DANA MILLER V.

FLEXFORCE RUBBER PRODUCTS

Dana Miller had been an employee of Flexforce Rubber Products (“Flexforce”) for eight years prior
to her termination of employment. Dana is 54 years of age, and does not have a high school diploma
or GED. She has legal custody of her eight-year old grandchild, with whom she lives in a trailer
home. Dana would probably be classified as morbidly obese, as she is 5’6” and weighs 240 pounds.
Flexforce is a manufacturer of rubber hoses utilized in the automotive industry. It has 115 employees.
Dana’s work as a “cutter” involved sitting at a work station and cutting and trimming hoses to certain
specifications required by the customer. Her work experience is limited to production jobs in the
manufacturing sector.

Six months prior to her termination, after months of study, Flexforce decided to implement a “lean”
manufacturing process (See: http://en.wikipedia.org/wiki/Lean_manufacturing.) Flexforce had
retained the services of an independent industrial engineer to evaluate their operations and make
recommendations consistent with a lean process. As a result of this initiative, the production floor of
Flexforce was redesigned in order to increase the flow rate of product through the manufacturing
process. Specifically, the layout of the plant was made more linear and compact in order to avoid
unnecessary steps in the process. Employee work stations were also condensed. Processes were
changed as well. Specifically, the traditional process required molding operators to deliver cartons of
hoses to cutters for cutting, and after the cutter had finished a carton, the molding operator would
pick up the completed carton and take it to another department for finishing and/or packing.
Essentially, cutters thus spent the majority of their shift within their work station, and were allowed
to perform their work while seated on a stool. Depending on the type of hose, it would take a cutter
approximately an hour to complete a carton of hoses.

However, the new process required molding operators to monitor the molding machine where the
hoses are made in order to maintain production, which meant cutters were now required to leave their
work station to pick up cartons of product for cutting, and deliver them to finishing and/or packing
upon completion. As a result of the condensed space for workstations as well as the necessity of now
requiring cutters to be more mobile in their work duties, Flexforce determined (based on the
industrial engineer’s recommendation) that cutters would have to remain standing during their shift
and that all stools would be removed. The industrial engineer had also concluded that stools created a
safety hazard, since cutters would be getting on and off a stool several times a day.

Shortly after Flexforce announced its intention to implement the new process, Dana went to see
Kelly Martin, Director of Human Resources. Dana explained to Kelly that the removal of the stool
from her work station would create difficulties for her. She explained that she had received treatment
for degenerative arthritis for her knees and she did not think she would be able to work without a
stool. In fact, her family physician had recommended a referral to an orthopedic surgeon for knee
replacement a couple of years ago, but the orthopedist told her he would not perform the surgery
unless she lost a significant amount of weight. Otherwise, the necessary rehabilitation would not be
successful. Dana had not been successful in her attempts to lose weight. (Dana has no underlying
physiological impairment, such as diabetes or a thyroid issue which causes her weight issue).

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Kelly explained to Dana that the new process was required in order to increase productivity and
make the company more competitive in the global marketplace, and that the essential functions of a
cutter (in addition to the safety considerations) now required that the work be performed while
standing. Kelly did suggest that Dana try it for a while, and return to see her if she continued to feel
that she simply could not do the work.

After the process was implemented, Dana worked one day, during which the pain became intolerable.
Although she finished her shift, she was hardly able to walk the next day. She went back to see Kelly
that next day and told her that there was no way she could work without a stool. Kelly indicated to
Dana that Flexforce policy would accommodate temporary light duty for a period of 90 days if
accompanied by a doctor’s excuse. Kelly excused Dana for that day and Dana went to her family
doctor and got an excuse from him indicating “Patient can perform regular job duties in seated
position for eight hours”. Dana brought the excuse to Kelly the next day and Kelly allowed her to
return to work with a stool in her work area.

Obviously, this was only a temporary fix. At the end of the ninety days, Kelly advised Dana that she
had reached the allowable limit of time on the light duty policy. She asked if Dana would like to
attempt to return to work under regular duty, but Dana felt confident the same issues would arise.
Dana and Kelly were unable to identify how the job could be modified in order to accommodate
Dana’s restrictions – Kelly insisting that the essential job functions now required standing in the
redesigned workstation, and Dana insisting that she needed to sit. Additionally, no other jobs were
available in the plant. In fact, Flexforce had sustained some layoffs in other departments due to lack
of orders. As a result, Dana was terminated for “Expiration of light duty period - inability to perform
essential job functions”.

Dana has now filed a lawsuit under the Americans with Disabilities Act (ADA), as amended. Under
the ADA, she alleges that she has been discriminated against by virtue of Flexforce’s failure to
reasonably accommodate her disability, degenerative arthritis.

At the time of her termination one year ago, Dana was earning $50,000.00 per year, plus insurance
and 401k. She made efforts to secure good-paying manufacturing jobs, but has been unsuccessful.
She has been able to obtain some alternative employment, which consists of door-to-door
commission sales of classified advertising for “The Peddler”, a small regional commercial sales
tabloid. She has been gone from Flexforce for one year at the time of this negotiation, and has been
working for the Peddler for six months. During that period, she has grossed $10,000 in commissions.
Due to the cost, she did not elect insurance continuation, and has been unable to obtain provide basic
medical care for her or her grandchild. She does not own her home, and pays $1,000 per month in
trailer and lot rental. She has only been able to meet this obligation by cashing out her 401k, which
had a value of $80,000.00. As a result of that withdrawal, she will pay a penalty and taxes totaling
$20,000.00. Additionally, Dana has $48,000.00 in credit card and other installment debt, which are
all in arrears. No depositions have been taken, and it is anticipated that the case will not go to trial for
two years. It is anticipated that attorney’s fees for each side will approximate $50,000.00 through
summary judgment and an additional $50,000.00 through trial.

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Draft your memo (400-500 words) for the weekly assignment, including the following:

1. Review the facts of the case and the legal strengths and weaknesses.

2. Determine what facts are missing which might bear upon the legal strengths or weaknesses,
or your negotiation/mediation strategy. (If there are questions you have relating to the facts of the
case, you are not to “make them up”, but raise the question with the professor before or during the
simulation).

3. Calculate the best and worst-case scenarios under the ADA, and provide justification.
Formulate a realistic bargaining range with target and resistance points.

4. Be prepared to negotiate.