In an unpublished opinion, the Sixth Circuit Court of Appeals recently held that an employee who was unable to complete the functions of her job while on part-time duty could not subsequently claim that ongoing part-time work was a reasonable accommodation for her disability. White v. Security First Associated Agency, Inc., et al., No. 12-1287 (June 28, 2013).
Darla Kay White was employed by Security First Associated Agency, Inc. (SFI) as a full-time customer service agent from 2003 to February 2008. White suffered a non-work-related back injury in September of 2007, and stopped working due to pain in her lower back that was diagnosed as sciatica. White collected short-term disability (STD) benefits through December 24, 2007, the maximum duration for such benefits.
In mid-December 2007, White returned to work with medical restrictions that she not work more than four hours a day, and perform limited bending and lifting. White worked part-time for nearly two months, during which she continued to receive STD. On December 24, 2007, White’s STD benefits expired and were converted to long term disability (LTD) benefits. White’s doctor provided documentation showing that White would be able to return to full-time work on January 28, 2013, and therefore, LTD benefits were granted to White until February 11, 2008.
However, beginning in mid-January, White had difficulty working even four hours a day due to her ongoing pain. White began to be absent from work and either did not work, or left early on six days in the second half of January. In February, when White continued her pattern of absences, her employment was terminated. However, SFI informed White that the job would remain open for her until the end of March, should she become able to return to work on a full-time basis. White did not ask to return to work at any point after her termination.
White subsequently filed a lawsuit which included a claim against SFI for discrimination in violation of the Americans with Disabilities Act (ADA). The lower court granted summary judgment to SFI on all claims, and White appealed the decision to the Sixth Circuit.
In order to sufficiently establish a prima facie case of discrimination under the ADA, a plaintiff must show that she is a “qualified individual” with a disability “who, with or without reasonable accommodation, can perform the essential functions” of her position. According to the applicable regulations associated with the ADA, a job function is essential if its removal would “fundamentally alter” the position.
Presenting uncontroverted evidence that it had never employed a customer service agent on a part-time basis, SFI was able to establish that working full-time was an essential function of White’s position. Further, the written job description stated that the customer service agent position was full-time. White also acknowledged that she was unable to complete the requirements of the position in a four-hour day, and that other employees were being assigned on a rotating basis to cover her accounts for the remaining four hours, resulting in those employees working overtime to meet the needs of her assigned accounts.
The Sixth Circuit found that White’s request to continue working part-time—when she had been unable to perform the functions of her position while working part-time for weeks—was not a request for a reasonable accommodation, because it would have required SFI to create a new part-time position where none previously existed. Under the ADA, an employer is not obligated to do so.
In this case, the employer’s documentation was the key to its success. First, the written position statement specifically spelled out that the position was a full-time job. Second, the company was able to provide evidence that it had never employed a customer service agent on a part-time basis. Finally, there was uncontroverted evidence that White could not complete her essential job duties within a four-hour work day, and that others were working overtime in order to get White’s work completed. All of that information, taken together, supported the employer’s assertion that White’s request for a permanent part-time schedule was not a reasonable accommodation, because White would not have been able to perform the essential functions of the job for which she was hired within a four-hour workday.
While this holding is unpublished, and therefore arguably limited, the rationale is sound and provides a useful example to employers regarding the amount and type of documentation necessary to handle a request for less-than-full-time hours as a “reasonable accommodation” for a disability. Had any of the three factors listed above been missing, the holding might have been different.