IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20864
HERMELA LOULSEGED,
Plaintiff-Appellant,
versus
AKZO NOBEL INCORPORATED;
AKZO CHEMICAL INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas, Houston
June 16, 1999
Before GARWOOD, DAVIS, and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Hermela Loulseged (Loulseged) sued her
former employer Akzo Nobel Chemicals, Inc. and its corporate parent
Akzo Nobel, Inc. (collectively, Akzo) alleging Akzo had
discriminated against her in violation of the Americans with
Disabilities Act (the ADA). The case was tried to a jury, and at
the close of Loulseged’s evidence, the district court granted
Akzo’s motion for judgment as a matter of law. Loulseged appeals.
We affirm.
Facts and Procedural History
Loulseged was employed as an analytical laboratory technician
in Akzo’s Deer Park, Texas, facility. The duties of a lab
technician focused on testing chemicals produced at the plant to
insure that they were correctly formulated. While most of these
duties were performed in the lab, Akzo expected the technicians to
perform certain transport type functions. These duties were
assigned on a rotational basis, with a single different technician
being assigned to this role every week. Since the full complement
of technicians fluctuated between eight and nine, Loulseged could
expect to be assigned to the transport functions every eight or
nine weeks.
The worker on rotation was expected to perform three transport
type functions in addition to the usual lab work. First, the
laboratory required a supply of chemical solvents. The solvents
were stored in a large drum mounted several feet off the ground,
located at an area about one hundred yards away from the lab. The
person assigned to this task was expected to take a five-gallon
container to the storage area, fill up the container, place it in
a cart, and return to the lab. When full, the containers weighed
thirty to forty pounds. In order to fill the container, some
employees had to stoop down. It took several minutes to walk to
the storage area. Second, the lab generated waste solvent. This
waste solvent was stored in containers that weighed fifty pounds
when full. The person on duty was expected to place these
containers on carts and move them outside of the lab, where they
would be picked up by others. Third, the lab produced samples
2
contained in small “pepsi” bottles, which had to be moved to the
storage area. The on-duty technician would fill a wooden rack with
the “pepsi” bottles and transport them to storage.
After working at Akzo for five months, Loulseged injured her
back while moving a full waste solvent container. Akzo kept
Loulseged’s job open for her while she recovered. When she
returned, her doctor had placed restrictions on her duties.
Loulseged was ordered not to lift more than thirty-five pounds, and
not to remain in either a sitting or standing position for extended
periods of time. After attempting to clarify the meaning of these
restrictions, Akzo made several accommodations for Loulseged. A
stool was provided that allowed her to sit on the job. More
importantly for the purposes of this appeal, it was agreed that
when Loulseged was on transport rotation she would be able to call
on the services of the plant’s maintenance personnel. These
contract workers—outsourced employees of Brown & Root—would perform
the actual lifting and transport for all three tasks. Because of
concerns about the workers returning with the wrong solvent,
however, Loulseged would accompany them to the storage area.
Loulseged agrees that this accommodation was reasonable. The Brown
& Root workers at some point began to move the sample racks for all
employees, not just Loulseged.
In 1993, Loulseged again took medical leave, this time to have
back surgery. When she returned, her medical restrictions had been
significantly expanded. She was not allowed to lift more than ten
pounds, could not perform tasks that required “repetitive” bending
3
and stooping, and could not push or pull carts. These new
restrictions did not affect the accommodation of using the contract
workers, which Loulseged continued to find reasonable and
acceptable. The only problem that developed—involving the stooping
required by one of the machines in the lab—was promptly
accommodated by Akzo as soon as Loulseged brought it to their
attention.
An Akzo employee testified that the use of Brown & Root
contract workers to aid the technicians in their transport tasks
created problems at the plant. The contract workers found that
summons from the technicians disrupted their other work and they
complained. In addition, there was a suggestion that the
arrangement directly or indirectly raised Akzo’s costs. The
company decided that in light of these concerns the use of the
contract workers by the technicians, including Loulseged, would be
terminated. At the time this decision was made, the record
indicates that a substantial amount of time remained before
Loulseged faced her rotation of transport duties.
