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GARZA v. ABBOTT LABS.

September 12, 1996

ELIZABETH T. GARZA, Plaintiff,
v.
ABBOTT LABORATORIES, Defendant.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Elizabeth Garza brings this action against defendant Abbott Laboratories, alleging that Abbott discriminated against her and then retaliated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ┬ž 12101 et seq. (1996). Garza alleges that Abbott discriminated against her by refusing to accommodate her after she developed a condition in her arms that restricts her ability to perform certain manual tasks, including operating a keyboard. Garza further alleges that Abbott retaliated against her after she requested accommodations, by steering her towards positions outside of Abbott, denying her access to Abbott's Internal Placement System ("IPS"), and eventually terminating her employment. Garza timely filed a charge of discrimination with the Equal Opportunity Employment Commission on June 6, 1994, and that agency issued her a Notification of Right to Sue on April 12, 1995. Garza then filed this action in federal court. Abbott's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is presently before the court.

 RELEVANT FACTS *fn1"

 Garza's Employment with Abbott

 Abbott Laboratories produces and distributes hospital and health care products, employing over 14,000 people at its headquarters in Lake County, Illinois. Def.'s Facts P 2; Pl.'s Add'l Facts P 77. Garza was hired in 1991 and was subsequently promoted to the position of Customer Service Administrator ("CSA") in the Health Systems Division. Id. P 3. Garza's duties as a CSA involved communicating with customers on a telephone headset and simultaneously utilizing a computer system called the Corporate Order Processing System ("OPS") to input customer information or locate information requested by the customer. Id. P 4. The CSA position required approximately 7.5 hours of keyboarding per day. Id. P 6.

 On December 2, 1992, Garza notified her supervisor, Donna Wallace Pasquesi, that she was experiencing pain in her right hand. Id. P 7. On December 16, 1992, Garza reported to the Employee Health Department ("EHD"), which restricted her duties to 30 minutes of keyboarding followed by 30 minutes of rest. Id. P 8. Later that month EHD reported that Garza could return to her normal duties with 10 to 15 minute breaks as needed. Id. P 9. Abbott allowed Garza to work within these recommended restrictions. Garza's pain was eventually attributed to interosseous nerve syndrome, which is a permanent condition affecting the nerves in the hands and forearms; she also exhibited symptoms of reflex sympathetic dystrophy. Def.'s Facts P 10; Garza dep. at 46, 49; Pl.'s Add'l Facts P 1.

 Garza underwent surgery in January of 1993 on her right index finger to remove a cyst, and in April of 1993 on her right forearm to alleviate pressure on her nerves caused by the condition. Def.'s Facts PP 11, 14; Garza dep. at 281, 288. In the months between the two surgeries, Abbott provided Garza with a flexible work schedule, assigned her light duty tasks as available, and allowed her to take rest breaks as needed. Def.'s Facts PP 12, 13. Abbott allowed Garza to take time off and held her job open for her. Id. P 14. Throughout the next several months, whenever Abbott allowed Garza to work partial days due to her disability, the portion of the day that she did not work was counted against her for purposes of calculating the one-year time period after which Abbott would terminate her. Pl.'s Add'l Facts P 184. Garza returned to work in her CSA position on June 1, 1993, but reported pain brought on by continuous keyboard entry. Def.'s Facts P 15. On that day, Garza reported to the EHD and they restricted her to light-duty, non-repetitive work. Id. P 16. Abbott sent Garza home but kept her job open during her absence, continuing to pay her salary during this period. Id. ; Garza dep. at 375-76. Garza returned to work two weeks later on June 14, 1993, with a restriction from EHD that she do order entry for no more than four hours a day, but again reported that she experienced pain. Def.'s Facts P 17. On June 17, 1993, Garza received a restriction from EHD of no repetitive motion. Pasquesi Decl. P 11. For several weeks thereafter, Garza remained off work. Abbott paid her salary and held her job open for her during this time. Def.'s Facts P 18. Garza returned to work on August 30, 1993, again on a four hour schedule, but she continued to experience pain. Id. P 19. On September 2, 1993, EHD restricted her to no keyboard entry. Id. P 20.

