State v. G.S. Blodgett Co.

STATE_V_GS_BLODGETT_CO.94-004; 163 Vt 175; 656 A.2d 984

[Filed 20-Jan-1995]


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 94-004


State of Vermont et al.                           Supreme Court

                                                  On Appeal from
     v.                                            Chittenden Superior Court

G.S. Blodgett Company                             October Term, 1994


Matthew I. Katz, J.

Jeffrey L. Amestoy, Attorney General, and Seth A. Steinzor, Assistant
Attorney General, Montpelier, for plaintiff-appellant State of Vermont 

John D. Shullenberger of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for
plaintiff- appellant Beauchemin 

Robert B. Hemley and Lucy T. Brown of Gravel and Shea, and Christopher R.
Gannon,  Burlington, for defendant-appellee 


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned 


     ALLEN, C.J.   Plaintiffs, Joan Beauchemin and the State of Vermont,
appeal from summary judgment dismissing their handicapped discrimination
claim against Beauchemin's former employer, defendant G.S. Blodgett Company. 
We affirm. 

     Defendant manufactures ovens at its Burlington, Vermont facility where
Beauchemin was employed full-time as a general helper from 1978 until 1983. 
According to defendant's written job description, a general helper is a
floater whose responsibilities change with the demands of the factory. 
Beauchemin, who was one of approximately eight general helpers, did welding,
cut insulation, worked on drill presses, and assembled, tested and repaired
parts in various departments. 

     During the latter part of her tenure, Beauchemin's ability to perform
the full range of routine tasks was substantially and adversely affected by
multiple sclerosis. Beauchemin's work 

 

assignments were restructured to accommodate her deteriorating condition. 
She spent the majority of her time in the wiring department, sorting and
cutting various wires with a large cutting machine.  The wires were then
affixed to motor mounts for installation in the ovens. Defendant provided
Beauchemin with a stool so she would not have to stand and had other
employees lift the wire spools.  In November 1983, Beauchemin was placed on
medical leave of absence. 

     Beauchemin was diagnosed with relapsing remitting multiple sclerosis. 
As explained by her neurologists, the disease is unpredictable and the
symptoms vary in intensity and duration. Beauchemin suffered from muscle
weakness, fatigue, incontinence, and slurred speech.  Her ability to
concentrate, balance, lift heavy objects or stand for extended periods of
time was significantly impaired.  She responded well to medical treatment and
was able to manage some symptoms by controlling the room climate and resting
intermittently.  Plaintiffs  acknowledged, however, that periods of
alleviation were interspersed with periods of exacerbation which, at worst,
required hospitalization. 

     Shortly after Beauchemin went on leave, defendant introduced a new oven,
which required defendant to redesign its production regimen.  To save space,
improve efficiencies, and reduce costs, defendant hired two independent
contractors to perform the wiring and motor mount operations.  One of the
contractors was a sheltered workshop employing disabled workers.  The
contractors picked up supplies from defendant, performed the work as
necessary, and returned the finished parts.  Each contractor supplied the
needed machines, tools, supervisory staff and insurance coverage. 

     In February 1984, Beauchemin contacted personnel manager, Robert Morris,
about reentry and retraining.  Morris told Beauchemin that reentry would
depend on her physical condition, and he would rely heavily on her
physician's reports in making judgments about her abilities.  From 1984
through 1985, Beauchemin regularly submitted her doctor's reports to Morris. 
In March 1984, her treating neurologist wrote Morris, concluding that
Beauchemin's 

 

"rapid progression of multiple sclerosis presents a sufficiently poor
prognosis as to make further regular employment unlikely."  Morris encouraged
Beauchemin to get a second opinion. Beauchemin began diagnostic and
therapeutic treatment at the University Health Center of Vermont in May 1984.

     By her own admission and her doctors' advice, she could not work at all
during 1984 and 1985.  While her doctors noted improvement in late 1985, they
opined that she was unable to perform the usual duties of her occupation, but
could work approximately four hours per day in a sedentary position.  They
specifically advised against work involving lifting, frequent walking,
prolonged standing, or any situation requiring intense concentration, such as
heights, with loud noise or with dangerous machinery.  Early in 1986, her
doctors reported that Beauchemin was stable and asymptomatic. 

     In April 1986, Beauchemin renewed discussions with defendant about the
possibility of being reinstated.  She spoke with several managers, including
James Clucas, plant manager, about working at home because she could not
tolerate the factory environment.  She suggested relocating the nine foot by
four foot wiring machine to her garage.  Beauchemin hypothesized that she
could do wiring in her insulated garage because it would provide a climate
controlled environment and opportunities to rest.  She suggested this idea
after learning that most of the work that she had been doing prior to her
medical leave had been contracted to a sheltered workshop.  Shortly after
discussing this option with defendant, Beauchemin received a letter from
defendant notifying her that her health benefits would be terminated because
her absence from work would exceed two and one-half years. 

