Janet Perdue v. Sanofi-Aventis U.S., LLC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-2094

JANET PERDUE,

Plaintiff - Appellant,

v.

SANOFI-AVENTIS U.S., LLC,

Defendant - Appellee.

------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:18-cv-00221-MR-WCM)

Argued: January 29, 2021 Decided: June 8, 2021

Before AGEE, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee
and Judge Rushing joined.

ARGUED: L. Michelle Gessner, GESSNERLAW, PLLC, Charlotte, North Carolina, for
Appellant. Theresa Sprain, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North
Carolina, for Appellee. Julie Loraine Gantz, UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF:
Jonathon D. Townsend, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North
Carolina, for Appellee. Sharon Fast Gustafson, General Counsel, Jennifer S. Goldstein,
Associate General Counsel, Elizabeth E. Theran, Assistant General Counsel, Office of
General Counsel, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae.

2
RICHARDSON, Circuit Judge:

We must decide whether “job sharing” a single full-time position with a willing

partner qualifies as a reasonable accommodation that an employer must provide under the

Americans with Disabilities Act (“ADA”). It does not. If the job share in question did not

exist at the time it was proposed as an accommodation, the ADA does not require the

employer to create the new position to accommodate a disabled employee.

At Sanofi-Aventis U.S., LLC, a part-time job-share position does not exist unless

and until the Area Business Leader approves an employee’s proposal. Such a proposal

thus asks Sanofi to create a new part-time position. And that is an accommodation the

ADA does not mandate. So the plaintiff’s claims cannot succeed.

I. Background

A. Perdue’s tenure at Sanofi

Janet Perdue was hired as a pharmaceutical sales representative at Sanofi in 2001.

In that role, she called an average of eight physicians a day and attended medical education

programs, which often happened at night or over the weekend. Sales representatives like

Perdue spent 50% or more of their time traveling.

Perdue first worked in Anderson, South Carolina, but she later transferred to an open

position in Greenville where she lived. She appears to have performed well, even winning

Sanofi’s platinum sales award in 2017.

In 2013, Perdue was diagnosed with antisynthetase, an autoimmune disease, and

had surgery to remove a benign brain tumor that had impacted her ability to walk and see

out one eye. Sanofi gave her leave for ten months to recover. At the end of 2013, Perdue

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returned to work in the Spartanburg territory with a job-share partner. The job share

allowed Perdue to split the workload of a normal position with another employee, subject

to manager approval. Her job-share partner later resigned, and Perdue began working part

time (60% capacity). She eventually returned to work full-time in the Greenville territory.

In 2017, Perdue was reassigned to North Carolina’s Asheville territory during a

company reorganization. This reassignment increased her travel time from two to three

hours per day to four hours per day. After the reorganization, the Greenville Area Business

Leader told Perdue that a cardiovascular sales representative position might soon open up

in Greenville. Perdue believed that her background selling diabetes medication left her

unqualified for that job. And she also believed that the job “didn’t seem like a good fit,”

given that she was just starting in the Asheville territory and was “kind of excited” about

the new area. J.A. 80–81.

Within six weeks of starting in the Asheville territory, Perdue noticed problems with

joint pain and stiffness related to her autoimmune disorder. So the Asheville Area Business

Leader raised Perdue’s health concerns to the Regional Business Leader, requesting that

Perdue be considered for a job share or an open position “within the geography where she

lives.” J.A. 241.

Perdue’s doctor soon determined that Perdue was “medically unable to work,

effective immediately” for at least three weeks. J.A. 218. Sanofi approved her request for

FMLA leave and short-term disability benefits. At the end of the three weeks, her doctor

“advised another month off work,” explaining that “[s]he should not expect to be able [to]

return to full time work if travelling. Could possibly retry full time if local in Greenville

4
but may need to cut hours if local too.” J.A. 271–72. Eventually, the doctor imposed

permanent medical limitations that prevented Perdue from traveling more than 20 miles

from Greenville and restricted her from working more than 30 hours a week. Sanofi was

told of these limitations.

During this time, Perdue considered applying for a flexible-work arrangement.

