No. 22-3246

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

 

 

DANIELLE DAVIS,

 

Plaintiff-Appellant,

 

v.

 

PHK STAFFING, LLC,

 

Defendant-Appellee.

 

On Appeal from the United States District Court

for the District of Kansas, No. 2:21-cv-02142

Hon. Holly L. Teeter, United States District Judge

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND REVERSAL

GWENDOLYN YOUNG REAMS
 Acting General Counsel

JENNIFER S. GOLDSTEIN
 Associate General Counsel

DARA S. SMITH
 Assistant General Counsel

STEVEN WINKELMAN
 Attorney

Equal Employment Opportunity Commission

Office of General Counsel

131 M Street, NE, Fifth Floor

Washington, DC 20507

(202) 921-2564

steven.winkelman@eeoc.gov

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES. iii

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUES. 1

STATEMENT OF THE CASE.. 2

A.         Factual background. 2

B.         District court’s decision. 5

ARGUMENT. 7

I......... A reasonable jury could find that Davis was a “qualified individual” with an accommodation of intermittent leave. 8

A.         Intermittent leave would have allowed Davis to perform her essential job functions “in the near
future.” 9

B.          Davis was capable of regular and reliable attendance notwithstanding her occasional absences. 12

II....... A reasonable jury could find that unplanned intermittent leave was a reasonable accommodation under the circumstances. 14

A.         Davis’s request for retroactive leave was facially reasonable. 16

B.          Davis’s request for prospective leave was facially reasonable. 20

III..... A reasonable jury could find that Hollywood fired Davis “on the basis of” her disability. 24

A.         Hollywood’s failure to accommodate Davis’s disability led to her termination. 25

B.          Hollywood’s attendance and leave policy is facially discriminatory. 27

CONCLUSION.. 29

CERTIFICATE OF COMPLIANCE.. 31

CERTIFICATE OF DIGITAL SUBMISSION.. 32

CERTIFICATE OF SERVICE.. 33

 

 

TABLE OF AUTHORITIES

Page(s)

Cases

Aubrey v. Koppes,
975 F.3d 995 (10th Cir. 2020)............................. 23

Benson v. Wal-Mart Stores E., LP,
14 F.4th 13 (1st Cir. 2021)............................ 14, 15

Blanchet v. Charter Commc’ns, LLC,
27 F.4th 1221 (6th Cir. 2022)........................ 10, 11

Byrne v. Avon Prods., Inc.,
328 F.3d 379 (7th Cir. 2003)............................... 14

Carmona v. Sw. Airlines Co.,
604 F.3d 848 (5th Cir. 2010)............................... 13

Cehrs v. Ne. Ohio Alzheimer’s Rsch. Ctr.,
155 F.3d 775 (6th Cir. 1998)......................... 15, 28

Cinnamon Hills Youth Crisis Ctr., Inc. v. St. George City,
685 F.3d 917 (10th Cir. 2012)............................. 26

Dansie v. Union Pac. R.R. Co.,
42 F.4th 1184 (10th Cir. 2022)...................... 10, 14

DeWitt v. Sw. Bell Tel. Co.,
845 F.3d 1299 (10th Cir. 2017)........................... 18

EEOC v. AutoZone, Inc.,
2022 WL 4596755 (N.D. Ill. Sept. 30, 2022). 13, 17

EEOC v. Dolgencorp, LLC,
899 F.3d 428 (6th Cir. 2018)................... 25, 26, 27

Exby-Stolley v. Bd. of Cnty. Comm’rs,
979 F.3d 784 (10th Cir. 2020) (en banc).. 19, 20, 25

Haschmann v. Time Warner Ent. Co.,
151 F.3d 591 (7th Cir. 1998)............................... 12

Herrmann v. Salt Lake City Corp.,
21 F.4th 666 (10th Cir. 2021)............ 10, 20, 21, 27

Holly v. Clairson Indus., LLC,
492 F.3d 1247 (11th Cir. 2007)............... 17, 19, 27

Hooper v. Proctor Health Care Inc.,
804 F.3d 846 (7th Cir. 2015)................................. 5

King v. Steward Trumbull Mem’l Hosp., Inc.,
30 F.4th 551 (6th Cir. 2022).............. 10, 15, 16, 21

Mason v. Avaya Commc’ns, Inc.,
357 F.3d 1114 (10th Cir. 2004)........................... 12

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)............................................. 24

New Hampshire v. Maine,
532 U.S. 742 (2001)............................................... 9

Nunes v. Wal-Mart Stores, Inc.,
164 F.3d 1243 (9th Cir. 1999)............................... 9

Ormsby v. Sunbelt Rentals, Inc.,
205 F. Supp. 3d 1204 (D. Or. 2016)..................... 24

Rascon v. U S W. Commc’ns, Inc.,
143 F.3d 1324 (10th Cir. 1998)....................... 9, 21

Rivero v. Bd. of Regents of Univ. of N.M.,
950 F.3d 754 (10th Cir. 2020)............................. 26

