A Tale of Two ADA Work Schedule Cases - Articles

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Posted by: Donna Mikel on Oct 12, 2018

In the spring of 2018, the Sixth Circuit Court of Appeals decided two ADA accommodation cases involving human resources employees. Both involved proposed accommodations to work schedules. The two cases, authored by very different judges, likewise had very different and interesting outcomes.  

In the unreported case of McDonald v. UAW-GM Center for Human Resources, 2018 WL 3081313 (6th Cir. June 21, 2018), an employee sought an accommodation to her work schedule that was actually offered to many employees without disabilities. Employees working for UAW Center for Human Resources (CHR) were permitted during a select time of year to opt between having a 30-minute lunch, beginning after 11 a.m., and two 15 minutes breaks (not tacked onto the lunch break) or one 60-minute lunch break. McDonald, a longtime CHR employee, originally selected the 30-minute lunch break. McDonald frequently opted to exercise in CHR’s on-site gym during her lunch break. During 2014, McDonald decided that 30 minutes was not sufficient for her exercise needs and made a request to instead opt for the 60-minute break. The problem was that McDonald’s request was not made during the designated selection period. 

As such, the request was originally denied and, in response, McDonald presented a letter from her doctor indicating that she needed to engage in strengthening exercises for 30 to 60 minutes Monday through Friday. McDonald was born with Crouzon syndrome, a genetic disorder that required her to undergo multiple surgeries over the years. Reading between the lines of the opinion, it appears McDonald’s doctor did not clearly specify that her need for exercise time was tied to her alleged disability and indeed, the opinion hinted that her need for increased workout time may have actually related to a romantic relationship that McDonald was purportedly having with a co-worker. While McDonald’s request was being considered by management, McDonald started taking the longer break and earlier than 11 a.m. When confronted, she cussed out her manager and was placed on suspension. While on suspension, McDonald quit her job. She later filed suit, asserting claims for failure to accommodate and retaliation under the ADA. McDonald’s case was dismissed on summary judgment by the Eastern District of Michigan and the dismissal was affirmed by the Sixth Circuit.

The Sixth Circuit rested its ruling against the plaintiff in McDonald on the proposition that the plaintiff failed to show that her requested accommodation was necessary in light of her physical limitations. The Sixth Circuit criticized McDonald’s doctor’s letter as being too vague and held that, in any event, the requested accommodation was never actually denied. Rather, McDonald quit before the final verdict was reached by the employer. 

In the other case, Hostettler v. The College of Wooster, 895 F.3d 844 (6th Cir. 2018), an employee sought an accommodation to her work schedule that required the employer to permit a full-time employee to work part time, take extended leave, and work remotely. Summary judgment was granted to the employer by the Northern District of Ohio and that dismissal was then reversed and remanded by the Sixth Circuit. 

Hostettler was an HR employee hired by the College of Wooster when she was four months pregnant. Wooster was aware of Hostettler’s pregnancy and gave her 12 weeks of maternity leave even though she did not yet qualify for it under the FMLA. Prior to her leave, Hostettler was a star employee. Although she frequently worked more than 40 hours a week, she testified that the job really required 30 to 35 hours a week and she just ordinarily went above and beyond. 

Hostettler took her full 12 weeks of maternity leave beginning in February of 2014. As her slated return to work date approached, she began to suffer from what her doctor considered to be one of the worst cases he had ever seen of severe postpartum depression and separation anxiety. The doctor initially prescribed that Hostettler return on a reduced schedule for the “foreseeable future.” Hostettler was open about her predicament with her female supervisor, who was at first supportive. While the doctor originally filled out an FMLA certification permitting work for two to three full days per week, at the supervisor’s request, the doctor revised it to permit work for five half days a week. At that time (which was later than her 12-week return date), Hostettler returned to work and was told that Wooster would accommodate her request until June 30 and then ask for a new certification.

Hostettler came back to work, allegedly struggled with leaving on time to accommodate her restriction, and allegedly suffered from panic attacks when she could not leave on time. Hostettler and a co-worker testified she could perform her basic duties during the reduced schedule and she could also do some additional work remotely during the evenings. Hostettler’s supervisor, however, testified in vague terms that the reduced scheduled put a strain on the department. 

