Court Allows Worker To Proceed With ADA Suit

A federal appellate court recently reinstated a lawsuit brought by a case manager with schizophrenia who claimed that his discipline for tardiness violated the Americans with Disabilities Act (ADA). According to the court, “whether [the employee’s] late and varied arrival times substantially interfered with his ability to fulfill his [job] responsibilities is a subject of reasonable dispute” and summary judgment should not have been granted to the employer. McMillan v. City of New York, No. 11-3932, Second Circuit Court of Appeals (March 4, 2013).

Factual Background

Rodney McMillan has schizophrenia and, with calibrated medication, has been employed by the City of New York, first for 10 years as a case manager with the City’s Human Resources Administration (HRA) and then, since 1997, as a case manager for the HRA Community Alternative Systems Agency. In that job, McMillan conducts home visits, processes social assessments, and meets with clients on a daily basis in the agency’s office.

The agency has a flex-time policy that allows employees to arrive at work between 9:00 and 10:00 a.m., and leave between 5:00 and 6:00 p.m., so long as they work 35 hours each week, excluding a one-hour break for lunch. Tardiness can be “approved” or “disapproved” by a supervisor. When a tardy is approved, the employee may use sick leave or other “banked” time to cover the time missed in order to be paid for a full week of work. However, an employee who has no time banked, or does not wish to use banked time, simply is not paid for the missed time. Tardiness that is disapproved can lead to disciplinary action.

McMillan’s medication makes him drowsy and sluggish in the morning, which often makes him late for work. There is no dispute that McMillan’s inability to get to work on time is a function of the treatment for his condition. For a period of at least 10 years prior to 2008, McMillan’s tardiness was either explicitly or tacitly approved. However, in 2008, his supervisor (Loshun Thornton), at the direction of her supervisor (Jeanne Belthrop), refused to approve McMillan’s late arrivals. McMillan then made a request for a later start time to avoid discipline for tardiness, but was told that a later start time was not possible because McMillan would then have to work past 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour and “bank” that time to make up for his late start. That suggestion was also rejected.

In May 2009, McMillan was fined eight days’ pay for late arrivals. In December, Belthrop recommended additional discipline based on McMillan’s “long history of tardiness,” and the City subsequently recommended that his employment be terminated. Ultimately, the City reduced the recommended sanction from termination to a 30-day suspension without pay.

McMillan sued the City alleging violations of the ADA. In support of his claims, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m. Thus, he could arrive late and still work the required 35 hours a week.

The trial judge dismissed all of McMillan’s claims, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. McMillan appealed this decision.

Legal Analysis

The Second Circuit Court of Appeals reversed the trial judge’s decision, finding that while a “timely arrival is normally an essential function,” the lower court did not conduct a fact-specific inquiry into McMillan’s situation. Instead, the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

The Second Circuit pointed out a number of circumstances, however, that called that conclusion into question, including the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex-time hours and regularly permits employees to “bank” time to cover certain late arrivals. These facts, the court held, undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours. As a result, the Second Circuit returned the case to the lower court for additional factual analysis of whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based on that lateness.

Practical Impact

According to Edward Cerasia II, a shareholder in the firm’s New York City office: “This decision underscores the need for employers to conduct factspecific inquiries and engage in the interactive process with disabled employees to determine whether a reasonable accommodation is available and warranted. In this case, the Second Circuit held that arriving to work on time may not have been an ‘essential’ requirement of the plaintiff’s job, given that he had arrived late for some 10 years without being disciplined and because of his employer’s flex-time policy. The court also concluded that there should be additional analysis with respect to the City’s ‘undue hardship’ defense. In reversing, the court emphasized that ‘[t]his case highlights the importance of a penetrating factual analysis’ in disability discrimination and reasonable accommodation cases.”