Severson v. Heartland Woodcraft, Inc.,
872 F.3d 476 (7th Cir. 2017)............................... 15

Smith v. N. Shore-Long Island Jewish Health Sys.,
286 F. Supp. 3d 501 (E.D.N.Y. 2018).................. 12

Sorenson v. Campbell Cnty. Sch. Dist.,
769 F. App’x 578 (10th Cir. 2019)......................... 6

Terre v. Hopson,
708 F. App’x 221 (6th Cir. 2017)........................... 9

Trans World Airlines, Inc. v. Thurston,
469 U.S. 111 (1985)............................................. 25

US Airways, Inc. v. Barnett,
535 U.S. 391 (2002)............................................. 26

Washington v. Matheson Flight Extenders, Inc.,
440 F. Supp. 3d 1201 (W.D. Wash. 2020)........... 29

Wickware v. Manville,
676 F. App’x 753 (10th Cir. 2017)................. 22, 23

Statutes

42 U.S.C. § 12101..................................................... 1

42 U.S.C. § 12111............................. 8, 10, 14, 18, 23

42 U.S.C. § 12112..................................... 5, 7, 14, 23

42 U.S.C. § 12116................................................. 1, 8

42 U.S.C. § 12117..................................................... 1

Rules and Regulations

29 C.F.R. § 1630.2.............................................. 8, 14

29 C.F.R. § 825.702................................................ 22

29 C.F.R. pt. 1630, app. § 1630.2........................... 19

Fed. R. App. P. 29..................................................... 1

Other Authorities

EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,
2002 WL 31994335 (Oct. 17, 2002)..................... 19

 

STATEMENT OF INTEREST

Congress tasked the Equal Employment Opportunity Commission (EEOC) with interpreting and enforcing Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. See 42 U.S.C. §§ 12116 (regulatory authority), 12117(a) (enforcement authority). This case concerns how the ADA’s anti-discrimination and reasonable-accommodation provisions apply to “no-fault” attendance policies that make no exceptions for disability-related absences, including absences caused by chronic conditions. Because the EEOC has a substantial interest in the proper resolution of these questions, the agency offers its views. See Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES[1]

1.      Whether a reasonable jury could find that, under the ADA, an employee with chronic asthma was a “qualified individual” with an accommodation of intermittent leave, which would have allowed her to recover from asthma attacks and enabled her to perform her essential job functions upon return.

2.      Whether a reasonable jury could find that unplanned intermittent leave was a reasonable accommodation when the employee requested a short period of leave and provided an expected duration of her impairment, and the employer’s attendance policies either already allowed intermittent leave or could have been modified to do so.

3.      Whether a reasonable jury could find that an employer fired an employee “on the basis of” her disability when the employer’s refusal to excuse the employee’s asthma-related absences led to her termination and the employer’s attendance policy excused other types of unplanned absences.

STATEMENT OF THE CASE

A.      Factual background.

Danielle Davis worked for PHK Staffing, LLC d/b/a Hollywood Casino at Kansas Speedway (“Hollywood”) as a table games supervisor and dealer from July 2019 to February 2020. App. Vol. I at 41-42.[2] Hollywood maintained a “no-fault” attendance policy under which the company assigned “attendance points” in varying increments for unplanned absences and other attendance-related infractions. App. Vol. I at 67 (¶¶ 5-6). The policy provided that if an employee exceeded 12 points at any time over a rolling twelve-month period, “[t]ermination will result.” App. Vol. I at 91.

Hollywood’s policy did, however, allow employees to incur unplanned absences without accruing attendance points under some circumstances. For instance, Hollywood allowed employees to take unplanned leave for work-related injuries without accruing points, and its policy did not set a limit on that type of leave. App. Vol. I at 91-92. There is conflicting evidence about whether Hollywood’s policies similarly allowed employees to take disability-related leave without accruing points. Compare App. Vol. II at 68 (13:19-21, 14:11-23), 74 (43:3-6), with App. Vol. I at 153 (¶¶ 14-17).

Beginning in October 2020, Davis experienced an asthma flare-up that caused her to miss work three times over a two-week period. App. Vol. II at 9 (¶ 17), 22 (¶¶ 20-21), 26 (¶ 54), 63 (¶ 7). In total, Hollywood gave Davis 4.5 points for these absences. App. Vol. I at 163-65; App. Vol. II at 22 (¶¶ 20-21). After the first two absences but before the third, Davis requested accommodations, asking that Hollywood: (1) excuse and remove the points for her two prior absences, and (2) excuse any future asthma-related absences. App. Vol. I at 42, 101.

Davis also submitted information from her treating physician, Dr. John Russell. App. Vol. I at 42, 107-09. Dr. Russell diagnosed Davis with severe asthma, stated that her impairment was temporary, estimated that the impairment would last fourteen to twenty-one days, and recommended leave as a “necessary accommodation.” App. Vol. I at 108-09. Davis later provided another note from Dr. Russell, which stated that “[s]he may need days off from work in the future due to chronic asthma and other flare-ups.” App. Vol. I at 42, 110.

