Full opinion text
OPINION AND ORDER ON MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR A NEW TRIAL BRAZIL, United States Magistrate Judge. I. INTRODUCTION Brenda Norris sued her former employer, Allied-Sysco Food Services, Inc. (“Allied”), alleging numerous claims. A jury trial was held. The jury concluded that sex was a motivating factor in a decision or decisions by Allied to deny Norris promotions, but the jury also concluded that Allied would have made the same decision or decisions in the absence of the impermissible motivating factor, meaning that Norris was not entitled to damages for sex discrimination. The jury further concluded that Allied violated the Americans with Disabilities Act (ADA) by terminating Norris, and the jury awarded her $300,000 in compensatory damages. The jury found in favor of Allied on all of the plaintiffs other claims. Viewed in the light most favorable to the plaintiff, the evidence supporting Norris’s ADA claim can be briefly summarized as follows. Norris left work on disability due to a back injury and various other ailments in September 1994. Starting around April 1995, Norris asked Alied to permit her to work from home or part-time. Allied either denied this request or took no action on it. Norris remained out on disability until she was terminated in November 1995. Allied now moves for judgment as a matter of law on Norris’s ADA claim, or, in the alternative, for a new trial on the ADA claim. The arguments that Allied makes in support of this motion can be grouped into three general areas. First, Alied argues that Norris did not present sufficient evidence to enable a reasonable jury to conclude that Norris established the essential elements of her claim that she was terminated in violation of the ADA Second, Allied contends that the jury’s answer to one of the special interrogatories submitted to it represents a finding by the jury thát Norris did not ask to be accommodated by being allowed to work from home or part-time. Alied then contends that the jury’s verdict for Norris on the ADA claim must have been based on a belief that Allied should have accommodated Norris by giving her an indefinite leave of absence, which, argues Allied, cannot be a “reasonable accommodation” under the ADA as a matter of law. Third, Allied argues that statements by Norris in applications for disability benefits preclude a reasonable jury from finding that Norris was able to perform the essential functions of her position. We deny Alied’s motion. With respect to Allied’s first argument, we conclude that Norris presented sufficient evidence to permit a reasonable jury to find in her favor on each of the essential elements of her claim that she was terminated in violation of the ADA. With respect to Allied’s second argument, we conclude that the jury’s answer to the special interrogatory relied upon by Allied does not represent a factual determination that Norris did not ask Allied about working from home or part-time. Since the jury could have decided that Allied should have accommodated Norris by permitting her to work from home, Alied’s argument that indefinite leave cannot be a reasonable accommodation does not help Allied in this case, though the argument does have support in the case law. In addressing Alied’s third argument (that Norris’s statements on disability benefits applications require judgment in favor of A-lied), we reexamine an earlier ruling by us that the doctrine of judicial estoppel does not apply to statements in disability applications. While we conclude that judicial estoppel can be applicable in cases such as this one, we hold that Norris should not be judicially es-topped by statements on her disability applications from taking the position that she would have been able to perform the essential functions of her position with reasonable accommodation for purposes of the ADA We further conclude that a reasonable jury could have found that Norris was able to perform the essential functions of her position despite her statements in the disability applications. II. FACTS A. Background 1. The defendant, Allied, distributes food and related goods. At the time she stopped working due to an injury, Norris was employed as a Non-Foods Specialist at Allied. Norris’s main duties in this position were selling food-related goods (not foods themselves), mostly supply and equipment, and assisting sales representatives (called “Marketing Associates”) in the sale of these goods. Norris’s duties required her to drive for long periods and to periodically lift objects weighing about thirty or forty pounds. See Ex. 81. B. Norris’s Injury ¡Illness 2. Norris testified that on September 6, 1994, she injured her back while attempting to assemble a table that Allied had sold to a school. About a month later, Norris fell and broke her knee in an accident that was not job-related. Surgery was performed on Norris’s knee in early November of 1994. 3. Norris’s physician, Dr. Alfred Tan, testified that the back injury caused Norris to have acute back pain. Tan testified that during the Fall of 1994 and/or in 1995, Norris also was suffering from chronic fatigue syndrome, irritable bowel disease, neck pain, urinary incontinence, and stress. Tan testified that Norris’s back injury prevented her from driving for long periods or lifting heavy objects. He also testified that Norris’s condition started to deteriorate in mid-August of 1995. 4. Norris had back surgery on April 19, 1996 (after she was terminated). The surgery had initially been scheduled for the Fall of 1995. Tan testified that the recovery time for the type of surgery Norris had was usually about six months. Tan testified that Norris’s condition began to improve in July or August 1996. During trial, Norris stated that she was still suffering from back pain. C. Norris’s Disability Leave 5. In September 1994, Norris left work on disability leave. As is documented in detail below, starting in September 1994, Norris sent Allied a series of doctor’s notes which stated that Norris would not be able to work for a period which was generally between several weeks to two months from the date of the note. Starting in September 1994, as will also be documented in detail below, Norris filled out a number of claims forms for disability benefits. 6. Norris filled out a claim for disability benefits for the State of California on September 15, 1994. In this form, Norris responded to the question “What was the first day you were too sick to perform all the duties of your regular or customary work?” by filling in “9/12/94.” Norris signed her name below a statement on the form which said, “I hereby claim benefits and certify that for the period covered by this claim I was unemployed and disabled____” On a doctor’s certificate attached to the form, Dr. Tan answered “yes” to a question that asked whether Norris had “been incapable of performing his or her regular work.” Dr. Tan stated that the approximate date that Norris would be able “to resume regular or customary work” was October 28, 1994. Ex. 862. 