The Tenth Circuit recently addressed whether an employer had failed to make a reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C. § 2000e et seq., (“ADA”) regarding a temporary worker’s request for time off as a reasonable accommodation and although it affirmed the Colorado District Court’s grant of summary judgment in favor of the defendants, it held that the McDonnell Douglas burden-shifting framework was not applicable in a failure-to-accommodate case in the 10th Circuit because such cases do not require the plaintiff to demonstrate discriminatory intent by the employer.
In Punt v. Kelly Services, No. 16-1026, 2017, U.S. App. LEXIS 12046 (10th Cir. July 6, 2017), Kristin Punt, a temporary employee employed by Kelly Services and assigned to GE Controls Solutions, made claims under the ADA, among other statutes, after she was taken off the assignment after missing numerous shifts, allegedly because of a cancer diagnosis.
Punt was an at-will employee of Kelly and at the beginning of her employment there, she signed an employment application stating that the duration of any assignment she accepted depended on the needs of Kelly’s customer and that it could be cancelled at any time by Kelly or the customer. The application also stated that, upon completion of each assignment, she would notify Kelly of her availability for work. GE entered into an agreement with Kelly Services, under which Kelly provided and assigned temporary employees to GE as needed. Under the agreement, GE could ask Kelly to remove any of its temporary employees from their assignment at GE for any reason and Kelly also had the right to cancel any employee’s assignment on its own initiative.
Kelly assigned Paul to the receptionist position at GE, and she worked there from October 24, 2011 through December 5, 2011. When she began the receptionist assignment at GE, she was told she was to work a 40-hour work week, starting at 7:30 a.m. and ending at 4:30 p.m. each day. According to GE, the essential functions of the receptionist job included being “physically present at the lobby/reception desk during business hours” in order to “greet . . . and direct all visitors, including vendors, clients, job candidates, customers, etc.” Despite the 40-hour requirement, however, in the six weeks that she worked as a receptionist at GE, she never worked a full 40-hour work week. She was absent from work on six occasions, was late to work on three occasions and also left work early on three occasions. When Punt was not at work, another Kelly temporary employee, who was assigned to work as an administrative assistant for the general manager of GE, had to take over the receptionist duties as well as her own responsibilities. Punt blamed these absences on a recent breast cancer diagnosis.
On December 5th, Punt had an MRI appointment and that morning, she emailed Erin Wilgus—the Kelly employee who was the point-person for Punt’s temporary assignment to GE—and informed her that she, her husband and doctor had determined that it was in her best interest not to come to work that week at all and also expressed concerned that GE was not willing to work with her, that her medical issues, including a potential surgery, would require her to take time off and that because she felt that GE did not want her to take time off, the assignment might not be a good fit. After that, several emails were exchanged between Punt and Wilgus because Wilgus was trying to determine whether Punt was going to go to GE the next day. Ultimately, on that same date, GE’s general manager and HR director contacted Wilgus to end Punt’s assignment, telling Wilgus that Punt was not showing up for work and that GE “needed an employee that’s going to be able to show up and fulfill the needs of the position.” Wilgus then contacted Punt to inform her that her temporary assignment with GE had been terminated. After that, Punt never contacted Kelly to ask for another assignment and Kelly did not contact Punt with any additional job offers. In 2014, Punt filed a lawsuit against both GE and Kelly, raising both a somewhat ill-defined claim of disability discrimination under the ADA, which Punt claimed was a failure-to-accommodate claim, and a claim of genetic information discrimination under the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq., (“GINA”) because she had allegedly told a GE employee that she had a family history of breast cancer. The district court granted summary judgment in favor of defendants on both claims.
The district court evaluated the ADA disability claim as a disparate treatment claim, subject to the McDonnell Douglas burden-shifting analysis, because it determined Punt had not presented direct evidence of a discriminatory motivation on the part of the defendants. Using the McDonnell Douglas analysis, the court held that Punt had failed either to establish a prima facie case of disability discrimination or to show that defendants’ legitimate, nondiscriminatory reason for her termination was pretextual.
The appeals court began its review by noting that the district court incorrectly concluded that what matters for determining the type of claim at issue in an ADA case is not the type of claim that is pleaded in a complaint, but rather the type of evidence that is presented to support the claim. The appeals court stated that this conclusion was based on a fundamental misunderstanding about the distinctions between different types of ADA claims and the evidence that must be presented to support them. The court stated that while in general, under the ADA there must be a nexus between the disability and the adverse employment action, usually proven by direct or indirect evidence of discriminatory intent, a failure-to-accommodate claim, does not require such a showing because any failure to provide reasonable accommodations for a disability is necessarily “because of a disability” and no proof of a “‘particularized discriminatory animus’ is required.” In other words, the court determined that the only reason an accommodation is required is because of a disability, and thus the failure to provide a reasonable accommodation to a qualified employee with a disability is inherently based on that disability. It then opined that failure-to-accommodate cases should not be classified either as direct-evidence cases or as McDonnell Douglas circumstantial evidence cases, but rather as a separate category of cases that require no evidence of discriminatory intent in any form.
As to Punt’s actual claim, the court stated that while Punt’s complaint was “far from a model of clarity on this point,” the ADA claim looked much more like a failure-to-accommodate claim than a disparate-treatment claim and that the record revealed that Punt and counsel for both GE and Kelly focused extensively in discovery on questions of whether Punt’s request for time off was a request for a reasonable accommodation, and no one ever attempted to elicit any evidence to support or defeat a disparate-treatment theory. Because it was a failure-to-accommodate claim, the court held that it should have been evaluated under the 10th Circuit’s failure to accommodate test, which requires the plaintiff to show that “(1) she is disabled; (2) she is ‘otherwise qualified’; and (3) she requested a plausibly reasonable accommodation,” which then requires the employer to show evidence that either (1) conclusively rebuts one or more elements of plaintiff’s prima facie case or (2) establishing an affirmative defense, such as undue hardship or one of the other affirmative defenses available to the employer.”
The court “began and ended” its analysis by examining whether or not Punt had “requested a plausibly reasonable accommodation,” stating that determination of whether a requested accommodation is reasonable “must be made on the facts of each case taking into consideration the particular individual’s disability and employment position.” It concluded that Punt’s request was not plausibly reasonable on its face because “an employee’s request to be relieved from an essential function of her position is not, as a matter of law, a reasonable or even plausible accommodation” and therefore, affirmed the district court’s decision. It also affirmed the district court’s decision on the GINA claim because it determined that Punt had offered no evidence to support the claim beyond conclusory allegations.