burden of proving that she has been the victim of illegal discrimination.
The Reasonableness of Abbott's Accommodations
Abbott provided Garza with time off, amended work schedules, and other related accommodations during her employment. The parties do not dispute that these accommodations were ineffective in that they did not allow Garza to continue performing the essential functions of her job. Garza further requested that Abbott provide her with a split keyboard, voice activated computer software, or a transfer to a new position; Abbott did not provide Garza with these accommodations. Using the framework provided by Vande Zande, Garza must produce sufficient evidence to demonstrate an issue of fact as to whether or not at least one of the three accommodations requested by Garza was reasonable in order for her claim to survive summary judgment.
Nancy Liaboe, the Manager of Abbott's Safety/Industrial Hygiene Department, testified that the existing research demonstrated that split keyboards did not assist individuals with repetitive motion restrictions in performing their jobs. Abbott has therefore produced evidence that the split keyboard was not a reasonable accommodation in that it would not aid Garza in performing the essential functions of her job, i.e. typing 7.5 hours per day. In response, Garza testified that she was not sure if she could perform her job with the split keyboard or not, but she felt she should have been allowed to try. This testimony is simply speculation, however, and as such it is insufficient to show any genuine issue of fact for the jury regarding the effectiveness of a split keyboard in enabling Garza to perform her job. Therefore, as a matter of law, this Court finds that Garza has failed to show that the split keyboard is a reasonable accommodation.
Voice Activated Computer Software
After receiving a request from Garza, Abbott investigated the use of a voice activated computer for her position. Abbott's inquiry resulted in an estimate in late 1993 or early 1994 that implementing voice activated software would cost over $ 1 million. Additional investigation suggested that implementing such software would require many days of work by Abbott's computer specialists, and might not effectively allow Garza to perform her job due to its slow and inaccurate processing of speech. These conclusions reflected the following facts and assumptions regarding Abbott's then existing computer system and voice activated software.
The Abbott OPS system used by Garza in her former job ran on a "dumb" terminal, a computer terminal attached to Abbott's mainframe, rather than a personal computer. Def.'s Facts P 44. A personal computer is necessary to run voice recognition software. Samek dep. at 76. According to Donald Pacholczak, the Manager of Abbott's Technical Planning and Assessment unit, a massive programming effort would be necessary to develop special commands in OPS in order to facilitate the screen switching in the personal computer necessary to replicate the multiple session set-up allowed by the dumb terminal. Def.'s Facts P 44. Pacholczak also testified that if OPS could be altered to function with a personal computer, a commercially available piece of software called a terminal emulator would be needed to allow the personal computer to interface with the mainframe. Id.
Pacholczak also testified that in 1993-94, voice recognition software operated erratically with terminal emulators and therefore Abbott would be required to build a "bridge" program to facilitate the interaction of voice recognition software with the OPS terminal emulation program. Id. P 45. Pacholczak opined that voice recognition software would not allow Garza to perform her job with the necessary speed, as she would have to talk separately to the customer and then the computer, and any mistake made would have to be remedied by several commands. Id. P 47.
OPS Manager Robert Becofske testified that, given these steps, equipping OPS with voice recognition software would cost well over $ 1 million, taking into account the number of hours required and the internal rates normally charged for in-house computer work. Id. P 46. At some point in the summer of 1994, Kirn asked Becofske to document his estimate of the cost of integrating voice recognition software with OPS. Id. P 40. Becofske created a team of employees within his department to assess the voice activation implementation procedures and costs, and that team arrived at an estimated cost of $ 1.4 million. Id. P 41. Abbott argues that this cost greatly outweighs any benefits voice activation software would provide to Abbott or Garza and would impose undue hardship on Abbott.