Sanofi’s flexible-work policy permitted telework, flexible hours, part-time work, and job

sharing (two employees each handling 50% of a standard position) with manager approval.

J.A. 128–38; see also J.A. 130 (“Managers will approve or deny a request for Flexible

Work Arrangements based on business conditions and the employee’s satisfactory

performance.”). Under that policy, flexible-work arrangements were “not an entitlement,”

J.A. 137, but were “available for discussion between employees and their managers,” J.A.

128. The policy expressly noted that “[n]ot all positions may be suitable [for a flexible-

work arrangement] due to the type of work being performed, business needs, or

performance concerns.” Id. And the Regional Business Leader explained that although

Perdue job shared previously in Spartanburg, Sanofi had not approved of “too many” job

shares, as they “add[] a nuance that we had to carefully work out between the representative

and the manager.” J.A. 146; see also J.A. 150 (explaining that a job share will not

“necessarily” be approved).

Perdue decided to pursue a job-sharing arrangement. She approached Caitlyn Hunt,

a sales representative in Greenville to ask if Hunt would be her job-share partner. Hunt

eventually agreed. She too appears to have been well regarded within the company, having

received a gold sales award and an “exceeds expectations” end-of-year rating in 2016.

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 So Perdue and Hunt submitted their proposal to job share Hunt’s primary-care

diabetes representative position in Greenville. They needed the approval of the Greenville

Area Business Leader, so they met with her to pitch their proposal. During that meeting,

the Leader asked about Perdue’s health and Perdue explained the situation. The Leader

said that she had concerns about Hunt’s competence and attention to detail. As an example,

she explained that Hunt had submitted an expense report incorrectly when she had first

started working in the Greenville territory that January. And the Business Leader also told

Perdue and Hunt that their 2016 end-of-year reviews were not relevant because they were

completed by another Area Business Leader.

In early May, Sanofi’s human-resources department suggested other

accommodations. Sanofi offered “a hotel stay in order to better break up [Perdue’s] days

and limit her travel.” J.A. 243. But Perdue said that “wouldn’t help.” J.A. 243. Sanofi

also asked if Perdue had a comfortable car. But Perdue explained that she liked her

Equinox and it was comfortable. Perdue testified at her deposition that her doctor said that

hotel stays and a new car would not help her symptoms. J.A. 108. Sanofi also suggested

that Perdue check for job openings listed on the company’s internal portal.

The next day Sanofi—through the Greenville Area Business Leader—denied

Perdue and Hunt’s request to create the job share, explaining that “the business would not

support a job share arrangement” at that time. J.A. 321. The Greenville Area Business

Leader added that “at this point in time with all the changes happening at Sanofi, this would

not be a good business decision.” J.A. 103–04. The Leader stated in her deposition that

she was concerned about Hunt being “a good fit at that time for a job share.” J.A. 200.

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She noted that Hunt “had just started reporting to [her], and [she] had concerns about her

attention to detail and her meeting metrics.” Id. These concerns, she explained, were

magnified by the “tense environment within the company” after the recent restructuring

and layoffs. The Regional Business Leader approved the decision to deny the job share for

similar reasons.

After the job share was denied, Perdue continued on short-term disability leave.

With her short-term disability benefits running out and no sign that her medical restrictions

would be abated, Perdue spoke with human resources about her next steps. This led her to

apply for long-term disability. Soon after, she was fired, as Sanofi could not provide her

“with an indefinite leave of absence” and there were “no other accommodations that would

enable [her] to perform the essential functions of [her] job.” J.A. 48.

B. The proceedings below

After she was fired, Perdue sued Sanofi in federal district court alleging violations

of the ADA , 42 U.S.C. § 12101 et seq., and wrongful discharge under North Carolina law.

Sanofi moved for summary judgment on all claims, and Perdue moved for partial summary

judgment. The district court granted Sanofi’s motion and denied Perdue’s. See Perdue v.

Sanofi-Aventis U.S. LLC, No. 1:18-cv-00221-MR, 2019 WL 4874815, at *16 (W.D.N.C.

