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By Patrick Dorrian
A New York City human resources case manager, whose schizophrenia interfered with his ability to arrive at work on time may have been entitled to a reasonable adjustment in his work hours and disciplined in violation of federal, state, and local law, the U.S. Court of Appeals for the Second Circuit held March 4, overturning a lower court (McMillan v. City of New York, 2d Cir., No. 11-3932, 3/4/13).
Reviving Rodney McMillan's claims, a unanimous appeals court said while an employee's timely arrival at work generally is an essential function, the Americans with Disabilities Act and New York state and city law demand an individualized inquiry in each case, which the district court did not sufficiently conduct.
Instead, the lower court apparently gave too much weight to its assumption that physical presence in the workplace is an essential requirement of virtually all jobs, Judge John M. Walker found.
The lower court also gave too much weight, Walker said, to the city's representation that arriving at a consistent time was essential to McMillan's position as a case manager in the city Human Resources Administration's Community Alternative Systems Agency (CASA). Further, the district court concluded without explanation that McMillan's proposed accommodations of working through lunch or staying late would have imposed an undue hardship on the city, the judge added.
Walker observed that the city did not express that it had a problem with McMillan's tardiness for more than 10 years before his supervisor told him she no longer could approve his late arrivals.
In addition, under the city's flex-time policy, employees have one-hour windows within which to arrive and leave work, which “implies that punctuality and presence at precise times may not be essential,” he wrote.
Thus, the district court erred in deciding that McMillan was unable to establish a prima facie case on his disability discrimination and failure-to-accommodate claims, the appeals court ruled.
It added that the district court's alternative holding, that McMillan could not show that the city's stated reason for disciplining him--his recurring tardiness--was a pretext for discrimination, also could not stand.
The McDonnell Douglas burden-shifting framework does not apply in every employment discrimination case and it was “not useful here,” because the conduct that the city complained of was directly related to McMillan's disability, Walker found. As a result, he said, “[p]retext is not an issue in this case; instead, McMillan need only demonstrate that, with reasonable accommodations, he could have performed the essential functions of his job.”
According to the opinion, before becoming a case manager with CASA in 1997, McMillan had worked in the same role elsewhere in the city's Human Resources Administration for 10 years. His job duties in CASA included meeting with clients in the office daily and conducting annual home visits.
McMillan treats his schizophrenia with calibrated medications. His morning medications cause him to feel drowsy and sluggish, according to McMillan.
CASA operates under a flex-time policy. This allows employees to arrive for work anytime between 9:00 a.m. and 10:00 a.m.--with 10:15 being considered late--and to leave any time between 5:00 p.m. and 6:00 p.m., provided they work 35 hours per week. Annual leave, sick leave, or “banked time”--accumulated additional hours worked--may be used to cover tardiness, subject to a manager's approval.
Under a controlling collective bargaining agreement, employees are required to take a one-hour lunch break each day, absent prior management approval to work overtime, the court observed.
Before 2008, McMillan's late arrivals were either expressly or implicitly approved. However, in 2008, his supervisor, Loshun Thornton, was directed by her supervisor to tell McMillan that he no longer could be late.
McMillan then made repeated requests for a later starting time, which were denied on the ground that he could not work later than 6:00 p.m. because no supervisors would be present to manage him. In addition, in June 2008, Thornton requested that McMillan ask his doctor if his medication schedule could be altered, and his physician responded that it could not.
Beginning in May 2009, McMillan was subjected to a series of disciplinary actions: he was fined eight days' pay for his late arrivals; he was charged with “misconduct and/or incompetence”; and he was recommended for termination. Ultimately, he was suspended for 30 days without pay.
While the disciplinary process was playing out, McMillan formally requested as an accommodation for his schizophrenia that the city permit him to arrive at work between 10:00 a.m. and 11:00 a.m. His request was denied following an evaluation by the city that did not include speaking with McMillan.
He later sued under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law. Among other things, he asserted that he frequently worked later than 7:00 p.m., as CASA's office was open until 10:00 p.m., and that he also was willing to work through lunch to accumulate “banked time” to cover his late arrivals.
The U.S. District Court for the Southern District of New York granted summary judgment to the city. It found that McMillan could not establish prima face disability discrimination because he was unable to perform an essential function of his job: arriving at work on time. It also found that he could not show that the city's explanation that he was suspended for his habitual lateness was a pretext for disability bias.
McMillan appealed, arguing that the district court erred in finding that arriving at work by 10:15 a.m. was an essential function of his case manager position, that his repeated tardiness made him unqualified under the ADA, and that his requested accommodations were unreasonable. The appeals court agreed.
“The district court's decision turned on its analysis of … whether McMillan was 'otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation,' ” Walker wrote. He said a finding on that issue was determinative on McMillan's discriminatory discipline and failure-to-accommodate claims.
The appeals court said the trial court apparently “relied heavily on its assumption” that a physical presence in the workplace is an essential function of virtually all jobs and the city's representation that arriving for work on time was an key requirement for McMillan.
“While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.--or at any consistent time--may not have been an essential requirement of McMillan's particular job,” the appeals court wrote.
It found that McMillan's tardiness was explicitly or tacitly approved for years prior to 2008. Moreover, it said, the city's flex-time policy allows employees to arrive and leave within one-hour windows, which suggests that punctuality and presence in the workplace at precise times may not be absolutely required.
Therefore, “whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute” and summary judgment should not have been granted to the city, Walker concluded.
He added that whether McMillan's proposed accommodation were reasonable or would impose an undue hardship on the city also was not clear from the record.
McMillan suggested at least plausible accommodations, which was all that was required of him at the summary judgment stage, the court ruled. It observed that whether McMillan can reasonably perform portions of his job without supervision, and thus should be permitted to work after 6:00 p.m., was among the questions that should be considered on remand.
“This case highlights the importance of a penetrating factual analysis,” Walker wrote. “Such an inquiry was not conducted here.”
The court said McMillan, who was born without a left arm, also asked that the city provide him with a headset for voice activation software and a reduced case load as accommodations for his disabilities and brought separate claims based on the denial of those requests. Those claims were revived as well, the court ruled.
Judges Debra Ann Livingston and Christopher F. Droney joined the opinion.
Michael G. O'Neill of New York represented McMillan. Janet L. Zaleon, Michael A. Cardozo, Kristin M. Helmers, and Andrea O'Connor of the city's office of corporation counsel represented New York.
Text of the opinion is available at http://www.bloomberglaw.com/public/document/McMillian_v_City_of_New_York_Docket_No_1103932_2d_Cir_Sept_28_201.
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