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Attendance is essential function, but refusal to allow return to easier shift bars dismissal of ADA claim

By Lorene D. Park, J.D.

Because returning a long-absent employee who suffered from severe stress to a less stressful shift could be a reasonable accommodation, a federal district court in Florida refused to dismiss a supervisor’s ADA and state law claims despite UPS’ argument that attendance was an essential function and she was not “qualified” due to her absence (Markwart v United Parcel Service, July 24, 2013, Chappell, S). The employee’s ERISA claims were dismissed in part.

The UPS supervisor, who suffered from chronic depression and severe stress disorder, was out on short term disability from January to August 20, 2011. She claimed that she tried to return to work on August 8 but UPS denied her request for an accommodation to be assigned to a less stressful evening shift. She filed an EEOC charge on August 16. Two months later, after correspondence between UPS and the employee’s attorney, UPS requested medical documentation to substantiate the employee’s disability and need for accommodation. She was later terminated in January, 2012, for being absent for over 12 months. UPS leave policy provides that an employee will be administratively separated from employment after 12 months of leave. The employee filed suit under the ADA, Florida law, and ERISA and UPS moved to dismiss.

Essential functions. UPS argued that the employee’s ADA and state law claims for failure to accommodate should be dismissed because she failed to establish that she is a “qualified” individual with a disability. Specifically, UPS claimed that attendance was an essential function of the employee’s job and she did not fulfill that function because she did not show up to work for 12 months.

The court explained that evidence of whether a function is essential includes, but is not limited to, the employer’s judgment of what is essential; job descriptions; the amount of time spent performing the function; the consequences of not requiring an employee to perform the function; the terms of any applicable collective bargaining agreement; and the work experience of other incumbents in the same or similar jobs.

Accommodation. Here, the employee was a supervisor and, due to her responsibilities, the court found that it was not unreasonable for UPS to require her attendance. Thus, attendance was an essential function. However, the employee alleged that she tried to return to work but was prevented from doing so by UPS’ failure to make a reasonable accommodation in the form of assigning her to a less stressful night shift. Noting that, under applicable regulations, modifying a work schedule may be considered a reasonable accommodation absent a showing of undue hardship, the court found that the employee’s claim could not be resolved on a motion to dismiss.

ERISA claims. The employee also asserted that the employer breached its fiduciary duty and denied her benefits under ERISA. Dismissing the breach of fiduciary duty claim, the court noted that where an employee has an adequate remedy to recover benefits under ERISA Sec. 1132(a)(1)(B) the employee cannot alternatively seek equitable relief under Sec. 1132(a)(3). Thus, the employee’s claim for equitable relief failed.

UPS also argued that the employee’s claim for benefits under ERISA Sec. 1132(a)(1)(B) should be dismissed because she did not sufficiently allege that she exhausted her administrative remedies. Denying the motion in this respect, the court noted that the exhaustion requirement is not statutory but is a court-imposed, policy based requirement within the Eleventh Circuit. Further, under FRCP 9(c), satisfaction of a condition precedent need only be alleged generally. Here, it was too early to dismiss the employee’s claim because she generally alleged that she administratively exhausted it.