Oct. 2, 2019). Perdue timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

We review a district court’s grant of summary judgment de novo, “applying the

same standard that the district court was required to apply.” Calloway v. Lokey, 948 F.3d

194, 201 (4th Cir. 2020). Granting summary judgment is appropriate when “the movant

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shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must construe the evidence in the

light most favorable to the non-moving party, but we may not “weigh the evidence or make

credibility determinations.” Betton v. Belue, 942 F.3d 184, 190 (4th Cir. 2019). 1

On appeal, Perdue mainly challenges the district court’s disposition of her ADA

failure-to-accommodate claim. The ADA generally prohibits employers from

“discriminat[ing] against a qualified individual on the basis of disability” 42 U.S.C.

§ 12112(a). One form of discrimination is failing to make “reasonable accommodations”

for a disabled employee’s “known physical or mental limitations,” unless the employer

“can demonstrate that the accommodation would impose an undue hardship” on its

business. Id. § 12112(b)(5)(A).

To show an employer’s failure to accommodate, the plaintiff must prove: (1) that

she had a disability within the statutory meaning; (2) that the employer knew of her

disability; (3) that a reasonable accommodation would permit her to perform the essential

1
Perdue argues at the outset that the district court improperly applied the summary-
judgment standard by using the language “forecast of evidence” to discuss Perdue’s burden
to survive summary judgment. But we find no error in the district court’s use of that
terminology. “The summary judgment inquiry . . . scrutinizes the plaintiff’s case to
determine whether the plaintiff has proffered sufficient proof, in the form of admissible
evidence, that could carry the burden of proof of h[er] claim at trial.” Mitchell v. Data
Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993). That inquiry necessarily requires the
district court to consider a “forecast of evidence” that the parties intend to present at trial
to determine whether it raises any “genuine dispute[s]” of “material fact.” Fed. R. Civ. P.
56(a). And if Perdue’s contention is instead that the district court improperly required her
to show that she would win at trial, rather than that she could win at trial, that argument is
not supported by the opinion’s language or analysis.
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functions of the position; and (4) that the employer refused to make the accommodation.

Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). But even if the plaintiff

makes this showing, the employer can still defeat the failure-to-accommodate claim by

demonstrating that the reasonable accommodations would impose an undue hardship. US

Airways, Inc. v. Barnett, 535 U.S. 391, 395 (2002) (quoting § 12112(b)(5)(A)). This appeal

focuses on the plaintiff’s third element: whether Perdue identified a “reasonable

accommodation” that would enable her to perform her job. 2

A “reasonable accommodation” includes a “[m]odification[] or adjustment[] to the

work environment, or to the manner or circumstances under which the position held or

desired is customarily performed, that enable an individual with a disability who is

qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).

The ADA includes a non-exhaustive list of accommodation examples: “job restructuring,

part-time or modified work schedules, reassignment to a vacant position, acquisition or

modification of equipment or devices, appropriate adjustment or modifications of

2
Perdue argues on appeal that the district court erred in finding that Sanofi denied
the job share for a “legitimate business reason” when the evidence showed those reasons
were “pretextual.” Appellant Br. 2. But the district court’s analysis of those aspects of the
McDonnell-Douglas burden-shifting approach was irrelevant to the legal claim Perdue
brought. Her failure-to-accommodate claim requires no evidence of discriminatory intent.
So McDonnell-Douglas—addressing legitimate business reasons and pretext to infer
discriminatory intent—does not apply here. The failure to provide a “reasonable
accommodation” that would not impose an “undue hardship” is itself the discriminatory
act prohibited by the ADA. See Punt v. Kelly Servs., 862 F.3d 1040, 1049 (10th Cir. 2017)
(“The McDonnell Douglas test is inapposite in a failure-to-accommodate case” because a
failure-to-accommodate case does not require proof of the employer’s motives.); Lenker v.
Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2002) (describing McDonnell-Douglas’s
burden shifting as “both unnecessary and inappropriate” in a failure-to-accommodate case).
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examinations, training materials or policies, the provision of qualified readers or

interpreters, [or] other similar accommodations for individuals with disabilities.” 42

U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(2)(ii). To carry her burden on

summary judgment, Perdue need only “present evidence from which a jury may infer that

the [identified] accommodation is ‘reasonable on its face, i.e., ordinarily or in the run of

cases.’” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 2012)

(quoting Barnett, 535 U.S. at 401–02).

