UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2079
WHITNEY C. STEPHENSON,
Plaintiff – Appellant,
v.
PFIZER, INCORPORATED,
Defendant – Appellee.
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DISABILITY RIGHTS NORTH CAROLINA; NATIONAL DISABILITY RIGHTS
NETWORK; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION,
Amici Supporting Appellant,
EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA; NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER,
Amici Supporting Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cv-00147-TDS-LPA)
Argued: October 27, 2015 Decided: March 2, 2016
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Robert Mauldin Elliot, ELLIOT MORGAN PARSONAGE, PLLC,
Winston-Salem, North Carolina, for Appellant. Stephanie E. Lewis,
JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.
Barbara L. Sloan, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C. for Amicus Curiae. ON BRIEF: Daniel C. Lyon,
ELLIOT MORGAN PARSONAGE, PLLC, Winston-Salem, North Carolina, for
Appellant. Jonathan A. Roth, JACKSON LEWIS P.C., Greenville, South
Carolina, for Appellee. P. David Lopez, General Counsel, Carolyn
L. Wheeler, Acting Associate General Counsel, Jennifer S.
Goldstein, Acting Assistant General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus U.S. Equal
Employment Opportunity Commission. Lisa Grafstein, Katherine
Slager, DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina,
for Amici Disability Rights North Carolina, National Disability
Rights Network and National Employment Lawyers Association.
Kathryn Comerford Todd, Warren Postman, U.S. CHAMBER LITIGATION
CENTER, INC., Washington, D.C., for Amicus Chamber of Commerce of
the United States of America; Rae T. Vann, NORRIS, TYSSE, LAMPLEY
& LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council; Karen R. Harned, Elizabeth Milito, NATIONAL
FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER,
Washington, D.C. for Amicus National Federation of Independent
Business Small Business Legal Center.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Whitney C. Stephenson appeals from the district court’s award
of summary judgment to Pfizer, Incorporated, in an action under
the Americans with Disabilities Act (the “ADA”). Stephenson —
who worked as a pharmaceutical sales representative for Pfizer
until November 2011, just after an eye disorder rendered her unable
to operate an automobile — contends that the company violated the
ADA by summarily denying her request for a driver. Pfizer
maintains that driving an automobile is an essential function of
Stephenson’s job that she must perform personally, and the court
awarded summary judgment to Pfizer on that basis. As explained
below, we vacate and remand because summary judgment was not
warranted.
I.
A.
In February 2013, Stephenson filed her complaint in the Middle
District of North Carolina, alleging that Pfizer had contravened
the ADA by denying a reasonable accommodation that would have
allowed her to return to her position as a pharmaceutical sales
representative. The summary judgment record — which includes
3
depositions, affidavits, and exhibits — provides the factual
background of this dispute. 1
1.
Stephenson began her career as a pharmaceutical sales
representative in 1984, after graduating from Duke University.
For nearly thirty years, Stephenson worked for Pfizer or its
predecessor Warner-Lambert as a sales representative in and around
Winston-Salem, North Carolina. That position required her to make
in-person presentations about pharmaceutical products, with the
goal of convincing medical professionals — generally primary care
physicians — to prescribe those products for their patients. 2
Stephenson was, by all accounts, an exemplary salesperson.
Early in her career, in 1985, she was named “Rookie of the Year”
by her employer. Fifteen years later, Pfizer inducted Stephenson
1 Because we are reviewing an award of summary judgment to
Pfizer, we are obliged to accept and recite the relevant facts in
the light most favorable to Stephenson. See Rhoads v. FDIC, 257
F.3d 373, 386 (4th Cir. 2001).
2 Pfizer’s Winston-Salem, North Carolina district, where
Stephenson worked, was bounded by the municipalities of Mount Airy,
Madison, Kernersville, and Mocksville, within Surry, Rockingham,
Forsyth, and Davie counties. Approximately 2300 physicians
possess active licenses within those counties, and nearly ninety
percent of those doctors are in Forsyth County, predominately in
Winston-Salem. See N.C. Med. Bd., Licensee Search,
http://www.ncmedboard.org/ (follow “Start Search” hyperlink; then
select “Physician” license type and “Active” license status; then
search by county) (last visited Feb. 16, 2016). The two major
medical centers in the district — Wake Forest Baptist and Novant
Health Forsyth — are in Winston-Salem, where Stephenson resides.
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into its “Hall of Fame,” an honor bestowed on fewer than a hundred
sales representatives in the company’s history. Stephenson
subsequently earned recognition in national sales contests and was
named a “Pfizer Master” in honor of her sales and leadership
achievements.
