 Equal Employment Opportunity Commission v. SARA LEE CORP. -- 2 of 11 -- during work itself. Turpin could feel the seizure about…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
No. 00-1534 v.
SARA LEE CORPORATION,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CA-99-522)
Argued: November 1, 2000
Decided: January 9, 2001
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge,
and Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Senior Judge Magill joined.
COUNSEL
ARGUED: Robert John Gregory, Senior Attorney, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Appellant. Robin Elizabeth Shea, CONSTANGY, BROOKS

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& SMITH, L.L.C., Winston-Salem, North Carolina, for Appellee. ON
BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Appellant. Cara Yates Crotty, CON-
STANGY, BROOKS & SMITH, L.L.C., Columbia, South Carolina,
for Appellee.
OPINION
WILKINSON, Chief Judge:
The Equal Employment Opportunity Commission (EEOC) appeals
a decision holding that Vanessa Turpin was not disabled under the
Americans with Disabilities Act. The EEOC further appeals the hold-
ing that if Turpin was disabled, Sara Lee Corporation satisfied its duty
of reasonable accommodation under the ADA. Because the facts of
this case show that Turpin was not substantially limited in a major life
activity, and because the ADA does not require an employer to devi-
ate from its nondiscriminatory seniority policy in order to accommo-
date a worker, we affirm the judgment of the district court.
I.
Vanessa Turpin began work for Sara Lee at its Salem, Virginia
plant in 1989. In 1992, Turpin began to experience seizures in her
sleep. Although she saw a neurologist and took medication, Turpin
occasionally experienced nocturnal and daytime seizures. According
to Turpin’s doctor, she experienced seizures about once or twice a
week. The nocturnal seizures were characterized by shaking, kicking,
salivating, and, on at least one occasion, bedwetting. After having
these seizures, Turpin would feel tired in the morning, as if she did
not sleep at all. Turpin typically was unaware that she was having sei-
zures, and would sometimes wake up with bruises on her arms and
legs.
The daytime seizures were milder in nature. Over the time period
at issue in this appeal, four or five of the daytime seizures happened
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during work itself. Turpin could feel the seizure about to start, and
would sit elsewhere until the episode passed. The seizures normally
lasted a couple of minutes. During these seizures, Turpin began shak-
ing, her face took on a blank expression, and she became unaware of
and unresponsive to her surroundings. After the seizure ended, Turpin
was able to return to whatever work she had been performing before
the episode started. These seizures also sometimes caused Turpin to
suffer memory loss. Turpin would occasionally forget to take her
medication, or forget where she was going in her car. Turpin’s neurol-
ogist, Dr. Joseph Healy, diagnosed her condition as complex partial
seizure disorder (epilepsy). This type of epilepsy does not normally
affect motor activity, and does not cause major motor or grand mal
seizures. Nevertheless, Dr. Healy believed that her seizures would be
a "life-long phenomena." Still, Turpin continued to perform her job
and take care of her son.
In 1996, Turpin transferred to a plant in Florence, South Carolina
after Sara Lee shut down the Salem factory. At Florence, she worked
the first shift as an Auto Packaging Machine Operator. In 1997, Sara
Lee closed its Hartsville, South Carolina plant. The company offered
the Hartsville workers the opportunity to transfer to another plant.
Under Sara Lee’s seniority policy, the former Hartsville workers
would keep their seniority, and thus were entitled to displace current
workers at the Florence plant. This seniority policy is an internal pol-
icy of Sara Lee and is not part of a collective bargaining agreement.
A more senior worker from Hartsville wanted Turpin’s shift, meaning
that Turpin would be forced to take the second or third shift if she
wanted to keep her job.
The worker who replaced Turpin had twenty years more seniority
than Turpin herself. When Turpin learned that she would be displaced
from her shift, she contacted the Human Resources manager to
request that she be allowed to remain on the first shift. Turpin pre-
sented a letter from her doctor stating that transferring shifts would
cause a disturbance of her sleep pattern, and thus worsen her seizures.
Sara Lee’s doctor stated that the change in shift would not disrupt
Turpin’s sleep patterns so long as Turpin worked a non-rotating shift,
whether it be the first, second, or third shift.
Sara Lee decided not to let Turpin bypass the normal seniority pol-
icy. The company gave Turpin three options, all based upon the
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seniority policy: 1) move to the second or third shift; 2) go on layoff
status with recall rights for twelve months (including the right to be
recalled to a first shift position should one become available); or 3)
take a severance package. Turpin chose the severance package. Tur-
pin then filed a charge of discrimination with the EEOC, which found
cause and filed a complaint in February of 1999. Sara Lee moved for
summary judgment, which the district court granted. The district court
found that Turpin was not disabled within the meaning of the ADA,
and that if she was, Sara Lee satisfied its burden of reasonable accom-
modation.