The only accommodation Perdue argues Sanofi had a duty to provide is the job share

of Hunt’s position in the Greenville territory. 3 Accepting her job-share proposal, she

argues, would have been a “reassignment to a vacant position,” which is an accommodation

required by statute and regulation. See 42 U.S.C. § 12111(9)(B); 29 C.F.R.

§ 1630.2(o)(2)(ii).

But the proposed job share is not an accommodation required by the ADA. That

conclusion lies at the intersection of two limiting principles. First, the ADA only requires

“reassignment to a vacant position” as an accommodation for an employee with a

disability. 42 U.S.C. § 12111(9)(B) (emphasis added); see also 29 C.F.R.

§ 1630.2(o)(2)(ii); E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001) (“The

3
Sanofi argues that Perdue’s claim is barred because she rejected other “reasonable
accommodations” that Sanofi offered. And it is true that rejecting another reasonable
accommodation would defeat her reasonable-accommodation claim. See Elledge v. Lowe’s
Home Ctrs., LLC, 979 F.3d 1004, 1013–14 (4th Cir. 2020); Talley v. Fam. Dollar Stores
of Ohio, Inc., 542 F.3d 1099, 1108 (6th Cir. 2008). But since we otherwise affirm the
district court’s grant of summary judgment to Sanofi, we need not decide whether the hotel
stays, a new car, or the potential position in Greenville’s cardiovascular business unit were
reasonable accommodations.
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ADA does not require reassignment when it would mandate that the employer bump

another employee out of a particular position.”). And second, the position must already

exist because “the ADA does not require that an employer create a new position for a

disabled employee.” Laird v. Fairfax Cnty., 978 F.3d 887, 892 n.3 (4th Cir. 2020); see

also Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1174 (10th Cir.

1999) (collecting cases). 4 So to prevail on her reasonable-accommodation claim, Perdue

must show that the job-share position she sought was both vacant and existing. This she

cannot do.

The district court focused on whether the job-share position was “vacant.” See

Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1262 (10th Cir. 2010) (“In the

employment context, . . . a position is ‘vacant’ with respect to a disabled employee for the

purposes of the ADA if it would be available for a similarly-situated non-disabled

employee to apply for and obtain.”). But this inquiry skips over the logically preceding

question of whether the position existed. For a position cannot be vacant unless it already

exists. And here, under Sanofi’s undisputed policies, no job-share position existed unless

and until the Area Business Leader approved Perdue’s proposal to create the position.

Sanofi employees, with and without disabilities, may apply to create a job-share

position. But when Perdue sought the job-share position, it did not exist. One full-time

4
Moving an employee to part-time work may be a reasonable accommodation in
some circumstances. See 42 U.S.C. § 12111(9)(B). But it may be required only when “the
employer has part-time jobs readily available,” i.e., when a new position need not be
created. See Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998); Treanor v. MCI
Telecomms. Corp., 200 F.3d 570, 575 (8th Cir. 2000).
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position in the Greenville territory, not two part-time positions, existed. Hunt’s willingness

to job share with Perdue does not mean that a new job-share position came into existence.

The uncontradicted evidence established, even if construed in the light most favorable to

Perdue, that splitting Hunt’s existing position into two required Sanofi’s agreement. And

that agreement is something the ADA does not demand. Laird, 978 F.3d at 892 n.3; see

also Terrell, 132 F.3d at 626–27 (“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.”); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944,

950 (8th Cir. 1999) (requiring a company to create a permanent co-manager position was

not a reasonable accommodation).

