Terrell v. USAIR

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________________

No. 96-2345
_____________________________________

D. C. Docket No. 94-245-CIV-ORL-22

PEGGY H. TERRELL,

Plaintiff-Appellant,

versus

USAIR,

Defendant-Appellee.

______________________________________

Appeal from the United States District Court
for the Middle District of Florida
_______________________________________

(January 6, 1998)

Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Plaintiff-Appellant appeals the district court’s grant of

summary judgment on her claim under the Americans with
Disabilities Act (“ADA”). Plaintiff argues that the district court

erred in concluding as a matter of law (1) that she was not

disabled and (2) that, in the alternative, USAir had reasonably

accommodated her as required by the ADA. We hold that, even

assuming Plaintiff had a disability as defined by the ADA, USAir

reasonably accommodated Plaintiff’s disability. Because

summary judgment was proper on the reasonable

accommodation issue, we affirm.

I.

Plaintiff Peggy H. Terrell has been employed by USAir (or

its predecessor, Piedmont Aviation) since 1982 as a

reservations sales agent. She is currently employed at USAir’s

Orlando Reservations Center. As a reservations agent, Plaintiff

sits at a computer terminal, takes calls from people making

inquiries or seeking to make flight arrangements, provides

2
information and makes passenger reservations. The job

requires Plaintiff to type constantly on a keyboard or telephone

keypad.

In 1991, Plaintiff filed a workers’ compensation claim

alleging she had developed carpal tunnel syndrome (“CTS”)

because of her job. Plaintiff’s physician, Dr. White, prescribed

restrictions on the hours which Plaintiff could work each day.

During 1991 and 1992, Plaintiff made four requests for schedule

modifications based on Dr. White’s advice; and USAir modified

Plaintiff’s schedule each time as requested.1

In 1992, a second physician, Dr. Foncea, recommended

surgery for Plaintiff’s condition and also recommended that the

four-hour restriction on her workday continue. While on leave

1
In December 1991, Plaintiff was limited to working four hours
per day for three days. In January 1992, she was limited to
working four hours per day for two weeks then six hours per day
for another two weeks. In March 1992, Plaintiff was limited to six
hours of work per day. In June 1992, she was limited again to
four hours of work per day.
3
for her surgery, Plaintiff continued to receive her full-time

salary until 8 February 1993, under USAir’s salary continuance

program, which pays the difference between worker’s

compensation benefits and the employee’s full-time salary.

Following her surgery on 9 December 1992, Plaintiff was unable

to return to work until 19 April 1993. After Plaintiff’s return to

work in April 1993, Dr. Foncea recommended that she remain

restricted to four-hour days, which USAir accommodated.

Beginning in April 1993, Plaintiff was compensated only for the

hours she actually worked.

While Plaintiff was on medical leave for her surgery, Dr.

Foncea also requested that USAir modify Plaintiff’s work

station “according to advice.” Plaintiff understood the

modifications to include a drop keyboard.2 When Plaintiff

returned to work in April 1993, she was not provided with a

2
A “drop keyboard” is a keyboard that is adjustable in height
and depth to make its use more comfortable.
4
drop keyboard, but was told to use a work station with a drop

keyboard when it was available. When a drop keyboard was

unavailable and Plaintiff complained to her supervisor about

increased pain, she was told just to listen in on other agents’

calls.

By 28 May 1993, Plaintiff had exceeded the sixty-day limit

allowed by USAir for injured employees to work on “limited

duty” (meaning fewer hours than the employee’s scheduled

shift); and USAir placed her on unpaid medical leave. At that

time, USAir had no permanent part-time reservations agents at

the Orlando Center because the part-time employees had been

furloughed during 1990 and 1991. In late 1993, however, USAir

reconsidered using part-time reservations agents at its Orlando

Center and contacted Plaintiff, along with other former part-time

reservations agents who had been furloughed in 1990 and 1991,

about whether she was interested in working part-time at USAir.

