                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2006

Turner v. Hershey Chocolate
Precedential or Non-Precedential: Precedential

Docket No. 04-4674




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                                     PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 04-4674


            JANET M. TURNER,
                     Appellant

                      v.

       HERSHEY CHOCOLATE USA


On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
         (D.C. Civil No. 03-cv-04412)
 District Judge: Honorable Paul S. Diamond
                 __________

          Argued December 5, 2005

      Before: RENDELL, FISHER, and
     VAN ANTWERPEN, Circuit Judges.

           (Filed March 20, 2006 )
Brooke M. Boyer [ARGUED]
232 North Sixth Street
Reading, PA 19601
   Counsel for Appellant


Mark A. Fontana [ARGUED]
Michael M. Miller
Wolf, Block, Schorr & Solis-Cohen
213 Market Street, 9th Floor
P. O. Box 865
Harrisburg, PA 17108
   Counsel for Appellee

                        __________

                OPINION OF THE COURT
                      __________

RENDELL, Circuit Judge.

      Janet Turner appeals from the District Court’s December
1, 2004 order entering summary judgment against her on her
claim under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq. We will reverse the order granting
summary judgment and remand for further proceedings in
accordance with this opinion.




                             2
                                I.

       Janet Turner began working at Hershey’s 1 Reading,
Pennsylvania plant in August, 1985. She worked in several
production capacities and as a custodian.          During her
employment, Turner was diagnosed with medical problems,
including fused cervical discs, postlaminectomy pain syndrome,
cervical radioculopathy, and thoracic outlet syndrome. These
conditions compelled Turner to undergo surgeries in 1998,
2000, and 2002.

        When Turner returned to work in 1999 (following her
1998 back operation), Hershey accommodated her new work
restrictions, assigning her to a “light duty position” as a shaker
table inspector on a York peppermint pattie line. The position
involved sitting or standing on the side of the line, while
repeatedly reaching, stretching, and twisting to maneuver and
remove the chocolate-covered and uncovered mint patties.

        At the time of Turner’s employment, the Reading plant
had six shaker table inspectors, assigned in pairs to one of three
lines: lines 7, 8, and 9. Line 7 required the inspector to stand
and repeatedly bend and twist to sort different size mint patties
moving down the conveyor. The inspectors on lines 8 and 9 sat
while sorting patties of the same size. Work on lines 8 and 9
was considered easier than work on line 7.


   1
   Hershey was mis-identified in the caption in the District
Court as Hershey Chocolate USA. The correct legal entity is
now The Hershey Company.

                                3
         Before Turner’s 1999 return to work, her treating
physician, Dr. David Allen, reviewed a videotape depicting the
shaker table inspectors’ duties, and completed a form stating
that Turner could return to work as an inspector. Dr. Allen
cleared Turner for light work that required no bending, stooping,
or lifting of more than twenty pounds. Two days after returning,
however, she complained to her immediate supervisor, Steve
Heimbach, that she was in pain and could not work. Mr.
Heimbach transferred Turner from line 7 to line 8, and then later
allowed her to transfer to line 9– which Turner believed was
easier– when another inspector went on medical leave.

        In 2001, Hershey learned that the shaker table inspectors
had suffered an increased incidence of repetitive stress injuries
to their wrists and arms. Although Hershey plant management
was especially concerned about line 7 because it was the most
demanding line, they noticed repetitive stress injuries to
inspectors working on all three lines. From March 2001 to June
2001, plant nurse Suzanne Werley, manufacturing department
manager Leslie Goss, and mint department production
supervisor Robert Ladd met and discussed ways to protect the
inspectors from these repetitive stress injuries. They adopted
Nurse Werley’s suggestion that Hershey require its inspectors to
rotate among all three lines daily. This rotation system would
allow the inspectors to change positions hourly, to alternate
between sitting and standing, and to use both their left and right
arms, thus decreasing the likelihood of repetitive stress injury.