Perdue argues that because Sanofi once permitted her to job share as she worked

her way back from her initial diagnosis and brain surgery, it could have done so in

Greenville. But this prior decision does not require Sanofi to do the same thing when

Perdue proposed the new job-share position with Hunt. We applaud Sanofi for going

beyond its legal obligation under the ADA in accommodating Perdue’s recovery. And

Sanofi appears willing to consider flexible-employment situations. But its generosity and

overall flexibility does not raise the legal standard. See Vande Zande v. State of Wis. Dep’t

of Admin., 44 F.3d 538, 545 (7th Cir. 1995) (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.”); see

also Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (“Discouraging discretionary

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accommodations would undermine Congress’ stated purpose of eradicating discrimination

against disabled persons.”).

The parties dispute how US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), applies

to Sanofi’s policy that a job share will be permitted only if the Area Business Leader

approves. Barnett addressed whether reassignment to a vacant position was reasonable in

the ordinary run of cases when that reassignment would trump the company’s established

neutral seniority system. Id. at 393–94. The Court said that it was not, unless the plaintiff

“present[ed] evidence of special circumstances that make ‘reasonable’ a seniority rule

exception in the particular case.” Id. at 394. We recently extended Barnett’s reasoning to

hold that reassignment in violation of a company’s “best-qualified” hiring policy is not

reasonable in the ordinary run of cases. Elledge, 979 F.3d at 1016.

But Barnett and its Fourth Circuit progeny do not apply here. Those cases discuss

the superiority of company policies that determine how to fill vacant existing positions over

ADA accommodations. Sanofi’s policy instead dictates when a new position can be

created. The ADA can, in “special circumstances,” influence how a company fills its

positions, even if that requires overriding otherwise neutral company policies. Barnett,

535 U.S. at 397. But it cannot require the company to create new positions.

So providing Perdue a job-share position with Hunt in the Greenville territory was

not a reasonable accommodation required by the ADA—not because the position was not

“vacant” but because the position she sought did not exist. The ADA does not require

employers to create new positions to accommodate their employees with disabilities. It is

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on this ground that summary judgment should have been granted to Sanofi on Perdue’s

ADA failure-to-accommodate claim.

Perdue separately argues that Sanofi should be liable for failing to engage with her

in an interactive process. But “the interactive process ‘is not an end in itself’” but a “means

for determining what reasonable accommodations are available to allow a disabled

individual to perform the essential job functions of the position sought.” Wilson, 717 F.3d

at 347 (quoting Rehling v. City of Chi., 207 F.3d 1009, 1015 (7th Cir. 2000)). So “an

employer will not be liable for failure to engage in the interactive process if the employee

ultimately fails to demonstrate the existence of a reasonable accommodation that would

allow her to perform the essential functions of the position.” Jacobs v. N.C. Admin. Off. of

the Cts., 780 F.3d 562, 581 (4th Cir. 2015). As Perdue fails to demonstrate the existence

of a reasonable accommodation, Sanofi cannot separately be liable for failing to engage in

the interactive process.

* * *

We hold today that a part-time job-share position that requires managerial approval

to create is not a reasonable accommodation in the ordinary run of cases because the ADA

does not require companies to create new positions to accommodate their employees with

disabilities. With that conclusion, the rest of Perdue’s claims cannot succeed. 5

Accordingly, the district court’s grant of summary judgment to Sanofi is

5
Perdue also seeks to revive her state-law wrongful-discharge claim on appeal. But
her arguments fail for the same reasons her ADA arguments fail. See N.C. Gen. Stat.
§ 143-422.2(a); N.C. Dep’t of Corr. v. Gibson, 301 S.E.2d 78, 82 (N.C. 1983) (To
(Continued)
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 AFFIRMED.

determine the content of a state-law wrongful-discharge claim, North Carolina courts “look
to federal decisions for guidance in establishing evidentiary standards and principles of law
to be applied in discrimination cases.”).
And we reject Perdue’s argument that the district court failed to separately consider
her cross-motion for partial summary judgment. Granting summary judgment to Sanofi,
which required construing all facts and factual inferences in Perdue’s favor, necessarily
meant that Perdue’s cross-motion for partial summary judgment could not prevail. See
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). The district court’s opinion said
as much. See Perdue, 2019 WL 4874815, at *16 (“The Court having determined that the
Defendant’s Motion for Summary Judgment should be granted, for the same reasons the
Plaintiff’s motion is denied.”).
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