ADA Accommodation Decisions

The past months have seen a number of accommodation decisions from the U.S. Courts of Appeals under the Americans with Disabilities Act (ADA). Here are several examples.
Leave of Absence Not a Reasonable Accommodation for Temporary Employee. In Punt v. Kelly Services and GE Controls Solutions, __ F.3d __, 2017 WL 2871753 (10th Cir. July 6, 2017), the U.S. Court of Appeals for the Tenth Circuit held that a temporary employee diagnosed with breast cancer was not entitled to a leave of absence as a reasonable accommodation under the ADA. Kelly Services (a temporary staffing agency) assigned Punt to work at GE Controls Solutions as a receptionist, and her presence in its reception area was deemed to be an “essential function” of her position. After her diagnosis, Punt began missing work for medical appointments and other reasons. Punt then said that she would need a week off and additional undefined time off in the future for surgery and treatment. GE Controls Solutions asked Kelly Services to replace Punt because it needed someone who could fulfill the requirements of the receptionist position. Kelly replaced Punt and offered her other assignments, which she declined. Punt sued, claiming that Kelly Services and GE Controls Solutions had violated the ADA by failing to accommodate her by giving her the week off as well as the undefined future time off for medical treatment. Noting that physical attendance was an essential function of most jobs, the Tenth Circuit affirmed summary judgment for both Kelly Services and GE Controls Solutions, and held that Punt’s request to miss a week of work and unknown days in the future was “not plausibly reasonable on its face.” The court found that a reasonable accommodation is one that “presently or in the near future” will enable the employee to perform the essential functions of the job.
Working from Home Indefinitely Not a Reasonable Accommodation. In Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017), the U.S. Court of Appeals for the Fifth Circuit rejected Credeur’s request for unlimited telecommuting as a reasonable accommodation. Credeur, a litigation attorney, sued her employer for allegedly failing to accommodate her after she experienced complications associated with a kidney transplant. After her kidney transplant, her employer allowed her to work from home for several months with the goal of reintegrating her into the office. After many months of telecommuting, the employer denied Credeur’s continuing request to work from home and required her to work three to four hours per day in the office. The Fifth Circuit held that Credeur was not a “qualified” individual within the meaning of the ADA because she could not perform the essential functions of a litigation attorney with or without reasonable accommodation. The court noted that there is general consensus among the courts that regular work-site attendance is an essential function of most jobs, and it deferred to the employer’s written evidence that attendance at the office and in court were essential functions of Credeur’s job.
Leniency for Disability-Related Misconduct Not a Reasonable Accommodation. In DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017), the U.S. Court of Appeals for the Tenth Circuit rejected DeWitt’s requested accommodation of retroactive leniency for misconduct and held it was not reasonable within the meaning of the ADA. DeWitt was an insulin-dependent diabetic who worked as a customer service representative. Southwestern Bell allowed her to take breaks as needed to eat or drink to maintain proper blood sugar levels and also granted her intermittent leave for diabetes-related health issues. DeWitt was terminated for hanging up on two customers (a violation of her employer’s code of business conduct) and her “last chance” agreement for other performance issues. DeWitt attributed her conduct to having suffered a severe drop in her blood sugar, which caused her to experience disorientation, confusion, and lethargy, and claimed that Southwestern Bell failed to accommodate her by not excusing the dropped calls that were caused by her disability. The Tenth Circuit disagreed and held that the ADA does not require employers to accommodate a disability by excusing past misconduct, even when that misconduct is caused by a disability. The court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”
Failure to Properly Engage in Interactive Process Results in Dismissal of Case. In Brown v. Milwaukee Board of School Directors, 855 F.3d 818 (7th Cir. 2017), the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in favor of the school district where the employee failed to engage in the interactive process to determine a possible accommodation. Brown was an assistant school principal who seriously injured her knee while restraining a student. When she returned to work following surgery, she submitted medical documentation stating she could not be in the vicinity of potentially unruly students. Since all students have the potential to be unruly, the school district understood that restriction to bar all contact with students, which was an essential function of her job. The school district repeatedly communicated its understanding to Brown over a lengthy period as it sought to accommodate her by finding a new position. When Brown’s leave of absence expired before a suitable available position was found, the school district terminated her. Brown sued, claiming her disability never prevented her interaction with all students and that the school district failed to accommodate her and then unlawfully terminated her. The Seventh Circuit found that, to the extent Brown claimed her restrictions were less severe than what the school believed, she failed to uphold her end of the interactive process, and accordingly the school district could not be held liable for failing to put her in a position that it believed would exceed those restrictions. The court also concluded that an available position that did not require proximity to students was not a reasonable accommodation because it would have required a promotion for Brown. Since Brown was not the most qualified candidate, the school district was not obligated to give her that position.
No Protected Disability under ADA Requiring Accommodation Despite Cancer Diagnosis. In Alston v. Park Pleasant, Inc., 679 Fed.Appx. 169, 2017 WL 627381 (3rd Cir. 2017), the U.S. Court of Appeals for the Third Circuit affirmed summary judgment in favor of the employer. Alston was terminated for performance reasons shortly after she was diagnosed with cancer. The parties did not dispute that Alston had been diagnosed with DCIS, a form of breast cancer, but the court found that Alston did not produce sufficient evidence as to whether her DCIS qualified as a disability under the ADA. The court noted that cancer can be, and generally will be, a qualifying disability under the ADA, but emphasized that the determination of whether an impairment substantially limits a major life activity requires an individualized assessment. Here, Alston never claimed that her DCIS limited any substantial life activity, such as immune system function or normal cell growth. At her deposition, Alston testified that she was not substantially limited in any major life activity. Instead, she simply stated that she was an individual who had been diagnosed with cancer in remission and, on that basis, claimed that she qualified as an individual with a disability. But because she offered no evidence as to any limits on a major life activity, the court found that she failed to establish an essential element of her prima facie case.
Shannon V. Loverich