7. On September 16, 1994, Norris sent a memo to Hank Ontiveros, Allied’s Director of Human Resources, stating that her doctors would recommended that she take a disability leave as soon as possible. Ex. 233. On September 16, 1994, one of Norris’s doctors filled out a “Back to Work” form stating that Norris would be “off medically until October 28,1994.” Ex. 864. 8. On September 27, 1994, Norris filled out a state disability form similar to the one she filled out on September 15, 1994. Dr. Tan filled out a doctor’s certificate similar to the one attached to the form filled out on September 15,1994, and he again stated that the approximate date that Norris would be able “to resume regular or customary work” was October 28,1994. Ex. 865. 9. On October 25, 1994, one of Norris’s doctors at the Tri-Valley Orthopedic and Sports Medical Group (“Tri-Valley”) filled out a form which stated “work status ... off duty: to be determined on 11-1-94.” Ex. 874. On December 1, 1994, a doctor at TriValley filled out a form for Norris, stating “no work status approx 1-1-95.” Ex. 876. A form from Tri-Valley entitled “Return to Work Order,” dated January 1, 1995, states that Norris would have “no duty until re exam 2-l-95[;] possible return to work end of Feb.” Ex. 880. A Tri-Valley “Return to Work Order,” dated February 23, 1995, states that Norris would have “no duty until after re exam 3-22-95.” Ex. 884. 10. On March 2, 1995, Norris filled out a claim form for long-term disability (LTD) benefits from the Principal Mutual Life Insurance Company (“Principal”). Principal was an insurer that provided disability coverage for Mlied employees. On the form, in response to the question “When did you become wholly unable to work?,” Norris answered “9-94.” In response to the question “Have you been continuously disabled since you became unable to work?,” Norris checked the box marked “yes.” Responding to the question “When do you feel you will be able to resume work?,” Norris stated “not known.” Ex. 887. 11. When questioned about this form at trial, Norris testified, “I don’t know if during that whole time I was wholly unable to do any kind of work____ Wholly’ was on the form. I took off on disability [in September 1994]. I answered [the form] to the best of my ability.” Tan testified that he interpreted the language “wholly unable to work” on the form as meaning only that Norris had been wholly unable to work in her occupation as a Specialist. 12. On March 8, 1995, Dr. Tan filled out an “Attending Physician’s Statement” attached to the form Norris filled out on March 2, 1995. In response to the question “Is patient now totally disabled [from the ‘patient’s job’]?,” Tan marked the “yes” box. In response to the question “Is patient now totally disabled [from ‘any other work’]?,” Tan marked the “yes” box. In response to the question “Do you expect a fundamental or marked change in the future [with respeet to the ‘patient’s job’]?,” Tan marked the “no” box. In response to the question “Do you expect a fundamental or marked change in the future [with respect to ‘any other work’]?,” Tan marked the “yes” box. Answering the question “When will/or did patient recover sufficiently to perform duties [with respect to ‘any other work’]?,” Tan marked a box that stated “3-6 mo[nths].” Tan then answered the question “Would job modification enable patient to work with impairment?” by marking the “no” box. Tan answered the question “Can present job be modified to allow for handling with impairment?” by marking the “no” box. Ex. 887. 13. A letter from Principal to Norris, dated April 4, 1995, stated that Principal would “review [Norris’s] claim for consideration under the Total Disability Section of [her] group life policy.” The letter added, “If we determine that you are totally disabled, you would be eligible for this benefit effective June 28, 1995. We will notify you once a decision is made on this claim.” Ex. 896. 14. In letters dated March 29, 1995, and April 5, 1995, Ontiveros requested that Norris see a doctor picked by Mlied so that Mlied could verify Norris’s medical condition. Ex. 280, 281. Norris testified that she saw the doctor, Dr. Khalid Baig. 15. On April 20, 1995, Steve Noon, M-lied’s Director of. Marketing, sent a letter to Norris which stated, “This letter is in anticipation of your return to work this coming Monday, April 24, 1995, in your new position as Sysco Brand Manager — Non-Foods— West.” The letter further stated, “I’d like you to report to my office at 9:00 a.m. on Monday morning, April 24, 1995.” Ex. 282. 16. On April 21, 1995, one of Norris’s doctor’s offices informed Allied telephonically that Norris had not been released to return to work yet. On April 22,1995, Norris wrote a letter to Ontiveros explaining that she had not been released to work yet. Ex. 283. On April 23, 1995, Norris wrote a letter to Noon stating that her doctors had not yet released her from her' disability leave, and that she had an appointment scheduled for May 3, 1995, to determine her return to work status. In the letter, Norris also stated that she was “excited about resuming [her] career at Sysco” and that she was “looking forward to [her] return to Allied-Sysco.” Ex. 284. A “Return to Work Order,” dated April 21, 1995, from Tri-Valley, states that Norris would have “no duty until approx 5/3/95[;] no work status 10/25/94-5/3/95.” Ex. 902. 17. Norris testified that Allied sent job descriptions of both the Brand Manager and the Non-Foods Specialist positions to her doctors at Tri-Valley, Dr. Grant and Dr. Malstrom, in April of 1995. See Ex. 277. Norris testified that Dr. Grant obtained the job descriptions in order to determine exactly what Norris’s position was to aid his assessment of whether and under what circumstances Norris could be permitted to return to work. Norris testified that Dr. Grant sent a form to Principal stating that Norris could return to work with limited driving and limited duties. 18. On May 3, 1995, a doctor at TriValley filled out a “Return to Work Order” that stated that Norris would have “no duty until re exam [with] Dr. Grant' 5-12-95.” Ex. 909. On May 5, 1995, Dr. Tan filled out a “Certificate to Return to School or Work” which stated that Norris would be able to return to work on July 31, 1995. Ex. 910. On May 12,1995, a doctor at Tri-Valley filled out a “Return to Work Order” that stated that Norris would have “no duty until further notice — pending MRI ...” Ex. 912. A “Return to Work Order,” dated May 19, 1995, from Tri-Valley, stated that Norris would have “no duty until one month[;] awaiting neurology consult.” Ex. 914. 19. Norris sent Allied a “Certificate to Return to School or Work,” signed by Dr. Tan on June 7, 1995, which stated that she would be able to return to work on July 10, 1995. Above this certificate, Norris wrote a note to Deborah Barbe, Allied’s Benefits and Workers Compensation Supervisor, stating, “I have not heard from Principal Mutual on the LTD yet, have you?” Ex. 916. On June 8, 1995, Norris sent Barbe a memo stating that she was attaching a return to work certificate and that she was “looking forward to a full recovery and resuming [her] career.” Ex. 917. On June 21, 1995, Norris sent a memo to Barbe which asked for “an update on [her] medical leave status and long term disability insurance status.” . Ex. 918. A “Return to Work Order” from Tri-Valley, faxed by Norris to Allied and dated June 19, 1995, states that Norris would have “no duty until 4 weeks.” Ex. 922. 