II.
A.
The EEOC argues that at the time of the relevant events, Vanessa
Turpin was disabled within the meaning of the ADA.
The ADA requires that in order to be disabled under the Act, a per-
son must have "A) a physical or mental impairment that substantially
limits one or more major life activities of such individual; B) a record
of such an impairment; or C) [been] regarded as having such an
impairment." 42 U.S.C. § 12102(2). The EEOC argues that Turpin is
disabled under the "substantially limits" prong of the definition. See
id. at § 12102(2)(A). The phrase "substantially limits" sets a threshold
that excludes minor impairments from coverage under the ADA. See
Sutton v. United Air Lines, 527 U.S. 471, 486-88 (1999).
Vanessa Turpin suffered from seizures due to epilepsy. A person
with epilepsy can certainly be disabled under the ADA. See, e.g.,
Otting v. J.C. Penney Co., 223 F.3d 704, 709-10 (8th Cir. 2000).
Indeed, epilepsy is one of the disabling conditions that Congress con-
templated when it passed the ADA. See, e.g., H.R. Rep. No. 485(II),
101st Cong., 2d Sess. 52, reprinted in 1990 U.S.C.C.A.N. 303, 334
("epilepsy" can be an impairment that substantially limits a major life
activity). The analysis does not stop at this level of generality, how-
ever. See Sutton, 527 U.S. at 487-88. The determination of whether
a person is disabled is an individualized inquiry, particular to the facts
of each case. Sutton, 527 U.S. at 483; Ennis v. National Ass’n. of Bus.
and Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995). Thus, the cru-
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cial question in this case is whether Turpin’s epilepsy substantially
limited one of her major life activities.
Relying on Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d
538, 543-44 (7th Cir. 1995), the EEOC first asserts that Turpin’s dis-
ability can be established under an "intermittent manifestation" theory
of disability. The EEOC misreads Vande Zande. In that case, the
employee was already disabled because she was paralyzed. This
paralysis caused pressure ulcers which manifested themselves on an
intermittent basis. But the court did not hold that the pressure ulcers
themselves were a disability. Rather, they were symptoms of the
underlying disability itself. Vande Zande, 44 F.3d at 544. Here, the
alleged intermittent manifestation (the seizure) is the disability itself.
To hold that a person is disabled whenever that individual suffers
from an occasional manifestation of an illness would expand the con-
tours of the ADA beyond all bounds. An intermittent manifestation
of a disease must be judged the same way as all other potential dis-
abilities. The statute is explicit — to be disabled under the ADA, a
person must have a substantial limitation on a major life activity.
The EEOC next maintains that Turpin was substantially limited in
three different major life activities — sleeping, thinking, and caring
for herself. The record, however, simply does not support the asser-
tion that Turpin was substantially limited in any major life activity.
First, it is true that Turpin did not sleep well every night. Still, Turpin
frequently slept through the night without any seizures. When she did
have seizures, many times she did not even remember having them.
More importantly, the EEOC has failed to prove that Turpin’s lack
of sleep was worse than the quality of sleep of the general population.
See Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th Cir. 1999)
(ADA plaintiff held not disabled because of failure to show that her
sleep was significantly worse than the average person in the general
population); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635,
644 (2d Cir. 1998) (same). Indeed, the EEOC’s own regulation states
that a plaintiff’s significant restriction in a major life activity must be
"compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. § 1630.2(j)(2) (2000). Many individuals fail
to receive a full night of sleep. The EEOC did not show that Turpin’s
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seizures substantially limited her major life activity of sleeping in a
manner different from the average person.
Turpin’s milder form of epilepsy imposed no substantial limitation
on her ability to think either. The evidence shows that on one occa-
sion, Turpin forgot the location of her doctor’s office. Two or three
times a week she forgot things, and she had to write them down in
order to remember. Sometimes, Turpin had trouble remembering to
take a second daily dosage of anti-seizure medication. As the district
court noted, however, "many other adults in the general population
suffer from a few incidents of forgetfulness a week, and indeed must
write things down in order to remember them." The EEOC’s limited
examples of such forgetfulness do not rise to the level of a substantial
limitation.
Finally, Turpin’s seizures did not substantially limit the ability to
care for herself. The EEOC points to the fact that Turpin’s husband
assisted her during her seizures and occasionally after her seizures.
Yet the record indicates that the seizures were relatively infrequent.
The district court pointed out that Turpin’s doctor "stated that Tur-
pin’s seizures were not major motor or grand mal seizures, but were
of the less severe complex partial variety." Indeed, Turpin continued
to perform all sorts of tasks despite her seizures. She could care for
her son. She could drive a car. She performed her job effectively. The
evidence is not enough to justify holding that Turpin was substantially
limited in caring for herself.