The opinions of Becofske and Pacholczak differ sharply from those of Garza's expert, Ralph Samek,
regarding the process of implementing voice activated software, the cost of implementation and the effectiveness of the software available in late 1993-early 1994. Samek first opined that Garza would be able to perform her job effectively with a voice activated computer. He testified that there is no evidence to suggest that OPS would respond any differently to keystrokes issued verbally or initiated through the keyboard. Samek Rpt. P 2; Pl.'s Add'l Facts P 149. Samek did not think that it would take the OPS system any longer to process an order coming from a personal computer than it would take to process an order coming from a dumb terminal. Id Samek also testified that, in 1993-94, voice recognition software was capable of speeds of 50-55 words per minute with at least 98 percent accuracy and that voice entry can be faster than keyboard entry because most people don't type at a continuous rate of 50-55 words per minute. Samek dep. at 38, 115. Garza currently has a computer at home on which she successfully uses voice recognition software. Pl.'s Add'l Facts P 10.
Samek's assessment of the steps necessary to integrate voice activated software with the OPS system, and the resulting estimate of costs, also varies from Abbott's. Samek noted that there had been testimony that personal computers, at least in some capacity, were already hooked up to OPS at that time. Pl.'s Resp. P 48; Samek Rpt. P 2. Samek further testified that OPS would not have to be altered in any way to work with a personal computer. Pl.'s Add'l Facts P 147. Finally, Samek testified that, in 1993-94, it would have cost $ 9,500 to allow Garza to operate Abbott's OPS with voice recognition software, based on the cost of a personal computer ($ 3,500) with the requisite memory ($ 1,000), a terminal emulator ($ 500), the cost of the software ($ 3,000 in 1993), and two days of training at $ 500 a day. Pl.'s Add'l Facts P 157; Samek dep. at 113. Thus, according to Samek, this accommodation would allow Garza to effectively perform her job and its benefits outweigh the costs.
It is clear that there is a material factual dispute between Abbott and Garza concerning the effectiveness and cost of implementing voice activated software, and whether or not that cost would impose an undue hardship on Abbott. The parties have produced competing expert testimony on these issues, resulting in a credibility question that must be resolved by a jury. Nevertheless, Abbott argues that the Court must grant summary judgment in its favor regardless of this factual dispute. Abbott argues that, so long as Abbott's employees made their $ 1.4 million estimate in good faith, it does not matter whether that estimate is objectively wrong. In essence, Abbott is contending that an employer is protected from liability under the ADA as long as it had an honest belief that a requested accommodation was not reasonable, even if that accommodation in fact was reasonable.
We can find no case law suggesting that this argument is correct. Rather, to the extent that any exists, the relevant case law contradicts this argument. In Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), an epileptic plaintiff brought suit against the U.S. Postal Service, claiming that they discriminated against her in denying her a position because of her epilepsy. As part of its defense during a bench trial, the post office argued that accommodations that would allow the plaintiff to perform the job could not be made because "they would have required the expenditures of large amounts of money" and would not have enabled the plaintiff to use the machine in question safely. Id. at 1420. The trial court agreed, and entered judgment for the defendants. On appeal, the defendants argued that, even if their conclusions about cost and effectiveness were wrong (the plaintiff's expert testified that the plaintiff could have used the machine safely with the installation of a plexiglass guard and the use of $ 30.00 pair of tongs), they had reached their conclusions in good faith and therefore those conclusions were entitled to deference.
The appellate court rejected this argument, finding that instead of this subjective good faith standard, an objective standard should be applied.
If the requisite accommodations are not reasonable or if no accommodation can be made . . ., then an employer will, of course, not violate § 501 in refusing employment to the applicant. However, although it is the employer who must make a substantial gathering of necessary facts, the determination of whether the employer violated § 501 is to be made by the trial court de novo. Therefore, a good faith or rational belief on behalf of the employer will not be a sufficient defense to an act of discrimination.
Id. at 1423 (citing Pushkin v. Regents of the Univ., 658 F.2d 1372 (10th Cir. 1981)). Although Mantolete involved a claim under the Rehabilitation Act, not the ADA, we have already noted that the case law developed in connection with the Rehabilitation Act may be used to guide the interpretation of the ADA. See Vande Zande, 44 F.3d at 542.