20. On July 10, 1995, Dr. Tan wrote a report about Norris that was sent to Principal. The report describes Norris’s medical problems and concludes with the following two paragraphs: At her current degree of illness with associated symptoms, [Norris] cannot sit or stand longer than one hour at a time. I recommend that she does not drive more than 45 minutes at a time. She should not lift more than 10 lbs. occasionally; and she should refrain from bending. She should not perform repetitive upper extremity movements. She should not lift or reach above her shoulders. For this reason, Mrs. Norris is unable to perform her duties at her own occupation. At this time, her prognosis is guarded. I • anticipate her condition to be stable for the next 2-3 months. If you have any questions, please don’t hesitate to contact me. Ex. 923. At trial, Tan testified that it was his opinion in July of 1995 that Norris was unable to perform her duties at her occupation, as her duties required driving and lifting. 21. On July 13, 1995, Dr. Tan sent Allied a “Certificate to return to work” stating that Norris “will be able to return to work on 8/28/95.” Ex. 924. On August 18, 1995, Dr. Tan filled out a “Certificate to Return to School or Work” that stated, “Brenda Norris is my patient and has been under my care from 8/1/95 to 10/81/95 and is able to return to work/sehool on _ [blank not filled in].” Ex. 926. 22. Barbe testified that since the beginning of Norris’s disability leave, other than during a brief period in April 1995, Alhed always had at least one active (unexpired) medical excuse slip from Norris stating that she was not released to return to work. However, no documentary evidence was introduced at trial showing that Allied was provided with a medical excuse that was effective for the period between October 31, 1995, and November 30, 1995 (the date Norris was terminated). 23. Most of the “return to work” forms filled out by Norris's doctors had boxes or blanks which stated “light work,” “light duty,” or “restrictions.” In no case were the “light work” or “light duty” boxes or blanks cheeked or filled in, and in no case did one of Norris’s doctors indicate on the “return to work” forms that Norris had any specific “restrictions.” Dr. Tan testified that the “return to work” forms he filled out only meant that Norris could not perform her regular occupation. D. Evidence Relating to Whether Norris Requested Accommodation 24. Norris testified that she told Barbe orally that she would like to return to work with accommodations. Norris testified that she asked Barbe whether she could work at home or part-time. Norris testified that these requests were made around April of 1995. In response to a question by defense counsel about why Norris had not asked in writing about the possibility of working from home, Norris answered that she had asked Barbe orally many times. Norris also testified that Dr. Grant told her that she could return to work with limited driving and limited duties. 25. Norris testified that in response to her inquiries about working from home or part-time, Barbe either told her that she would get back to her or that Norris should talk to Ontiveros about the matter. Norris testified that Allied never responded to her inquiries about working at home or part-time. Norris also testified that Barbe and Ontiveros told her between May and July of 1995 that she had to be fully recovered to be permitted to return to work. 26. Barbe testified that she talked to Norris several times per month or per week during Norris’s disability. Barbe testified that Norris never asked her about working at home or part-time. Barbe testified that Norris never discussed with her in any way working from home or part-time or returning to work with light duty. Barbe testified that Norris never requested reasonable accommodation or indicated a need for accommodation. Barbe testified that Norris never indicated that she was ready to return to work. Barbe also testified, however, that Norris expressed a desire to return to work when she could. Frank Damante, Allied’s President, testified that he was not aware of any request by Norris to return to work or to be accommodated. 27. Norris also contended at trial that certain written inquiries she made to Alhed constituted or reflected requests for accommodation. Norris inquired, in a letter to Ontiveros dated April 24, 1995, “Would you please provide me with information on any programs designed to facilitate employees returning to work from an injury or serious illness?” Ex. 904. 28. Ontiveros responded, in a letter dated May 1,1995, as follows: I am unsure to what you are referring in your request for information on programs designed to facilitate employees returning to work from an injury or serious illness. Allied-Sysco does not have any programs designed specifically for that purpose. If you are interested in information regarding a rehabilitation program for your knee, we suggest you make appropriate inquiries with your physician, who should be in a position to provide some guidance. Ex. 289. 29. In a memorandum to Barbe dated June 2-1,1995, Norris wrote: I would also appreciate an update on my medical leave status and long term disability insurance status. As I have discussed with you previously, my financial situation is adding further to my distress. If there are any options that Allied Sysco/Sysco offers employees on disability, please advise me as soon as possible. Ex. 918. 30. Barbe responded, in a letter dated June 30,1995, All options available to employees of Allied Sysco who are on disability have been extended to you. This includes the coordination of all available sick and vacation time with state disability, and the application for Long Term Disability coverage after an individual has met the six (6) month waiting period. Ex. 303. 31. Norris contended that the inquires in her letters of April 24, 1995, and June 21, 1995 (about “programs designed to facilitate employees returning to work from an injury or serious illness” and “options that Allied Sysco/Sysco offers employees on disability”), were inquiries about returning to work with accommodation. Barbe testified that Allied understood the inquiry about “programs designed to facilitate employees returning to work from an injury or serious illness” as an inquiry about rehabilitation programs. Barbe testified that she did not understand the inquiry about “options that Allied Sysco/Sysco offers employees on disability” to be an inquiry about returning to work with accommodation but understood the inquiry to be related to Norris’s concerns about her financial situation. 