In December 1994, Loulseged’s supervisor, Carl Wheeler,
presented her with a one-gallon container and told her it would be
used in the future to transport solvent. She testified that at the
time she believed the container was an option to be used by the
contract workers. Later, however, she noticed that the employee on
rotation was carrying the samples rather than calling on the
contract workers. Alarmed, she confronted Wheeler. The gist of
this conversation is not in dispute. Loulseged testified that
4
Wheeler told her that technicians could no longer use the contract
workers for transportation. When she asked whether the withdrawal
applied to her, Wheeler told her it did and that the decision had
been made by Wheeler’s superiors. At no point did Wheeler indicate
the conditions under which Loulseged would be expected to complete
her transport rotation, which was not imminent. Wheeler did not
mention, nor did Loulseged ask about, the one-gallon container.
Loulseged testified that she did not respond in any way to this
announcement, and did not raise the issue again. At a meeting of
the laboratory technicians that Loulseged attended, Akzo employees
discussed the use of a “tricycle”1 that would substitute for the
handcart then used for transport duties. Loulseged’s medical
restrictions prevented pushing and pulling but did not mention
riding. The record indicates Akzo was considering the tricycle at
least partially out of a desire to accommodate Loulseged.
Loulseged remained silent at the meeting and never spoke to anyone
about her disability accommodation afterwards. Later, one week
before her rotational duties were scheduled to begin, Loulseged
announced her resignation to Akzo in a letter that specifically
complained about an unprofessional atmosphere at the lab but did
not explicitly reference her disability.
In April 1996, Loulseged filed this lawsuit against Akzo,
alleging violation of the ADA grounded in Akzo’s alleged refusal to
1
The record does not reveal precisely what kind of vehicle was
discussed. At various times it has been referred to as a bicycle
and a tricycle. It is also not clear whether the vehicle was
pedaled or independently powered.
5
provide reasonable accommodation for her back injury disability and
discrimination on the basis of race. Akzo counterclaimed for the
recovery of excess workers’ compensation benefits. Prior to trial,
Loulseged dropped her racial discrimination claims. The case
proceeded to trial before a jury. At the close of Loulseged’s
evidence, Akzo moved for judgment as a matter of law. In an order
issued on September 12, 1997, the district court granted Akzo’s
motion and dismissed Loulseged’s claims. On March 4, 1998, the
court below granted judgment for Akzo on its counterclaim.
Loulseged appeals only the dismissal of her ADA claim, and does not
contest the resolution of the counterclaim.
Discussion
After a party has been given an opportunity to present its
case to the finder of fact, the trial court may grant the opposing
party’s motion for judgment as a matter of law if there is no
sufficient evidentiary basis for a reasonable jury to find for the
nonmovant. Fed. R. Civ. P. 50(a)(1). We will affirm a district
court’s grant of judgment as a matter of law if, viewing the entire
record in the light most favorable to the nonmoving party, there is
insufficient evidence to allow a reasonable jury to find for the
nonmovant. Burch v. Coca-Cola Co., 119 F.3d 305, 313 (5th Cir.
1997). Loulseged argues that there was sufficient evidence in the
record to create a jury question as to the reasonableness of the
accommodations Akzo provided. She also argues that Akzo’s
liability may be predicated on its failure to engage in an adequate
interactive process with Loulseged to determine what accommodations
6
were necessary. We do not address the first contention and reject
the second.