        On July 11, 2001, Mr. Ladd, Ms. Werley, and Kathy
Gibson, manager of employment, safety, and security, met with
the six shaker table inspectors to discuss the implementation of

                                4
the rotation system. Turner objected to the rotation scheme and
refused to work on line 7. Turner immediately contacted her
lawyer who wrote a letter requesting that plant management
exempt her from the rotation system. The next day, Turner
revisited her physician. Dr. Allen issued her a new form that
was more restrictive than the form he issued in April 1999,
limiting her to activities that did not require any stretching,
bending, twisting, or turning of the neck or lower back or lifting
of greater than 20 pounds.

       On July 17th, Turner presented Hershey with the new
form and her lawyer’s letter. The next day, Leslie Goss,
employee relations manager Jeff Johnson, Steve Heimbach,
Turner’s union representative Sandra Kurtz, and Turner
discussed whether, in light of Turner’s new work restrictions, it
was feasible to exempt her from the rotation system. Hershey
decided that Turner’s inability to work on line 7 prevented her
from participating in the rotation system, which they viewed as
necessary to prevent injuries to all inspectors. Hershey did not
allow Turner to continue as a shaker table inspector.

       Hershey notified Turner of her right under the union
contract to go on short-term disability, which Turner applied for
on August 2, 2001, and later received. In her application,
Turner stated that she was unable to return to work from and
after July 12, 2001, and was unable to work in any position in
the Reading plant. Dr. Allen confirmed this in letters he sent to
Hershey in August 2001 and September 2001.

      At Hershey’s suggestion, Turner and her doctor
completed an application for long-term disability coverage.

                                5
Where the form indicated that she should describe the injury she
incurred, Turner wrote that it was an “ongoing situation.” App.
at 402. Where the form asked her how her injury impeded her
ability to do her occupational duties, she responded “[b]ecause
of pain.” Id. Dr. Allen stated that Turner was “unable to do her
regular job description.” App. at 403. She was awarded long-
term benefits.       Later that year, the Social Security
Administration determined that she was disabled from and after
July 2001, and awarded her total disability benefits.

       Turner’s last day of work at Hershey was July 18, 2001.
Because she was deemed a disabled employee, her union
contract provided her with full-time employee benefits for the
next twenty-four months until July 25, 2003. On April 30, 2003,
Turner filed a claim of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), which found
no cause for discrimination and issued a right to sue letter. On
July 29th, Turner filed this lawsuit, alleging that she was not
completely disabled and could have performed her job if
Hershey had accommodated her by exempting her from the
rotation system. Following the close of discovery, Hershey filed
a motion for summary judgment, which the District Court
granted.

                              II.

       Congress enacted the ADA in 1990 in an effort to prevent
otherwise qualified individuals from being discriminated against
in employment based on disability. See 29 C.F.R. § 1630. The
ADA provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the

                               6
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 Act defines a “qualified individual with a
disability” as “an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that individual holds or
desires.” Id. § 12111(8). An employer discriminates against a
qualified individual when it does “not mak[e] reasonable
accommodations to the known physical or mental limitations of
the individual unless the [employer] can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of the [employer].”            Id. §
12112(b)(5)(A). “Reasonable accommodation” means measures
such as “job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, ... and other similar
accommodations for individuals with disabilities.” Id. §
12111(9).

                              III.

       We must first decide whether the District Court’s grant
of summary judgment should be upheld on the rationale that
Turner is bound by her prior submissions to the Social Security
Administration and should be judicially estopped from arguing
now that she can work. If estoppel applies, Turner’s claim will
be foreclosed and our analysis of the District Court’s rulings
under the ADA is unnecessary. Hershey argues that Turner
made statements in support of her application for Social Security

                               7
Disability Insurance (“SSDI”) and long-term disability benefits
that should be held to estop her from asserting that she is a
qualified individual under the ADA. We disagree. Because
these statements did not state categorically that Turner could not
work at all or take into account Turner’s entitlement to
reasonable accommodation, we see no inconsistency between
these statements and her current claim. See, e.g., Skerski v. Time
Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001) (ADA
claimant must show she can perform the essential functions of
the job with reasonable accommodation).

