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McMillan v. City of New York, No. 11-3932 (2d Cir. Mar. 4, 2013)

Here's a potentially important case for disabled persons and their advocates residing in the Second Circuit (NY, CT and VT) and elsewhere. A panel reverses summary judgment in a case involving a city professional employee with schizophrenia under medication, holding that accommodations such as flex-time and unsupervised work may be reasonable in some instances. In this particular case, the record reflected that the employee had been so accommodated for ten years before a supervisor suddenly and inexplicably called an end to it.

McMillan v. City of New York, No. 11-3932 (2d Cir. Mar. 4, 2013): The employee was a case worker for the city -

" . . . [He] worked for ten years as a case manager for the City's Human Resources Administration ('HRA') before assuming his present role in 1997 as a case manager for the HRA Community Alternative Systems Agency ('CASA'). McMillan's current job duties include conducting annual home visits, processing social assessments, recertifying clients' Medicaid eligibility, making referrals to other social service agencies, and addressing client concerns. He also meets with clients daily in the office."

McMillan suffered drowsiness as a result of anti-psychotic medication, which made it difficult for him to arrive at the office daily by 10 a.m. (or the 10:15 a.m. grace time allowed by agency rules.) While his agency tolerated McMillian's arrivals as late as 11 a.m. for a decade, this changed in 2008, when "his supervisor Loshun Thornton, at her supervisor Jeanne Belthrop's direction, refused to approve any more of McMillan's late arrivals. As explanation, Thornton stated that she 'wouldn't be doing [her] job if [she] continued to approve a lateness every single day.'"

McMillan verified (with two treating physicians) that his medication schedule could not be altered, and twice requested as an accommodation that his work schedule be altered to allow him to commence work 11 a.m. to 7 p.m., a request that was denied. "These requests were forwarded to Donald Lemons, the Deputy Director of HRA's Equal Employment Opportunity Office, for evaluation. After speaking with Thornton and others, but not with McMillan, Lemons determined that McMillan's request for a later flex start time could not be accommodated because there was no supervisor at the office after 6:00 p.m."

McMillan was allowed to continue working, but was placed on a 30-day suspension without pay for tardiness. He brought an action for discrimination and denial of reasonable accommodations under the ADA and the New York State Human Rights Law, and the New York City Human Rights Law. The district court granted summary judgment on all claims, holding (among other things) that timely arrival at work was an "essential function" of McMillian's job.

The Second Circuit vacates and remands that order. The panel holds that the district court judge did not adequately evaluate the factual circumstances of this case, relying instead on general holdings from other cases that the panel held presented very different circumstances.

The panel holds that the employee's long, successful history with the de facto accommodation of arriving late presented a genuine issue of material fact about whether timely attendance at work was an "essential function":

"For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute."

Other cases that had previously held that timeliness was an essential funtion, the panel holds, involved situations that "absolutely required plaintiffs' presence during specific business hours," e.g., the employee was a supervisor, or the company had to meet timely deadlines. the panel also noted that there was an important distinction between tardiness and absenteeism, i.e., "an absent employee does not complete his work, while a late employee who makes up time does."

While the agency objected that an 11 a.m. start time might mean that the plaintiff would be without supervision for up to an hour a day (after 6 p.m.), the panel notes that even unsupervised hours might be a reasonable accommodation.

"McMillan's request to work unsupervised after 6:00 p.m. is not unlike a request to work from home. Both accommodations are potentially problematic because they are unsupervised. We have implied, however, that unsupervised work might, in some cases, constitute a reasonable accommodation. [Citations omitted.] The majority of cases on this issue, however, find that requests to work without supervision are unreasonable. [Citations omitted.] The question of whether McMillan can reasonably perform portions of his job without supervision, as he apparently has been permitted to do previously, should be considered on remand."

The panel remands the issue of whether such a work arrangement might amount to an "undue burden" under the ADA (a defense upon which the employer bears the burden of proof).

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.

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