 Garza performed no work for Abbott after September 2, 1993. Id. On November 23, 1993, Dr. Michael Oster, a physician at EHD, determined that Garza could not type more than 1.5 minutes continuously. Id. P 23. Garza could not, without accommodation, perform the essential functions of her CSA job with the 1.5 minute typing restriction. Id. P 24; Garza dep. at 352. On an EHD recommendation form, Oster suggested accommodations that might allow Garza to continue to work for Abbott, including an ergonomic assessment of Garza's work area and a split keyboard, a voice activated computer, and a transfer to a new position. Def.'s Facts Ex. 16. Dr. Oster made these recommendations without any knowledge of Abbott's computer system. Def.'s Facts P 26.

 Garza presented these suggestions to her supervisor, Pasquesi. Pl.'s Add'l Facts P 43. Pasquesi told Garza that she was no longer Garza's supervisor and that Garza should take the recommendation form with the suggestions for accommodation to Sue Hart-Wadley, a Human Resources Specialist with responsibility for Abbott's Health Systems Division. Id. She also said that Hart-Wadley would handle these types of things for Garza in the future. *fn2" Id. In November, 1993, Garza gave the form to Hart-Wadley, and Hart-Wadley agreed to contact Abbott employees concerning the three suggestions. Hart-Wadley Decl. PP 3-4.

 Split Keyboard

 Shortly after receiving the suggestions from Garza, Hart-Wadley contacted Nancy Liaboe, manager of Abbott's Safety/Industrial Hygiene Department, regarding the usefulness of a split keyboard. *fn3" Def.'s Facts P 28. Liaboe told Hart-Wadley that existing research failed to demonstrate that split keyboards were beneficial to persons with repetitive motion restrictions. Id. P 29.

 Liaboe opines that a split keyboard would not have assisted Garza in performing the essential functions of her job, i.e., keyboarding for 7.5 hours per day. Id. P 30. Garza considers it possible that she may have been able to perform her job with a split keyboard, Pl.'s Resp. P 30, but she has never been allowed to test this possibility. Garza dep. at 316-19.

 Voice Activated Software

 Garza alleges that Hart-Wadley initially told her, in response to her request for voice activated software, that "Abbott doesn't do this" and that if Abbott did that for Garza, then they would have to do it for everyone. Pl.'s Add'l Facts P 44. Hart-Wadley denies making these statements. Hart-Wadley dep. at 110-11. Hart-Wadley contacted Gary Lazerus, Director of Human Resources for Abbott's Health Care Division, regarding Garza's request for a voice activated computer, who in turn contacted Michael Kirn, Director of the Management Information Systems group. Def.'s Facts PP 31-32.

 In late 1993 or early 1994, Kirn met separately with Don Pacholczak, Manager of Technical Planning and Assessment, and Bob Becofske, Manager of OPS, to discuss the feasibility of implementing voice activated computer software. Id. PP 33, 37. At his meeting with Kirn, Pacholczak demonstrated a voice recognition system that Abbott possessed at the time. Id. P 34. The demonstration revealed that the system had poor word recognition and accuracy. Id. Pacholczak also told Kirn that Abbott would have to construct a special computer program for the voice recognition software. Id. P 36. Garza contends that the program demonstrated for Kirn did not represent the full capability of voice recognition software available at the time, and that Pacholczak did not "train" the computer to work with his voice as necessary for full efficiency of the software. Pl.'s Resp. PP 34-35.

 At the Kirn-Becofske meeting, Becofske told Kirn that extensive modifications would have to be made to OPS in order for voice activated software to work with it. Def.'s Facts P 37. Becofske estimated in late 1993 or early 1994 that the cost of integrating the voice activated software with OPS would be over $ 1 million. *fn4" Id.

 Kirn reported the information he learned from Pacholczak and Becofske to Lazerus. Id. P 38. Based on this information, Lazerus concluded that voice activated software was not a feasible accommodation and reported this conclusion to Hart-Wadley. Id. P 39.

 Transferring Garza to a New Position Within Abbott

 Abbott has a policy of hiring from within the company before hiring from the outside. Pl.'s Add'l Facts P 181. Abbott operates an Internal Placement Service ("IPS") to assist Abbott employees in securing transfers or promotions within the company. Def.'s Facts P 54. Garza had used this system to obtain her CSA position and was familiar with it. Id. P 56. It is Abbott company policy that the employee has the sole responsibility to initiate the IPS process. Id. P 55.

