Equal Employment Opportunity Commission, and Michael Nicosia, Intervening v. Yellow Freight System, Inc.

253 F.3d 943, 11 Am. Disabilities Cas. (BNA) 1569, 2001 U.S. App. LEXIS 12393

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 12, 2001
• Docket: 99-3415
• Status: Published

Opinions

COFFEY, Circuit Judge.

On May 4, 1998, the Equal Employment Opportunity Commission (EEOC) filed a single count complaint in the Northern District of Illinois against the Defendant Appellee Yellow.Freight System, Inc., alleging violations of the Americans with Disabilities Act based on Michael Nicosia’s, an employee of Yellow Freight, HIV/ AIDS disability.¹ Specifically, the EEOC alleged that Yellow Freight terminated Nicosia because of his AIDS related cancer and in retaliation for Nicosia’s filing of a complaint with the EEOC. Upon the defendant’s motion, the district court granted summary judgment in favor of Yellow Freight. We affirm.

I. BACKGROUND

Nicosia began his career with Yellow Freight in August of 1990 as a dockworker at the company’s Chicago Ridge, Illinois, Terminal. At that time, Yellow Freight, a trucking services company, employed some 550 dockworkers who loaded and unloaded freight trailers, checked the pieces count, and weighed shipments. Initially, Nicosia was a “casual worker” for the company. As a casual worker, Nicosia served as an on-call replacement worker.²

In February 1991, Nicosia was elevated to a full-time dockworker.³ As a fulltime dockworker at the Chicago Ridge Terminal, Nicosia was supervised by Gerald Sendziol. Sendziol was responsible for making decisions at the terminal with respect to leaves of absence and whether or not to terminate a particular employee.

It is important to note that Yellow Freight has a five-step progressive discipline procedure to deal with employees who accumulate numerous and excessive absences.⁴ Pursuant to the system, an employee who violates the company’s attendance policy would be subject to the following five steps: 1) a coaching session; 2) a letter of information; 3) a written warning; 4) suspension; and finally 5) termination.⁵ It is undisputed that since 1992 Yellow Freight has terminated over 90 employees pursuant to its progressive disciplinary system for excessive absenteeism.⁶

To say that Nicosia’s attendance record was woeful is somewhat of an understatement. In 1991, Nicosia’s first year as a full-time employee with Yellow Freight, he was scheduled to work 113 days, but left work early two times for illness and called in sick thirty-seven times.⁷ In 1992, his work attendance record was not much better when, out of 171 scheduled work days, he left work early because of an illness on one occasion, and took three personal days and twelve sick days. In the foEowing year, Nicosia was absent from work more than half of the 242 days that he was assigned to work (126 absences for illness, left work early four times, and three unexcused absences). In 1994, out of 227 scheduled work days, he took another forty-seven sick days, left work early three times, and had three unexcused absences.

In November of 1995,⁸ Nicosia called Sendziol and told his supervisor that he needed time-off for an unspecified medical problem. Sendziol told him that he was ineligible for family and medical leave, but that he could take a 90-day unpaid leave of absence. Presumably because Nicosia did not want to be gone that long, he decided to caU in sick for the next two weeks.

In December 1995, Nicosia was diagnosed as HTV positive. In January 1996, Nicosia’s condition deteriorated and he was diagnosed with Kaposi’s sarcoma, an AIDS-related cancer. On January 12, 1996, Nicosia sent a letter to Sendziol informing the company of his medical condition.

After being diagnosed with Kaposi’s sarcoma, Nicosia’s work attendance plummeted even further in 1996. In fact, he called in sick every working day during the months of January, February, and March. As a result of Nicosia’s poor attendance, Yellow Freight initiated its progressive disciplinary system.

On June 14, 1996, the company initiated step one (coaching session) with Nicosia. On June 24, 1996, the company sent Nicosia a letter of information (step two). Nicosia responded to the letter of information with the following letter addressed to Sendziol and dated June 26,1996:

I had advised you of my terminal illness on January 12, 1996 by messenger service. I have rights due to this illness under the Americans with Disabilities Act. Every time I have been off work due to illness, my doctor has faxed you medical documentation.

After another series of absences, Yellow Freight issued a written warning (step three) on July 15, 1996. Nicosia responded with a letter stating that he had been diagnosed with cancer.