I. Reasonable Accommodation
The ADA requires employers to make reasonable accommodations
for disabled employees.2 42 U.S.C. § 12112(b)(5)(A). Loulseged
argues that Akzo violated the ADA by withdrawing the previous
contract worker accommodation and suggesting an inadequate
substitute. She asks us to examine the only concrete proposal
made by Akzo—the use of a one-gallon, rather than five-gallon
container—in isolation and maintains that there was a jury question
as to its reasonableness. Generally, claims that an employee has
been denied a reasonable accommodation are accompanied by claims
the plaintiff was not hired, not promoted, or discharged or
demoted. However, it is perhaps arguable that the failure to
accommodate an employee standing alone may give rise to a claim
under the ADA. Cf. Penny v. United Parcel Service, 128 F.3d 408
(6th Cir. 1997) (considering before ultimately rejecting claim when
plaintiff remained with employer in the same position at the
commencement of litigation). We do not reach that question, nor
that of whether (absent constructive discharge, which is not made
out here) an employee who quits her job may sue for loss of
employment when only failure to accommodate, but no other adverse
employment action, is shown. We proceed on the arguendo assumption
2
At oral argument, Akzo argued that Loulseged did not qualify
as disabled under the ADA. This was not the ground on which the
district court granted judgment as a matter of law, and our
resolution of the case makes it unnecessary to address this
contention.
7
that the fact that Loulseged quit her job does not, per se, bar her
action. However, her quitting under these circumstances
complicates the analysis. Because Loulseged quit before her
rotation was imminent, we are forced to engage in a somewhat
hypothetical enterprise—determining what accommodation or lack
thereof would have been forthcoming had Loulseged remained at the
company until the final arrangement was revealed.
Insofar as Loulseged asks us to find that a reasonable jury
could attach liability to Akzo on the grounds that the one-gallon
container proposal standing alone was inadequate, we cannot. It is
difficult to judge the reasonableness of accommodations when the
employee withdraws before we can say with any authority what these
accommodations would have been. In an ordinary case of this sort,
the finality of an accommodation can usually be presumed—generally
because the employer took some concrete adverse employment action
such as terminating the employee (or refusing to hire the applicant
for employment), which emphatically signals that no further
accommodations will be made. In this case, however, the employee
quit.3 While given the danger of physical injury we might be
inclined to view the one-gallon proposal as a final accommodation
if Loulseged had been ordered on the first day of her rotation to
3
Loulseged’s brief, in an attempt to avoid the problems caused
by her abrupt resignation, argues that she was constructively
discharged. Nothing in the record even hints at the type of
conditions that would allow a jury to make such a finding.
Recognizing this, Loulseged argues that the constructive discharge
threshold is somehow lowered in ADA cases. The case she cites for
this proposition indicates nothing of the sort. See Cooper v.
Neiman Marcus Group, 125 F.3d 786, 791 (9th Cir. 1997) (employer
actually discharged employee).
8
perform the transport tasks and no other accommodation was made—she
would not have been required to actually attempt the work unaided
to assert that reasonable accommodation was denied—she chose to
quit a week before the earliest time she might have been asked to
perform these duties. Given this time frame, we believe it is
impossible to judge the offer of a one-gallon container as being
the beginning and end of Akzo’s substitute accommodations. Had she
not quit, Akzo might have provided her with a squadron of Olympic
weightlifters and a Mercedes-Benz chemical transport vehicle to aid
her in her tasks. It also might have ordered her on pain of
termination to move fifty-pound containers unaided. Because of
Loulseged’s decision to quit, we simply cannot know. We thus
decline to analyze the reasonableness of this partial proposal
standing alone. What occurred here was not a refusal of Akzo to
reasonably accomodate Loulseged’s concerns, but a breakdown in the
interactive process designed to create those reasonable
accommodations.
II. Failure to Engage in the Interactive Process
Loulseged also argues that judgment as a matter of law was
inappropriate because a jury question existed as to Akzo’s failure
to initiate and participate in an interactive process with her to
develop a reasonable accommodation. Akzo concedes that it was
under an obligation to participate in such a process, but argues
that the failure of the process to develop an accommodation was
traceable to Loulseged’s noncooperation. Once an employee has made
9
a request for an accommodation,4 the ADA’s regulations state that
“it may be necessary for the [employer] to initiate an informal,
interactive process with the qualified individual with a disability
in need of the accommodation” in order to craft a reasonable
accommodation. 29 C.F.R. § 1630.2(o)(3). The EEOC’s interpretive
guidelines reinforce this directive, but also stress that the
interactive process requires the input of the employee as well as
the employer. See 29 C.F.R. Pt. 1630, App. §1630.9 at 359
(“flexible, interactive process that involves both the employer and
the qualified individual with a disability”). See also Taylor v.