June 30 passed with no new certification from Hostettler, and the supervisor began trying to get her back full time. Although her doctor provided a new certification in mid-July indicating that she could not return to full-time employment until September, Hostettler testified that she talked to her supervisor and said she would try extending from half days to three-quarter days. Hostettler was fired the next day. Wooster said it was because Hostettler was unable to return to work in a full-time capacity. Hostettler then sued under the ADA, FMLA and Title VII. 

In Hostettler, the Sixth Circuit reasoned that, in order to determine the proper result, it first had to employ the appropriate legal analysis and choose between using the indirect or direct evidence tests. The Sixth Circuit faulted the district court for not opting between the two and held that the direct standard applied. In so holding, the Court deduced:

Claims that allege a failure to accommodate “necessarily involve direct evidence.” Kleiber, 485 F.3d at 868. Inversely, then, termination for no reason other than alleged problems with an already-in-place accommodation should involve the same direct standard of proof. That squares with our settled law because it “does not require the fact finder to draw any inferences,” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013), that the disability was at least a motivating factor.

(emphasis added). 

The Court then analyzed Hostettler’s claim using the direct evidence method and concluded there was a question of fact precluding summary judgment as to whether Hostettler was qualified to perform her position when she was doing it in a part-time capacity. In so holding, the Court made clear that a job description showing a 40-hour a week requirement, a past history of employees working 40 hours at the job, and evidence that the employer wanted someone full time are not sufficient to show that full-time presence at work is an essential function. Instead, “an employer must tie time-and-presence requirements to some other job requirement.” Because there was this question of fact, and thus one could infer pretext, the Court also reversed the Title VII dismissal. Finally, the Sixth Circuit also revived Hostettler’s FMLA claim, reasoning that although Wooster provided her with more than the prescribed 12 weeks, Hostettler could show that she detrimentally relied upon Wooster’s representation that her leave in excess of 12 weeks would be FMLA-protected. 

At first glance, the outcomes of the two cases appear unfair. In McDonald, the employee only sought a schedule accommodation that was actually offered to her at certain times of the year. How could an employer claim that it would be an undue burden to give her what was already offered to all employees? 

On the other hand, in Hostettler, Wooster might be able to show that it went above and beyond what was required. It hired Hostettler knowing she was pregnant, gave her more leave than was required, and offered her the chance to work her way back to what was originally a more- than-full-time job. How can one fault Wooster and let CHR off the hook?

The outcomes of the two cases may be reconciled as being determined by the severity of the medical impairments at issue, the extent to which the plaintiffs’ doctors went to bat for the two plaintiffs, and how the two plaintiffs acted in trying to resolve the issues.[i] McDonald’s doctor did nothing to tie her requested accommodation to her medical condition and McDonald acted with disrespect and quit too soon. The issue of undue burden never even had to be reached as a result.

On the other hand, Hostettler was suffering from a serious condition, she was transparent with her employer about it, and her doctor took the time to carefully present requests that benefitted her. Hostettler tried her hardest, from what the record reflects, to do her job and overcome her need for what would likely be a temporary accommodation. 

So, what are the lessons learned from contrasting these two cases? Good lawyering and advice could have influenced or changed the outcome of either. Had McDonald gone to a lawyer before she quit, perhaps her physician could have authored a letter that tied her need for the accommodation to her disability or perhaps she would have waited out the process long enough to get a final verdict. Had Wooster consulted with an attorney before it fired Hostettler, it could have undertaken an in-depth job analysis, clearly communicated the lack of FMLA protection, and could possibly have found ways to get the job done for a couple of extra months, thus avoiding an expensive lawsuit.         

[i]Of course, one could instead argue that the outcomes of the two cases were dependent upon who authored the opinions for the Sixth Circuit.  Perhaps the first several pages of each opinion signaled a different perspective of the purpose and function of the ADA in the modern workforce.   

Donna Mikel is a partner in the Chattanooga law firm of Burnette, Dobson & Pinchak, where she practices plaintiff-side employment law and criminal law. She is the 2018-2019 chair of the Executive Council of the Tennessee Bar Association’s Labor & Employment Section. She graduated with honors from the University of Georgia School of Law in 2000. Donna may be reached at dmikel@bdplawfirm.com or (423) 266-2121.