32. While Allied disputes Norris’s claim that she requested accommodation, it is undisputed that Allied did not make any efforts to accommodate Norris. Damante testified that no efforts were made to accommodate Norris and that Allied did not make any inquiries in their communications with Norris about accommodation. Barbe testified that Allied never engaged in any kind of interactive process with Norris to determine whether some sort of accommodation could permit Norris to return to work. E. Norris’s Termination 33. On November 30, 1995, Allied terminated Norris, effective December 1, 1995. Allied notified Norris about the termination and explained the termination in a letter, which stated, in relevant part, As you know, your Family and Medical Leave Act leave ended several months ago. Due to your continuing unavailability for work, despite the expiration of your leave and the exhaustion of all vacation and sick time, the Company has determined that it will no longer hold your position open. Thus, your employment with Allied-Sysco Food Services, Inc., is terminated effective December 1,1995. Ex. 316. F. Norris’s Receipt of Disability Benefits 34. Barbe testified that Norris received disability benefits either from the Employment Development Department of the State of California or from Principal from the date her leave began in September 1994. Barbe testified that she believed that Norris received short-term disability benefits from the State for the first six months of her leave, that she received both short-term disability from the State and long-term disability payments from Principal for some time period after the first six months, and that she received only long-term disability payments from Principal after her state disability ran out. Barbe testified that state disability benefits normally run out after twelve months. 35. On February 14, 1996, Principal sent a letter to Norris. The letter stated, “I am pleased to tell you that we are approving your claim under the Total Disability Section of your Group Life Policy.” The letter continued, “This letter will provide you with important information about your benefits.” In a section entitled “Benefit Information,” the letter stated “As long as you remain unable to work at any occupation, your life insurance in the amount of $111,000.00 will continue without further premium payment.” Ex. 929. No documentary evidence was introduced showing that Norris received any long-term disability benefits from Principal prior to February 1996. 36. Norris testified that she was still receiving long-term disability benefits from Principal at the time of trial. When asked at trial about whether she was receiving “total disability” benefits, Norris answered, “I don’t quite know how to answer this ... it [the letter from Principal] says ‘total disability,’ and I don’t think I’m totally — I don’t know that that’s been determined yet.” G. Evidence Relating to Essential Functions of Norris’s Position 37. On December 21, 1994, Allied offered Norris the position of “Sysco Brand Manager — West.” Ex. 247. Norris and Damante each testified that Norris accepted this position. 38. Three persons who held positions of Brand Manager at Allied testified about the duties of a Brand Manager. Steve Noon, a former Brand Manager, testified that the purpose of a Brand Manager was to promote Sysco brand products. Noon testified that the Brand Manager position was an entry-level “administrative marketing position.” Noon testified that the position was an administrative position which involved selling through other people — the job of the Brand Manager was not to sell but to get other people to sell. Noon testified that a Brand Manager was, by the definition of the job, supposed to be in the office. Noon testified that the position had many administrative and clerical duties — record-keeping, communicating with the corporate office in Houston, communicating with merchandisers. 39. Jerry Carr, another former Brand Manager, also testified at trial. Carr testified that most of the Brand Manager job was paperwork. Carr testified that 60 percent of the job was sitting behind a desk, going over reports, analyzing performance of particular salespersons, and making future plans for particular salespersons. Carr testified that a typical day as Brand Manager consisted of getting in early in the morning, talking to people in Houston and on the East Coast on the phone for a couple hours, and then doing paperwork until early afternoon. Carr testified that when he was a Brand Manager, if he got lucky, he would get to go out in the field and sell to customers near the end of the day. 40. Mark Castleman, a Brand Manager at Allied, testified that the job involved extensive paperwork. The Brand Manager had to keep up with corporate reports, keep up with items that would soon be available for selling, and do market evaluations on product lines. Norris testified that Noon told her that the Brand Manager position required much more time to be spent in the office than did the Non-Foods Specialist position. Norris testified that Castleman had told her that the Brand Manager position was that of a glorified clerk. 41. A written description of the Brand Manager position, dated March 13,1995, and prepared by Noon appears to contradict the testimony of Noon, Carr, and Castleman in some respects. According to the description, the Brand Manager’s time is allocated as follows: 60 percent for selling with Marketing Associates (“MA’s” — general salespeople), 10 percent for direct selling to accounts, 10 percent for district meetings (teaching and promotions), 5 percent for reviewing reports and paperwork, and 15 percent for other duties. The description states that the “position will have 3 full days selling with MA’s, % day direct sélling, lk day for District Meetings and % day for Admin, work.” The description states that one of the requirements for the position is an “[ajbility to drive in an auto for long periods of time (7-10 hours a day/4 times a [week]).” Ex. 277. 42. A job description of Norris’s previous position of Non-Food Specialist, dated April 28,1995, states that the “position will require 2 full days selling with MA’s, 1 full day direct selling, lk day for District Meetings, and \lk days for dispenser installation or administrative duties.” Ex. 277. H. Evidence Relating to Norris’s Ability to Perform her Position 43. Dr. Tan testified that Norris could have worked from home in 1995. Tan testified that the required accommodation would have been no heavy lifting, no long periods of driving, using something to support Norris’s back while at home, and taking other measures such as frequent walks to control her back pain. Tan testified that there were short time periods in 1995 when Norris would not have been able to work at home at all because several of her medical problems flared up at the same time. 44. Norris testified that she could have worked at home on the computer and the telephone during her disability. Norris testified that what she could not do was lift heavy sample cases or drive long periods of time. 45. Norris testified that she has not looked for work since being terminated. When defense counsel asked Norris, “So the fact is you haven’t looked for any work because you continue to be disabled, is that right?,” Norris answered “correct.” I. Allied’s Return to Work Policy 46. Norris introduced into evidence a document, dated November 24, 1993, entitled “Return to Work Policy.” The document states, “a ‘fit for duty medical evaluation will be required prior to an injured employee returning to work____ You must have an unrestricted return to work release from our contract clinic [specialists in industrial medicine], who have thorough knowledge of our job descriptions.” Ex. 161 (second emphasis added). 