The company then sent Nicosia an ADA accommodation review form along with a letter stating that Yellow Freight understood that Nicosia was requesting an accommodation under the ADA. The form required that Nicosia list his condition, describe the accommodation, if any, he was requesting, and to identify his treating physicians and medical providers.

Despite receiving the form, Nicosia failed to comply and fill it out. Instead, he returned the uncompleted form along with a letter. In the letter, Nicosia stated that he was “requesting no particular considerations at this time other than the resources necessary to perform my job and reasonable accommodations necessary to monitor and maintain my health status.” He also stated that he wanted “sick days, if needed[,] without being penalized.” Finally, he stated that he was “working” to perform the responsibilities and duties of a dockworker.

After Nicosia missed 10 out of the next 19 calendar days, the company proceeded to step four and suspended Nicosia for one day on August 5, 1996. In response to the suspension, Nicosia sent a letter promising to “report to work every day to fulfill my duties.”

On October 15, 1996, Nicosia filed charges with the EEOC claiming that Yellow Freight had disciplined him because of his disability and also that it had denied him a reasonable accommodation. As noted earlier, the company terminated Nicosia on December 16,1996, for excessive absenteeism.⁹ Following his termination, Nicosia filed a second charge with the EEOC alleging that he had requested an accommodation, had been denied an accommodation, and that he was illegally discharged. He also alleged that Yellow Freight had retaliated against him for filing his October 15th EEOC charges.

On May 4, 1998, the EEOC filed suit against Yellow Freight claiming that the freight company had discriminated against Nicosia in violation of the ADA and, furthermore, that it had retaliated against Nicosia for his filing of a complaint with the Commission. As mentioned before, Nicosia intervened in the suit.

On August 12, 1999, the trial judge granted summary judgment in favor of Yellow Freight and concluded that: 1) Nicosia was not a “qualified individual” under the ADA; 2) regular attendance at the job site was an “essential function of Nicosia’s job”; 3) Nicosia’s request for “sick days, if needed[,] without being penalized” was not reasonable as a matter of law; and 4) there was no causal connection between Nicosia’s filing of an EEOC complaint and his termination. Nicosia, not the EEOC, appeals.

II. ANALYSIS

The ADA mandates that:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The law also requires that “[t]he plaintiff bears the burden of proof on the issue of whether he is a ‘qualified individual’ under the ADA.” Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir.1998). Furthermore, to establish a prima facie case under the ADA, Nicosia must demonstrate that he is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see Feldman v. American Mem’l Life Ins. Co., 196 F.3d 783, 789-90 (7th Cir.1999). Thus, the critical question is whether an “essential function” of Nicosia’s regular full-time position with Yellow Freight was regular attendance, and if so, did he fulfill that “essential function.” Also,

the fact that [Yellow Freight] had infinite patience [with regard to Nicosia’s poor attendance] does not necessarily mean that every company must put up with employees who do not come to work. Nor must every company hire replacements for absent employees and call that a reasonable accommodation. The issue before us is, when is enough, enough?

Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.1999).

At the outset, let us be clear that our court, and every circuit that has addressed this issue, has held that

in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs. As the Tyndall court put it:

[A]n evaluation of the quality of Tyndall’s performance does not end our inquiry. In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee “who does not come to work cannot perform any of his job functions, essential or otherwise.”

Id. at 484-85; see also Jovanovic v. In-Sink-Erator, 201 F.3d 894, 899-900 (7th Cir.2000); Corder v. Lucent Techs., Inc., 162 F.3d 924, 928 (7th Cir.1998); Haschmann v. Time Warner Entm’t Co., L.P., 151 F.3d 591, 602 (7th Cir.1998); Nowak, 142 F.3d at 1003; accord Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.1996); Lyons v. Legal Aid Soc’y, 68 F.3d (2d Cir.1995); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.1994); Carr v. Reno, 23 F.3d 525, 530 (D.C.Cir.1994).

Specifically, this circuit has held that We think it [is] fair to conclude that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs.

