2nd Circuit: Being On Time Is Not Necessarily an “Essential Function” Of Job

Punctuality is important, and many employers rightly take the position that excessive tardiness can be grounds for discipline, up to and including termination.  However, a recent Second Circuit case holds that arriving on time is not necessarily an “essential function” of the job under the Americans with Disabilities Act of 1990 (ADA).

Specifically, McMillan v. City of NY (11-3932, decided March 4, 2013) illustrates the importance of conducting a fact-specific analysis with respect to an employer’s responsibility to reasonably accommodate disabled employees under the ADA.

It was undisputed that plaintiff Rodney McMillan, who suffered from schizophrenia, was unable to arrive at his job as a case manager for the City’s Human Resources Administration by a specific time as a result of the treatment for his disability.  Plaintiff’s tardiness was tacitly approved for at least ten years, after which plaintiff’s supervisor stopped approving plaintiff’s late arrivals.

Plaintiff repeatedly verbally requested for a later start time, but was told that was not possible because he was not allowed to work past 6 pm without a supervisor present. Plaintiff was fined, charged with “Misconduct and/or Incompetence”, and ultimately suspended for 30 days without pay.

Plaintiff sued under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, arguing that the City’s response to his accommodation request was insufficient.  Plaintiff suggested, as accommodations, either that he be permitted to work later in the day, or that he work through lunch to accumulate time.

The trial court granted summary judgment for the City, reasoning that it was “required to give considerable deference to the employer’s judgment and its general policies” in “determining whether the ability to arrive at work within a designated time period with some degree of consistency is an essential function of plaintiff’s job.”  The Second Circuit disagreed.

1.  Identification of Essential Functions

The Second Circuit initially criticized the district court’s heavy reliance on the “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”:

[S]everal relevant factors … 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.  (Emphasis added.)

This case was therefore different than those in which the position(s) in question “absolutely required plaintiff’s presence during specific business hours” such that “plaintiffs’ requested accommodations of flexible start times would have therefore impaired an essential function of their jobs.”

Thus, “a reasonable juror could find that arriving at a specific time was not an essential function of the case manager position, provided that McMillan still would be able to complete his work in a sufficiently timely fashion.”

2.  Performance of Essential Functions

Plaintiff was next required to “demonstrate that he or she could have performed these functions, with or without reasonable accommodation, at the time of the termination or discipline.”  This is not a heavy burden:

It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. … Reasonable accommodations may include adjustments to work schedules or other job restructuring. See 45 C.F.R. § 84.12(b) (2005).

Plaintiff satisfied this element by suggesting a plausible accommodation, namely, “that he could work through lunch and work late in order to ‘bank’ time” such that “[i]f his lunchtime overtime and tardy arrivals were approved, he would then be able to apply this banked time against future late arrivals.”

3.  Undue Hardship

Finally, the court addressed the issue of undue hardship.  “If a plaintiff suggests plausible accommodations, the burden of proof shifts to the defendant to demonstrate that such accommodations would present undue hardships and would therefore be unreasonable.”  Under the ADA, an “undue hardship” is “an action requiring significant difficulty or expense.”

The court refused to find as a matter of law that plaintiff’s suggested accommodations would constitute undue hardships to the City, and were therefore unreasonable:

The City already has a policy of allowing employees to “bank” any hours they work in excess of seven hours per day and apply banked time against late arrivals, provided that those late arrivals are approved. Because there is no evidence that pre-approving McMillan’s tardiness would constitute an undue burden on the City, the question is whether McMillan would be able to bank sufficient time to cover his late arrivals.

The district court correctly concluded that assigning a supervisor to work past 6:00 p.m. would constitute an undue hardship. However, McMillan was presumably unsupervised when he made home visits for his clients or when he worked past 7:00 p.m. It is unclear from this record whether his home visits or after-hours work was supervised and, if not, whether McMillan could bank these unsupervised hours.

Even if McMillan could not bank post-6:00 p.m. time, he also states that he would be willing to work through his one-hour lunch. The City has a policy, based on a collective bargaining agreement, of not allowing employees to work through lunch unless they receive advanced approval. The district court concluded, without further explanation, that “plaintiff’s proposed accommodation could not have been accommodated without undue hardship.” … We disagree. On the limited record before us, such pre-approval does not strike us as “requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A).

Additionally, … it might be the case that on some days McMillan would be able to arrive (relatively) early. If he also worked through lunch or stayed through 6:00 p.m. on those days, he would be able to bank that time against future tardiness as well.


The court also disagreed with the district court’s conclusion that plaintiff could not demonstrate that the City’s legitimate business reason for disciplining him (excessive tardiness) was pretextual.   In fact, pretext was not an issue here, given that the complained-of conduct was itself tied to plaintiff’s disability:

While the burden-shifting McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] analysis is useful in most discrimination cases, it is not helpful here. When the reason given by the employer for the adverse employment action is unrelated to the employee’s disability, the McDonnell Douglas approach can be used to weed out non-viable claims of discrimination based on circumstantial evidence. When the parties agree that the employer complains of conduct that is the direct result of the employee’s disability, however, there is no need to evaluate whether the employer’s adverse employment action made in response to that conduct is pretextual. …

Here, it is undisputed that McMillan was tardy because of his disability and that he was disciplined because of his tardiness. In other words, McMillan was disciplined because of his disability. Pretext is not an issue in this case; instead, McMillan need only demonstrate that, with reasonable accommodations, he could have performed the essential functions of his job.  (Emphasis added.)

For the above reasons, it was premature to dismiss plaintiff’s claims as a matter of law.

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