47. Allied’s employee handbook had a section entitled “Medical Leave (Occupational Disabilities),” which stated: A leave of absence shall be granted upon written request to any full-time or part-time employee who sustains a work-related disability. A leave of absence for a work-related disability shall be extended to the employee for the duration of the work-related disability. Before returning to work following a leave of absence for a work-related disability, an employee must submit a physician’s verification stating the employee’s ability to return to work and the date that he/she is able to return. The Company will retain employees on an extended leave of absence for work-related disabilities until one of the following situations takes place: • The employee is released to work without restriction. • The Company receives medical evidence satisfactory to it that the employee will be unable to return to work. • The employee resigns or actually or constructively informs the Company that he/she does not intend to return to the Company’s employ. Ex. 350, pp. 14-15 (emphasis added). 48. Damante testified that the “Return to Work Policy” (Ex. 161) is still in existence. Damante testified that an employee must be able to return in their full capacity, without qualifications, before being allowed to return to work. Damante testified that if a job normally required an employee to lift thirty or forty pounds and the person could not do so, the policy prohibited the person from returning to that job. 49. Barbe testified that Allied would permit an employee to return to work even if he or she had certain restrictions if the employee’s doctor permitted the employee to return to work. Barbe testified that she understood Allied’s policy on returning to work as only requiring a clearance from Allied’s contract clinic before an employee could be permitted to return to work, and that the clearance could have certain restrictions. Barbe admitted that her understanding of Allied’s policy about returning to work contradicted the written “Return to Work Policy.” 50. Norris testified that she received the “Return to Work Policy.” Norris testified that Barbe and Ontiveros told her between May and July of 1995 that she had to be fully recovered to return to work. Norris testified that she told Dr. Grant that she would not be permitted to return on a limited basis but would only be permitted to return full-time. 51. Several current or former Allied employees testified that Allied had permitted employees who had been ill or injured to work from home and/or part-time. There was also testimony that Allied had allowed employees who had suffered serious illness or injury to remain on disability leave for more than one year. In addition, Allied once arranged for an employee who could not drive due to an illness to be driven around by a Marketing Associate while providing training to the Marketing Associate. Norris testified that she was aware that other employees had been allowed to work from home and/or part-time. III. DID NORRIS INTRODUCE SUFFICIENT EVIDENCE TO PERMIT A REASONABLE JURY TO CONCLUDE THAT SHE ESTABLISHED THE ESSENTIAL ELEMENTS OF HER ADA CLAIM? A. The Americans with Disabilities Act Allied contends that Norris did not present sufficient evidence to permit a reasonable jury to find that Allied terminated Norris in violation of the Americans with Disabilities Act (ADA). The ADA generally prohibits employers from discriminating against qualified individuals with disabilities because of their disabilities. See 42 U.S.C.A. § 12112(a) (1995). The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; ... a record of such an impairment; or ... being regarded as having such an impairment.” 42 U.S.C.A. § 12102(2). The ADA defines “qualified individual with a disability” as “an individual who ... can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C.A. § 12111(8). The individual must be able to perform the essential functions of the position either with a reasonable accommodation, if such an accommodation is necessary for the person to be able to perform the essential functions, or without reasonable accommodation, if accommodation is not necessary for the person to be able to perform the essential functions. See 42 U.S.C.A. 12111(8). The term “reasonable accommodation” includes “Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that, position.” 29 C.F.R. § 1630.2(o)(l)(ii) (1996). Under the ADA, “discrimination” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C.A. § 12112(b)(5)(A). “Undue hardship” means “an action requiring significant difficulty or expense....” 42 U.S.C.A. §12111(10). “Discrimination” under the ADA also includes “denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.” 42 U.S.C.A. § 12112(b)(5)(B). B. Did Norris Present Sufficient Evidence to Enable a Reasonable Jury to Conclude that she Requested that Allied Reasonably Accommodate her? Allied argues that Norris did not present sufficient evidence to permit a reasonable jury to conclude that Norris requested reasonable accommodation from Allied. We disagree. Norris testified at trial that she told Deborah Barbe, an employee in Allied’s human resources department, that she would like to return to work with accommodations. Norris testified that she orally asked Barbe about working from home or part-time. See Facts ¶ 24. Norris also wrote two memos to Allied that a reasonable jury could have construed to be written follow-ups to oral requests for accommodation. See Facts ¶¶ 27-31.' Barbe contradicted Norris’s testimony and denied that Norris ever requested reasonable accommodation or talked about working from home or part-time. See Facts ¶ 26. However, it is up to the jury to evaluate the credibility of witnesses. A reasonable jury could have believed Norris’s testimony and disbelieved Barbe’s testimony. Thus, a reasonable jury could have found that Norris requested that Allied reasonably accommodate her by permitting her to work from home or part-time. C. Did Norris Present Sufficient Evidence to Enable a Reasonable Jury to Conclude that she Could Have Performed the Essential Functions of her Position with Reasonable Accommodation? Allied contends that Norris did not present sufficient evidence to permit a reasonable jury to find that Norris could have performed the essential functions of her position with any reasonable accommodation. We are not persuaded by this argument. 