Waggoner, 169 F.3d at 484. While Wag-goner made clear that “[w]e are not establishing a hard-and-fast rule that no absences from work need be tolerated,” it also made clear that no business is “obligated to tolerate erratic, unreliable attendance.” Id. at 485 (citing Haschmann, 151 F.3d at 601). Indeed,

the absence of employees is disruptive to any work environment. However, it is not the absence itself but rather the excessive frequency of an employee’s absences in relation to that employee’s job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.

Haschmann, 151 F.3d at 602. In Jovanovic, 201 F.3d at 899-900, this court dealt with a case similar to the one at hand:

Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job. This is especially true in factory positions, such as Jovano-vic’s, where the work must be done on the employer’s premises; maintenance and production functions cannot be performed if the employee is not at work.

Nicosia’s employment with Yellow Freight is similar to the factory worker in Jovanovic in that his job as a forklift driver “must be done on the employer’s premises.” Id. And, it is undisputed that “the ability to maintain good attendance” and the ability “to work on” available shifts “plus any required overtime” were listed as “minimum qualifications” in the Yellow Freight material given to all employees, including Nicosia, describing the full-time dockworker position.

Furthermore, it is undisputed that Nicosia was a full-time employee and not a casual, temporary, part-time, or substitute employee, nor did he ever have the discretion or the right to decline work when he chose to do so. While Nicosia began his employment with Yellow Freight as a part-time employee, he was elevated to a full-time position as the result of seniority, training, and experience, and had an assigned, definite, and specific work schedule.

A. Qualified Individual

Turning to the question of whether Nicosia was fulfilling the essential requirements of his job (regular job attendance), the undisputed facts reveal that he was not. As previously discussed, the record reflects that Nicosia was disciplined by Yellow Freight (as were some 90 chronically absent employees before him) well before he informed Yellow Freight that he had been diagnosed with AIDS-related cancer on January 12, 1996. In fact, from 1991 through 1993, his employer warned Nicosia on six separate occasions that his work attendance record was not only substandard but also unacceptable. Furthermore, in 1994 and 1995, Nicosia received four “coaching sessions” and five letters (three letters of information and two written warnings) regarding his pattern of excessive absenteeism. Because the company had a policy of allowing workers to start at step one if they completed nine months of continuous employment without receiving a disciplinary action, there were few opportunities for Yellow Freight to initiate steps four (suspension) and five (termination) before 1996.

The unchallenged record in this case reflects that Yellow Freight bent over backwards to accommodate Nicosia in spite of his long history of poor work attendance. Nicosia was repeatedly warned and reprimanded, and given numerous opportunities to improve his work attendance record. It was Nicosia’s woeful attendance record that forced Yellow Freight into the position that it could no longer justify Nicosia’s employment.

As we have stated in a number of discrimination cases, “our role is not to second guess the business decisions of a company and inquire as to whether the goals set by management demand ‘too much’ from its employees, nor to make things less difficult for those who come before us, regardless of the law.” Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1091 (7th Cir.2000) (citation and internal quotations omitted). After reviewing the record and considering Nicosia’s poor attendance record, we are convinced that Nicosia was unable to, and failed to, satisfy his burden of establishing that he is a “qualified individual” under the ADA. We thus hold that Yellow Freight is entitled to summary judgment.

B. Reasonable Accommodation

With respect to the question of reasonable accommodation, Nicosia, in an August 1, 1996 letter to Yellow Freight, stated that he was requesting “no particular considerations at this time other than the resources necessary to perform my job and reasonable accommodations necessary to monitor and maintain my health status, which would include sick days, if needed[,] without being penalized.” Here again, the employee has the burden of “producing] sufficient evidence to establish a genuine issue of material fact as to his ability to perform the essential functions of the job with reasonable accommodation.” Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir.1996).

This court has held that similar requests for unlimited “sick days, if needed[,] without being penalized,” are not reasonable as a matter of law. See, e.g., Waggoner, 169 F.3d at 485 (denying a request for an accommodation for unlimited time off by a production employee who was absent or tardy forty times in her 20 month tenure). Additionally, businesses are “not obligated to tolerate erratic, unreliable attendance or to provide an accommodation which would impose an undue hardship on the business.” Id. As this court has stated,

[w]e do not dispute that a business needs its employees to be in regular attendance to function smoothly; the absence of employees is disruptive to any work environment. However, it is not the absence itself but rather the excessive frequency of an employee’s absences in relation to that employee’s job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.