After searching federal case law on this subject, we cannot find any cases authorizing Abbott's attempt to apply a subjective good faith standard to the employer's determination of what accommodations are reasonable. Abbott cites Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996) to support its argument, but its reliance is misplaced. Beck concerned an employer's effort to ascertain what specific accommodations would be useful for the plaintiff, and focused on the negotiation process described in 29 C.F.R. pt. 1630 app., in which the employee should identify for the employer the requested accommodations, and the employer should respond to those requests. The court's holding in that case concerned the narrow issue of which party should bear legal responsibility when the negotiation process breaks down. See id. at 1134 ("the crux of this dispute is one not clearly answered by the ADA: does the employer or the employee bear ultimate responsibility for determining exactly what accommodations are needed?"). The court's use of "good faith" in Beck related to the employer's duty to maintain communications in order to identify the desired accommodations. By contrast, Abbott's claim here of "good faith" relates to its own assessment of whether it was reasonable to provide three accommodations that had already been identified and specifically requested by Garza. Beck simply did not address "good faith" as it related to an employer's decision about whether to provide a specifically requested accommodation, and it cannot support the construction of "good faith" that Abbott seeks.
Nor is Pesterfield v. Tennessee Valley Auth., 941 F.2d 437 (6th Cir. 1991), another case cited by Abbott, applicable here. There, the plaintiff's doctor had written the employer a letter stating that "at the present time, [the plaintiff] seems unable to return" to work, and noting that if the plaintiff were subjected to "the slightest hint of rejection or criticism, he becomes extremely anxious and depressed." Id. at 439. The doctor's first recommendation was: "As long as Mr. Pesterfield continues in his present state, retirement may be the best answer." Id. Ten years later, the doctor testified in deposition that he had actually believed that the plaintiff was able to return to work at that time. The trial court found that "the most reasonable interpretation of the letter was that plaintiff was not ready to return to work and that even if TVA was mistaken in its interpretation of the letter, there is no proof that TVA based its decision to terminate plaintiff on any handicap discrimination." Id. at 443.
Like Beck, Pesterfield is distinguishable and does not permit us to grant Abbott the good faith safe harbor it seeks as a matter of law. Although the Pesterfield court stated that the employer's good faith was relevant to its liability, the good faith at issue there concerned the employer's understanding of the extent of the plaintiff's disability -- not the reasonableness of its efforts at providing requested accommodations. Moreover, the employer's understanding of the employee's disability was objectively reasonable, based upon the plain language of the doctor's letter. Id. at 442. Pesterfield cannot be read to authorize insulation from liability as a matter of law whenever an employer claims that it acted in good faith.
The evidence produced on the issue of whether providing Garza with a voice activated computer was a reasonable accommodation presents a clear credibility question that must be resolved by a jury. We note that the necessity of considering all the evidence and drawing all the inferences in the light most favorable to Garza in the context of a motion for summary judgment is even more crucial in employment discrimination cases, where intent and credibility are pivotal issues. Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344 (7th Cir. 1996). Therefore, the Court denies summary judgment on this issue.
Transfer to a Different Position within Abbott
The final accommodation requested by Garza, and the final basis for her claim of disability discrimination, is the request that Abbott re-assign her to another job within Abbott that she could perform either with or without other accommodations. Abbott argues that it cannot be liable for failing to re-assign Garza because there is no evidence that there were any openings for jobs that she could perform, and because Garza failed to fill out an application for the Internal Placement System (IPS) until after she had been terminated.