Stephenson attributed her success as a Pfizer sales
representative to fastidious preparation for sales meetings. She
stayed on top of current medical research and developments in the
pharmaceutical industry. Using her thorough understanding of
various diseases, her company’s products, and the products of
competitors, Stephenson prepared clear and concise presentations
that accurately conveyed complex information to physicians.
Stephenson’s dedication and know-how earned her credibility with
doctors, who in turn were more likely to prescribe Pfizer’s
products. As a result, Stephenson generated millions of dollars
in sales each year for Pfizer and consistently ranked as one of
its top sales representatives in North Carolina.
Because her job required meetings with physicians in their
offices, Stephenson did not maintain an office at a Pfizer
facility. Instead, Pfizer provided her with a car to travel from
her home in Winston-Salem to sales meetings. Stephenson spent
most of the workday in meetings with doctors. She usually worked
about ten hours a day, with eight of those away from home and “on
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the road.” See J.A. 78. 3 Although Stephenson could not perform
her job without meeting with medical professionals in person, she
understood her job to require travelling, and driving an automobile
was her method of doing so.
Stephenson’s job description says nothing about driving an
automobile or even possessing a driver’s license. 4 It does,
however, outline Stephenson’s position with Pfizer with
substantial specificity, including the following:
[Sales representatives] may have a variety of roles,
such as the responsibility for sales targets and
physician relationships within a specific geography
. . . [;] must demonstrate a strong understanding of
necessary disease states and possess a solid ability to
communicate necessary technical, scientific, and product
and disease management information to customers . . .
[;] [and] will provide the most current information
pertaining to Pfizer products and their approved
indications in a manner which will ensure the
appropriate use of these products and achieve the
business potential of the territory.
J.A. 521. According to her job description, a sales representative
must possess business savvy, be familiar with sales reporting
software, and have a college degree or equivalent experience in
pharmaceutical sales. A Pfizer sales representative must also
3 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
4 Stephenson’s direct supervisor, district manager Thomas
Rulon, produced and authenticated Stephenson’s job description.
His affidavit explained that the job description was “accurate as
to the qualifications and essential functions required of sales
representatives” from 2004 through 2011. See J.A. 515.
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demonstrate several “core competencies”: good judgment;
accountability; self-motivation; effective problem solving; other
sales-related skills focused on building relationships with
physicians and executing effective sales strategies; and
commitment to Pfizer’s “culture, values and mission.” See id. at
521-22.
2.
In October 2008, Stephenson developed an eye disorder called
Non-Arteritic Anterior Ischemic Optic Neuropathy (“NAION”), which
affects the flow of blood to one or both of the optic nerves. As
a result, Stephenson lost sixty percent of the vision in her left
eye. She was nevertheless able to continue working, without
accommodations, for the next three years. By October 2011,
however, Stephenson developed NAION in her right eye and lost sixty
percent of the vision in that eye. Due to her combined vision
loss, Stephenson could no longer drive an automobile. Shortly
thereafter, in November 2011, Stephenson went on disability leave,
which is her present status with Pfizer.
On October 27, 2011, Stephenson asked Pfizer to accommodate
her vision problems. More specifically, she sought a driver to
take her to sales meetings, asked for magnifying software for her
computer, and requested magnifying tools to assist her in reading
documents. While awaiting Pfizer’s response, Stephenson and her
husband researched and received pricing estimates from potential
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drivers and shuttle services that could transport her to sales
meetings. Stephenson forwarded some of that information to Pfizer,
but for about a month heard nothing regarding her accommodations
request.
By a November 28, 2011 email, Pfizer granted Stephenson’s
requests for computer software and reading tools but rejected her
request for a driver. Pfizer did not suggest that the cost of
hiring or retaining a driver was a factor in the denial, but
maintained that the denial was based on Pfizer’s conclusions that
driving an automobile was an essential function of her sales
position and that hiring a driver would be “inherently
unreasonable.” See J.A. 593. Explaining those conclusions, Pfizer
pointed out that it would face “significant increased risk and
liability related to vehicular accidents, workers compensation,
and misappropriation of and/or lost drug samples.” Id.
Over the next several months, Stephenson repeated her request
for a driver in phone calls and emails with Pfizer managers. Each
time, she received the same answer: driving is an essential
function of her sales position and providing a driver for her would
be an unreasonable accommodation. Revealingly, Pfizer’s North
Carolina regional business director, Thomas Salamone, advised
Stephenson in early 2012 that Pfizer was concerned about “setting
precedent in case a future non-performing employee were to ask for
something similar,” explaining, “Not everyone is a Whitney
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Stephenson.” See J.A. 481. Instead of discussing an accommodation
that could get Stephenson back to work meeting with doctors, Pfizer
directed her to other positions within the company that did not
require travelling. Stephenson declined to pursue any other
positions, however, believing that her skills were best suited to
the sales representative job in which she had excelled for decades.