1. Norris’s Position. The appropriate position at Allied to consider in evaluating this argument is not the position of Non-Foods Specialist that Norris held when she went out on disability, but the position of Brand Manager that Norris was offered in December 1994. Both Norris and Frank Damante, Allied’s president, testified that Norris accepted this position. See Facts ¶37. Thus, the evidence supports a rational inference that the position to which Norris would have returned at the time she requested reasonable accommodation (according to her testimony) was “Brand Manager.” 2. Essential Functions of Norris’s Position. What were the essential functions of the Brands Manager position? For purposes of the ADA, “[t]he term essential functions means the fundamental job duties of the employment position the individual holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(l). According to the interpretations of the ADA by the Equal Employment Opportunity Commission (EEOC), “[t]he inquiry into whether a particular function is essential initially focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential.” 29 C.F.R. § 1630, App. at p. 342 (1996). “If the individual who holds the position is actually required to perform the function the employer asserts is an essential function, the inquiry will then center around whether removing the function would fundamentally alter that position.” 29 C.F.R. § 1630, App. at p. 343. “[W]ritten job descriptions ... as well as the employer’s judgment as to what functions are essential are among the relevant evidence to be considered in determining whether a particular function is essential.” . 29 C.F.R. § 1630, App. at p. 343. “The work experience of past employees in the job or of current employees in similar jobs is likewise relevant to the determination of whether a particular function is essential.” 29 C.F.R. § 1630, App. at p. 343. An employer may reasonably accommodate an employee “by reallocating or redistributing non-essential, marginal job functions.” 29 C.F.R. § 1630, App. at p. 344. However, “[a]n employee or other covered entity is not required to reallocate essential functions.” 29 C.F.R. § 1630, App. at p. 344. In this case, there was considerable testimony about what the essential functions of the Brand Manager position were from three Allied employees who at one time held the position. These employees testified that the Brand Manager position was mainly an administrative job. Based on this testimony, a reasonable jury could have concluded that the essential functions of the position were administrative and clerical tasks such as doing paperwork, working on the computer, and talking on the telephone. From the testimony of these three employees, a reasonable jury also could have concluded that the employees who actually held the Brand Manager position did not devote significant time to selling in the field and that selling in the field was therefore not an essential function of the Brand Manager position. See Facts ¶¶ 38-40. A written description of the Brand Manager position that was introduced into evidence contradicted the testimony of the three Allied employees. According to this written description, a majority of a Brand Manager’s time was devoted to direct selling, and only a small portion of the Brand Manager’s work consisted of administrative duties. The allocation of duties in this description did not seem to differ significantly from the allocation of duties in a written description of Norris’s former position of Non-Foods Specialist. See Facts ¶¶ 41-42. However, the jury reasonably could have believed that the testimony of persons who actually held the Brand Manager position was more accurate evidence of what the essential functions of the Brand Manager position were than the written description of the Brand Manager position. Thus, the jury reasonably could have concluded, despite the written description, that the essential functions of the Brand Manager position were administrative and that direct selling in the field was not an essential function of the Brand Manager position. 3. Reasonable Accommodations that Could Have Enabled Norris to Perform the Essential Functions of her Position. The jury reasonably could have concluded from the evidence that the main way in which Norris’s medical problems limited her ability to do her job was that her back injury prevented her from driving for long periods of time and lifting heavy objects. The jury also could have concluded, reasonably, that Norris’s array of medical problems — back pain, chronic fatigue syndrome, neck pain, irritable bowel disease, urinary incontinence, and stress — would have made it difficult for her to put in full days of work or to adhere strictly to a regular work schedule. See Facts ¶¶ 3, 43. Based on testimony by Norris and her physician, Dr. Tan, a jury could have reasonably found that Norris could have been reasonably accommodated by being permitted to work from home (part-time, if necessary), where she could have performed the administrative duties of the Brand Manager job on the computer and over the telephone. See Facts ¶¶43, 44. Under the ADA, reasonable accommodation may include “job restructuring, part-time, or modified work schedules.” 42 U.S.C.A. § 12111(9)(B); see also Pattison v. Meijer, Inc., 897 F.Supp. 1002, 1007-08 (W.D.Mieh.1995). Allowing an employee to work at home may also be a reasonable accommodation. See Langon v. Department of Health & Human Services, 959 F.2d 1053, 1060-61 (D.C.Cir.1992). In addition, an employer may reasonably accommodate an employee “by reallocating or redistributing non-essential, marginal job functions.” 29 C.F.R. § 1630, App. at p. 344. The EEOC’s interpretations of the ADA explain: For example, an employer may have two jobs, each of which entails the performance of a number of marginal functions. The employer hires a qualified individual with a disability who is able to perform some of the marginal functions of each job but not all of the marginal functions of either job. As an accommodation, the employer may redistribute the marginal functions so that all of the marginal functions that the qualified individual with a disability can perform are made a part of the position to be filled by the qualified individual with a disability.. The remaining marginal functions that the individual with a disability cannot perform would then be transferred to the other position. 29 C.F.R. § 1630, App. at p. 344. In this case, the jury could have inferred from the evidence that the marginal functions of the Brand Manager job that Norris could not have performed, such as direct selling in the field, could have been redistributed to Mark Castleman, the other Non-Foods Brand Manager at the time of Norris’s disability. Conversely, marginal functions of the Brand Manager position that Norris could have performed could have been redistributed from Castleman to Norris. Even if the jury believed that direct selling in the field was an essential function of Norris’s position, there was evidence from which a jury reasonably could have concluded that Allied could have accommodated Norris. Allied once arranged for an employee who could not drive due to an illness to be driven around by a Marketing Associate while providing training to the Marketing Associate. See Facts ¶ 51. The jury reasonably could have determined that Allied could have allowed Norris to do direct selling in the field together with a Marketing Associate who would have done most of the driving and lifting while Norris provided training to the Marketing Associate. According to the EEOC’s interpretations, “[providing personal assistants, such as a page turner for an employee with no hands or a travel attendant to act as a sighted guide to assist a blind employee on occasional business trips, may also be a reasonable accommodation.” 