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Withdrawing late arrival accommodation that had worked for over 2 years results in ADA liability

By Brandi O. Brown, J.D.

A federal district court in Illinois granted summary judgment in favor of an employee with ADHD and bipolar disorder, who was also later diagnosed with a joint disorder, on her disability claims under the ADA and state law. She alleged that after over two years of allowing her to start work at 10 a.m. as an accommodation of her disabilities and her medication schedule, the employer suddenly enforced a new schedule requiring her to start work at 8:30 a.m. (and, after a renewed request for accommodation, 9:15 a.m.). The employer’s motion for summary judgment on the disability claims was denied and the employee’s motion for summary judgment on those claims was granted. However, the court granted the employer’s motion to dismiss sex-based Title VII claims brought by the employee (Isbell v John Crane, Inc, March 21, 2014, Shadur, M).

In 2003, the employee was hired as a chemical engineer by the employer, a manufacturer of engineered sealing systems. In May 2005, she began to have difficulty functioning in the early morning hours and was diagnosed with ADHD and bipolar disorder. Her physician prescribed medications that did not take effect until several hours after she awakened. In February 2006, she began to arrive at work later than usual and her supervisor did not object. In September of that year, she was placed under a new supervisor. She asked him if she could continue to arrive at 10 a.m. and he had no objections. In June 2007, he requested a doctor’s note related to her later start time, which she provided. She continued to arrive at 10 a.m. without objection.

New supervisor, new schedule. In September 2008, a new second-level supervisor requested that her supervisor provide him with a list of employees’ starting times. The employee’s supervisor indicated her working hours were 10 a.m. to 6:30 p.m., but he did not tell the new second-level supervisor about the medical reason for the schedule. In October 2008, her supervisor established 8:30 a.m. to 5:00 p.m. working hours for all of the employees in the lab, apparently based on the second-level supervisor’s emphasis on attendance. When the employee objected, her supervisor informed her that her note would be turned over to the employer’s administrator in charge of accommodations and disability leave. The employee submitted forms to the administrator requesting a renewed accommodation, as well as requested physician questionnaires.

In the meantime, the employee was expected to start work at 8:30 a.m., but she had trouble arriving on time. In January 2009, the employer granted her a 9:15 a.m. start time for 60 days. The employer told her that a 10 a.m. start time would place an “undue hardship” on the employer. Although she tried to comply with the new time, she had increasing problems arriving to work at that time. She began to accumulate points for violating the employer’s attendance policy and her supervisor spoke with her about her tardiness. In March 2009, the employee was additionally diagnosed with Ehlers Danlos, a joint-affecting disorder. As a result, she submitted another request to be allowed to start at 10 a.m. as a medical accommodation. She was told that the 9:15 a.m. start time would also cover the new request. In the meantime, she continued to accrue attendance policy violation points for arriving at work over 30 minutes past her required start time.

Termination. The employee filed two EEOC charges between in April and June of 2009 for disability discrimination, sex-based discrimination, and retaliation. In the meantime, her employer requested further medical documentation of her disabilities, including information about the necessity for the 10 a.m. start time based on her medication kicking in. It also asked the employee to undergo an independent medical examination. She did so and the examiner indicated that until her symptoms were better controlled, he concurred with her physician’s statement that she had “credible psychological justification for starting work somewhat later.” While this was ongoing, the employee continued to arrive late to work and accrue attendance points. She received a written warning in May 2009 and a final warning in June 2009. Her employment was terminated in August 2009 based on her violations of the attendance policy. The employee filed a third EEOC charge and later filed suit.

Disability discrimination. Both of the parties, the court noted, missed the main point by “focusing their attention on the question of whether a start time of 9:15 a.m. was reasonable.” The employer had already granted a reasonable accommodation allowing the employee to start work at 10 a.m. Therefore, “the question becomes instead whether it was reasonable for Crane to withdraw that existing accommodation.” “Plainly,” the court explained, the answer to that inquiry was “no” where the employer had not provided evidence that the 10 a.m. start time had placed it under an undue burden. Even if there had been evidence of undue burden, the employer had an obligation under the ADA to work with the employee to adjust the accommodation—it could not do so unilaterally, to the employee’s “detriment.” The court noted that the second-level supervisor had made a decision on the uniform schedule without information about the employee’s prior history or disability, even though that information had been available to other employees. Thus, the “half step backward to a 9:15 a.m. start time” did not cure the “unilateral retraction” of the reasonable accommodation.

Although the employer contended that the employee was not “qualified” under the ADA, the court found that the parties did not “truly dispute the adequacy of” the employee’s “job performance, as such.” Although the employer contended that internal customers had complained, the employee’s personnel file did not include complaints. The employee contended that arriving before 10 a.m. was not critical, as she had been able to start that that for over two years without serious problems arising. Instead, the court explained, the real question was whether keeping the accommodation put an “undue burden” on the employer. On that question the employer had not created any material issue of fact—the employee had successfully performed her duties for over two years with a 10 a.m. start time. And it had not presented any evidence that it had been unable to maintain its production schedule with that accommodation in place or any evidence that the employee’s schedule had caused any delays. Thus, the employer’s sudden change to her schedule, done without consideration of her known disability, “constituted an unreasonable failure to continue to accommodate that disability under the ADA.” The court, therefore, granted the employee’s motion for summary judgment on those counts and denied the employer’s cross-motion, with prejudice.

Retaliation. However, the employee’s motion for summary judgment on her retaliation claim was denied and the employer’s cross-motion was granted. She was unable to show that the employer’s reason for the termination—her frequent tardiness—was not the actual reason. It was undisputed that the supervisors expected her to arrive at 9:45 a.m. and that her failure to meet that expectation, whether it was reasonable or not, was the reason for her termination. Even though the timing of her first warning, coming soon after her EEOC charge, was suspicious, it was not sufficient to rebut the employer’s proffered reason. In fact, the employee began to accrue points prior to her first EEOC charge.

Likewise, the court granted the employer’s motion for summary judgment on the employee’s sex discrimination claims. The male employee whom the employee alleged was comparable and received better treatment was not similarly situated because he had requested temporary medical leave, which was “simply not comparable” to a request for a permanent schedule change.