Temp Worker Removed After Cancer Diagnosis Can’t Show Bias

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By Kevin McGowan

A Kelly Services employee removed from her temporary receptionist assignment after she requested leave to treat her breast cancer has no disability bias claim, a federal appeals court ruled ( Punt v. Kelly Servs. , 2017 BL 232435, 10th Cir., No. 16-1026, 7/6/17 ).

Kristin Punt, a temporary receptionist at GE Controls Solutions until December 2011, sued staffing firm Kelly Services and GE Controls, alleging they violated the Americans with Disabilities Act by terminating her assignment rather than reasonably accommodating her disability.

But the U.S. Court of Appeals for the Tenth Circuit July 6 affirmed a district court’s ruling for both companies. Punt didn’t request “a reasonably plausible accommodation” when she informed Kelly she didn’t plan to work for a full week and would need additional time off “for some appointments and tests” and “five times of radiation,” the court said.

It’s a “disappointing result” and “a pretty surprising” decision, said Joan Bechtold of Sweeney & Bechtold in Denver, who filed an amicus brief for the National Employment Lawyers Association and National Disability Rights Network in support of Punt.

The court’s opinion “causes me to question what rights a temporary worker has under the ADA,” she told Bloomberg BNA July 6. “Are they saying temporary workers have no right to request leave under the ADA?” Bechtold asked.

If so, that would conflict with the Equal Employment Opportunity Commission’s understanding. The EEOC in its latest strategic enforcement plan said issues arising from “complex employment relationships,” including the use of temporary staffers, are an agency emphasis.

The EEOC’s view is that both the staffing firm and the company where a temporary worker is placed are obliged not to discriminate based on disability or any other protected characteristic.

An attorney who represented Kelly Services and GE Controls at oral argument declined to comment July 6. Punt’s attorney wasn’t immediately available for comment.

Sought Leave After Diagnosis

Punt was an at-will employee of Kelly Services, the Tenth Circuit said. Her signed employment application said the duration of any assignment depended on the needs of Kelly’s customer and could be canceled at any time by Kelly or the customer.

Punt in October 2011 was assigned to a receptionist job at GE Controls. In November, she had a biopsy that revealed breast cancer. Punt alleged that she told various GE Controls and Kelly employees that she had a family history of breast cancer.

On Dec. 5, Punt informed her contact at Kelly about her need for leave. A GE Controls representative the same day told the Kelly contact person that Punt wasn’t reliably coming to work and the company wanted someone who would “show up and fulfill the needs of the position.” Kelly then informed Punt her temporary position was terminated.

No ‘Reasonable’ Accommodation Request

An ability to report to work consistently is “a necessary part” of any job, particularly for a temporary employee, Judge Monroe G. McKay wrote in an opinion joined by Judges Paul J. Kelly Jr. and Carolyn B. McHugh.

Kelly and GE Controls already were concerned about Punt’s past absences when she informed them about her diagnosis, the court said. Punt hadn’t completed a 40-hour workweek, as required by her assignment, during any of the six weeks she had been at GE Controls.

“Neither Punt’s past behavior nor her vague request for more time off” suggested she would be able to “fill this necessary part of her job in the near future,” the court said.

Moreover, Punt’s failure to request “a plausibly reasonable accommodation” means she can’t show Kelly and GE Controls violated the ADA, the court said.

Ralph E. Lamar in Arvada, Colo., represented Punt. Potter DeAgostino O’Dea & Patterson and Davis Graham & Stubbs represented Kelly Services. Ogletree Deakins Nash Smoak & Stewart PC represented GE Control Solutions.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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