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By Patrick Dorrian
Oct. 17 — An Illinois nursing home may have denied a hairdresser reasonable accommodation under the Americans with Disabilities Act after she had surgery and could no longer push residents in wheelchairs to the facility's salon, a federal appeals court ruled Oct. 16.
Reviving Debra Kauffman's claim, the U.S. Court of Appeals for the Seventh Circuit agreed that she raised a triable question about whether the ability to wheel nonambulatory residents to the salon was an essential function of her job as a hairdresser. It reversed a summary judgment in favor of the nursing home, Mason Point in Sullivan, Ill., and remanded the case for trial.
The appeals court, however, divided over the specifics of the ADA's “essential job function” analysis. Judge Richard A. Posner, joined by Judge Diane P. Wood, suggested that if the small amount of time that Kauffman estimated she spent wheeling residents each week was close to accurate, that might indicate the activity isn't an essential part of a hairdresser's job and those duties could be done by an orderly or other employee at a low cost to Mason Point. According to the Equal Employment Opportunity Commission, such “[j]ob restructuring is one of the accommodations that an employer must consider,” Posner wrote.
Wheeling patients wasn't an essential aspect of Kauffman's job “if it was so small a part that it could be reassigned to other employees at a negligible cost to the employer,” the Seventh Circuit said.
But in a separate concurring opinion, Judge Daniel A. Manion stressed that although the amount of time an employee spends on a task and the cost to the employer of reassigning the task must be considered in determining whether a job function is essential, they're not “dispositive” factors. He also said the ADA doesn't require an employer to “reassign an essential job function to another employee.”
Kauffman joined Mason Point as one of two hairdressers in 1981. In addition to pushing residents who use wheelchairs between their rooms and the nursing home's beauty shop, she also performed some unrelated duties, such as helping out in the laundry room.
In December 2010, Kauffman suffered a prolapsed bladder and had a hysterectomy, during which a mesh lining was inserted into her abdomen. She returned to work eight weeks later, with a doctor's warning against physical exertion. The doctor later told her that pushing patients in wheelchairs could cause the mesh lining to be torn loose, which would require more surgery.
When Kauffman notified Mason Point's administrator, Darin Wall, that she couldn't push the wheelchairs, he allegedly replied, “We just don't allow people to work with restrictions.” Wall also rejected Kauffman's suggestions that someone else bring residents to the salon or that she switch full-time to the laundry room.
Kauffman quit and sued under the ADA. In granting summary judgment to Mason Point, the district court noted the disparate estimates offered by Kauffman and Wall of the time hairdressers spend pushing the wheelchairs.
Kauffman estimated that it took an average of two-and-a-half minutes to bring a resident to the salon. She said that represented from 6 percent to 12 percent of her day, depending on how many appointments she had. Wall estimated the task took up 60 percent to 65 percent of Kauffman's workday.
But the trial court found that the disparity didn't matter because wheeling patients is an essential part of the hairdresser job, and no reasonable accommodation would have enabled Kauffman to perform the task given her work restrictions.
Kauffman appealed, and the Seventh Circuit reversed the lower court. “Unresolved factual disputes vitiate the judge's analysis,” it said.
Specifically, a determination of the time Kauffman actually spent transporting residents is crucial to deciding “whether her inability to wheel could reasonably be accommodated by assistance from other staff,” Posner wrote. He said other staff members assisted with the chore between the time Kauffman quit and her replacement was hired.
Wheeling patients wasn't an essential aspect of Kauffman's job “if it was so small a part that it could be reassigned to other employees at a negligible cost to the employer,” Posner added.
Mason Point also violated the ADA if, as Kauffman claimed, Wall told her the facility didn't allow people with restrictions to work there and if it failed to work with her to identify potential accommodations, the court said. Even if Kauffman was permanently restricted from wheeling patients, that didn't “automatically” excuse Mason Point “from making any attempt to accommodate” her, it said.
In rejecting any possibility of accommodating Kauffman, Wall cited the “hardship” on Mason Point of hiring a new employee to perform her wheeling duties. However, Posner said, Wall didn't “mention the possibility of diverting some time of existing employees to that wheeling.” He should have asked Kauffman and the other hairdresser how much time they spent pushing wheelchairs and based his accommodation decision on their answers and other relevant information rather than relying on his own “way off base” estimate, the court said.
Tsamis Law Firm P.C. represented Kauffman. Sorling, Northrup, Hanna, Cullen & Cochran represented Mason Point.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/DEBRA_KAUFFMAN_PLAINTIFFAPPELLANT_V_PETERSEN_HEALTH_CARE_VII_LLC_.
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