29 C. F.R. § 1630, App. at p. 344. D. Did Norris Present Sufficient Evidence to Enable a Reasonable Jury to Conclude that she had a “Disability” as Defined for Purposes of the ADA? Allied argues that Norris was not a qualified individual with a “disability” as that concept is defined for purposes of the ADA. The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” . 29 C.F.R. § 1630.2(g)(1) (emphasis added). A “physical impairment” is “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1). Under the EEOC’s interpretations of the ADA, “Major life activities” are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting, reaching. 29 C.F.R. § 1630, App. at p. 339 (emphasis added). The term “substantially limits” means either “[ujnable to perform a major life activity that the average person in the general population can perform” or “ [significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as 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. § 1630.20X1)®-®. With respect to the major life activity of working, “the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). See also Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995); Dutton v. Johnson County Bd. of County Com'rs, 859 F.Supp. 498, 505 (D.Kan.1994). The EEOC’s interpretations go on to state: For example, an individual who has a back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working because the individual’s impairment eliminates his or her ability to perform a class of jobs ... even if the individual were able to perform jobs in another class. 29 C.F.R. § 1630, App. at p. 340. “[TJemporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.” 29 C.F.R. § 1630, App. at p. 339. For instance, in Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353-54 (9th Cir.1996), the Ninth Circuit Court of Appeals held that a psychological disorder triggered by cancer, lasting less than four months, and having no residual effects was not a “disability” under the ADA. Similarly, in Rakestraw v. Carpenter Co., 898 F.Supp. 386 (N.D.Miss.1995), the court concluded that a back injury which was completely cured by back surgery within one year and ten months of the injury’s occurrence was not a “disability” for purposes of the ADA. See also Blanton v. Winston Printing Co., 868 F.Supp. 804, 807 (M.D.N.C.1994) (knee injury which flared up for several months but which afterward only impaired ability to run well or climb stairs easily and which could have been ameliorated by surgery was not “disability” under ADA). In this case, the jury easily could have concluded from the evidence that Norris had a back injury which substantially limited her ability to perform the major life activity of lifting. The jury also could have concluded that Norris’s back injury substantially limited her ability to perform a broad class of jobs requiring lifting or other manual labor. Furthermore, a reasonable jury could have concluded that Norris’s other medical problems — chronic fatigue syndrome, irritable bowel disease, urinary incontinence, and neck pain — were, in combination, sufficiently disabling to substantially limit Norris’s ability to hold down a full-time job. See Facts ¶ 3. Allied’s main argument in support of its contention that Norris did not have a “disability” as defined for purposes of the ADA was that her back injury was a temporary injury, as in Rakestraw, 898 F.Supp. 386. But this case is distinguishable from Rakestraw, for the plaintiff’s back injury in Rakestraw was completely cured within one year and ten months of the injury. See 898 F.Supp. at 389. By contrast, during trial, more than two years after she suffered her back injury, Norris stated that she was still suffering from back pain as a result of the injury. A reasonable jury could have concluded that, despite undergoing surgery, Norris had not fully recovered from the back injury and that it was uncertain whether she would ever fully recover. See Facts ¶ 4. In addition, the jury could have reasonably concluded that some of -Norris’s other medical problems, such as chronic fatigue syndrome, were chronic problems that would substantially limit Norris’s ability to engage in the major life activity of working even if Norris’s back injury were to completely heal. For these reasons, the jury could have reasonably concluded that Norris had a “disability” for purposes of the ADA. E. Did Norris Present Sufficient Evidence to Enable a Reasonable Jury to Conclude that Norris’s Disability was a Motivating Factor in Allied’s Decision to Terminate Her? Allied argues that Norris did not present sufficient evidence to permit a reasonable jury to conclude that Norris’s disability was a motivating factor in Allied’s decision to terminate her. This argument was not raised in Allied’s opening motion papers, but was first raised only in Allied’s reply brief. Therefore, we may consider it to be procedurally barred. However, because it is not difficult to explain why the argument lacks substantive merit, we will proceed to discuss the argument. Allied stated in writing that the reason it terminated Norris was “[d]ue to [her] continuing unavailability for work.” See Facts ¶ 33. A reasonable jury could have concluded that Norris was unavailable for work because of her disability and a refusal by Allied to accommodate it. The jury could have reásonably concluded that, knowing that Norris’s disability was the reason she had not returned to work, Allied chose to terminate Norris instead of accommodating the disability — meaning that Norris’s disability was a motivating factor in Allied’s decision to terminate her. The ADA clearly prohibits an employer from engaging in such conduct. See 42 U.S.C.A. § 12112 (“discrimination” includes “denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant”); see also Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir.1996) (if an employer should have reasonably accommodated an employee’s disability and did not, the employer has discriminated against the employee). In addition, a reasonably jury could have treated Allied’s “Return to Work Policy,” which stated that Allied employees had to have an “unrestricted return to work release” before being permitted to return to work,-as evidence that Norris’s disability was a motivating factor in Allied’s decision to terminate her. See Facts ¶¶ 46-50 (emphasis added). IV. SIGNIFICANCE OF JURY’S ANSWER TO SPECIAL INTERROGATORY #24 A. Did the Jury’s Answer to Special Interrogatory #24 Represent a Finding that Norris did not Request that