The EEOC relies upon Otting v. J.C. Penney for the proposition
that Turpin’s epilepsy substantially limited a major life activity. See
223 F.3d at 710. In Otting, the Eighth Circuit held that a plaintiff who
was prohibited by law from driving a car, who could not take baths
by herself, and who had brain surgery to try to correct the seizures
was disabled under the ADA. See Otting, 223 F.3d at 707, 709-10.
Otting is not applicable to the case at bar because the determination
of disability is an individualized inquiry under the ADA. See Sutton,
527 U.S. at 483. Turpin’s symptoms were markedly less severe than
those of the plaintiff in Otting. Turpin herself testified that the pri-
mary effects of her epilepsy were only that sometimes she would
wake up with a bruise on her body, that she would sporadically "zone
out" during the day, and that on one occasion she wet her bed. While
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we do not make light of these symptoms, they do not rise to the level
of substantially limiting any of Turpin’s major life activities. The dis-
trict court carefully applied the statutory test and correctly held that
Turpin was not disabled under the ADA.
B.
The district court found that if Turpin was disabled, Sara Lee none-
theless satisfied its duty of reasonable accommodation by following
its legitimate and non-discriminatory seniority policy. The EEOC
argues that Sara Lee was required to disregard its seniority policy and
bypass employees twenty years Turpin’s senior in order to accommo-
date Turpin. We disagree.
If an employee is disabled under the statute, an employer must
make "reasonable accommodations" unless the company can demon-
strate that the accommodation "would impose an undue hardship on
the operation of the business." 42 U.S.C. § 12112(b)(5)(A). Indepen-
dently of the undue hardship provision, an employer is required to
make only those accommodations that are "reasonable." Vande
Zande, 44 F.3d at 542-43. An employer must also be able to set a gen-
eral policy and avoid uncertainty and litigation over every request for
an exception. Indeed the statute speaks in terms of accommodations,
not exceptions.
Virtually all circuits that have considered the issue have held that
the ADA’s reasonable accommodation standard does not require an
employer to abandon a legitimate and non-discriminatory company
policy. See, e.g., Burns v. Coca-Cola Enterprises, 222 F.3d 247, 257
(6th Cir. 2000) ("Employers are not required to . . . violate other
employees’ rights under a collective bargaining agreement or other
non-discriminatory policy in order to accommodate a disabled indi-
vidual."); Cravens v. Blue Cross and Blue Shield of Kansas City, 214
F.3d 1011, 1020 (8th Cir. 2000) ("[T]he employer is generally not
required to transfer a disabled employee if such reassignment would
violate . . . a legitimate, non-discriminatory policy of the employer.")
(internal quotations omitted); Smith v. Midland Brake, Inc., 180 F.3d
1154, 1176 (10th Cir. 1999) (en banc) ("[A]n industry may have a
well entrenched seniority system which, even though not rooted in a
collective bargaining agreement, is so well established that it gives
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rise to legitimate expectations by other, more senior employees to a
job that the disabled employee might desire."); Dalton v. Subaru-
Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998) ("Nothing
in the ADA requires an employer to abandon its legitimate, nondis-
criminatory company policies defining job qualifications, prerequi-
sites, and entitlements to intra-company transfers."); Aka v.
Washington Hospital Center, 156 F.3d 1284, 1305 (D.C. Cir. 1998)
(en banc) ("An employer is not required to reassign a disabled
employee in circumstances when such a transfer would violate a legit-
imate, nondiscriminatory policy of the employer.") (internal quota-
tions omitted); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225
(11th Cir. 1997) (per curiam) ("We are aware of no case under either
the ADA or the Rehabilitation Act where an employer has been
required to transfer an employee to another position where the
employer (independent of concerns about disability) has a business
policy against the pertinent kind of transfer."); Daugherty v. City of
El Paso, 56 F.3d 695, 700 (5th Cir. 1995) ("[W]e do not read the
ADA as requiring affirmative action in favor of individuals with dis-
abilities, in the sense of requiring that disabled persons be given prior-
ity in hiring or reassignment over those who are not disabled."). But
see Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1120 (9th Cir. 2000) (en
banc) ("Any per se rule barring reassignment because of conflicts
with a seniority system would sharply limit the range of available
accommodations without any required showing of an undue burden
on the employer. In many cases this would eliminate the most effec-
tive or the only effective reasonable accommodation.").
