Part-Time Work Ruled Not a Reasonable Accommodation

By Maria Cáceres-Boneau March 2, 2022
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Takeaway: If the essential functions of the job require full-time work, the employer need not reduce the functions to create a part-time job. However, if an accommodation request is unreasonable, ordinarily an employer should consider alternatives. Employers are advised to not rely on the 10th Circuit's order alone in deciding to not engage in the interactive process, as it appears contrary to what the Equal Employment Opportunity Commission, other circuits and state courts may require. 

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An employee who was excessively absent and experienced anxiety was not qualified for her job and her request to work half days was not a request for a reasonable accommodation, the 10th U.S. Circuit Court of Appeals ruled. Her failure to provide evidence of pretext for her employer's legitimate, nondiscriminatory reason for terminating her employment for excessive absences barred her retaliation claim.

As a case manager at a law firm, the plaintiff was expected to work 40 hours per week and received 120 hours, annually, of paid time off (PTO). The firm's PTO policy provided that, in the event an employee exceeded 120 hours, she would experience consequences up to and including termination.

In 2015, the plaintiff did not use more than 120 hours of PTO, but she was warned about her attendance. From January through June 2016, the plaintiff missed 133.5 hours of work. She exceeded the 120-hour allotment in a span of 30 workdays.

In May 2016, the plaintiff provided a letter from her counselor recommending that the plaintiff work half days when she experienced intense anxiety, because she had been diagnosed with generalized anxiety disorder and panic attacks. The firm denied the plaintiff's request.

On June 3, 2016, the firm advised the plaintiff that she was expected to work 40 hours per week, informed her that she was falling behind on work assignments, and offered her one unpaid week off. The plaintiff declined the week off and was subsequently absent for reasons unrelated to anxiety. On June 23, 2016, the firm terminated the plaintiff's employment.

She sued the firm, alleging it had discriminated and retaliated against her in violation of the Americans with Disabilities Act (ADA). The firm's motion for summary judgment was granted as to the plaintiff's claims that the firm failed to accommodate her disability and retaliated against her for requesting an accommodation and prior anxiety-related absences. On appeal, the plaintiff argued the motion was granted in error.

The court affirmed the finding that, under the burden-shifting framework for evaluating a failure-to-accommodate claim, the plaintiff failed to show she was qualified for her job. The district court applied a two-part analysis to determine whether the plaintiff was qualified: (1) whether the plaintiff could perform the essential job functions and (2) whether any reasonable accommodation would enable the plaintiff to perform those functions.

The court found that the plaintiff's excessive absences prevented her from performing the essential functions, which required regular and predictable attendance and completing administrative and client-facing tasks. The plaintiff was absent without advance notice and could not inform the firm how often or how long she needed to be absent. The plaintiff's request for reasonable accommodation was found unreasonable, because working half days would not permit her to fulfill the essential functions of her job. Accordingly, the plaintiff was not qualified for her job under the two-part analysis.

Since the plaintiff was not qualified for her job, the plaintiff's argument that the firm was required to look for alternative accommodations failed. The court emphasized that an employer need not engage in the interactive process with an unqualified individual.

Regarding the plaintiff's retaliation claim, the court affirmed the application of the McDonnell Douglas framework in finding that the plaintiff's excessive and unscheduled absences, even after receiving a warning and being offered a week of unpaid leave, articulated a legitimate, nondiscriminatory reason for termination. The summary dismissal of the plaintiff's retaliation claim was affirmed because there was no evidence of pretext.

The court also found there was no indication the plaintiff meant for there to be an independent disparate-treatment claim under the ADA when she briefly mentioned it in the context of her other claims.

Lamm v. Devaughn James LLC, 10th Cir., No. 19-3167 (Feb. 7, 2022).

Maria Cáceres-Boneau is an attorney with Duane Morris LLP in New York City.

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