Yesterday, the Sixth Circuit affirmed an employer’s summary judgment on ADA and FMLA claims brought by a Cincinnati teacher who sought three weeks of paid leave to be trained with a guide dog. Tumbleson v. Lakota Local School District, No. 25-3548 (6th Cir. 5-13-26). The Court held that the ADA did not require the employer to provide her with paid leave and she could not show that she had been treated less favorably than others. Unpaid leave remains a reasonable accommodation under the ADA which the employer can select without having to prove undue hardship. It also found that she failed to show that her employer violated the FMLA by providing her with only unpaid leave under its existing policies. Nonetheless, it reserved the right of future litigants to show otherwise with better arguments.
According to the Court’s opinion, the plaintiff’s medical
condition was causing her to progressively lose her sight and hearing. She had been provided with a number of
classroom accommodations and a five-day leave to be assessed for a guide dog. She
continued to excel in her teaching duties. She later sought three weeks paid leave to be
trained with a guide dog, but the employer would only provide her with unpaid
leave under the ADA since her request did not involve a “personal illness”
under its sick leave or FMLA policies and she was not incapacitated or unable
to perform her job duties. After taking the leave and obtaining her guide dog,
her physician wrote a letter saying the dog was necessary for medical reasons,
but the employer refused to change its decision. This lawsuit ensued.
The Court rejected her disparate treatment claim under the
ADA. While the Court found that denial of paid
leave could constitute an actionable adverse employment action under the ADA,
she failed to show that she was treated less favorably than similarly situated
co-workers outside her protected class. This analysis matters both at the prima facie
and pretext stages. In this case, the
employer denied the paid sick leave request because she did not fit within the “
due to personal illness” definition in the policy, Ohio law or the collective bargaining
agreement. “Yet she does not offer a
single example of a nondisabled employee who received sick leave even when the
employee’s proposed absence did not qualify for that leave.” It was not enough to show that the HR
Director routinely granted brief leaves of less than 10 days because she
herself had also benefitted from this policy in her initial absence. Thus, the policy had been neutrally applied
and not discriminatorily. She had also
failed to request comparator information during discovery.
The Court also rejected her failure to accommodate claim
because she was provided with three weeks of unpaid leave.
The parties dispute only the
“reasonable accommodation” part of this framework. The employee must identify
an accommodation and prove its reasonableness. . . . How do we decide whether an accommodation is
“reasonable”? The ADA’s text makes clear that an accommodation must be work
related, meaning that it will allow an employee to “perform the essential
functions of the” relevant job. 42 U.S.C. § 12111(8). To qualify as
“reasonable,” then, an accommodation must alleviate “a key obstacle” that has
prevented the employee from being able to perform an essential job function. . . . So courts will find a proposed accommodation
unreasonable if an employee can perform the essential job functions and if the
employee requests an accommodation for non-work-related reasons. . . . We thus held that an employer did not
have to change an employee’s schedule to allow her to avoid heavy traffic
because this burden “exist[ed] outside the work environment.”
Further, even if an employee needs
some accommodation, the employer “need not provide the” specific accommodation
that the employee wants. . . . Rather, the employer has “discretion” to
choose from among alternative reasonable accommodations if they all will permit
the employee to perform the job. . . . The employer thus may pick an accommodation
that is “less expensive” or “easier” to implement when given the choice between
two reasonable accommodations. . . . We have held, for example, that a police
department could provide an officer a “desk job” even though the officer
preferred an “on the street” job with various restrictions. . . . . And we have held that a clothing store
could provide a warehouse employee with “leave time” even though the employee
preferred a transfer to another warehouse role. . . .
This law forecloses [the plaintiff’s]
failure-to-accommodate claim. At the outset, it is not obvious that [her]
proposed accommodation—that [the school] provide her with paid leave to attend
the Leader Dogs training—qualified as a reasonable one. At the time that [she]
requested leave, she continued to be an excellent teacher who did a “wonderful
job” in the classroom. . . . . And we
see little record evidence to suggest that the lack of a guide dog stood as an
“obstacle” that stopped her from completing any “necessary function” of her
teaching role. . . . Yet we need not decide this issue because [the
employer] ultimately gave her an accommodation that allowed her to complete the
guide-dog training: unpaid leave.