 Abbott policy required an IPS form to be filled out in order for the employee to be placed on the IPS system. Hart-Wadley Decl. P 8; Hart-Wadley dep. at 63-64. The IPS form required the employee's manager to give written permission for the employee to be placed on the IPS system, and required the department manager to describe the employee's abilities as well as restrictions. Hart-Wadley Decl. P 8; Hart-Wadley dep. at 63-64; see Pl. Ex. 22.

 Abbott asserts that Lazerus and/or Hart-Wadley instructed Garza to fill out an IPS form in November, 1993, January, 1994, and March, 1994. Hart-Wadley dep. at 145; Def.'s Facts PP 59, 66. Garza denies that Hart-Wadley told her to fill out an IPS form at the November 1993 meeting, and claims that when she first presented the request for re-assignment to Hart-Wadley at that meeting, Hart-Wadley told her that there were no jobs available at Abbott that did not require keyboarding. Pl.'s Add'l Facts PP 45, 48. Garza states that she did not fill out the IPS form after the January meeting with Lazerus because there was a question about who should fill out the section of the form relating to her restrictions, and Lazerus told her to wait until Hart-Wadley could assist her. Id. P 47. (Garza had been referred for functional capacity testing by Dr. Harris, a doctor designated by Abbott's insurance company. See Def.'s Facts Ex. 20, March 6, 1996 Rpt. at 1.) Garza claims that in her meeting with Hart-Wadley and Steiner on March 18, 1994, Hart-Wadley told her that after Abbott received the functional testing approval from Dr. Harris, Hart-Wadley would help her fill out the IPS form, especially the portion describing the employee's restrictions. Pl.'s Add'l Facts PP 54-55. Ultimately, Garza did not fill out an IPS form until April 12 or 13, 1994. Pl.'s Resp. P 67.

 In January, 1994, Hart-Wadley spoke with Cindy Perez, Abbott's IPS recruiter for the Health Care Division, about finding another job for Garza. Def.'s Facts P 61. Perez discussed Garza's situation in a January IPS "priority placement" *fn5" meeting, but did not officially place her on the "priority placement list" because they did not have a completed IPS form. Perez dep. at 15-17. During the initial conversation in January, Perez agreed to tell Hart-Wadley if a position for Garza came up despite the lack of an IPS form. Def.'s Facts P 61. Perez was familiar with Garza's restrictions, but not her qualifications. Perez dep. at 14-15, 18-19.

 Perez (with whom Hart-Wadley had previously discussed Garza's request for a voice activated computer) called Hart-Wadley in February, 1994 to inquire about the voice activated computer, and Hart-Wadley told her the estimate was around $ 1 million. Id. at 19-20. At this time, Perez stopped looking for a job for Garza because she had no IPS form for Garza. Pl.'s Resp. P 63. Perez did not discuss Garza at any further "priority placement" meetings until the fall of 1994. Perez dep. at 20-21.

 In February, 1994, Dr. Harris, the physician designated by Abbott's insurer (apparently in connection with Garza's worker's compensation claim), referred Garza for a Functional Capacity Evaluation. The evaluation indicated that Garza functioned at a "sedentary" work level under U.S. Department of Labor standards. Def.'s Facts Ex. 20, March 6, 1996 Rpt. at 1. On March 16, 1994, Garza began vocational testing at Rehabilitation Consultants for Industry, Inc. ("RCI"), a vocational rehabilitation and outplacement firm, but was forced to stop due to fatigue. Garza completed this testing on March 23, 1994. Def.'s Facts Ex. 20, March 28, 1994 Vocational Testing Rpt. at 1.

 On March 18, 1994, Garza met with Hart-Wadley and Dana Rubin Steiner of RCI to discuss RCI assisting Garza in her job search. Def.'s Facts P 64. At no cost to Garza, Steiner assisted Garza in looking for a job outside Abbott from March to July, 1994. Id. PP 65, 83; Pl.'s Add'l Facts P 38. Steiner compiled a list of 127 possible jobs for Garza, *fn6" all of which were outside of Abbott. Def.'s Facts P 83; Pl.'s Add'l Facts P 38. Abbott did not permit Garza to attempt to perform the essential functions of any job within the company. Pl.'s Add'l Facts P 13. Abbott contends that it had no positions open that were within Garza's restrictions. Def.'s Facts P 77.