     Beauchemin called Clucas and reiterated her interest in performing
wiring in her garage. She followed up with a letter requesting that she be
reinstated in her old capacity (as a wirer), but at home.  She noted that "I
am able to do the type of work that I was primarily engaged in prior to my
illness.  However, I can no longer tolerate the environment of the plant
given the lack of climate control and the danger that fatigue or loss of
balance could place myself and/or 

 

others in danger."  Beauchemin also recommended that Clucas contact a
vocational rehabilitation expert to assist in fashioning a solution.  Clucas
did not review Beauchemin's medical records or contact the vocational expert.
 He did, however, discuss with several Blodgett managers the viability of
performing the wiring function in Beauchemin's garage.  Because of safety,
monetary, logistical and legal issues, they decided it was impractical.  At
this time, there was only one general helper still employed by Blodgett. 
That person was not doing any wiring or motor mount assembly because of the
subcontract arrangement. 

     Beauchemin, with the State of Vermont, filed a complaint alleging that
defendant discriminated against Beauchemin on the basis of her handicap in
violation of  495(a)(1) of Vermont's Fair Employment Practices Act (VFEPA),
21 V.S.A.  495-496.  Plaintiffs maintained that Beauchemin was qualified
to work as a general helper with reasonable accommodations, and that
defendant was obligated to provide her with a reasonable accommodation when
she requested reemployment in April 1986.  Plaintiffs sought money damages,
including civil fines, and Beauchemin's reinstatement in her former position.

     Following extensive discovery, defendant successfully moved for summary
judgment. The court concluded that plaintiffs had failed to establish that
Beauchemin could perform the essential functions of general helper because
she could not meet its physical demands, and that plaintiff had failed to
present evidence that a particular accommodation was reasonable, while
defendant had satisfied its burden of proving that setting up a mini-factory
in Beauchemin's garage was not a reasonable accommodation.  In reaching its
conclusions, the court relied on sworn statements Beauchemin made on her
application for Social Security benefits.(FN1)

 

     On appeal, plaintiffs argue that summary judgment was improper because
the trial court ignored material evidentiary conflicts in determining that
Beauchemin was not a qualified handicapped individual.  Plaintiffs also argue
that, regardless of the outcome on the merits, defendant should be liable
because it failed to conduct an adequate individualized inquiry into
Beauchemin's qualifications prior to making its adverse employment decision. 

     The standard of review of a motion for summary judgment is the same as
that used by the trial court.  Hodgdon v. Mt. Mansfield Co., 160 Vt. 150,
158-59, 624 A.2d 1122, 1127 (1992).  Summary judgment is appropriate when the
moving party has demonstrated that there are no genuine issues of material
fact and it is entitled to judgment as a matter of law. V.R.C.P. 56(c); Kelly
v. Town of Barnard, 155 Vt. 296, 299, 583 A.2d 614, 616 (1990).  In
determining whether a material fact exists, the opposing party is entitled to
all reasonable doubts. Hodgdon, 160 Vt. at 158-59, 624 A.2d  at 1127.  The
nonmoving party may survive the motion if they respond with specific facts
raising a triable issue, Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986),
and they are able to demonstrate sufficient evidence to support a prima facie
case.  Id. at 323.  If the nonmoving party fails to establish an essential
element of their case on which they have the burden of proof at trial, the
moving party is entitled to summary judgment as a matter of law.  Id. 

     VFEPA prohibits discrimination in employment against "any qualified
handicapped individual."  21 V.S.A.  495(a)(1).  The handicapped
discrimination provisions under VFEPA are patterned after  504 of the
Rehabilitation Act of 1973, 29 U.S.C.  794.  Hodgdon, 160 Vt. at 165, 624 A.2d  at 1130.  Therefore, we look to federal case law to guide our
interpretation, the allocations of burdens and standards of proof.  See Id. 
To establish a claim under VFEPA, plaintiffs must show that Beauchemin is a
qualified handicapped individual and was excluded from her position because
of her handicap.  For purposes of this motion, defendant 

 

conceded that Beauchemin was a handicapped individual and that it denied her
reinstatement because she was unable to do the work.  It further acknowledged
that Beauchemin's affliction with multiple sclerosis was directly responsible
for her inability.  The remaining issue was whether Beauchemin is a qualified
handicapped individual. 