If [the school’s] unpaid-leave
accommodation were reasonable, then, that fact would preclude [her]
failure-to-accommodate claim because the ADA did not give her the right to her
preferred accommodation. . . . Even if we assume that [she] needed a guide
dog to work as a teacher, [its] accommodation met our reasonableness test. . . . There is no dispute that unpaid leave allowed [her]
to attend the Leader Dogs training and bring home Henry. [She] also “offers
no evidence linking” paid leave “to the performance of her job.” . . . Her
doctor’s letter, for example, says nothing about whether that leave should be
paid or unpaid. So [the employer] (not[the plaintiff]) had the “ultimate
discretion” to choose between the paid-versus-unpaid alternatives because both
allowed [her] to perform her job. . . . [bolding added for emphasis]
[Plaintiff] responds that unpaid
leave was only “partially responsive” to her request because this accommodation
required her to go three weeks without pay and caused some financial
difficulties for her family. . . . .
But these financial difficulties arose “outside the work environment” and so do
not go into the reasonableness calculus. . . . [Her] financial difficulties are thus
“beyond” [the employer’s] “duties to accommodate under the ADA.” . . . Indeed, her argument has no stopping point.
The ADA says that giving an employee a “part-time” schedule can qualify as a
reasonable accommodation. See 42 U.S.C. § 12111(9)(B). Under [the plaintiff’s]
view, if this employee did not have the financial means to work only part time,
the ADA would require the employer to provide full-time pay for the part-time
work. The rule requiring an accommodation to be for work-related reasons avoids
this result. . . . . [bolding added
for emphasis]
The Court rejected the plaintiff’s argument that the
employer was required to show that paid leave would be an undue hardship. “That fact is true but irrelevant.”
True, an employer need not provide
a reasonable accommodation if it “would impose an undue hardship on the”
employer’s operations. 42 U.S.C. § 12112(5)(A). In other words, even if paid
leave were the only reasonable accommodation, Lakota would not have to provide
that leave if it would cause this hardship . . . But we need not reach this hardship question
because we resolve the appeal on a distinct element. The record proves that
two different accommodations—paid leave and unpaid leave—were both reasonable.
In that scenario, Lakota had the “ultimate discretion” to choose the “less
expensive” option even if the more expensive one would not have posed an excessive
hardship. . . . In sum, because unpaid leave allowed [the
plaintiff] to obtain her guide dog, [the employer] met its obligation to
provide a reasonable accommodation. The ADA required nothing more. [bolding
added for emphasis]
The Court also rejected her FMLA claim. “Although the FMLA requires employers to
grant leave, it does not require them to pay the employee while off work.
Rather, the FMLA presumptively allows employers to treat the required leave as
unpaid.”
That said, the law gives employees
the right “to substitute any of [their] accrued paid vacation leave, personal
leave, or medical or sick leave” for FMLA leave. . . . But it then makes clear that “nothing in [the
FMLA’s general rules] shall require an employer to provide paid sick leave or
paid medical leave in any situation in which such employer would not normally
provide any such paid leave.” Id. To obtain paid leave, then, the employee must
satisfy “the additional requirements in an employer’s paid leave policy[.]”
The Court observed that there were questions about whether
the plaintiff even qualified for FMLA leave because, despite the serious health
condition, she could still teach and it was her desire to attend training in
Michigan that she sought leave. The
plaintiff did not address these issues, so the Court chose not to address
them. Instead, it rejected her argument
that she was entitled to paid leave under the school’s policy when it did not
normally provide such leave in similar circumstances.
To obtain paid leave under the
FMLA, [the plaintiff] needed to show that [the employer] “normally provide[d]”
this leave for those in her “situation[.]” Id. § 2612(d)(2)(B). But [the HR
Director] testified that the guide-dog training did not fall within “the
definition of sick leave” in the Ohio Revised Code, the collective bargaining
agreement, or the school board’s sick-leave policy. . . . . The district court thus held that [she]
did not qualify for paid leave under the FMLA because she did not qualify for
it under [the employer’s] sick-leave policy.
The Court rejected the argument that because the policy and
statute did not define “due to personal illness” that this meant that it must be
interpreted to incorporate guide dog training.
The Court instead agreed with the District Court that “due to personal
illness” should be given its ordinary meaning.
While the symptoms of her serious medical condition could constitute a
personal illness, obtaining training
when she was not incapacitated arguably could not. Because, again, the plaintiff failed to argue
this issue [that she required the training because of her serious health
condition], thus giving the employer the opportunity to respond, the Court
refused to raise the issue on its own initiative. Nonetheless, it pointed out that this was an
issue which could be argued in the future by other litigants.
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 change or be 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.