On April 25, 2012, Stephenson filed a charge of disability
discrimination with the Equal Employment Opportunity Commission
(the “EEOC”). In November 2012, the EEOC issued a notice informing
Stephenson of her right to sue. These court proceedings ensued.
B.
By memorandum opinion and order of September 8, 2014, the
district court awarded summary judgment to Pfizer. See Stephenson
v. Pfizer, Inc., 49 F. Supp. 3d 434 (M.D.N.C. 2014) (the
“Opinion”). The Opinion concluded that the essential functions of
Stephenson’s sales representative position with Pfizer were not
genuinely in dispute and that driving an automobile was essential
to her job. The bases for those conclusions included: Pfizer’s
assertion that driving is essential; Stephenson’s statement that
she spent “the bulk” of her day travelling between doctors’
offices; Stephenson’s acknowledgement that she could not perform
her job unless she was able to travel to doctors’ offices; and
Pfizer’s statement that all of its North Carolina sales
representatives drove themselves. See id. at 440. The Opinion
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identified a number of statutory and regulatory factors that guide
an essential-function inquiry and concluded that the balance of
those factors favored Pfizer’s argument that driving was essential
to Stephenson’s position.
Notably, the Opinion recited that “[t]here appears to be a
genuine dispute as to whether Pfizer’s posted job descriptions for
sales representative positions explicitly require a job candidate
to be able to drive.” Stephenson, 49 F. Supp. 3d at 440. The
Opinion did not, however, mention Stephenson’s job description,
which says nothing about driving. 5 In any event, the Opinion
discounted the dispute, reasoning that “the absence of a purported
essential function from a posted job description is not
dispositive.” See id.
The Opinion also explained that the ADA does not require an
employer to reassign, reallocate, or adjust essential functions.
As a result, the Opinion concluded that Stephenson’s request for
5 Apart from Stephenson’s job description, the discovery
process revealed several job postings for sales positions at
Pfizer. At least five job postings in 2014 for Pfizer sales
positions say nothing about driving or possessing a driver’s
license. In contrast, two other 2014 postings for Pfizer sales
positions include requirements for job applicants to “have a valid
US driver’s license and a driving record in compliance with company
standards.” See J.A. 493, 496. Pfizer also relied on an undated
document titled “Essential job functions for a Pfizer Professional
Healthcare Representative.” That document states that a sales
representative should “be able to safely operate a motor vehicle
in accordance with company policy and applicable driving rules and
regulations.” See id. at 454.
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a driver was unreasonable as a matter of law, and that the only
accommodation Stephenson could seek from Pfizer was reassignment
to a different position. Because Stephenson had not identified
any vacant positions she was willing to accept, she had failed,
according to the Opinion, to show that Pfizer had contravened the
ADA. The district court thus awarded summary judgment to Pfizer.
Stephenson timely noted this appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
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II.
We review de novo a district court’s award of summary
judgment, viewing the evidence and the reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party. See
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir. 2013).
Summary judgment is not appropriate unless there is no genuine
dispute of material fact, such that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
III.
A.
1.
The ADA bars an employer from discriminating “against a
qualified individual on the basis of disability.” See 42 U.S.C.
§ 12112(a). Such discrimination can occur when an employer fails
to accommodate the known disability of a qualified employee. See
id. § 12112(b)(5). In order for an employee to be a “qualified
individual” under the ADA, she must be able to “perform the
essential functions of the employment position,” either “with or
without reasonable accommodation.” Id. § 12111(8). A reasonable
accommodation, in turn, “is one that ‘enables a qualified
individual with a disability to perform the essential functions of
a position.’” Jacobs v. N.C. Admin. Office of the Courts, 780
F.3d 562, 580 (4th Cir. 2015) (quoting 29 C.F.R.
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§ 1630.2(o)(1)(ii)). Under the ADA, an employer has “a good-faith
duty to engage with [its employee] in an interactive process to
identify a reasonable accommodation.” Id. at 581 (internal
quotation marks omitted).
Crucially, the ADA does not require an employer to reassign
any of the essential functions of a disabled employee, nor does it
require an employer to hire additional employees to perform an
essential function. See Martinson v. Kinney Shoe Corp., 104 F.3d
683, 687 (4th Cir. 1997). 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.” Jacobs, 780 F.3d at 581. Such an accommodation can
include job restructuring, modifications to a work schedule,
reassignment to a different position, the use or modification of
equipment that enables the individual to perform her job, or even
“the provision of qualified readers or interpreters.” See 42
U.S.C. § 12111(9)(B).