Plaintiff responded that she was interested, and she was

5
recalled as a part-time reservations agent in April 1994. After

she returned, Plaintiff was provided with a drop keyboard. The

recalled part-time agents initially worked four hour shifts until

USAir lengthened the part-time shifts to five hours. Plaintiff

worked the new five hour shift for a few months until October

1994, when her doctor recommended that she work only four

hours per day. USAir modified Plaintiff’s schedule as

requested; and, as of the date of oral argument in this case,

Plaintiff continued to work four hours per day as a reservations

agent for USAir.

In 1994, Plaintiff sued USAir for discrimination in violation

of the ADA and the Age Discrimination in Employment Act

(“ADEA”). The district court granted summary judgment for

Defendant USAir on both claims.3 On Plaintiff’s ADA claim, the

district court concluded that Plaintiff had not presented a

3
Plaintiff does not appeal the grant of summary judgment on
her age discrimination claim under the ADEA.
6
triable issue of fact on whether she was disabled and that, even

if Plaintiff was disabled, she had not presented a triable issue

of fact on whether USAir failed to accommodate reasonably her

disability. Plaintiff challenges both of these conclusions on

appeal.

II.

We review the district court’s grant of summary judgment

de novo, viewing the facts in the light most favorable to

Plaintiff. Parks v. City of Warner Robins, Ga, 43 F.3d 609, 612-

13 (11th Cir. 1995).

Discrimination under the ADA includes “not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability.”

42 U.S.C. § 12112(b)(5)(A). To state a prima facie case of

disability discrimination, a plaintiff must show (1) that she has

7
a disability; (2) that, with or without reasonable

accommodations, she can perform the essential functions of

the position she holds; and (3) that she was discriminated

against because of her disability. See Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997);

42 U.S.C. § 12111(8) (defining “qualified individual” the same as

factor (2) above). “[T]he burden of identifying an

accommodation that would allow a qualified individual to

perform the job rests with that individual, as does the ultimate

burden of persuasion with respect to demonstrating that such

an accommodation is reasonable.” Stewart, 117 F.3d at 1286;

see also Willis v. Conopco, Inc., 108 F.3d 282, 284-86 (11th Cir.

1997). Once the plaintiff has met her burden of proving that

reasonable accommodations exist, the defendant-employer

may present evidence that the plaintiff’s requested

accommodation imposes an undue hardship on the employer.

Willis, 108 F.3d at 286.

8
 For the purpose of this appeal, we assume that Plaintiff

has made a prima facie showing of disability.4 About

reasonable accommodations, Plaintiff argues that, when she

was placed on medical leave in 1993, she could perform the

essential functions of her job as a reservations agent --

including continuous typing on the keyboard -- with the

4
The ADA defines a disability, in relevant part, as “a physical
or mental impairment that substantially limits one or more of the
major life activities of such individual.” 42 U.S.C. § 12102(2).
“Working” is a “major life activity,” see Stewart, 117 F.3d at 1285
(quoting Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132
[11th Cir. 1996]), which is substantially limited when the disability
“‘significantly restrict[s the] ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and
abilities.’” Id.
Here, the district court concluded that Plaintiff was not
disabled because she had not shown that her CTS substantially
limited a major life activity. Plaintiff makes a forceful argument
that she has established a triable issue of fact on whether she is
substantially limited in the major life activity of working. At the
time of the district court’s order, she was fifty-four years old; and
she had been in the same position with USAir for over thirteen
years. She has a high school equivalency degree but no college
degree. These factors add support to her argument. We need
not address this issue, however, because the district court
correctly ruled that USAir reasonably accommodated Plaintiff’s
CTS.
9
following accommodations: (1) a part-time position; (2) a drop

keyboard; and (3) five-minute breaks every hour. She argues

USAir did not reasonably accommodate her as requested.

A. Part-Time Position

Plaintiff argues that USAir failed to accommodate her

reasonably by refusing to place her in a part-time (four hours

per day) position in May 1993 instead of placing her on unpaid

medical leave. USAir argues that it had no duty to place

Plaintiff in a part-time position as a reservations agent because

no such positions existed at USAir’s Orlando office -- much

less were vacant -- when Plaintiff was placed on medical leave.

According to the affidavit of the office administrator for USAir’s

Orlando Reservations Center, Willetta Barr, all part-time

reservations agents at the Orlando office had been furloughed

during 1990 and 1991. In late 1993, USAir decided to reinstate

10
part-time reservations agent positions and contacted former

part-time agents, including Plaintiff, about returning to work.

