Wednesday, March 06, 2013

Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function

Earlier this week, the United States Court of Appeals for the Second Circuit issued an opinion in McMillan v. City of New York, --- F.3d ----, 2013 WL 779742 (2d Cir., Mar. 4, 2013).  Early in the opinion, Judge Walker summarizes the major take-away from the case:
It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of aprima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.
McMillan, who works for the city, has schizophrenia, which he manages with medication.  But the medication unfortunately can make him extremely drowsy in the mornings.  "As a result, he often arrives late to work, sometimes after 11:00 a.m. The City makes no allegations that McMillan malingers; instead, it is undisputed that his inability to arrive at work by a specific time is the result of the treatment for his disability."  For at least ten years, the city explicitly or implicitly approved McMillan's late arrivals, provided he made up his hours at the end of the day.  But in 2008, the city shifted course and stopped approving them.  At that point, McMillan made a number of requests for the city to approve his late arrivals once more, but his supervisors refused.  

McMillan sued under, among other statutes, the ADA.  Judge Rakoff of the United States District Court for the Southern District of New York granted summary judgment to the city.  Judge Rakoff deferred to the city's determination that arrival at work within a one-hour time frame was an essential function of McMillan's job.  He thus concluded that McMillan's requested accommodation (to arrive as late as 11, while making up the hours later) was unreasonable.

The Second Circuit reversed.  Here is the nub of its analysis:
The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan's particular job. 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. 
This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.
Paul Mollica has commentary on the case here.

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