As to the latter argument, Garza has presented sufficient evidence to withstand summary judgment that Abbott itself contributed to her delay in completing the IPS application form. Garza first requested re-assignment in November, 1993 when she learned that her disability was likely to prevent her from returning to her old position without accommodation. Garza testified that at that point Hart-Wadley told her that no positions within her restrictions were available. Garza has also testified that, at later meetings she had with Abbott employees, those employees asked or suggested that she wait to complete the form until the company doctor had had the opportunity to assess her functional restrictions. (The IPS form requires the employee's abilities and restrictions to be listed.) Moreover, Garza's old supervisor disclaimed responsibility for completing the supervisor's portion of the form, and no one at Abbott took on this responsibility. When considering a motion for summary judgment, a court must draw all reasonable inferences in the non-movant's favor. Accordingly, we reject Abbott's argument that it is entitled to summary judgment because Garza's own conduct was the sole cause of her not being re-assigned.
As for the availability of a vacant position that Garza could have filled, Garza has met her burden here too. Garza has presented evidence that during February 1994 there were three openings for the position of security guard, a job that Hart-Wadley believed Garza may have been able to perform without accommodation. On summary judgment, Garza need only raise a question of fact regarding the existence of a vacant position that she could fill, not present conclusive proof, and she meets this standard.
It is also possible that the ADA would require a transfer to any vacant position that Garza could perform with accommodation. Leech testified that positions requiring less keyboarding than Garza's old job were available between November 1993 and April 1994. Abbott has argued that Garza may not have been able to perform her old job even with a voice activated computer, but it is undisputed that Abbott did not investigate whether Garza might be able to use voice activated software to perform some other job at Abbott not requiring the same use of the OPS, for which vacancies existed. Taking all of the evidence presented by Garza together, we find that she has raised sufficient questions about whether re-assigning her within Abbott was a reasonable accommodation to survive summary judgment.
II. COUNT II - RETALIATION
In addition to charging that Abbott violated the ADA by discriminating against her, Garza also charges that Abbott retaliated against her for requesting accommodation of her disability, in violation of § 12203(a) of the ADA. The elements of a retaliation claim are: (1) statutorily protected expression; (2) adverse action by the employer; and (3) a causal link between the two. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1459 (7th Cir. 1995). Garza alleges that Abbott denied her access to the IPS, steering her toward jobs outside of Abbott, and then terminated her earlier than it would otherwise have done,
all in retaliation for her requests for accommodation.
Abbott argues that this claim merely restates that portion of the discrimination claim that is directed to Abbott's failure to re-assign Garza to a different position within Abbott, and that the retaliation claim must fail for the same reasons as that discrimination claim. The Court has rejected Abbott's arguments with respect to the discrimination claim related to the IPS. Moreover, we note that there is nothing improper about bringing more than one claim based on a common set of facts, although a plaintiff is limited to one complete recovery. See Astor Chauffeured Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1547 (7th Cir. 1990) (noting that FED. R. CIV. P. 8(e) permits multiple and even inconsistent claims, although "at the end of the day," the plaintiff is "limited to a single recovery no matter how many different . . . theories it offers.").
We note for the record that Garza appears to have made out a prima facie retaliation claim. She has produced evidence that she engaged in statutorily protected expression by requesting accommodation for her disability, and that thereafter Abbott denied her access to re-assignment through the IPS, which we assume without deciding may constitute an adverse employment action. As for the causation element, the temporal sequence between the protected expression and the adverse action may indicate a causal link between the two. Johnson v. University of Wis. - Eau Claire, 70 F.3d 469, 481 (7th Cir. 1995); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir. 1989). Here, the adverse actions that Garza alleges followed on the heels of her requests for accommodation. We find that Garza has made out a prima facie case of retaliation sufficient to go to a jury, and therefore deny Abbott's motion for summary judgment on that claim.
For the foregoing reasons, we grant Abbott's motion for summary judgment in part and deny it in part. The motion is granted with respect to the discrimination claim in Count I based upon Abbott's failure to procure a split keyboard for Garza, and with respect to the retaliation claim in Count II to the extent that it rests upon the bare fact of Abbott's termination of Garza. In all other respects, the motion is denied as to both counts.
Pursuant to a prior order issued by this Court, this case will proceed to trial, commencing at 10:00 a.m. on November 18, 1996, on the issues that remain in this lawsuit.
United States District Judge
September 12, 1996