A seniority system provides a prime example of a policy that a
company is entitled to respect. Although the ADA allows an
employee to transfer to a vacant position, 42 U.S.C. § 12111(9)(B),
Turpin has no statutory right to supercede Sara Lee’s seniority sys-
tem. The only factual twist in this case is that Turpin wants to retain
the position she already has, rather than transfer to another job. This
is a distinction without a difference. Turpin no longer had the senior-
ity to hold that time-slot once the seniority of the Hartsville employ-
ees was factored in. Indeed, Turpin would vault over fellow workers
who have twenty years more seniority if we required Sara Lee to sus-
pend its policy.
The EEOC argues that Sara Lee’s seniority program was not so
well-entrenched as to constitute a uniform policy. The parties do not
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dispute, however, that Sara Lee has maintained the policy for at least
thirty years, and it has been in its present form for the last fifteen
years. The workers at the company knew about the seniority policy
and respected it. The seniority policy applies to priorities for shift
changes and for filling vacant positions. It also determines the selec-
tion of employees for layoff and recall of laid-off employees. Indeed,
the seniority policy applies to interplant transfers, noting that "[a]n
employee transferred permanently between plants retains his/her
Company seniority for all seniority purposes." The policy is a neutral
and non-arbitrary method of resolving sensitive questions in the
workplace. The policy allows all workers to know the rules of the
game before a decision is made.
Although the seniority policy does not directly address plant clos-
ings, Sara Lee has almost always applied the policy in this situation.
Indeed, Sara Lee applied the seniority policy to plant closings at
seven different locations before the plant closing at issue in this case.
To mandate that a company exempt workers from this long-standing
policy would disrupt the legitimate expectations of Sara Lee’s long-
time employees. It could potentially expose the company to the threat
of lawsuits by disgruntled employees who were placed behind
employees in need of accommodation. See, e.g., Small v. Springs
Indus., Inc., 357 S.E.2d 452 (S.C. 1987) (in South Carolina, claim of
breach of implied contract based on employer policies is available).
The EEOC acknowledges that if this policy were part of a collec-
tive bargaining agreement, granting an exception to Turpin would not
be a reasonable accommodation. See, e.g., Carter v. Tisch, 822 F.2d
465, 467-68 (4th Cir. 1987) (Rehabilitation Act); Smith, 180 F.3d at
1175-76; Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th
Cir. 1996). No reason exists for creating a different rule for legitimate
and non-discriminatory policies that are not a part of a collective bar-
gaining agreement. All workers — not just those covered by collec-
tive bargaining agreements — rely upon established company
policies. The ADA does not require employers to disrupt the opera-
tion of a defensible and non-discriminatory company policy in order
to provide a reasonable accommodation.
Sara Lee satisfied its duty of reasonable accommodation by offer-
ing Turpin the options available to her under the seniority policy:
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move to the second or third shift, be laid off with recall rights for
twelve months, or take a severance package. The EEOC makes no
allegation that the policy singles out Turpin because she was disabled.
Turpin simply was unable to stay on the first shift because other
employees had worked at Sara Lee for twenty years longer than she
had. To hold that Turpin can violate the seniority rights of others in
order to uphold her own rights under the statute would stand the ADA
on its head.
All antidiscrimination statutes, from Title VII to the ADA, impose
costs on employers. See, e.g., EEOC v. Humiston-Keeling, Inc., 227
F.3d 1024, 1028-29 (7th Cir. 2000). The difference in this case is that
requiring an employer to break a legitimate and non-discriminatory
policy tramples on the rights of other employees as well. The ADA
does not require employers to penalize employees free from disability
in order to vindicate the rights of disabled workers. Indeed, Congress
recognized the importance of honoring the rights of non-disabled
employees when it defined "reasonable accommodation" to include
"reassignment" only when a position is "vacant." 42 U.S.C.
§ 12111(9)(B). The ADA does not require reassignment when it
would mandate that the employer bump another employee out of a
particular position. Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir.
1996). Rather, an employer must be able to treat a disabled employee
as it would any other worker when the company operates a legitimate,
nondiscriminatory policy. A "contrary rule would convert a nondis-
crimination statute into a mandatory preference statute, a result which
would be both inconsistent with the nondiscriminatory aims of the
ADA and an unreasonable imposition on the employers and
coworkers of disabled employees." Dalton, 141 F.3d at 679. Accord-
ingly, Sara Lee satisfied its duty of reasonable accommodation in this
case.
III.
The ADA has a vital and important role in protecting disabled per-
sons. However, the statute does not protect individuals who do not
have a substantial limitation on a major life activity. For those who
are disabled under the statute, the ADA operates as a shield against
discrimination; the statute is not a sword used to punish non-disabled
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workers. The district court correctly perceived this statutory function,
and for the foregoing reasons its judgment is
AFFIRMED.
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