Haschmann, 151 F.3d at 602.

It is interesting to note that Yellow Freight, in an attempt to alleviate Nicosia’s work attendance problems, offered Nicosia an opportunity to take a 90-day leave of absence (which he refused to accept), and followed-up by sending him an ADA accommodation review form (which he refused to fill out). Nicosia responded to this attempt by sending a certified letter, including the uncompleted accommodation form, stating that he had received the accommodation form and was requesting, as stated before, an open-ended, unlimited amount of “sick days, if neededf,] without being penalized.” According to Nicosia, he refused to complete the accommodation form because he “was requesting ... sick time due to ... illness, and really didn’t see that on [the] form” and thought the letter he sent in response “would explain more.”

In Jovanovic, 201 F.3d at 899 n. 9, this court noted that

the only imaginable accommodation would be an open-ended schedule that would allow Jovanovic to come and go as he pleased. We would be hard-pressed to imagine a manufacturing facility that could operate effectively when its employees are essentially permitted to set their own work hours, and we thus reject such a schedule as an unreasonable accommodation under the circumstances of this case. See Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir.1999) (holding “as a matter of law” that employee’s desire “to miss work whenever she felt she needed to and apparently for so long as she felt she needed to” was not a reasonable accommodation for someone employed as a production worker).

Additionally, this court recently noted that a plaintiff

requested several accommodations, including “an ‘unpredictable’ amount of time off from work should her symptoms so demand.” Then she took paid administrative leave and also one year of benefits under the company’s Sickness & Accident Disability Plan. Finally, when she cut short another independent medical evaluation, she was fired. These facts, it should come as no surprise, easily led us to conclude that [plaintiff] was not a qualified individual with a disability under the ADA.

Waggoner, 169 F.3d at 484 (discussing Corder, 162 F.3d at 924). In any event, we are of the opinion that under the established law of this circuit, Yellow Freight’s efforts during the “accommodation process” were sufficient, especially given Nicosia’s unreasonable request for unlimited time off.

The district court properly found that Yellow Freight’s efforts at interacting with Nicosia regarding a “reasonable accommodation” were sufficient:

Sendziol in fact discussed with Nicosia the possibility of a 90-day medical leave, but Nicosia was unhappy with that option. Eventually Yellow Freight sent to Nicosia a 2-page Accommodation Review Form, which sought medical information and Nicosia’s perspective on an appropriate accommodation. In response to Yellow Freight’s accommodation inquiry, Nicosia wrote that he wanted “no particular considerations at this time other than ... sick days, if needed, without being penalized.”

This certainly is the beginning of the reasonable accommodation process, and was only met with unmanageable demands on the part of Nicosia. We refuse to force employers to the negotiating table in the face of demands of this nature, and hold that Yellow Freight fulfilled its burden under the law, especially in light of the fact that Nicosia had fashioned a poor attendance record for himself well before he was diagnosed with AIDS. For as we have explained, “[a]n employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.” Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir.1996).

To hold otherwise would unreasonably expand the reaches of the ADA and ignore the plaintiffs burden to demonstrate that he is a “qualified individual.” Although the plaintiffs medical condition is most unfortunate, we are convinced that Nicosia does not have a remedy under the ADA. As this court stated in Waggoner, 169 F.3d at 484:

[r]ather than attempting to show that [he] is a qualified individual, however, [Nicosia] seems to want to turn the ADA on its head. It is as if [he] thinks that rather than ensuring that [he] be allowed to work, the ADA requires [Yellow Freight] to provide [him] with a job but not require that [he] regularly perform it. Rather, [Yellow Freight] must hire another employee to do the job for [him] while [he] remains a full-time employee. The Act does not go so far. The ADA protects an important, but finite, universe of people.

C. Retaliation Claim

Nicosia next claims that Yellow Freight retaliated against him for filing an EEOC complaint in October of 1996. “A prima facie case of retaliation is made when the plaintiff shows that (1) he engaged in statutorily protected expression; (2) he suffered an adverse action by his employer; and (3) there is a causal link between the protected expression and the adverse action.” Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.1996) (citing Brenner v. Brown, 36 F.3d 18, 19 (7th Cir.1994)). Because Nicosia clearly engaged in protected expression by filing the EEOC complaint, only the last two elements of the prima facie case are at issue.

