An employer may have to tolerate an employee’s constant tardiness if it is caused by a disability, the 2nd U.S. Circuit Court of Appeals indicated March 4 in McMillan v. City of New York, No. 11-3932 (March 4, 2013). The court remanded the case to the U.S. District Court for the Southern District of New York, which had granted summary judgment to the employer.
The case involves Rodney McMillan, a New York City employee. McMillan took medication to treat his schizophrenia but the drugs made him drowsy in the mornings and he was often late for work. Employees in McMillan’s office were required to arrive between 9 and 10 a.m. but McMillan often arrived after 11 a.m. To make up for lost time, he regularly worked past 7 p.m.
His employer informally accommodated his lateness for 10 years but eventually his supervisor decided that she could no longer approve his late arrivals every day. He repeatedly requested a formal accommodation that would allow him to arrive late and make up the missed time working late. The city, however, denied his requests because supervisors left the office after 6 p.m. and it didn’t want him working unsupervised.
He filed suit, alleging that punctuality was not an essential function of his job and that the city failed to accommodate his disability, in violation of the Americans with Disabilities Act.
The U.S. District Court for the Southern District of New York, however, granted summary judgment for the city, ruling that punctuality was an essential function of his job and that his request for a later start time was “unreasonable as a matter of law.”
McMillan appealed and the 2nd Circuit agreed that his claims deserved further consideration and that the lower court should not have granted summary judgment for the city.
“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,” the 2nd Circuit wrote in remanding the case. But McMillan provided enough evidence that punctuality was not an essential function for his suit to survive summary judgment, the court said. Because his tardiness was tolerated for 10 years and because the city already has a flex-time policy in place, the court should not have immediately dismissed his claim.
Likewise, the lower court was too quick to dismiss his accommodation claim. McMillan’s suggestion that he work late is at least reasonable on its face, the court said, and certainly reasonable enough to survive summary judgment. The city already had a policy of allowing employees apply any extra hours they worked to days they arrived late and McMillan was presumably unsupervised when he worked past 7 p.m. many times during the last 10 years, the court said.
“[W]e cannot conclude that a reasonable juror would find McMillan’s claims to be without merit,” the court said, remanding the case for reconsideration.
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