Principal Finance Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert
denied, 117 S.Ct. 586 (1996) (duty to launch interactive process is
triggered by request for an accommodation). The need for bilateral
discussion arises because “each party holds information the other
4
Employers cannot be expected to anticipate all the problems
that a disability may create on the job and spontaneously
accommodate them. See Mole v. Buckhorn Rubber Products, Inc., 165
F.3d 1212, 1218 (8th Cir. 1999) (“Only [the employee] could
accurately identify the need for accommodations specific to her job
and workplace.”); Schmidt v. Safeway, Inc. 864 F.Supp 991, 997 (D.
Or. 1994) (employee cannot “expect the employer to read his mind
and know he secretly wanted a particular accommodation”).
Accordingly, the burden is on the employee to request an
accommodation. See Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th
Cir. 1997); Taylor v. Principal Finance Group, Inc., 93 F.3d 155,
164-65 (5th Cir.), cert denied, 117 S.Ct. 586 (1996). Here,
Loulseged appears to have requested, and received, an accommodation
already and the employer was generally aware of the problems her
medical restrictions posed in regard to the transport duties.
Under the circumstances of this case, we do not believe that
Loulseged was required to formally request a replacement
accommodation when the previously agreed on system was withdrawn.
However, the imposition of this burden on employees underscores our
recognition of the employer’s inability to “read minds” and the
need for disabled employees to remain active in the development of
solutions to their concerns.
10
does not have or cannot easily obtain.” See Taylor v. Phoenixville
School Dist., -- F.3d -- at *16 (3rd Cir. 1999) (noting that
employers will not always understand what the disabled employee is
capable of and the employee will not always understand what
accommodations are reasonably available). Courts interpreting the
interactive process requirement have held that when an employer’s
unwillingness to engage in a good faith interactive process leads
to a failure to reasonably accomodate an employee, the employer
violates the ADA. See Taylor v. Phoenixville School Dist., --F.3d-
- at *19; Bultemeyer v. Fort Wayne Community Schools, 100 F.3d
1281, 1285 (7th Cir. 1996).5 However, recognizing that “the
responsibility for fashioning a reasonable accommodation is shared
between the employee and the employer,” see Principal Finance, 93
F.3d at 165 (emphasis added), courts have held that an employer
cannot be found to have violated the ADA when responsibility for
the breakdown of the “informal, interactive process” is traceable
to the employee and not the employer. See Beck v. University of
5
We note that both Taylor v. Phoenixville School Dist. and
Bultemeyer involved employees whose disability was mental illness.
As those courts recognized, the unique problems presented in some
mental illness cases may affect the interactive process. Some
mentally ill employees may not be fully aware of the limitations
their conditions create, or be able to effectively communicate
their needs to an employer. Accordingly, the employer may have an
extra duty to explore the employee’s condition in these cases and
the interactivity of the process may be of less importance. See
Bultemeyer, 100 F.3d at 1284 (“an understanding of mental illness
is central to understanding Bultemeyer’s request for
accommodation”); Taylor v. Phoenixville School Dist., --F.3d at 14
(noting that medical records available to employer indicated that
employee lacked insight into her own condition). When, as here, a
disability is purely physical, the employee will generally be in
the best position to determine her own needs and capabilities.
11
Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996);
Templeton v. Neodata Services, Inc., 162 F.3d 617 (10th Cir. 1998).
This reasoning flows naturally from our recognition in Principal
Finance that responsibility for the interactive process is shared.
Since on the evidence here no reasonable jury could find Akzo at
fault for the breakdown of the interactive process, the district
court was correct to grant judgment as a matter of law in Akzo’s
favor.