       With respect to her application for long-term disability
benefits, Hershey argues that when Turner wrote “[b]ecause of
pain” in response to the question “How does your injury or
sickness impede your ability to do your occupational duties?”
she made a statement which should be understood to estop her
current claim that she can perform the essential functions of a
shaker table inspector with reasonable accommodation. App. at
402. However, that Turner’s pain impedes her ability to perform
certain occupational functions is hardly a statement of total
disability. Further, it does not address the question of whether
she would continue to have pain if she were granted the
accommodation that she has requested, namely to be exempted
from work on line 7. Neither does Turner’s response address
the severity of the pain experienced and whether such pain
would make her incapable of performing the essential functions
of the shaker table inspector position. Therefore, because this
statement neither is a categorical statement of total inability to
perform her job function nor takes into account Turner’s
entitlement to reasonable accommodation, we do not find that it
judicially estops Turner from asserting her ADA claim.

                                8
        Hershey also points to two statements made by Dr. David
Allen, Turner’s physician, in support of her long-term disability
application. Dr. Allen described Turner’s restrictions as “[v]ery
light duty, no lifting over 10-15 lbs., no repetitive use of arms.”
Id. at 403. Dr. Allen also states, “[p]atient unable to do her
regular job description.” Id. With respect to the light duty
restrictions that Dr. Allen placed on Turner, whether these
restrictions would prevent Turner from performing the essential
functions of her job with reasonable accommodation is a factual
question for the jury. As to Dr. Allen’s statement that Turner is
“unable to do her regular job description,” we note that Turner
has conceded that she is not able to do her regular job
description. This is precisely why she is requesting an
accommodation.

        With respect to her SSDI application, Hershey argues that
three statements made by Turner should be read as conclusive
as to her inability to perform the shaker table inspector position.
First, in response to the question, “How do your illnesses,
injuries or conditions limit your ability to work?” Turner wrote,
“I have chronic pain, my hands, arms and shoulders are weak
and painful, I can not walk far and cannot sit for prolonged
periods. I cannot bend or stretch or lift more than 10 LBS, I also
cannot stoop or kneel.” App. at 406. Second, when asked for
additional information, Turner wrote

       1. I have been told that I need replacement
       surgery for my left knee. I am unable to stand or
       walk for any extended periods.

       2. My doctor has informed me that my performing

                                9
       additional work will cause additional disk spaces
       to become damaged.

       3. My spinal fusions do not allow me to bend or
       stretch.

Id. at 413. Third, Hershey points to Turner’s response to the
question “When did you become unable to work because of your
illnesses, injuries or conditions?” Turner responded “7/2001.”
Id. at 406.

        We will examine each of these statements in turn to see
if they should be given estoppel effect. First, we look at
Turner’s statement that chronic pain, weakness in her arms and
shoulders, and her inability to walk far, sit for prolonged
periods, bend, stretch, lift more than ten pounds, stoop or kneel
are conditions which “impede” her ability to work. While these
conditions indisputably impede Turner’s ability to work, we
cannot say that they foreclose the possibility that she could
perform the essential functions of the shaker table inspector
position with reasonable accommodation. Certainly, the record
does not reflect that the essential functions of her position
require walking long distances, stooping, kneeling, or lifting
heavy objects. To the extent that the position does require
sitting for long periods, bending, and stretching, we see no
reason why some reasonable accommodation could not be made.

        Second, we turn to Turner’s statement that “[m]y doctor
has informed me that my performing additional work will cause
additional disk spaces to become damaged.” Id. at 413. This is
not a statement that Turner is unable to perform her duties, but,

                               10
rather, a statement about her concerns regarding her health if she
performs additional duties. In addition, this statement must be
read in light of Cleveland v. Policy Management Systems Corp.,
526 U.S. 795 (1999), in which the Supreme Court held that
statements in support of an SSDI application do not take into
account of the concept of reasonable accommodation under the
ADA and, therefore, do not necessarily estop a claim under the
ADA that one is capable of performing the essential functions
of one’s position with reasonable accommodation. Thus, we
must read Turner’s statement as saying, in effect, “My doctor
has informed me that my performing additional work without
reasonable accommodation will cause additional disk spaces to
become damaged .” This reading is consistent both with the
Court’s analysis in Cleveland and with Turner’s claim for relief.
Turner has not argued that she can perform the job at each of
the three shaker table inspector lines. She has consistently
maintained that she cannot perform the more rigorous duties of
line 7. Thus, her statement that continuing to work in a position
that requires her to rotate to line 7 harms her health is not
inconsistent with the idea– and cannot be read to estop her from
claiming– that she can perform the essential functions of her job
on lines 8 and 9 without this harm to her health.

