Extremely Lengthy Leave Would Have Been an Unreasonable Accommodation

Takeaway: The bar for pleadings in a federal court complaint is a low one. Plaintiffs are able to plead plausible alternative facts and legal theories, including contradictory ones, in order to present allegations sufficient to establish their claims. At the same time, the plaintiff must still plead facts sufficient to support all elements of their claims. To defend against potential claims, employers should document their reasoning for denying an employee’s accommodation request and terminating employment.

An expected duration of absence from work of more than six months was an unreasonable accommodation, according to the 10th U.S. Circuit Court of Appeals. The 10th Circuit affirmed in part and reversed in part a ruling from the U.S. District Court for the Northern District of Oklahoma.

The 10th Circuit upheld the district court’s ruling that the plaintiff-appellant had failed to allege facts sufficient to establish a disability discrimination claim under any of three statutes, finding that the expected duration of the plaintiff’s absence from work—greater than six months—was an unreasonable accommodation. The 10th Circuit reversed the district court’s ruling with respect to the plaintiff’s age discrimination claim, finding that the plaintiff had alleged facts to support such a claim.

The plaintiff had worked for the defendant as a perfusionist—someone who operates a heart-lung machine during surgery. The plaintiff was highly experienced and had excellent job performance. Following a medical emergency, he had a several-month stay in an intensive care unit (ICU). During the plaintiff’s second month in the ICU, the defendant informed him of his termination of employment.

The plaintiff brought disability discrimination claims under the Rehabilitation Act, the Affordable Care Act and the Oklahoma Anti-Discrimination Act (OADA), as well as an age discrimination claim under the OADA, all stemming from his termination of employment while he was out on leave recuperating from emergency medical surgery.

The court analyzed the plaintiff’s disability claims by looking to the Rehabilitation Act. To state a claim under the Rehabilitation Act, a plaintiff must establish that: 1) they are a person with a disability under the act; 2) they are otherwise qualified for the position; 3) they were discriminated against because of their disability; and 4) the program or activity in question receives federal financial assistance.

The court found that the plaintiff, with his severe injuries, was able to establish the first element: that he was an individual with a disability. The court’s analysis then centered on whether the plaintiff was otherwise qualified for his position with or without a reasonable accommodation. The plaintiff had alleged that a reasonable accommodation—leave for a reasonable time—was available.

However, the 10th Circuit found that the plaintiff had failed to allege that the duration of leave he needed would have constituted a reasonable time period under the 10th Circuit’s established case law, which has held that a leave of absence exceeding six months is per se unreasonable. As such, the 10th Circuit upheld the dismissal of the plaintiff’s disability discrimination claims.

The court then considered the plaintiff’s OADA age discrimination claim under the framework of the Age Discrimination in Employment Act (ADEA), under which a plaintiff must show that age was a but-for cause of termination. This does not require showing that age was the sole motivating factor, just that age made a difference in deciding whether to take the adverse action at issue.

The court found that the plaintiff was entitled to present a variety of legal theories, even inconsistent legal theories, in support of his claim. The court held that the plaintiff had sufficiently presented allegations to support an age-based discrimination claim when the plaintiff alleged that his age was a but-for cause of his termination, that the defendant gave him a pretextual reason for the termination, and that he was replaced with two younger, less qualified employees. As such, the 10th Circuit reversed the dismissal of the plaintiff’s age discrimination claims.

Cline v. Clinical Perfusion Systems Inc., 10th Cir., No. 22-5107 (Feb. 9, 2024).

Marc J. Scheiner is Special Counsel in the Philadelphia office of Duane Morris.