Loulseged first argues that Beck imposed an affirmative duty
on Akzo managers to sit down with her and comprehensively present
a complete proposal for a replacement accommodation as soon as the
decision was made to withdraw the contract workers. We cannot
agree. The regulation’s direction to the parties to engage in an
interactive process is not an end it itself—it is a means to the
end of forging reasonable accommodations. And the regulations
direct an employer to engage in an informal process. Indeed, as
the interpretive guidelines and courts have recognized, there may
be some situations in which the reasonable accommodation is so
obvious that a solution may be developed without either party
consciously participating in an interactive process. See 29 C.F.R.
pt. 1630 app. § 1630.9 at 360 (1998); see also Jacques v. Clean-Up
Group, Inc., 96 F.3d 506, 514 (1st Cir. 1996) (upholding jury
verdict for employer on the grounds that while employer may not
have initiated interactive process, a reasonable jury could find
that process was not necessary to determine reasonable
accommodation). The process must thus be viewed on a case-by-case
12
basis. See Beck, 75 F.3d at 1136 (“The determination must be made
in light of the circumstances surrounding a given case.”).
Under the circumstances of this case, where the employee would
not be faced with the problematic job duties immediately, Akzo was
under no obligation to make a formal presentation to Loulseged at
the time of the initial tender of the one-gallon proposal. Nothing
in the regulations or the cases indicates to us that an employer
must move with maximum speed to complete this process and preempt
any possible concerns.6 Instead, we believe that in an informal
process the employer is entitled to move at whatever pace he
chooses as long as the ultimate problem—the employee’s performance
of her duties—is not truly imminent. Here, Akzo came up with a
facially reasonable proposal to address one of Loulseged’s
potential problems, and was mulling another—the tricycle. In an
informal process, these actions would seem to be quite reasonable
6
The panel in Beck noted that a party “that obstructs or
delays the interactive process” may be charged with its breakdown.
See Beck, 75 F.3d at 1135. In Beck and many employment cases, the
employee continues working in a capacity arguably needing
accommodation while the interactive process is ongoing. An
employer that dragged its feet in that situation could force the
employee to work under suboptimal conditions, “simply document the
employee’s failures,” and use the employee’s difficulties as an
excuse to terminate her. See Taylor v. Phoenixville School Dist.,
--F.3d at 19. An employer’s delaying of the process under those
conditions might create liability. There may be other situations
in which there is a pressing need to rapidly address the
accommodation issue comprehensively. For example, if the employer
knows the employee has been offered another job, delaying the
interactive process might indicate the employer was attempting to
force the employee to take the other position in order to avoid
making a reasonable accommodation. In this case, however, there
was no apparent urgency in crafting accommodations since only a
portion of Loulseged’s duties presented difficulties and those
duties were not yet imminent. We do not read the language in Beck
to reach this situation.
13
preliminary steps to take. We need not address the question
whether they would have been sufficient on their own to establish
Akzo’s good faith participation in the interactive process, because
Loulseged’s decision to quit deprived us of the chance to know what
further consultations Akzo would have initiated, just as it
deprived us of the opportunity to know exactly what accommodations
would ultimately have been provided.
Loulseged’s characterization of Akzo’s initial efforts as
“unilateral” is a bit one-sided, given her deafening silence when
they were presented to her. No matter how earnestly one party
attempts to engage in an interactive process, its efforts can
always be superficially characterized as unilateral if the other
party refuses to interact. One cannot negotiate with a brick wall.