       Finally, we turn to Turner’s response of “7/2001” to the
SSDI application question regarding when she became unable
to work. As discussed in Cleveland, this statement of inability
to work must be read as lacking the qualifier of reasonable
accommodation, which did not apply for purposes of her SSDI
application, but does apply for purposes of her ADA claim.
Thus, in her SSDI application, Turner was saying, in effect, “I
am unable to work without reasonable accommodation.” This

                               11
statement is not inconsistent with her ADA claim, in which she
is saying, in effect, “I am able to work with reasonable
accommodation.” See Cleveland, 526 U.S. at 802.

       Thus, having considered Turner’s various statements in
her long-term disability application and her application for
Social Security disability benefits, we find that her claim under
the ADA is not estopped by any “admissions” made in these
applications.

                               IV.

       We turn now to the merits issue presented by the appeal
before us, namely, whether the District Court properly granted
summary judgment in favor of Hershey on Turner’s claims
because the rotation policy at issue was an essential function of
Turner’s job. A disabled employee may establish a prima facie
case under the ADA if she shows that she can perform the
essential function of the job with reasonable accommodation
and that the employer refused to make such an accommodation.
Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir.
2001).

       As the District Court observed, the central issue in this
case is Hershey’s requirement that Turner participate in its
shaker table rotation scheme. In granting Hershey’s motion for
summary judgment, the District Court found that the scheme by
which Hershey required its shaker table inspectors to rotate
between lines 7, 8, and 9 was an “essential function” of the job.
App. at 17. Because she could not perform this “essential
function” required of a shaker table inspector, the District Court

                               12
reasoned that Turner was not a “qualified individual” within the
meaning of the ADA. The District Court also reasoned that
Turner could not maintain a claim for reasonable
accommodation, because any exemption from the rotation
system would create a danger of increased injuries for Turner
and the other shaker table inspectors and, therefore, would be
unreasonable.2

       In reviewing an order granting summary judgment, we
exercise plenary review. Petruzzi’s IGA Supermarkets, Inc. v.
Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.
1993). Viewing the facts in the light most favorable to Turner,
we must determine whether there was a genuine issue of
material fact and, if not, whether Hershey was entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56; Anderson


   2
    The District Court observed, “Were Plaintiff exempt from
rotating, she would work only on Lines 8 and 9.... Such a
limited work assignment would increase the likelihood of
Plaintiff suffering repetitive stress injuries to her arms or wrists.
As significant [sic], it would also necessarily limit the rotation
system for the other Inspectors, thus increasing the likelihood
that they would suffer repetitive stress injuries.” Dist. Ct. Op.
at 14. However, it is not clear to us upon what the District Court
based these conclusions. The record contains no evidence of
any kind that an alternate rotation system– one in which Turner
rotated only between lines 8 and 9 and the other shaker table
inspectors accommodated their rotation schedule accordingly–
would be likely to cause any adverse health consequences to
Turner or others.

                                 13
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).3

       In order to make out a prima facie case of disability
discrimination under the ADA, Turner must establish that she
(1) has a “disability,” (2) is a “qualified individual,” and (3) has
suffered an adverse employment action because of that
disability. Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir.
2002); Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir.
1998). Here, Hershey does not contest that Turner has a
disability. Hershey does contend that Turner did not suffer an
adverse employment action as a result of her disability, but the
parties do not press this issue before us on this appeal.4