Plaintiff returned to work in April 1994 along with the

furloughed part-time agents.

Plaintiff argues that a factual dispute exists about whether

reservations agents worked part-time at USAir when Plaintiff

was placed on medical leave. Plaintiff points to a statement in

her affidavit that “[s]hifts come and go throughout the day at

USAir, Inc. Reservation Center in Orlando, including

reservations agents who are both full time and part time, and

my position is not vacant the four hours per day I am unable to

work.” This statement, however, does not support Plaintiff’s

argument because it refers to USAir’s employment of part-time

agents at its Orlando office in 1995 when Plaintiff made this

affidavit. The relevant factual inquiry is whether or not the

Orlando office had part-time positions available in 1993 when

Plaintiff was placed on medical leave. See also Holifield v.

11
Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (conclusory

allegations, without more, insufficient to withstand summary

judgment).

Plaintiff presented no evidence in the district court that

part-time reservations agent positions existed at USAir in 1993.

When asked in her deposition whether there were part-time

agents employed in the Orlando Reservations Center in 1991,

Plaintiff responded “I don’t think so, but I’m not really sure.”

Plaintiff also acknowledged in her deposition that, when she

returned to work part-time in 1994, USAir recalled many agents

who had been furloughed. Even viewing the evidence in the

light most favorable to Plaintiff, the district court correctly

concluded that Plaintiff has presented no issue of fact about

whether part-time reservations agent positions -- meaning

positions requiring four hours of work or less per day -- existed

at USAir when she was placed on medical leave.5

5
Evidence existed in the district court -- in the form of
12
 Accepting that no part-time reservations agent positions

existed in 1993, the question remains whether USAir had a duty

to create a part-time position for Plaintiff to accommodate her

CTS. The district court concluded that USAir was required to

Plaintiff’s deposition testimony and Barr’s affidavit -- that, at the
time Plaintiff was placed on medical leave in 1993 and throughout
her medical leave, a class of employees designated as
“intermediate agents” worked six hours per day at USAir’s
Orlando office. These “intermediate agents” were former
Piedmont (USAir’s predecessor) reservations agents who had
worked six hours per day at Piedmont and were hired in the same
capacity by USAir when Piedmont became USAir. When an
intermediate agent leaves her position at USAir, the position is
eliminated; and USAir does not hire a new intermediate agent to
fill the position. None of those positions could have
accommodated Plaintiff, whose CTS restricted her work to four
hours per day.
The existence of intermediate agent positions at USAir while
Plaintiff was on medical leave does not change our conclusion
that Plaintiff has presented no triable issue of fact on whether
“part-time” positions existed when she was placed on medical
leave. In May 1993, when USAir placed Plaintiff on leave,
Plaintiff’s doctor had limited Plaintiff to working no more than
four hours per day; and Plaintiff has continued to be limited to
four hours of work per day until the time of oral argument in this
case. Plaintiff has not shown -- that is, produced insufficient
evidence to create a question of fact -- that reservations agents at
USAir were allowed to work four-hour shifts when she was
placed on medical leave.
13
create no part-time position, relying on cases stressing that

employers are not required to create “light-duty” positions for

their disabled employees under the ADA. See, e.g., Howell v.

Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala. 1994)

(“Reasonable accommodation [] does not require that an

employer create a light-duty position or a new permanent

position.”).

Plaintiff argues that the district court erred by relying on

“light-duty” cases in holding that USAir had no duty to create

a part-time position for her. She notes that one performing

“light-duty,” by definition, is not as productive as one

performing full-duty because, “[i]n most cases, [] ‘light-duty’

positions involve a totally different job from the job that a

worker performed before the injury.” Howell, 860 F. Supp. at

1492 (quoting Equal Employment Opportunity Commission,

Technical Assistance Manual § 9.4). In contrast, a part-time

employee works the same job, only on a shortened schedule.