Allied Reasonably Accommodate her by Permitting her to Work from Home or Part-Time? The court submitted forty-two special interrogatories to the jury to guide the jury in its deliberations. One of Norris’s claims was that Allied discriminated against her on the basis of sex, retaliated against her, and violated the ADA by refusing to reinstate her — refusing to permit her to return to work after she began her disability leave and before she was terminated. At trial, Allied disputed Norris’s contention that she asked to return to work, with reasonable accommodation, before she was terminated. Cognizant of this dispute, the court thought that it would not have made sense, if the jury did not believe that Allied ever in fact refused to reinstate Norris, to make the jury answer separate interrogatories about (1) whether Allied discriminated against Norris on the basis of sex by refusing to reinstate her, (2) whether Allied retaliated against her by refusing to reinstate her, and (3) whether Allied violated the ADA by refusing to reinstate her. Therefore, the court sought to . fashion a threshold special interrogatory for the refusal to reinstate claim that would have asked the jury to determine whether Allied in fact refused to reinstate Norris. If the jury determined that Allied did not refuse to reinstate Norris, it would have been unnecessary for the jury to answer the three more specific interrogatories about whether the alleged refusal to reinstate was based on sex discrimination, retaliation, or a violation of the ADA. Thus, the court posed to the jury Special Interrogatory #24, which asked, “Did Ms. Norris prove by a preponderance of the evidence that after she began her disability leave but before she was terminated she sought to begin working again and that Allied-Sysco refused to permit her to begin working again?” The jury answered “no” to Special Interrogatory # 24. Defendant argues that the jury’s answer to Special Interrogatory # 24 represents a factual finding that Norris did not request that Allied accommodate her by permitting her to work from home or part-time. Defendant argues that such a factual finding must mean either that the jury’s answer to Special Interrogatory #24 conflicts with the jury’s conclusion that Allied violated the ADA by ter-' minating Norris or that the jury believed that Allied should have accommodated Norris by extending her leave for an indefinite period. If Special Interrogatory #24 had in fact asked the jury to decide what the court had intended the jury to determine through that interrogatory, we would be inclined to agree with defendant’s argument. However, upon careful examination of Special Interrogatory # 24, we find that Special Interrogatory # 24 was defective, as it did not actually ask the jury to decide what the court wished the jury to decide. In order for the jury to answer Special Interrogatory #24 in the affirmative, the jury would have had to believe both of the following: (1) that Norris sought to begin working again after she began her disability leave but before she was terminated; and (2) that Allied refused to allow Norris to begin working again after she began her disability leave but before she was terminated. Therefore, a reasonable jury would have answered Special Interrogatory # 24 in the negative if the jury believed (1) that Norris sought to begin working again, with reasonable accommodation, after she began her disability leave but before she was terminated; and (2) that Allied permitted or would have permitted Norris to resume working again, after she began her disability leave but before she was terminated, but only with no accommodation. In fact, we do not think that a reasonable jury could have given a “yes” answer to Special Interrogatory # 24, because it is undisputed that, on April 20, 1995, Allied sent Norris a letter asking her to report to work on April 24,1995. See Facts ¶ 15. Thus, the undisputed evidence showed that, in April 1995, Allied was willing to allow Norris to return to work, though without offering her reasonable accommodation. In other words, Special Interrogatory # 24 was defective because, instead of just asking whether Allied refused to permit Norris to return to work, it should have asked whether Allied refused to permit Norris to return to work with reasonable accommodation. A reasonable jury could have believed, despite answering “no” to Special Interrogatory # 24, that Norris requested that Allied reasonably accommodate her by permitting her to work at home or part-time. Thus there is no conflict between the jury’s answer to Special Interrogatory #24 and its conclusion, through its “yes” answer to Special Interrogatory # 34, that Allied violated the ADA by terminating Norris. B. Impact of Allied’s Return to Work Policy If the Court of Appeals reviews this decision and does not agree with the analysis in the immediately preceding section, we respectfully suggest that it consider the following issue: What should be the legal impact of Allied’s return to work policy upon Norris’s burden to request reasonable accommodation? We begin this discussion by noting that our review of the EEOC’s interpretations and the applicable case law discloses the following general principles about an employee’s burden to request reasonable accommodation. In general, an employee must request reasonable accommodation ft-om an employer in order for the employer’s duty to reasonably accommodate the employee to be triggered. However, if an employee’s disability and the need to accommodate it are obvious, an employee is not required to expressly request reasonable accommodation., Moreover, an employee is not required to use the phrase “reasonable accommodation” when requesting reasonable accommodation — an employee must merely let the employer know, in a manner that would be understood by a reasonable employer, that the employee has a disability that requires some sort of accommodation in order for the employee to be able to perform his work duties. Once an employee has let an employer know that he is disabled and desires reasonable accommodation, the employer is then obligated to offer reasonable accommodation (if a reasonable accommodation that does not impose undue hardship is feasible), which may entail engaging in an interactive process with the employee to determine what reasonable accommodation(s) would permit the employee to perform the essential functions of his or her position. These general principles of ADA law suggest another way in which the jury’s answer to Special Interrogatory # 24 can be reconciled with the jury’s finding in Special Interrogatory # 34 that Allied violated the ADA by terminating Norris. Perhaps the jury thought that Norris’s testimony about her conversations with Barbe did not amount to proof by a preponderance of the evidence that Norris “sought to begin working again,” but that Norris did prove that Allied had been alerted that Norris was interested in reasonable accommodation, so that Allied’s duty to participate in the interactive process had been triggered under the law. More concretely with respect to