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Overtime was essential job function and inability to work it doomed disability claims

By Brandi O. Brown, J.D.

Although there was some evidence to support a former delivery driver’s claims of disability discrimination and retaliation based on his medical condition and use of leave, a federal district court in Texas ruled that his resulting inability to work overtime would make it impossible for him to prevail on any of his claims. No reasonable juror could conclude that overtime was not an essential function of his job, and his inability to work overtime provided justification for his termination. The defendant’s motion for summary judgment was granted (Jiles v. Wright Medical Technology, Inc., March 13, 2018, Miller, G.).

On-the-job auto accident. In 2014 the employee, a delivery specialist working for Wright Medical Technology, Inc., in the Houston area, was injured in an automobile accident while on the job. A physician determined that he was unable to drive a company vehicle for two weeks and the employee filed for workers’ compensation. He asserted that this did not go over well with his supervisor, but he was placed on medical leave and short-term disability.

He returned to work in the next month, but later that month learned that his blood pressure was high. In early June, his personal physician concluded that he needed to rest for two weeks. He took two weeks of short-term disability, but the leave extended beyond that period. In the meantime, his hub manager repeatedly complained to HR, telling the representative that “this guy is really hurting us with the Workman’s comp and now this…. What are my options with this employee?” and claiming that “[t]his is killing us in Houston.” In mid-July, HR informed him that his short-term disability benefits soon would be exhausted, but that he could use unpaid FMLA leave if he was unable to return to work. He used FMLA leave.

Restrictions and termination. On August 4, the employee was ready to return, and his physician completed a form for the employer. On that form, the physician indicated the employee could not work overtime or work in heat above 90 degrees. The employee was not allowed to return. He remained on leave until August 20, on which date he spoke to another HR employee, a conversation that led him to conclude that the employer was frustrated with him. Thereafter, the employer determined that it was unable to accommodate the employee’s restrictions and terminated his employment. The employee sued, alleging violations of the ADA, the FMLA, and the Texas Labor Code.

Ultimately, the employee’s claims hinged on whether he could perform the essential functions of his position. In this case, the question was whether the ability to work overtime and to work in 90-plus degree heat were essential functions of his delivery position. Under the ADA, the court explained, several factors are considered, in balance, to determine whether a job function is essential, with the “greatest weight” being given to the employer’s judgment. According to the employer, the ability to work overtime was essential—it was included in the written job description, the employee knew it was required when he was hired, and he had worked overtime before his accident.

Overtime was essential. After reviewing other cases dealing with this question in the federal courts in Texas and the Fifth Circuit, the court concluded that overtime could be an essential function, as could the ability to work outdoors or be exposed to extreme temperatures. Courts consider the written job description as a crucial factor in making the determination, but also consider the actual duties performed by the employee and others who hold the job. Although the employee presented evidence indicating that the employer had assessed his regular work schedule to be “8-5; M-F,” the evidence also included the job description, which stated that “[o]vertime/on-call will be required to accommodate emergency situations and facilitate changing surgical schedules.”

Moreover, other drivers regularly performed overtime. In fact, the employee had worked over 65 hours of overtime in 2013 and over 35 in the time before his leave in 2014, which the court noted was “hardly insignificant.” Balancing the factors, the court found that “no reasonable juror could conclude that overtime was not an essential function of the delivery specialist job.” The evidence regarding the employer’s notation of the employee’s “8-5; M-F” hours was insufficient to create an issue of material fact.

Temperature-related restrictions. A “closer call” was whether the ability to work in 90-plus degree heat was an essential function. It was not written in the job description, although the description encompassed deliveries to various locations. “It appears that everyone agrees that it is hot in Houston in August,” the court explained, but a question of fact remained with regard to whether the written description adequately portrayed the requirement of exposure to heat. Nevertheless, because it was already determinable that the employee could not perform another essential function, this question would not deter the conclusion that he could not establish a prima facie case of discrimination.

Once the court reached its conclusion as to the overtime requirement, the remaining claims fell like dominoes. His reasonable accommodation claim failed because the employer did not have to assign essential functions to other employees and overtime was an essential function. He presented no evidence that there were alternative jobs available for which he was qualified with that restriction. With regard to his FMLA claim, the employee was able to take FMLA leave, so his interference claim was a nonstarter, and his reinstatement claim was inexorably undermined by his inability to work overtime, and thus, to be able to do the work he did before taking leave. As to his FMLA retaliation claim, the employer had a legitimate nondiscriminatory reason for terminating his employment (his inability to work overtime) and, even if the employer was frustrated by his use of leave, he would have been fired anyway. The same outcome applied to his claim under state law for workers’ compensation retaliation. The employer’s motion for summary judgment was granted, and all of the employee’s claims were dismissed.