Last month, the Sixth Circuit
reversed an employer’s summary judgment on a claim brought under the ADA, FMLA,
and Pregnancy Discrimination Act on the grounds that the employer failed to
prove that full time employment was an essential function of the position that
precluded the plaintiff from working half-time for six more weeks while she
recovered from post-partum depression. Hostettler
v. College of Wooster, No. 17-3406
((6th Cir. 7-17-18). The employer made a few hair-brained
decisions: denying a temporary extension
of a requested medical leave (i.e., part-time schedule) right after giving the
plaintiff a glowing performance evaluation.
It also failed to engage in the interactive process once it realized
that her modified work schedule was more trouble than it was worth and that it questioned
her need for leave. Accordingly, as
with another
recent Sixth Circuit decision, the Court concluded that an employer’s
rescission of a reasonable accommodation constitutes direct evidence of
disability discrimination, making the McDonald-Douglas
burden shifting analysis inappropriate. “An
employer cannot deny a modified work schedule as unreasonable unless the
employer can show why the employee is needed on a full-time schedule; merely
stating that anything less than full-time employment is per se unreasonable
will not relieve an employer of its ADA responsibilities.”
According to the Court’s opinion, the plaintiff was hired
when she was four months pregnant and worked full time until she
delivered. She requested and was given
more than twelve weeks of maternity leave, even though she did not qualify under
the FMLA. When her separation anxiety
and post-partum depression precluded her from returning to work full-time, she
was granted a reasonable accommodation of returning to a half-time schedule for
approximately ten weeks. She received a glowing performance evaluation
in June. In July, she submitted another
certification indicating that she required approximately another six weeks of
half-time work before she could return full-time. The next day, she offered to
stay a couple hours later each day. The
day after that she was fired. Although
there was evidence that she had timely completed all of her assignments and had
even been working a little from home, her boss was very stressed from picking
up the slack and was concerned about work that was not getting done at all,
like recruiting, lunch trainings, etc. The plaintiff was not the only employee on
medical leave and her boss was often the only person remaining in their small
office. The department was also starting
a new online benefits enrollment system that month, which was taking the
supervisor’s time as well. However, a
replacement was not hired until October – a month after the plaintiff likely
would have returned to full-time work.
The employer argued that the employee only wanted to work
part-time for the summer and that the only limitations she experienced with
transitory and brief panic attacks.
However, the Court noted that she had been prescribed anti-depressants
and had witnesses describe symptoms that went beyond the occasional brief panic
attacks.
The “crux” of the case was whether the plaintiff was
qualified for her position with or without a reasonable accommodation.
A job function is essential if its removal would fundamentally
alter the position. . . . Put another way, essential functions are the core job
duties, not the marginal ones . . . .
This analysis does not lend itself to categorical rules—it is
“highly fact specific. . . . Although this court has stated that “[r]egular,
in-person attendance is an essential function” of most jobs, EEOC v. Ford Motor
Co., 782 F.3d 753, 762–63 (6th Cir. 2015) (en banc), it is not unconditionally
so; courts must perform a fact-intensive analysis. In determining what functions are essential,
courts may consider as evidence—among other things—the amount of time spent on
a particular function; the employer’s judgment; “written job descriptions
prepared before advertising or interviewing” for the position; and the
consequences of not requiring the employee to perform the particular
function. 29 C.F.R. § 1630.2(n)(3). Although the employer’s judgment receives
some weight in this analysis, see Williams v. AT&T Mobility Servs., 847
F.3d 384, 391–92 (6th Cir. 2017), it is not the end-all—especially when an
employee puts forth competing evidence.
The Court found that the plaintiff had created a factual
dispute about whether full-time work was an essential function of her
position. A co-worker supplied an
affidavit that there was no work within the department which was not being accomplished. The plaintiff had just weeks earlier received
a positive performance evaluation which confirmed that she was performing her
job. Indeed, the plaintiff had never been criticized about her work. (The
Court seemed oblivious to the fact that no rational employer is going to
criticize an employee for not performing work while on medical leave). When asked, her boss could not identify a particular
task which was not getting performed.
On its own, however, full-time presence at work is not an
essential function. An employer must tie
time-and-presence requirements to some other job requirement. To be sure, [the employer] cites language
from this court’s cases that, when viewed independently from the facts of the
cases, supports the college’s position.
But those cases nevertheless carried out a fact intensive analysis of
actual job requirements.
The Court continued:
In sum, full-time presence at work is not an essential
function of a job simply because an employer says that it is. If it were otherwise, employers could refuse
any accommodation that left an employee at work for fewer than 40 hours per
week. That could mean denying leave for
doctor’s appointments, dialysis, therapy, or anything else that requires time
away from work. Aside from being
antithetical to the purpose of the ADA, it also would allow employers to negate
the regulation that reasonable accommodations include leave or telework. 29 C.F.R. § 1630.2(o)(2)(ii).
[The employer] may have preferred that [the plaintiff] be in
the office 40 hours a week. And it may
have been more efficient and easier on the department if she were. But those are not the concerns of the ADA: Congress decided that the benefits of gainful
employment for individuals with disabilities—dignity, financial independence,
and self-sufficiency, among others—outweigh simple calculations of ease or
efficiency. To that end, the ADA
requires that employers reasonably
accommodate employees with disabilities, including allowing modified work
schedules. An employer cannot deny a
modified work schedule as unreasonable unless the employer can show why the
employee is needed on a full-time schedule; merely stating that anything less
than full-time employment is per se unreasonable will not relieve an employer
of its ADA responsibilities.
The Court put limits on his holding:
[The plaintiff] never claimed, nor do we hold, that she had a
right to perform her job on a part-time basis indefinitely. If she had, we might be reviewing a closer
case; one in which Wooster at least would have had the opportunity to show that
such an accommodation was unreasonable. . . . But that is not the case here. Here, [the plaintiff] introduced sufficient
evidence to create a dispute of fact over whether her moderate, time-limited
accommodation allowed her to perform the essential functions of her position.
The Court also found a disputed issue of fact as to whether
the employer had properly engaged in the interactive process. The trial court
found it had by having four separate conversations with the plaintiff about the
need for her to return to a full-time schedule, but the plaintiff asserted that
it had only been discussed once and the employer never responded to her offer
to work 6 hours/day.
The Court also reversed summary judgment on the plaintiff’s
PDA claim because the trial court had concluded that the plaintiff’s refusal to
work full-time was a legitimate and nondiscriminatory reason to discharge her
that was not disproven as pretext. However,
the Court had already rejected the full-time work argument and found that the
plaintiff had produced sufficient evidence of pretext by questioning whether
that was the actual reason for her termination and showing disparate treatment
by the longer medical leaves taken by two other employees for non-pregnancy
reasons.
Notwithstanding the fact that no reasonable human resources
employee could have believe that she was covered by the FMLA, the Court resurrected
her FMLA claim by permitting her to pursue an equitable estoppel theory on the
grounds that that the employer treated her leave as through she was covered by
the FMLA even though she had only worked four months before she began her leave
and had been given well more than 12 weeks off work before returning on a
part-time basis.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