     A qualified handicapped individual is defined as "an individual with a
handicap who is capable of performing the essential functions of the job . .
. for which [s]he is being considered with reasonable accommodation to [her]
handicap."  21 V.S.A.  495d(6).  Determining whether Beauchemin satisfies
this definition requires two distinct determinations: what constitutes the
essential functions of the job and what constitutes reasonable accommodation.
 Packard v. Gordon, 148 Vt. 579, 583, 537 A.2d 140, 142 (1987).  As the trial
court correctly stated, it is plaintiffs' burden to prove that Beauchemin is
a qualified handicapped individual.  Gilbert v. Frank, 949 F.2d 637, 640 (2d
Cir. 1991).  Demonstrating the ability to perform the essential functions of
the job with reasonable accommodation is not a heavy burden.  It is
sufficient for plaintiffs to present evidence as to Beauchemin's individual
capabilities to perform the job in question and suggestions for some
reasonable assistance or job modification by the employer. Id. at 642. 

     On the issue of reasonable accommodation, plaintiffs maintain that the
trial court erroneously required them to demonstrate that the suggested
accommodation was reasonable. According to plaintiffs, Gilbert suggests that
even if their proposed accommodation is not reasonable, because the employer
bears the burden of proof on the issue, summary judgment is precluded. 
Contrary to plaintiffs' interpretation, Gilbert specifically explains that
plaintiffs, not the employer, have the initial burden on the issue of
reasonable accommodation because the term is included in the definition of
otherwise qualified.  Id.  Plaintiffs need not raise all possible
accommodations, nor prove that a particular accommodation is reasonable; they
merely need to produce evidence that a reasonable accommodation is possible. 
See Arneson v. Heckler, 879 F.2d 393, 396 (8th Cir. 1989) (emphasis added). 
Once plaintiffs have made out their prima 

 

facie case, the burden shifts to the employer to show that no reasonable
accommodation is possible.  Gilbert, 949 F.2d  at 642.  Ultimately, the
employer must prove an inability to accommodate because the accommodations
would substantially alter the nature of the job or would be unduly
burdensome.  Id.  Summary judgment was appropriate because there were no
genuine issues of material fact suggesting that Beauchemin was capable of
performing the essential functions of a general helper with or without
reasonable accommodation. 

     The essential functions of a job are those that are legitimate and
necessary to accomplish the goals of the position.  See Wallace v. Veterans
Admin., 683 F. Supp. 758, 762 (D. Kan. 1988) (essential functions are
legitimate and necessary job related tasks).  The work an employee actually
performs may be persuasive in establishing the necessity of a particular
task. Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349 (4th Cir. 1991)
(court must look beyond stipulated requirements to what position actually
requires).  The analysis should focus, on the requirements at the time
accommodation is requested.  See Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 24 (1st Cir. 1991) (whether individual is otherwise qualified depends on
program's present requirements). 

     Defendant presented uncontested evidence that a typical general helper
assisted in whatever demands arose at its plant and required substantial
lifting, bending and walking.  In her application for social security
benefits, Beauchemin also described herself as a "floater" who performed a
wide variety of physical tasks.  Plaintiffs insist, however, that wiring was
the only essential function of Beauchemin's job as a general helper.  They
point to the fact that Beauchemin's duties immediately before she went on
leave were limited to wiring.  They also suggest that the fact that wiring
was contracted out was evidence that wiring was still necessary to
defendant's business when Beauchemin requested reinstatement.  Plaintiffs
reliance on the wiring contracts is misplaced.  When Beauchemin asked for
reinstatement, wiring was no longer performed by defendant's employees. 
Therefore, wiring could not be considered an essential function of the
general helper job.  Id.  The undisputed facts establish that the essential
functions 

 

of the job required the general helper to act as a floater and to perform a
various physical tasks. 

     There was also no genuine dispute regarding Beauchemin's ability to meet
the physical requirements of the general helper position.  Plaintiffs
presented no evidence that she was capable of performing physical labor or
responding to the changing factory needs.  Beauchemin's sworn statements
regarding her limited abilities were corroborated by her subsequent
admissions and her doctors' reports.  Moreover, although plaintiffs suggest
that her symptoms could be controlled, her doctors consistently advised her
not to engage in manual labor, such lifting, bending or walking. 

