The courts continue to explore the contours of the Americans with Disabilities Act. Here’s a diamond mine, full of gems for plaintiffs lawyers, from the 2nd U.S. Circuit Court of Appeals: a March 4 decision in McMillan v. City of New York.
The opinion sets out the simple facts leading to a wide-ranging holding. The drug the plaintiff takes to control his schizophrenia makes him drowsy in the morning, and he is unable to arrive at work on time.
But what constitutes being on time? Employees in his department could arrive any time between 9:00 a.m. and 10:00 a.m. But he sometimes arrives after 11:00 a.m.
He was disciplined for tardiness with a 30-day suspension without pay. He sued, and the trial court tossed him out on summary judgment. The judge held that arriving on time was an essential function of the job, the plaintiff couldn’t do so, and therefore, he didn’t make a prima facie case.
The appeals court gave the trial court a fairly gentle bench-slap:
"This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here." (footnotes omitted)
The 2nd Circuit noted that summary judgment was inappropriate, essentially holding the employer's good intentions against it. After all, the court noted, the one-hour arrival-time window could mean that punctuality was not all that important to job performance, and, after all, the employer allowed late arrivals for many years.
The appeals court also noted that the employer could have provided reasonable accommodations to the plaintiff, including granting his request to come in late and work late (although this would mean the plaintiff would work without supervision) or could have allowed him to accumulate more banked time off to cover his late arrivals.
One final shining nugget for plaintiffs: The court held that, to win, the plaintiff need not show that the employer's reason for any adverse employment action was a pretext for discrimination. The court wrote:
“Here, it is undisputed that [the plaintiff] was tardy because of his disability and that he was disciplined because of his tardiness. In other words, [he] was disciplined because of his disability. Pretext is not an issue in this case; instead, [the plaintiff] need only demonstrate that, with reasonable accommodations, he could have performed the essential functions of his job.”
The news isn’t all bad, however. In closing the court wrote that, on the record before it, it couldn't "conclude that a reasonable juror would find [the plaintiff’s] claims to be without merit. If the factual record is developed further, some or all of [his] claims may not survive summary judgment. On the record before us, however, dismissal is premature."
I think that summary judgment is likely on remand for the plaintiff. The times they are a-changing.