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Turner v. Hershey Chocolate USA

March 20, 2006


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.

The opinion of the court was delivered by: Rendell, Circuit Judge.


Argued December 5, 2005

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


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.


Janet Turner began working at Hershey's*fn1 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.

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 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. 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.


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 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. § ...

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