     Tangentially, plaintiffs challenge the court's reliance on Beauchemin's
sworn statements in the Social Security proceeding in determining that she
was physically incapable of performing the job.  Defendants argue that
Beauchemin's sworn statements -- that she could not perform the job of
general helper -- were dispositive on the issue of whether Beauchemin was
qualified under 21 V.S.A.  795(a)(1).  Beauchemin's statements cannot be
dispositive on the issue of whether she is a qualified individual.  They were
made without regard for the essential functions of the job and whether
reasonable accommodations would enable her to perform the job.  They are,
however, probative of her job-related capabilities and the severity of her
handicap.  See Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992), and
appropriately considered for purposes of summary judgment. Pierce v. Riggs,
149 Vt. 136, 138, 540 A.2d 655, 656 (1987). 

     Next, the court was required to consider whether, with reasonable
accommodations, she would be able to perform the essential functions. 
Gilbert, 949 F.2d  at 642.  Plaintiffs failed to present evidence that a
reasonable accommodation was possible.  Id.  An accommodation is unreasonable
if it would necessitate modification or elimination of the essential nature
of the job. Gilbert, 949 F.2d  at 642.  Plaintiffs' proposals envisioned
eliminating all of the present functions 

 

of a general helper and reintroducing an obsolete employee function --
wiring.(FN2) Such proposals were tantamount to creating a new position. 
VFEPA does not contemplate such a result.  See 21 V.S.A. 495d(12); School Bd.
of Nassau County v. Arline, 480 U.S. 273, 289 n.19 (1989) (employer not
required to find another job for employee who is not qualified for job she
was doing); Chiari v. City of League City, 920 F.2d 311, 318 (5th Cir. 1991)
(no duty to create new part-time position).  In light of the undisputed
evidence, Beauchemin was not a qualified handicapped individual within the
meaning of  495d(6), therefore defendant was entitled to judgment as a
matter of law. 

     Plaintiffs' second claim on appeal is that defendant's failure to
adequately consider possible accommodations for Beauchemin's handicap was by
itself actionable discrimination. While we agree that defendants should
conduct an individualized inquiry to determine whether a handicapped employee
requires an accommodation in order to advance the goals of 495d(6), there
is no authority imposing liability for failure to conduct an adequate
inquiry.  Liability attaches only when an employer discriminates against a
qualified handicapped individual.  21 V.S.A.  495(a)(1) (protecting
qualified handicapped individuals). 

     The goal of the individualized inquiry is to determine whether an
individual is otherwise qualified.  Arline, 480 U.S.  at 287.  When an
employer concludes that no accommodations are reasonable, as defendant did
here, that decision is tantamount to a determination that the employee is not
qualified within the meaning of 21 V.S.A.  495(d)(6).  A claim under 
495(a)(1) subjects the employer's decision to judicial review.  Evidence that
an employer superficially engaged in an inquiry may raise an inference that
the employer refused to provide 

 

an accommodation without considering whether the employee was otherwise
qualified.  See, e.g., Strathie v. Department of Transportation, 716 F.2d 227, 231 (3d Cir. 1983) (reasonableness of employer's refusal to accommodate
subject to judicial review).  In contrast, a thorough investigation by an
employer may be given greater deference.  See Wynne, 932 F.2d  at 26 (where
facts are undisputed, deference to institutional decision that plaintiff was
unable to participate effectively in program is appropriate).  Regardless of
the adequacy of the employer's inquiry, the court still makes the ultimate
determination whether the plaintiff is a qualified handicapped individual. 
Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir. 1981) (court, rather than
institution, required to make final determination whether individual is
otherwise qualified).  Quite often, whether facts alleged support a claim of
or defense to discrimination will be purely a legal one.  See Wynne, 932 F.2d 
at 26 (judgment precluded only if essential facts were disputed or
significant evidence of bad faith or pretext present).  If a court concludes,
as the court did here, that the plaintiff is not a qualified handicapped
individual, there is no actionable claim.  21 V.S.A.  495(a)(1). 

     Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                              Footnotes

FN1.   While on disability leave, defendant's insurer required Beauchemin to
apply for social security benefits which are available to individuals who are
totally disabled from working. Beauchemin applied and was denied benefits in
1984.  She reapplied in 1989 and was granted benefits for the period
beginning 1987.  In her application, Beauchemin described, in great detail,
the physical demands of her work and her physical capabilities.  Beauchemin's
doctors' reports were also submitted.  These reports described the nature and
progress of her disease as well as their opinions regarding Beauchemin's
ability to engage in certain kinds of tasks. 

FN2.  In addition to suggesting that defendant install a wiring machine in her
garage, plaintiffs also suggested two other possible accommodations that
would enable Beauchemin to do wiring. One was to station Beauchemin in a
climate-controlled isolation booth in the factory.  The other suggestion was
to install additional fans and heaters throughout the factory to accommodate
Beauchemin wherever she was assigned.  Both of these suggestions contemplated
that Beauchemin would be performing wiring.