While Loulseged now goes into great detail about the manifest
injustice of the one-gallon proposal, she failed to vocalize any of
these concerns at the time she allegedly realized that she was
expected to use the container. Loulseged also wholly kept her own
counsel in regards to the accommodation of her problems with waste
solvent and sample transport, even though she testified that she
believed these concerns were not addressed. And she continued to
remain entirely mute when, in her presence, a potential solution to
these problems—a tricycle—was being discussed. Indeed, not only
did Loulseged testify that she never mentioned the accommodation
issue after her initial conversation with Wheeler, she also made no
detailed complaint touching on her disability in her letter
14
announcing her reasons for then quitting.7 Akzo can fairly
complain that its efforts to begin the interactive process were
stymied by Loulseged’s stony silence, see Beck, 75 F.3d at 1135 (“A
party that fails to communicate, by way of initiation or response,
may . . . be acting in bad faith.”) (emphasis added), and her
quitting robbed Akzo of a chance to complete the process and
demonstrate its good faith. Thus, so far as is shown by this
record, sole responsibility for the breakdown of the process falls
on Loulseged. The process broke down because she stayed silent,
and quit.8
7
Loulseged’s unwillingness to delve into the alleged
discrimination she encountered because of her disability is
conspicuous given the fact that she was not shy in expressing her
displeasure at the work environment. The letter does not mention
her disability in any manner. Instead, she referenced serious
interpersonal conflicts on the job as the main reason she felt
compelled to quit. Specifically, she complained of “relentless
belligerence and unprofessional atmosphere exhaustively perpetuated
by the department’s CQ manager, vis-a-vis, rumor mongering, name
calling, insinuations, denials, etc.” In her testimony, Loulseged
did not claim that she was ever subjected to rumors, insinuations,
or name calling on the grounds of her disability. She did testify,
however, that the reference to “denials” in this sentence was a
specific reference to the denial of reasonable accommodations for
her back problems in regard to the transport of chemicals. This
reading is not intuitively obvious and the letter could hardly be
expected to put Akzo on notice that it may have been insensitive to
Loulseged’s insinuation.
8
We recently left undisturbed a jury verdict in favor of an
employee who resigned from her position in the wake of a job
reassignment that she argued was traceable to discrimination
against her disability. See Rizzo v. Children’s World Learning
Centers, Inc., --F.3d-- (5th Cir. 1999). Rizzo materially differs
from the case before us, as it involved an adverse employment
decision, not a claim based solely on an alleged failure to
reasonably accommodate. The plaintiff was claiming that she was
removed from a position she could perform unaided (driving a school
van) and demoted because of prejudice and stereotypes regarding her
disability (hearing loss). She did not claim that she was denied
an accommodation that would have allowed her to perform her job.
15
Loulseged attempts to blunt the force of this argument by
maintaining that Wheeler’s statements when she originally raised
the question of the withdrawal of the contract workers were so
uncompromising that she believed further efforts futile. In other
words, she seems to argue that it was the presentation of the one-
gallon container and the conversation with Wheeler that terminated
the interactive process, not Loulseged’s quitting. A clear
declaration by an employer that no reasonable accommodation will be
forthcoming might indeed be seen as terminating the interactive
process and removing any duty the employee had to speak up. See
The majority in Rizzo simply found that the job restructuring could
be characterized as a demotion, that a reasonable jury could find
that the demotion was motivated solely by plaintiff’s disability,
and that a reasonable jury could find the plaintiff was qualified
to drive the van. See id. at *3143-44. The plaintiff’s subsequent
decision to quit was irrelevant under this analysis, since the
discrimination was complete as soon as the plaintiff was reassigned
under this analysis. The dissent disagreed, arguing that while an
adverse employment decision can generally be looked at in
isolation, the special circumstances present when an employee is
suspected of posing a direct threat to health and safety allow an
employer to temporarily restructure or remove an employee while
engaging in investigation to verify whether there actually is a
danger. See id. at *3151-52 (Wiener, dissenting). It went on to
argue that the investigation into whether an employee constitutes
a danger should be analogized to the interactive process required
when an employee requests a reasonable accommodation, and
maintained the jury verdict could not stand since the plaintiff was
responsible for the breakdown of this investigative process. See
id. at *3153-55 (employee failed to produce requested medical
documentation before quitting her job). Since the majority clearly
rejected the dissent’s predicate assumption that the suspicion of
a direct safety threat allowed for a temporary restructuring, it
did not address the plaintiff’s responsibility for the subsequent
breakdown of the employer’s investigation. See id. at *3144
(rejecting employer’s argument that it was entitled to balance the
safety of the children with the demands of the ADA). Accordingly,
the majority opinion cannot be read as an implicit endorsement of
the plaintiff’s post-demotion conduct and does not affect this
case.