We have construed the ADA to require a plaintiff pursuing a
failure-to-accommodate claim to satisfy four elements: (1) that
she had a disability within the meaning of the statute; (2) that
her employer had notice of the disability; (3) that she could
perform the essential functions of her job with a reasonable
accommodation; and (4) that her employer declined to make such an
accommodation. See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345
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(4th Cir. 2013). If the plaintiff proves the elements of her
failure-to-accommodate claim, the employer can yet avoid liability
by showing “that the proposed accommodation will cause undue
hardship in the particular circumstances.” Reyazuddin v.
Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015) (internal
quotation marks omitted).
2.
The third element of a failure-to-accommodate claim requires,
in part, an inquiry into the essential functions of the relevant
position. In the context of the ADA, “[n]ot all job requirements
or functions are essential.” Jacobs 780 F.3d at 579. Instead,
the functions of a job that are essential include only those “that
bear more than a marginal relationship to the job at issue.”
Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th
Cir. 1994) (internal quotation marks omitted). Identifying the
essential functions of a job requires a factual inquiry that is
guided by several statutory and regulatory factors. See Jacobs,
780 F.3d at 579.
The ADA identifies two factors that inform whether a
particular function is essential to a position. First, the
employer’s judgment of the essential functions must be considered.
See 42 U.S.C. § 12111(8). Second, if a written job description
has been prepared ahead of advertising or interviewing candidates
14
for a position, that description “shall be considered evidence of
the essential functions of the job.” See id. 6
The applicable regulations provide additional guidance on an
essential-function inquiry. First, the regulations define the
essential functions as “the fundamental job duties of the
employment position the individual with a disability holds or
desires,” excluding “the marginal functions of the position.” See
29 C.F.R. § 1630.2(n)(1). Second, the regulations identify seven
factors that are “evidence of whether a particular function is
essential”:
• “the employer’s judgment as to which functions are
essential”;
• “written job descriptions prepared before
advertising or interviewing applicants for the
job”;
• “the amount of time spent on the job performing the
function”;
• “the consequences of not requiring the incumbent to
perform the function”;
6 In pertinent part, the applicable ADA provision concerning
the employer’s judgment and the job description specifies that
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.
See 42 U.S.C. § 12111(8).
15
• “the terms of a collective bargaining agreement”;
• “the work experience of past incumbents in the
job”;
• “the current work experience of incumbents in
similar jobs.”
See id. § 1630.2(n)(3)(i)-(vii). 7 None of those seven factors is
dispositive, and not all of them will be relevant in every case.
See, e.g., Jacobs, 780 F.3d at 579 (considering some but not all
regulatory factors); Martinson, 104 F.3d at 687 (same).
Furthermore, the list of factors is not exhaustive. See 29 C.F.R.
§ 1630.2(n)(2)(3) (explaining that proof of essential functions
includes, “but is not limited to,” evidence identified by
regulatory factors). Thus, for example, a written job description
prepared after advertising or interviewing applicants for the job
could be relevant evidence of whether a particular function is
essential. See Basith v. Cook Cty., 241 F.3d 919, 928 (7th Cir.
7 The regulations also provide three examples of situations
where a function can be essential:
• the job exists specifically to perform the
function;
• the small size of the workforce requires all
employees to be able to perform the function;
• the employee is hired for her expertise in
performing the highly specialized function.
See 29 C.F.R. § 1630.2(n)(2)(i)-(iii).
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2001) (using job description created after hiring as evidence of
essential functions).
B.
With respect to the third and fourth elements of Stephenson’s
failure-to-accommodate claim — whether she could perform her
position’s essential functions with a reasonable accommodation and
whether Pfizer declined to make such an accommodation — the
parties dispute whether the ability to drive an automobile is an
essential function of Stephenson’s sales position with Pfizer.
Pfizer contends that driving is essential, while Stephenson
maintains that travelling — not driving — is the function at
issue. Resolving that dispute is critical to Stephenson’s ADA
claim because, under the statute, an employer must accommodate
only an employee who is “qualified,” that is, able to perform her
position’s essential functions with or without an accommodation.
See 42 U.S.C. § 12111(8).
If driving is an essential function of her sales position,
Stephenson — who cannot drive no matter the accommodation — is
not qualified under the ADA and her claim fails as a matter of
law. On the record before us, however, summary judgment is not
warranted because there is a genuine dispute of material fact as
17
to whether the essential function at issue is driving or
travelling. That factual dispute is for a jury to resolve. 8
IV.
Pursuant to the foregoing, we vacate the district court’s
award of summary judgment and remand for such other and further
proceedings as may be appropriate.
VACATED AND REMANDED
8 There is also a genuine dispute of material fact as to the
alternative basis proffered by Pfizer for upholding the judgment
in its favor: that, even if driving a car is not essential to
Stephenson’s job, hiring or retaining a driver would be an
unreasonable accommodation.
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