  3
    The District Court had subject matter jurisdiction over this
claim arising under the Americans with Disabilities Act
pursuant to 28 U.S.C. § 1331. We have jurisdiction over the
appeal from the final order of the District Court pursuant to 28
U.S.C. § 1291.
      4
     Moreover, this issue will most likely be resolved by the
ultimate ruling on the issue that is before us, for, while Hershey
contends that Turner's leaving work was voluntary and not as a
result of an adverse employment action, the failure to reasonably
accommodate a disabled and qualified employee constitutes an
adverse employment action for purposes of the ADA. See
Williams v. Philadelphia Housing Authority Police Dept., 380
F.3d 751, 771 (3d Cir. 2004). “[T]he question of whether a
proposed accommodation is reasonable is a question of fact.”
Buskirk, 307 F.3d at 170; see also Skerski v. Time Warner Cable
Co., 257 F.3d 273, 286 (3d Cir. 2001). If a trier of fact

                                14
Therefore, our analysis focuses on whether Turner is a
“qualified individual.”

       A “qualified individual” is defined as one “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); Buskirk, 307 F.3d at 168.
The EEOC regulations divide this inquiry into two parts: (1)
whether the individual has the requisite skill, experience,
education and other job-related requirements of the position
sought, and (2) whether the individual, with or without
reasonable accommodation, can perform the essential functions
of that position. 29 C.F.R. § 1630.2(n); Buskirk, 307 F.3d at
168. The determination of whether an individual with a
disability is qualified is made at the time of the employment
decision, and not at the time of the lawsuit. Gaul, 134 F.3d at
580.

        Neither party disputes that Turner satisfies the first part
of this inquiry in that she has the qualifications to perform the
position held. Additionally, both parties appear to concede that
Turner could not return to her former position as a shaker table
inspector and perform the essential functions on all lines without
reasonable accommodation. Turner claims that the reasonable
accommodation that she requested, and to which she was


concludes that Turner is a qualified individual, it could also find
that the failure to exempt Turner from the rotation system was
a failure to reasonably accommodate and accordingly constituted
an adverse employment action under the ADA.

                                15
entitled, was that she work only on lines 8 and 9, and, thus, be
exempted from the rotation plan to the extent that it would
require her to work on line 7. The question we are confronted
with, then, is not whether she can perform the essential
functions of her job without reasonable accommodation, for
clearly she cannot; but, rather, whether she can perform the
essential functions of her job with reasonable accommodation.5

                                V.

        “[W]hether a particular function is essential ‘is a factual
determination that must be made on a case by case basis [based
upon] all relevant evidence.’” Deane v. Pocono Medical Ctr,
142 F.3d 138, 148 (3d Cir. 1998) (en banc) (quoting 29 C.F.R.
§ 1630.2(n)). The District Court concluded that Hershey’s
rotation system itself was an essential function of the shaker
table inspector position. Were we to uphold the District Court’s
conclusion and grant of summary judgment we would need to
conclude that reasonable jurors could not but find that rotating
among all three tables is an essential function of the shaker table
inspector position at Hershey.


  5
    We observe that there is some ambiguity in the record as to
whether Turner can, in fact, perform her duties even on lines 8
and 9. For example, on July 12, 2001, Dr. Allen completed a
Work/School Release for Turner in which he described her
restrictions as “No stretching, bending, twisting, or turning neck
or lowback [sic]. No lifting greater than 20 lbs.” We leave it to
the District Court on remand to determine the implications of
the doctor’s diagnosis.

                                16
       Whether a job duty is an “essential function” turns on
whether it is “fundamental” to the employment position. 29
C.F.R. § 1630.2(n)(1). The term “essential function” does not
include the “marginal” functions of the position. Id. A job
function may be considered essential for any of several reasons,
including, but not limited to, the following:

       (i) The function may be essential because the
       reason the position exists is to perform that
       function;
       (ii) The function may be essential because of the
       limited number of employees available among
       whom the performance of that job function can
       be distributed; and/or
       (iii) The function may be highly specialized so
       that the incumbent in the position is hired for his
       or her expertise or ability to perform the
       particular function.



Id. at § 1630.2(n)(2). We have difficulty when we attempt to
reconcile these concepts with the District Court’s determination
that Hershey’s rotation scheme was an “essential function.”
Specifically, we note that (i) the shaker table inspector position
does not exist in order that inspectors may rotate; that (ii)
implementing or not implementing the rotation scheme would
appear to have no effect on the number of employees required
to operate the shaker tables; and (iii) rotating is not a highly
specialized function and Turner was not hired for her rotating

                               17
ability.