14
 Plaintiff asserts that the ADA establishes that part-time

work is per se a reasonable accommodation because the

statute lists “part-time or modified work schedules” as possible

accommodations. 42 U.S.C. § 12111(9)(B). According to

Plaintiff, once part-time work has been identified as a

reasonable accommodation, the burden shifts to the employer

to show undue hardship. Because USAir asserted no defense

of undue hardship in this case, Plaintiff contends that summary

judgment is inappropriate.

We disagree with Plaintiff’s characterization of her burden

of showing that a reasonable accommodation existed in this

case. Although both the statute and regulations list (“may

include”) part-time work as a potential reasonable

accommodation, we do not accept that this listing means part-

time work is always a reasonable accommodation. The ADA’s

“use of the word ‘reasonable’ as an adjective for the word

‘accommodate’ connotes that an employer is not required to

15
accommodate an employee in any manner in which that

employee desires.” Stewart, 117 F.3d at 1285 (internal

quotations and citations omitted). “This is so because the word

‘reasonable’ would be rendered superfluous in the ADA if

employers were required in every instance to provide

employees the ‘maximum accommodation or every conceivable

accommodation possible.’” Id. (internal quotations and

citations omitted). A plaintiff does not satisfy her initial burden

by simply naming a preferred accommodation -- even one

mentioned in the statute or regulations; she must show that the

accommodation is “reasonable” given her situation. Id. at 1286.

Whether an accommodation is reasonable depends on

specific circumstances. See Wernick v. Federal Reserve Bank,

91 F.3d 379, 385 (2d Cir. 1996). In a specific situation, part-time

employment may or may not be reasonable. In this case, where

USAir had no part-time jobs when Plaintiff demanded such a

position, a request for part-time employment was unreasonable.

16
 Although part-time work, as the statute and regulations

recognize, may be a reasonable accommodation in some

circumstances (particularly where the employer has part-time

jobs readily available), we hold that USAir was not required to

create a part-time position for Plaintiff where all part-time

positions had already been eliminated from the company.6 See

Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9, 16 (D.D.C. 1996),

rev’d on other grounds, 116 F.3d 588 (D.C. Cir. 1997) (“This type

of accommodation by an employer, providing an entirely new

part-time position for a disabled employee, courts have found

is not required by the ADA.”) (citations omitted). Cf. White v.

6
That USAir endeavored to accommodate Plaintiff’s CTS by
temporarily reducing her working hours on four different
occasions in 1991 and 1992 does not, by itself, prove the
reasonableness of Plaintiff’s requested accommodation. An
employer that “bends over backwards to accommodate a
disabled worker . . . must not be punished for its generosity by
being deemed to have conceded the reasonableness of so far-
reaching an accommodation.” Vande Zande v. Wisconsin Dep’t
of Administration, 44 F.3d 538, 545 (7th Cir. 1995); see also
Holbrook v. City of Alpharetta, Ga, 112 F.3d 1522, 1528 (11th Cir.
1997).
17
York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995) (“[T]he ADA

does not require an employer to promote a disabled employee

as an accommodation, nor must an employer reassign the

employee to an occupied position, nor must the employer

create a new position to accommodate the disabled worker.”).

Whether a company will staff itself with part-time workers, full-

time workers, or a mix of both is a core management policy with

which the ADA was not intended to interfere.7 Instead,

7
To require an employer to create part-time or full-time
positions when a management decision has been made to
employ only one or the other, places a heavy burden upon that
employer.
Many statutes and regulations exist that potentially affect an
employer who has no part-time workers, but is later forced to hire
part-time employees. See, e.g., 14 C.F.R. pt. 241, § 24, Schedule
P-1(a) (d)(8) (1997) and Schedule P-10(c) (specifying different
financial reporting requirements for full-time versus part-time
employees in aviation); 26 C.F.R. § 1.105-11 (1997) (differentiating
between full-time and part-time employees for income tax
purposes); 7 C.F.R. § 3403.2 (1997) (setting forth small business
classifications which require full and part-time employees to
each be counted as one employee in determining whether the
employer meets the less than 500 employees requirement to
qualify as a “small business”). Based on these and other
regulations, an employer who is forced to create a part-time work
force will be subjected to a new and complicated world of
18
employers are only required to provide “alternative employment

opportunities reasonably available under the employer’s

existing policies.” See School Bd. Of Nassau County v. Arline,

480 U.S. 273, 289 n.19 (1987).

To hold as plaintiff urges would create the anomaly that, if

Plaintiff had been assigned to a part-time job one day before

the part-time agents were furloughed, she would have been

lawfully released with the other agents but, where she

requested a part-time position soon after the part-time agents

were furloughed, she would be legally entitled to a permanent

part-time position. Or perhaps, Plaintiff would contend that,

even under these supposed circumstances, she could keep her

part-time job while all other part-time employees lost their jobs.