16
Bultemeyer, 100 F.3d at 1285 (noting that employer announced
mentally disabled employee would “not receive any more special
treatment” before assigning responsibility for the breakdown to the
employer). However, there is no basis for finding that this is
what occurred here. In her own testimony, Loulseged admitted that
Wheeler never told her that the one-gallon container proposal was
a final and unreviewable order, and never told her that further
accommodation would be impossible for her concerns about sample and
solvent movement.9 Nor did she even hint in her testimony that the
conversation was tinged with menace, accompanied by verbal abuse,
or interpreted in light of a pattern of past conduct that would
allow her to assume that further discussion would clearly be
unfruitful.10 Nevertheless, she claims that she interpreted
Wheeler’s conduct as rendering any further discussion futile. In
particular, she focuses on the fact that Wheeler told her that the
9
“Q. . . .[N]o one said ‘okay. The Brown & Root people
are gone, and, Ms. Loulseged, you’re going to have to go
back and lift everything that Brown & Root has been
lifting for you’?
A. [Loulseged] No.
Q. You just assumed that because the Brown & Root
people were not there, you were going to have to do that?
A. Yes.
Q. And then you quit?
A. Yes.”
10
Indeed, Loulseged testified that she had a good relationship
with Wheeler and wrote him a brief handwritten note thanking him
when she quit. Moreover, she admitted that Akzo had promptly
responded to her previous requests for accommodation in her daily
lab duties. To the extent that Loulseged asks us to find that a
reasonable jury could infer that Akzo was a callous and
authoritarian workplace where decisions from higher-ups could not
be questioned, she not only failed to introduce any evidence that
this was so, but has foreclosed her own argument.
17
decision had been made by higher authorities.
We cannot question Loulseged’s subjective belief on appeal.
But while the Beck court talked in general terms about “good
faith,” we do not believe this language was intended to, or that
the law should, place the success of the interactive process at the
mercy of either party’s subjective beliefs. See Harter v.
University of Indianapolis, 5 F.Supp. 2d 657, 666 (S.D. Ind. 1998)
(noting that objective circumstances surrounding the breakdown of
the interactive process were the most important factors). Beck
advises us to “attempt to isolate the cause of the breakdown and
then assign responsibility.” Beck, 75 F.3d at 1135. When a
breakdown occurs because an employer creates an objectively
reasonable perception that the process is clearly at an end, the
employer is as well placed as the employee to avoid the situation.
It knows what it said, and how a reasonable person would interpret
it, and thus bears responsibility for salvaging the process. But
when an employer’s statements do not rise to that level, and the
breakdown is caused by the subjective spin the employee chooses to
place on them, only the employee can prevent the process from
collapsing. The employer can hardly be expected to know that the
employee is laboring under an unreasonable conviction that further
discussion would clearly be futile.
Here, the only rational reading of the conversation is that it
at most foreclosed the use of contract workers as an accommodation
for Loulseged. Nothing in the record allows a reasonable inference
that Akzo clearly would not consider other possible accommodations
18
if Loulseged brought them to its attention.11 And nothing in the
conversation allowed an inference that the one-gallon container
proposal implicitly closed the door on any accommodations of
Loulseged’s other areas of concern. There simply was no
declaration of finality of accommodation, although there might have
been a definitive statement that the use of contract workers would
be barred. Given the lack of clear finality here, no reasonable
jury could find that Akzo had ended the informal interactive
process at this point.12
11
Portions of Loulseged’s brief could be read to argue that the
withdrawal of a mutually satisfactory reasonable accommodation
standing alone is a violation of the ADA. This position is
untenable, and at oral argument she correctly conceded that an
employer is free to withdraw an accommodation as long as the
replacement accommodation is reasonable. The case she cited for
the proposition did not involve a situation in which an
accommodation was withdrawn and efforts were pending to develop a
replacement. Instead, it involved an employer withdrawing an
accommodation and immediately firing an employee. See Valentine v.
