Stansbury v. Blue Cross of Idaho Health Service, Inc.

SCHROEDER, Justice

dissenting.

The district court found that Stansbury’s claims failed because she did not demonstrate that with reasonable accommodation she could have performed the essential functions of her job and processed claims at a rate of 85 percent. This Court reverses the district court’s decision, citing several bases.

First, Stansbury asserts that Blue Cross ignored her request to provide an ergonomist to analyze her work area and ensure that it was set up in a manner which would alleviate her back and shoulder pains. Under the circumstances of this case that is a bare assertion that should be given no weight. In fact, Blue Cross had provided an ergonomist for Stansbury when she was employed in Oregon. Any accommodation that might have been made was within her knowledge, but she failed to set forth any facts establishing what such an accommodation might be. If a reasonable accommodation were possible, Stansbury knew what it was and should have told the district court, rather than sim*687ply making a eonclusory assertion that an ergonomist should have been provided.

The second ground upon which the Court relies is the failure of Blue Cross to discontinue weekly meetings with Stansbury. The record does establish that Blue Cross had changed the date of the weekly meetings to accommodate Stansbmys concerns. In essence Stansbury says that she should not have been supervised. This Court should not impose such a burden upon an employer.

The third basis for the Court’s decision is that Blue Cross failed to transfer Stansbury to a customer service position. That would not be an accommodation. That would be a requirement that an employer hire a person for a job different from what that person was initially hired to do.

The affidavits of the doctor and the counselor that are cited provide no basis to determine what reasonable accommodations could have been made. The assertions in these affidavits are simply too vague to provide guidance as to what Blue Cross failed to do that it could have done.

The district court correctly analyzed the issue as follows:

The ability to process claims at a rate of at least 85% of her performance standard was an essential function of Ann Stansbury’s job. See Bolton v. Scrivner, Inc., 836 F.Supp. 783, 788 n. 4 (W.D.Okla.1993) (ADA does not require an employer to modify the actual duties of a job in order to accommodate an individual who is not physically capable of performing those duties). Unfortunately, the plaintiff was not able to meet the performance standard required for her job.
The law also requires employers to make reasonable accommodations so that an employee with a disability can perform the essential functions of her position. Unfortunately, there is no evidence that, other than requiring her employer to lower its performance standards — which is not required, the plaintiff would have been able to perform the essential functions of her position even with reasonable accommodation by Blue Cross. The plaintiff has failed to show that with a reasonable accommodation she was qualified to do her job, an essential element of her disability discrimination claim. C.f., Lutter v. Fowler, 1 A.D. Cases 861, 864, 1986 WL 13138 (D.D.C.1986) (granting summary judgment in favor of employer in Rehabilitation Act case where, assuming that employee in fact had a mental handicap, employee had faded to present any evidence that he would have been able to perform the essential functions of his job with a reasonable accommodation).
The plaintiff has failed to establish that, with or without reasonable accommodation, she was qualified to do her job, an element essential to her disability discrimination claim on which she would bear the burden of proof at trial. Because this is a key element, the claim fails.

Conclusory and speculative assertions should not be sufficient to deny a motion for summary judgment that has been supported by specific allegations of fact. There is no showing of facts by Stansbury of what a reasonable accommodation would have been that would have allowed her to perform the job she was hired to do. The district court decision should be affirmed.