       Evidence of whether a particular function is essential
might include, but is not limited to:

       (i) The employer's judgment as to which
       functions are essential;
       (ii) Written job descriptions prepared before
       advertising or interviewing applicants for the job;
       (iii) The amount of time spent on the job
       performing the function;
       (iv) The consequences of not requiring the
       incumbent to perform the function;
       (v) The terms of a collective bargaining
       agreement;
       (vi) The work experience of past incumbents in
       the job; and/or
       (vii) The current work experience of incumbents
       in similar jobs.



Id. at (n)(3).

       Here, several specific facts, when juxtaposed against
these factors, weigh against a finding that rotation itself is an
essential function of the shaker line position: (ii) the written job
description for the shaker table inspector position contains no

                                18
reference to rotation; (iii) little time– presumably only a few
seconds– is actually spent rotating from machine to machine
each hour; (v) the collective bargaining agreement makes no
reference to the rotating of shaker table inspectors; and (vi) in
the past, shaker table inspectors have not rotated. Thus, with
the exception of the first and fourth factors,6 the evidence points
against finding that the rotation scheme is an essential function
of the job.

        While our analysis points in the direction of finding that
the rotation policy was not an essential function of Turner’s job,
we have historically refused to make such a factual finding on
our own, lest we run afoul of our own directive to the district


  6
   We note that the first factor– the employer’s judgment as to
which functions are essential– is but one piece of evidence to be
considered by the trier of fact. In addition, while Hershey has
described the requirement that Turner rotate between shaker
table lines as an essential function for purposes of this litigation,
Hershey did not include rotation between lines in its list of
“[e]ssential duties and responsibilities” set forth in the shaker
table inspector job description. See App. at 182-83; Deane v.
Pocono Medical Ctr, 142 F.3d 138, 146 (3d Cir. 1998) (en banc)
(an employer’s written job description shall be considered
evidence of the essential functions of the position).

        With respect to the fourth factor, Hershey alleges that
lack of rotation results in increased incidence of repetitive stress
injuries. However, we note that Hershey does not support this
contention with any medical evidence or scientific data.

                                 19
courts that these issues are for the jury to decide. In Deane v.
Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 1998) (en banc),
the employer/hospital claimed that lifting heavy objects was an
essential function of Deane’s job as evidenced by the job
description of her nursing position. That job description
included “frequent lifting of patients” as one of the “major tasks,
duties and responsibilities” of a nurse in Deane’s position. 142
F.3d at 148. Deane admitted that lifting heavy objects,
including patients, was a “critical job demand[ ],” and the
hospital insisted that a “nurse’s inability to lift patients” could
create a dangerous situation for Deane’s patients.              Id.
Nevertheless, despite the intuitive appeal of the hospital’s
argument, we refused to grant summary judgment, concluding
that whether lifting heavy objects was an essential function of
being a nurse was a factual question for the jury. Id.

       Similarly, in Skerski v. Time Warner Cable Co., 257 F.3d
273 (3d Cir. 2001), the plaintiff was employed by Time Warner
to service cables, wires, and aerial cable plants, and upon being
diagnosed with panic and anxiety disorder, he became unable to
climb and work at heights. 257 F.3d at 276. The District Court
reasoned that “climbing was an essential function of the installer
technician’s job that Skerski could not perform” and granted
judgment as a matter of law to Time Warner because Skerski
was not a qualified individual under the ADA and therefore
could not establish his prima facie case. Id. We reversed,
concluding that the definition of “essential function” set forth in
29 C.F.R. § 1630.2(n)(1), as well as the non-exhaustive list of
probative evidence set forth in 29 C.F.R. § 1630.2(n)(3),
cautioned against any premature determination of what is an
essential function. Id. at 280.

                                20
       So, too, here, the issue should be decided by a jury.
Turner has presented evidence to support a reasonable jury in
finding that rotating is not an essential function of the shaker
table inspector position and, therefore, that she is a qualified
individual within the meaning of the ADA. Accordingly, we
hold the District Court erred in granting summary judgment and
determining that Turner was not a “qualified individual” under
the ADA because she could not perform an essential job
function. Rather, the fact issue as to “essential function” must
be decided by a jury. See Deane, 142 F.3d at 148.

