It’s a Hard Knock Life for ADA Claimant at the First Circuit

A manager for a Burger King franchise in Puerto Rico who requested a fixed work schedule due to posttraumatic stress disorder (PTSD) that he developed after being attacked at gunpoint was not a “qualified individual” under the Americans with Disabilities Act (ADA), the First Circuit Court of Appeals recently held. Characterizing its opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, as a “lesson straight out of the school of hard knocks,” the Court found that being able to work rotating shifts was an essential function of the manager’s job and his inability to do so barred his failure to accommodate claim.

The manager was attacked in 2011 while attempting to make a bank deposit on behalf of his employer, Caribbean. He suffered from PTSD and depression after the attack and, in response to these diagnoses, requested to work a fixed schedule. Although Caribbean initially granted the request, it later told the manager that he would have to go back to rotating shifts. The manager resigned in 2013 and then sued Caribbean, claiming that they failed to accommodate his disability by not permanently providing him with a fixed schedule. The court granted summary judgment in favor of Caribbean and the manager appealed.

The issue on appeal was whether, in light of the manager’s request to work a fixed schedule, he was still qualified to perform the essential job functions that Caribbean required of its managers. The First Circuit acknowledged that identifying essential job functions is a fact-specific exercise, but found there was no dispute in this case that the ability to work rotating shifts was an essential function of the manager’s job. Caribbean explained, and the manager conceded, that rotating shifts were necessary for the equal distribution of work among managers, and the manager further admitted during his deposition that rotating shifts was a responsibility he shared in common with other managers during his employment with Caribbean. The Court also pointed to Caribbean’s hiring materials, including the manager’s signed job application, which made clear that managerial employees had to be able to work different shifts.

Although the manager pointed out that Caribbean had initially granted his request for a fixed schedule, the Court found that Caribbean’s willingness to do so on a temporary basis was not a concession that rotating shifts was a non-essential function. Consistent with decisions from other federal courts, the Court found that to conclude otherwise would unfairly punish employers for doing more than the ADA requires.

Third Circuit Court Offers Employers Insight into FMLA and ADA

The Third Circuit Court of Appeals recently waded into the waters of the Family Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act (ADA), finding that an employer did not violate the FMLA or ADA where it legitimately believed an employee was misusing FMLA leave, and terminated the employee as a result.

In this case, Capps v. Mondelez Global, LLC, the employee had a medical condition that caused arthritis in his hips. The employee had hip replacement surgery and afterwards he was approved for intermittent FMLA leave to address residual pain and occasional flare-ups.  After the employee returned from one of his intermittent leaves, the employer discovered through an anonymous source that the employee had been convicted for DUI on one of the days that he had been out on leave. The employer terminated the employee for violating its dishonesty policy after he failed to provide sufficient documentation supporting his FMLA leave.

The employee sued claiming violations of the FMLA and ADA. As for the employee’s FMLA retaliation claim, the court found that the claim failed because the employer was able to establish that it terminated the employee for misusing his FMLA leave and for being dishonest about it, and because the employee could offer no evidence to suggest that the employer did not honestly hold that belief.  The court also noted that there was no evidence showing that the employee had ever been denied intermittent FMLA prior to the employer’s discovery of his DUI conviction, nor was there any evidence of discriminatory animus on the part of the employer prior to that time. As for the employee’s FMLA interference claim, the court found that claim failed as well where there was no evidence showing that FMLA benefits had actually been withheld from the employee.

Turning to the ADA, the employee argued that his request for intermittent FMLA leave was protected by the ADA and that his employer failed to accommodate his disability.  The court acknowledged that, under some circumstances, a request for FMLA leave may also qualify as a request for a reasonable accommodation. However, in this case, the court found that even if the employee’s request for intermittent FMLA leave could be construed as a request for a reasonable accommodation, there was still no evidence to suggest that he was denied requested leave at any point.

So what insights does this case offer to employers?  

First, it highlights the importance of distinguishing between an employee’s request and utilization of FMLA leave, and an employee’s conduct or activities while on leave.  An employee clearly may not be disciplined for the former, but this case confirms that the FMLA does not provide an absolute shield for the latter, particularly where misuse of FMLA leave is concerned. Second, the decision highlights the interplay between the FMLA and the ADA and underscores the importance of evaluating leave requests individually and in context.

ADA: Testing and Transfer Accommodations

In Montemerlo v. Goffstown School District No. 2013 DNH 134 (DNH decided October 4, 2013) the United States District Court for the District of New Hampshire clarified certain burdens imposed on the employee and employer when addressing multiple accommodations under the ADA.  The Court’s opinion is a reminder of the importance of engaging in the interactive process and highlights the importance of written job descriptions.
 
A school teacher who requested an accommodation to test her blood during the work day filed suit claiming she was denied a reasonable accommodation.  The Court rejected that claim finding that the District had agreed to provide her with coverage when she needed to leave the class room to test.  The Court found it unreasonable that the teacher never requested coverage but filed suit because she wanted to test her blood in her classroom.

The teacher also requested a transfer to an open position that she believed was more consistent with her disabilities.  The District did not respond to the transfer request.  The Court declined to grant summary judgment for the District.  The Court began the analysis by noting that “a disabled employee does not have a right to a transfer to a new position simply because she is disabled [, but the] request to transfer must in fact address the disabilities that prompt the request.”  The District asserted the request for a transfer to a new position was not a request for accommodation because it had provided a reasonable accommodation (the coverage for blood testing), but the Court held “the duty to provide a reasonable accommodation is a continuing one, however, and not exhausted by one effort.”  Because the District failed to respond to the transfer request and thus did not engage in the required interactive process, the District could not show it was entitled to judgment on that claim.  The District also argued that the letter requesting the transfer was not specific and did not provide the required notice.  The Court rejected this argument finding that the issue should be examined in light of the District’s long-standing awareness of the teacher’s disabilities.

This case serves as a reminder that an employee’s request for accommodation under the ADA is sufficient if it directly and specifically gives notice of the need for accommodation and explains how the request is linked to a disability.  The Court will inquire whether the employer knew or reasonably should have known that the reason for the employee’s request was her disability; the employer cannot make its decision by narrowly considering the employee’s request as the Court will examine the totality of the employer’s knowledge.

A written job description identifying the essential functions of the position are important to the analysis of what reasonable accommodations are available, and the absence of a job description may make it more difficult on the employer to determine how to respond to an accommodation request.  It is the employee’s burden to show that she is a qualified individual, which demands the employee establish she possesses the requisite skills, experience, education and other job related requirements for the position and that she is able to perform the essential functions for the job with or without reasonable accommodations.  A job description will make the essential functions clear and will guide the employer’s decision.