American Home Shield Corp., 939 F.Supp. 1376, 1400 (N.D. Iowa
1996).
12
Perhaps a jury question could have been created if the
initial proposal was so manifestly inadequate that it could be
interpreted only as an insulting gesture announcing a refusal to
make meaningful accommodations—a Marie Antoinette-like “let them
eat cake.” Here, however, the one-gallon container proposal did
not approach that sort of outrageousness. Loulseged acknowledged
that the one-gallon container was within her ten-pound lifting
requirement. While she claims that the plan would have required
her to bend and stoop, it would not be wholly outrageous for Akzo
to assume that filling a few containers for a week every nine weeks
was not beyond her capacity or to have simply overlooked the
bending and stooping problem in focusing on the more evident
container size problem. Her other complaint—that the scheme would
have disrupted her work by forcing her to make extra trips—fails to
convince us that Akzo’s proposal here was tantamount to a
contemptuous announcement of a refusal to deal. The one-gallon
container proposal might have been unreasonable—as noted above, we
do not reach that question. The point is that by failing to
communicate and abruptly quitting, Loulseged terminated any
meaningful development of the proposal. The interactive process
19
This lack of finality serves to distinguish this case from
Bultemeyer, which bears a superficial factual resemblance to the
situation Akzo faced. Bultemeyer, like the case before us,
involved a situation in which the parties had reached a mutually
satisfactory accommodation for a disability that was subsequently
withdrawn. See Bultemeyer, 100 F.3d at 1282. However, in
Bultemeyer, the withdrawal of the previous accommodation
(accomplished by transferring the plaintiff to a new post) was
accompanied by an explicit announcement that the employee could not
expect the type of special accommodation he had enjoyed at his
previous position. See id. In the same conversation, the employer
demanded that the employee report at his new assignment on a
specific day on pain of termination. When the employee failed to
show up for work on the appointed day, he was fired. See id. It
should be noted that even under those facts, the court felt
compelled to note that the employee—whose impairment was
mental—made an effort to verify the actual conditions he was
expected to operate under, and made an attempt to convey his
problems with the proposed work arrangements that was “the best he
could do” given his mental condition. See id. at 1285.
Here, Loulseged—who suffered from a physical, not a mental,
disability and was not fired but quit—was not presented with any
statement that could be reasonably interpreted as clearly
requirement is designed to address precisely these kinds of
situations, where a proposal presents problems for employees that
may not be obvious to employers or addresses some but overlooks
other employee problems.
20
foreclosing further discussion and announcing the company expected
her to perform without a reasonable accommodation. She was never
asked to perform under such conditions, and made no effort to
determine what conditions she could have expected to encounter when
her rotation came due. Nothing was clearly final or settled.
Loulseged could have simply waited a few days to see whether
further proposals or discussions developed. She also could have at
several points vocalized her concerns—thus participating in the
informal interactive process—and in the process given Akzo a chance
to correct her misperception that further discussion was futile.
Instead she chose to quit. The fact that Loulseged may have
unreasonably believed the process had terminated, or may have been
so attached to the contract worker scheme that she was unwilling to
entertain reasonable alternatives, is irrelevant. In light of
these undisputed facts, no reasonable jury could find that
responsibility for the failure of the process to reasonably
accomodate Loulseged rested with anyone but herself. Accordingly,
the district court was correct to grant judgment as a matter of law
in favor of Akzo. To hold otherwise would reward Loulseged’s
unilateral withdrawal from a process designed for her own benefit.
“[N]either party should be able to cause a breakdown in the process
for the purpose of either avoiding or inflicting liability.” Beck,
75 F.3d at 1135.
Conclusion
For the reasons stated, the judgment of the district court is
21
AFFIRMED.
22