                              VI.

           Hershey argues in the alternative that, even if the
rotation policy is not an essential function, nonetheless, it is
entitled to summary judgment because Turner’s request to not
rotate is not a reasonable accommodation as a matter of law. As
we noted above, an employer must “mak[e] reasonable
accommodations to the known physical or mental limitations of
the individual unless the [employer] can demonstrate that the
accommodations would impose an undue hardship on the
operation of the business of the [employer].” 42 U.S.C. §
12112(b)(5)(A). “Reasonable accommodation” means measures
such as “job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, ... and other similar
accommodations for individuals with disabilities.” Id. §
12111(9).

       The duty to provide a reasonable accommodation is
subject to certain limitations. The ADA does not require an

                              21
employer to create a new position in order to accommodate an
employee with a disability, or transform a temporary light duty
position into a permanent position. Buskirk, 307 F.3d at 169.
And, relevant here, an employer is not required to provide a
reasonable accommodation if it would pose a “direct threat” to
the safety of the employee or others, 29 C.F.R. § 1630.15(b)(2),
see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), or if
to do so would conflict with seniority rules, see US Airways,
Inc. v. Barnett, 535 U.S. 391 (2002).

       As with the issue of “essential function,” the issue of
“reasonable accommodation” presents a fact question. In
deciding whether a genuine issue of material fact exists
regarding the reasonableness of the requested accommodation,
we first examine whether Turner has made a facial showing that
her proposed accommodation is possible. Gaul, 143 F.3d at
580. If Turner has made out a prima facie showing, the burden
then shifts to Hershey to prove, as an affirmative defense, that
the accommodations requested by Turner are unreasonable, or
would cause an undue hardship on the employer. Id.

        We find that Turner has satisfied her initial burden.
Turner’s proposed accommodation appears practical. Here,
Hershey’s rotation policy is a new one, which had never
previously been required of employees in Turner’s position.
Turner’s proposed accommodation would permit the new
rotation program to continue, albeit on a modified basis. Under
Turner’s proposed accommodation, each inspector could
continue to rotate on an hourly basis, with Turner, herself,
rotating only between lines 8 and 9. Hershey has not contended
that this is not practical or possible.

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        The burden then shifts to Hershey to demonstrate that this
accommodation is unreasonable or would cause an undue
hardship. Hershey argues that because the rotation policy was
implemented to avoid injury, exempting Turner has safety and
health-related implications. However, the record in support of
this proposition is not well developed. There is no evidence of
the need to have the full rotation scheme urged by Hershey, or
of the health or other implications of a modified rotation policy.
Further, there is little evidence as to the extent of the safety risks
posed by previous practices on the lines that caused Hershey to
adopt the rotation policy.

       Viewing the facts in the light most favorable to Turner,
we cannot conclude as a matter of law, based on the record as it
now exists, that the system proposed by Turner would pose a
“direct threat” to its employees or place an “undue hardship” on
Hershey. Thus, the question of whether Turner can perform the
essential functions of her position with reasonable
accommodation is an open question of material fact that must be
decided at trial.

       Hershey, of course, will have the opportunity at trial to
defeat Turner’s claim by showing that her proposed
accommodation would jeopardize the health or safety of its
employees, see Echazabal, 536 U.S. at 78-79, 84-85 (an
employer is not required to accommodate an employee if the
accommodation threatens the health or safety of that employee
or other employees); Buskirk, 307 F.3d at 168, that it would
impose an undue hardship, see 42 U.S.C. § 12112(b)(5)(A), or
that even with the accommodation Turner would still be unable


                                 23
to perform work on lines 8 and 9.7 This issue should be decided
by a jury based upon a fully developed record.

                             VII.

       In sum, the question of whether Turner can perform the
essential functions of her position with reasonable
accommodation is an issue for the jury. We find that Turner is
not estopped by her SSDI and long-term disability claims.
Having so found, we will reverse the District Court’s grant of
summary judgment in favor of Hershey and remand to the
District Court for further proceedings consistent with this
opinion.




  7
      See fn. 2, infra.

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