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Hostettler v. College of Wooster, No. 17-3406 (6th Cir. July 17, 2018)

The Sixth Circuit holds that full-time, in-office attendance is not a per se "essential function" for purposes of the ADA, and must be established just like any other element of the claim. The court vacates summary judgment and remands a claim brought under the ADA, Title VII, and the FMLA that the employee needed a reduced schedule to accommodate her post-partum depression and separation anxiety.

Hostettler v. College of Wooster, No. 17-3406 (6th Cir. July 17, 2018): Heidi Hostettler was hired as an HR Generalist by the College of Wooster in late summer 2013." At the time of her hiring she was pregnant, and she was promised twelve weeks unpaid maternity leave. Everything appeared to be going well, until it was time for Ms. Hostettler to return. She was diagnosed with "severe postpartum depression and separation anxiety," and prescribed an anti-depressant. Her doctor only cleared her to return at a reduced schedule for the "foreseeable future." With some negotiation with the college, Ms. Hostettler returned to a five half-day a week schedule.

Ms. Hostettler and another generalist (Ms. Richardson) testified that, even with the abbreviated in-house work schedule, the plaintiff was able to get all of her tasks done. Her manager (Ms. Beasley) admitted that Ms. Hostettler "never failed to perform any responsibility or finish any assignment in a timely manner" and she gave the plaintiff a performance evaluation - shortly before she was fired - that "contained no negative feedback" and stated that but instead concluded that "Heidi is a great colleague and a welcome addition to the HR team!"

Ms. Beasley testified that the department was short-handed without Ms. Hostettler's physical presence. "But when pressed to identify any specific responsibilities or assignments that were not completed, Beasley repeatedly was unable to name any." There was also a dispute whether Ms. Beasley notified the plaintiff that she wanted her back on full-time schedule at work.

Ms. Hostettler submitted a recertification from her doctor, to continue to work part-time for the next couple of months, but the next day she was fired. The position then went unfilled for a couple of months (other than "a temporary clerical employee to handle some of the administrative work in the department"), and the plaintiff was eventually replaced by a male employee.

The plaintiff sued under the ADA, Title VII (for sex discrimination), the FMLA, and state law. Because the district court concluded that "full-time work was an essential function of the position of HR Generalist," it granted summary judgment to the college on all claims.

The Sixth Circuit reverses. The ADA claim occupies the lion's share of the opinion.

The college "devote[d] almost 17 pages of its brief" on the gateway issue of whether Ms. Hostettler's "mix of postpartum depression and separation anxiety" constituted a disability under the ADA. The panel quickly dispenses with this issue:

"[T]here is no shortage of record evidence supporting Hostettler's argument that she is an individual with a disability under the ADA. For example, Hostettler's OB/GYN, Dr. Seals, believed that Hostettler 'had one of the worst cases of separation anxiety' that he had ever seen. She cried almost every time that she was in his office, did not seem like herself, and required prescription antidepressants. Her former coworker, [Ms.] Richardson, stated that Hostettler's conditions 'limited her physically, mentally, and emotionally' and 'caused her to suffer from panic attacks, difficulty breathing, and limited ability to communicate, focus, and make decisions."

The panel also rejects the argument that intermittent or episodic attacks are not a "disability."

It then reaches the core issue: whether there was a genuine dispute of material fact about whether the plaintiff was otherwise qualified, with or without accommodation, to perform her HR Generalist position. The college hammered hard on its main point that full-time, in-office attendance was an essential function of the job. The panel holds that the evidence is in dispute on that point. The plaintiff and her colleague testified that she carried out her duties, while the college's witness could not point to specific unfinished work. The panel also rejected the suggestion that full-time attendance standing by itself is an essential function: "An employer must tie time-and-presence requirements to some other job requirement."

"In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is. If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week. That could mean denying leave for doctor's appointments, dialysis, therapy, or anything else that requires time away from work. Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework. 29 C.F.R. § 1630.2(o)(2)(ii)."

Finally, the panel holds that there was a dispute about whether the college engaged in an interactive process to accommodate the plaintiff before firing her. The testimony about the several meetings between Ms. Hostettler and Ms. Beasley around this time were in sharp dispute about whether the college offered an accommodation. While the college claimed that "Beasley discussed with Hostettler her concerns regarding Hostettler's failure to work full-time on at least four occasions," the record shows "that Beasley told Hostettler that she needed to return to full-time work during only one of those meetings."

The panel also remands the Title VII and FMLA claims. On both claims, the district court relied on its holding that the employee was fired because she could not perform the essential functions of the job. But because the panel knocked that argument out, the plaintiff had sufficient evidence of pretext to reach a jury. Moreover, despite that the plaintiff was not qualified under the FMLA because she had not worked a full twelve months, the panel holds that the district court "failed to analyze whether equitable estoppel should foreclose" the college from denying coverage.

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