an automatic-transmission blade truck and moving
a current blade truck driver to a manual-transmission spare blade truck during the winter
does not involve creating a new position or assigning an employee to a different job.
Whether this or another accommodation was reasonable and permissible under the CBA
are questions that the district court did not reach.
IV. Conclusion
For the foregoing reasons, genuine issues of material fact remain regarding
whether Henschel is qualified, with or without accommodations, for the excavator
operator position. We REVERSE the district court’s grant of summary judgment in
favor of Clare County Road Commission on the basis that hauling the excavator is an
essential function of the excavator operator position; we AFFIRM the district court’s
determination that reassigning Henschel to a year-long blade truck driver position was
not a reasonable accommodation; and we REMAND to the district court to determine
if genuine issues of material fact exist regarding whether Henschel was qualified, with
or without accommodations, to perform the various functions throughout the year of the
excavator operator position.