The intent of the ADA is that an employer needs only to

provide meaningful equal employment opportunities. See S.

administrative and legal controls; so, we are reluctant to accept
that the ADA means that part-time jobs must be created solely to
accommodate the disabled.
19
Rep. No. 101-116, 101st Cong., 2nd Sess. 35 (1990). Acceptance

of Plaintiff’s argument would result in the non-disabled (those

part-time agents without CTS) being discriminated against -- on

the most basic of employment issues, that is, do you have a job

at all -- in favor of the disabled (those part-time agents with

CTS): only part-time reservations agents with CTS would have

jobs. This would be an obvious problem. The ADA was never

intended to turn nondiscrimination into discrimination. Cf.

Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)

(“Even viewing all the disputed evidence in favor of [the

plaintiff], his ADA claim must fail because he did not show that

he was treated differently from any other part-time employee

whose job was eliminated. . . . There was no proof that the city

treated him worse than it treated any other displaced

employee.”); Rhodes v. Bob Florence Contractor, Inc., 890 F.

Supp. 960, 967 (D. Kan. 1995) (“[The plaintiff’s] disability does

not insulate him from the vagaries of the marketplace.”).

20
 We cannot accept that Congress, in enacting the ADA,

intended to grant preferential treatment for disabled workers.

See, e.g., 42 U.S.C. § 12101(a)(8) (“[T]he Nation’s proper goals

regarding individuals with disabilities are to assure equality of

opportunity, full participation, independent living, and

economic self-sufficiency for such individuals; . . .”). See also

Daugherty, 56 F.3d at 700 (“[W]e do not read the ADA as

requiring affirmative action in favor of individuals with

disabilities, in the sense of requiring that disabled persons be

given priority in hiring or reassignment over those who are not

disabled. It prohibits employment discrimination against

qualified individuals with disabilities, no more and no less.”)

As a matter of law, USAir did not fail to make reasonable

accommodations for Plaintiff’s CTS, especially given that,

when part-time reservations agent positions again became

available at USAir, it promptly notified Plaintiff and allowed her

to fill one of those positions.

21
 B. Drop Keyboard

Plaintiff also argues that USAir unreasonably delayed in

providing her with a drop keyboard. She calculates the delay

as thirteen months: 2 March 1993 ( when her doctor requested

that her work station be modified “according to advice,”)8 to

April 1994 (when she was provided with her own drop

keyboard). Plaintiff, however, was placed on medical leave

from 28 May 1993 until April 1994 because she had exceeded

the sixty-day limit allowed by USAir for injured employees to

work on limited duty. No reason exists to believe that Plaintiff

was placed on medical leave because of the lack of a drop

keyboard. The only delay we consider is the time that Plaintiff

was working at USAir without the drop keyboard.

8
Although Plaintiff understood the requested modifications to
include a drop keyboard, the record is unclear about when the
“advice” about a drop keyboard was communicated to USAir.
22
 Considering the evidence in the light most favorable to

Plaintiff, the delay in providing the drop keyboard was three

months (two months before her leave and one month after her

return). The district court did not err in concluding that this

delay was reasonable, considering that Plaintiff had some

access to a drop keyboard position during this time and that

she was not required to type when she had no access.9

AFFIRMED.

9
Plaintiff also argues on appeal that USAir failed to
accommodate her reasonably by providing hourly five-minute
breaks. We decline to address this argument because Plaintiff
did not raise it in the district court. See Depree v. Thomas, 946
F.2d 784, 793 (11th Cir. 1991) (“We have long held that an issue
not raised in the district court and raised for the first time in an
appeal will not be considered by this court.”).
23