McMillan v. City of New York,
U.S. Court of Appeals for the Second Circuit, 2013 U.S. App. LEXIS 4454 (Mar. 4, 2013)
Whether timely arrival at work is an essential function, as a matter of law.
Plaintiff Rodney McMillan had schizophrenia, which was treated with medication. Despite this impairment, McMillan worked for 10 years as a case manager for the city’s Human Resources Administration before assuming a role as case manager in a different division within the city.
The city had a flex-time leave policy, but employees were required to arrive by 10:15 a.m., otherwise the employee was considered tardy. It was undisputed that although McMillan was awake by 7:30 a.m., his morning medications made him “drowsy” and “sluggish.” As a result, he often arrived late to work, sometimes after 11 a.m. The city made no allegations that McMillan malingered; rather, it was undisputed that his inability to arrive at work by a specific time was the result of the treatment for his disability.
Prior to 2008, and for a period of at least 10 years, McMillan’s tardy arrivals were either explicitly or tacitly approved. At some time in 2008, his supervisor refused to approve any more of McMillan’s late arrivals. As explanation, she stated that she “wouldn’t be doing [her] job if [she] continued to approve a lateness every single day.”
McMillan proposed that he could work past 7 p.m. (the office was open until 10 p.m.) so that he could arrive late and still work the required 35 hours per week. Alternatively, McMillan asserted that he would be willing to work through lunch to bank time. His requests were rejected, even after he provided a doctor’s note. As a result, he was fined eight days’ pay for his late arrivals and ultimately terminated for his “long history of tardiness.”
McMillan filed suit, but the Southern District of New York granted the city’s motion for summary judgment, finding timely arrival at work was an essential function of McMillan’s job, and thus could not be accommodated. McMillan appealed.
The Second District faulted the lower court’s heavily reliance on its assumption that physical presence is “an essential requirement of virtually all employment.” Similarly, the court rejected the city’s representation that arriving at a consistent time was an essential function of McMillan’s position because the city’s flex time policy and its long history of permitting McMillan flexibility in his schedule without apparent consequence belied this contention.
As the Second Circuit emphasized, this case highlights the importance of conducting a fact-specific analysis in ADA claims. Although in many employment contexts, a timely arrival is an essential function of the position, it was not evident that it was an essential function of McMillan’s job. Employers should be careful not to rely on generalizations about the essential functions of a position when making decisions regarding reasonable accommodations.