The district court concluded that the evidence in the. record failed to demonstrate that Sendziol, the person who discharged Nicosia, was aware of the fact that Nicosia had filed an EEOC charge. Additionally, the judge found that the temporal link between the charges and the firing was insufficient to establish liability.

With respect to Sendziol’s knowledge that Nicosia had filed an EEOC charge, the only evidence in the record is Nicosia’s own (and late) affidavit. In his affidavit, Nicosia asserted that he had passed out approximately 20 copies of his EEOC complaint to his co-workers and that he mailed copies of the complaint to Sendziol and to the president of Yellow Freight.¹⁰

The problem with Nicosia’s affidavit is that it was filed late and that it contradicted testimony he gave in an earlier deposition. In his deposition, Nicosia stated that he told John Peterson about the charges and that Peterson told Marilyn Brewer. Nicosia was then asked: “Who, if anyone, else besides John Peterson did you tell or inform that you had filed an EEOC charge with [sic] Yellow Freight?” In response to the question, Nicosia answered that he thought he had also told Jeff Ruchan and George Hagle. Nicosia never mentioned Sendziol.

“As a general rule, the law of this circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.” Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir.1996). The affidavit, as applied to Sendziol, falls squarely within our rule.

The question at the deposition clearly invited Nicosia to list anyone else whom he had told about the EEOC complaint. Furthermore, he obviously understood that this was his chance to offer additional names because he named Peterson and Brewer. The fact that he did not include Sendziol as a person whom he had informed about his EEOC charge makes his affidavit, in which he claims he informed Sendziol of the EEOC charge, contradictory. Therefore, the district court had no obligation to consider it. Id. Finally, we agree with the district court that the temporal proximity of Nicosia’s termination with his filing of an EEOC charge (some six weeks) is insufficient to establish retaliation. See, e.g., Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir.1999); Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.1998); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992).

The decision of the district court is

AFFIRMED.

1 . Nicosia intervened in the district court action as a party plaintiff pursuant to Fed. R.Civ.P. 24(a).

2 . Yellow Freight used its casual workers if the workload on a particular day required additional workers or if its regular workers were sick, on vacation, or on disability leave.

3 .As a full-time dockworker, Nicosia received several benefits, including vacation and sick leave, as well as pension payments.

4 . The dissent suggests that we have accepted Yellow Freight's word that such a policy existed and for the content of that policy. But we do not see the content of the attendance policy as in dispute. Indeed, it is interesting to note that the dissent itself recites the same five-step progressive discipline policy that we outline here.

5 . Employees were able to start at step one if they were able to complete nine months of continuous work without a disciplinary step being taken.

6 . The dissent suggests that because the record contains no detailed information about the reasons why particular employees’ absences were deemed excessive that no inferences can be drawn from the fact that the policy was used. In support the dissent hypothesizes that if Yellow Freight had disciplined only members of one racial group and forgiven all others that it could not say it was enforcing its policy in an even-handed manner. Strangely though the record contains no evidence that Yellow Freight systematically applied the attendance policy in a discriminatory fashion — and Nicosia does not make such a claim. In any event, the fact that Yellow Freight did terminate over 90 employees pursuant to the attendance policy is evidence that the policy did exist and that Yellow Freight did take attendance problems seriously.

7 . The number of days that Nicosia was scheduled to work and the number of his absences do not include vacation days, jury duty, the five annual paid sick days that he is afforded under the collective bargaining agreement, nor his countless 'worker's compensation absences. However, for the record, Nicosia accumulated a total of 294 worker's compensation days from 1991 through 1996.

8 . For the record, his work attendance did not improve in 1995; out of the 181 scheduled work days, he called in sick fifty times, left work early three times, and had one unexcused absence.

9 . While Nicosia was terminated on December 16, 1996 for excessive absenteeism, he was ordered reinstated by an arbitrator (without back pay or benefits), and was a Yellow Freight employee at the time this case was orally argued.

10 . Nicosia attached copies of the letter to the president, the U.S. Postal Service certified mail receipt, and the fax confirmation sheet to this affidavit.