 Garza was terminated effective March 17, 1994. Def.'s Facts P 70. Abbott had a policy, of which Garza was aware, which provided that any employee who had not worked for Abbott for one year would be terminated from employment. *fn7" Id. PP 68-69. The partial days that Abbott allowed Garza to work throughout the spring and summer of 1993 were counted against the one year period. Pl.'s Add'l Facts P 184. Garza was informed on April 19, 1994 that, due to a miscalculation, she had been terminated effective March 17, 1994, rather than in late April as she had anticipated. Def.'s Facts P 70. *fn8"

 On April 20, 1994, Garza contacted Michael Meyer, Abbott's Director of Human Resources for Lake County, and inquired about obtaining another position within Abbott. Def.'s Facts P 71. Meyer told Garza that he would look into the matter and get back to her. Id. At some point after Garza's termination, Garza's counsel sent a letter to Meyer requesting that he enroll Garza in the IPS system. Meyer dep. at 20. Meyer contacted Garza after receiving the letter. Garza dep. at 245-247. Meyer decided to allow Garza to utilize the IPS system. *fn9" Meyer Decl. P 8. On July 19, 1994 Meyer forwarded an IPS form to Garza, who filled out the form and returned it to Meyer on July 29, 1994. Id. PP 10-11. Meyer processed the form and Garza was enrolled in IPS from August 4, 1994 to October 26, 1994. Def.'s Facts P 74. Perez placed Garza on the priority placement list but did not locate any positions within Garza's qualifications and restrictions during this time. Def.'s Facts P 75.

 Elinore Leech, Abbott's IPS administrator, is aware of approximately 400 jobs available at Abbott. Of these, Garza would be qualified for approximately 100, but could not perform them due to her restrictions. Pl.'s Add'l Facts PP 88-89. Two Abbott employees have said that they are not aware of any positions at Abbott that Garza could have performed with her restrictions, Pasquesi Decl. P 15, Meyer Decl. P 13, although Hart-Wadley opined that perhaps a security guard position might have been within both Garza's qualifications and her restrictions. Pl.'s Add'l Facts PP 178-79. During February, 1994, there were three positions for security guard open within Abbott. Id. P 182. Garza was not offered any of those positions and two of them appeared to go to walk-ins (people from outside Abbott). Id.

 Garza's Capabilities and Restrictions

 Garza's current physical condition is similar to when she was employed at Abbott. Def.'s Facts P 78. Garza is unable to manually operate a computer, write for long periods of time, carry her daughter for long periods of time, move heavy objects, or perform tasks involving repetitive motion. Pl.'s Add'l Facts P 5. Garza also experiences difficulty in performing tasks which require fine-motor skills, performing tasks which require holding her arms over her head or out in front of her, including driving a car for more than about one hour, and performing tasks that involve lifting or exerting force with her arms, such as hanging clothes. Id. Finally, Garza reports that she is unable to perform or experiences great difficulty in performing many common job related tasks, such as typing, writing, filing, using the telephone extensively, running a cash register, bagging purchases, and picking up small objects. Id. ; Garza Decl. P 12.

 As of April 1994, Garza's educational background included a high school diploma, two years of basic coursework at the University of Wisconsin-Parkside, and a telephone skills course at Abbott. Def.'s Facts Ex. 20, March 6, 1996 Rpt. at 3. Prior to her employment at Abbott, Garza held several retail sales and secretarial jobs. Id. at 2-3. In preparation for this litigation, on March 6, 1996, Steiner prepared a list of jobs she believes Garza can perform, based on Garza's experience and education, and limitations as determined by the vocational testing. Id. at 3-5. All of these jobs are outside of Abbott. Id. Garza alleges that she is not able to perform most if not all of the jobs on Steiner's list, and is currently unable to perform any of the retail or clerical positions that she has held in the past, due to the restrictions resulting from her condition. Pl.'s Add'l Facts P 17.

 During the period from Garza's termination to January or February of 1995, Garza applied for over 700 retail and clerical jobs and received several offers. Pl.'s Add'l Facts P 8. Garza accepted a job with Donna Karan, a women's clothing store, but later proved unable to perform it due to her inability to do the repetitive motions and fine motor tasks required by the job. Pl.'s Add'l Facts P 16. On the recommendation of the Wisconsin Department of Vocational Rehabilitation, Garza has since returned to school. Id. P 40. Garza is only able to attend ...


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