Over the next few months, Hollywood tried to gather more information from Dr. Russell. App. Vol. I at 69-71 (¶¶ 18-33), 111-15, 122-31. The doctor eventually resubmitted the same form he previously provided, and Hollywood ultimately denied Davis’s request in February 2020. App. Vol. I at 71-72 (¶ 34), 133.

Later that month, Davis suffered another asthma attack. App. Vol. II at 24 (¶ 36). Although Davis called her supervisor to explain that she would be late to work, Hollywood gave her 1.5 points for tardiness, which brought her point total to 13—above the 12-point threshold for termination. App. Vol. I at 72 (¶¶ 35-36); App. Vol. II at 24 (¶¶ 36, 38).[3] On the same day, Davis met with one of Hollywood’s human resources representatives. App. Vol. I at 72 (¶ 37). The parties dispute what happened next. Davis alleges that Hollywood fired her, Hollywood asserts that she resigned. App. Vol. I at 72 (¶¶ 38-39). In either event, Davis’s employment with Hollywood undisputedly ended that day.

After Davis timely filed a charge of discrimination and the EEOC issued a right-to-sue letter, she filed this action. App. Vol. I at 41-42.

B.      District court’s decision

On summary judgment, the district court held that Davis’s disparate treatment[4] and failure-to-accommodate claims failed as a matter of law for three reasons.

First, the district court determined that both claims failed because Davis was not a “qualified individual.” Add. 1 at 6-9. The court reasoned that regular and reliable attendance was an essential function of Davis’s job, and that she was incapable of performing that function with or without accommodation. Id.

Second, the district court determined that Davis’s failure-to-accommodate claim alternatively failed because the accommodations she requested were per se unreasonable. Id. at 12-13. The court reasoned that Davis’s request that Hollywood excuse her prior absences was unreasonable because the ADA does not require retroactive accommodations, and that Davis’s request for prospective leave was unreasonable because it was potentially unlimited. Id.

Third, the district court determined that Davis’s disparate treatment claim also alternatively failed because, even if she could establish a prima facie case, Hollywood fired her for legitimate, nondiscriminatory reasons, namely, her failure to comply with the company’s attendance policy. Id. at 10-12.

On these grounds, the district court granted summary judgment to Hollywood.[5] Add. 1 at 15; Add. 2 at 1. This appeal followed.

ARGUMENT

The ADA prohibits employers from discriminating against qualified individuals “on the basis of disability” and likewise requires employers to “make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent an undue hardship. 42 U.S.C. § 12112(a), (b)(5)(A). Here, a reasonable jury could find that Hollywood failed to accommodate Davis’s disability by refusing to excuse her asthma-related absences, and then engaged in disability-based disparate-treatment by firing her. In concluding otherwise, the district court misunderstood (and misapplied) the statutory text and ran afoul of binding precedent.

Accordingly, the district court’s grant of summary judgment on Davis’s failure-to-accommodate and disparate treatment claims should be reversed, and the case should be remanded for further proceedings.

    I.        A reasonable jury could find that Davis was a “qualified individual” with an accommodation of intermittent leave.

To succeed on her failure-to-accommodate or disparate treatment claims, Davis had to show that she was a qualified individual. See Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 989, 992 (10th Cir. 2021). A “qualified individual” is one who “with or without reasonable accommodation, can perform the essential functions” of the job she holds or desires. 42 U.S.C. § 12111(8). EEOC regulations define “essential functions” as the “fundamental job duties” of a position. 29 C.F.R. § 1630.2(n)(1); see also 42 U.S.C. § 12116 (authorizing EEOC to issue regulations).

The district court determined that Davis was not a qualified individual because regular and reliable attendance was an essential function of her job, and intermittent leave would not enable her to perform that function. Add. 1 at 6-9. That reasoning is misguided in several respects.

A.           Intermittent leave would have allowed Davis to perform her essential job functions “in the near future.”

To begin, the district court’s focus on whether attendance is an essential job function conflicts with binding precedent. This Court has long held that “[a]n allowance of time for medical care or treatment may constitute a reasonable accommodation.” Rascon v. U S W. Commc’ns, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742 (2001). When an employee requests leave as an accommodation, however, “whether attendance is an essential function . . . simply is not the relevant inquiry.” Id. at 1333. Indeed, it makes little sense to ask whether an employee can attend work with an accommodation of leave when an employee on leave will necessarily be absent. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“By focusing on [plaintiff’s] disability during the period of her medical leave, . . . the district court misapplied the ADA’s ‘qualified individual’ requirement.”). Thus, “an inability to work while on [medical] leave does not mean that an individual is automatically unqualified.” Terre v. Hopson, 708 F. App’x 221, 228 (6th Cir. 2017). To hold otherwise “would bar any in-person employee from obtaining temporary medical leave as an accommodation.” King v. Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 561 (6th Cir. 2022).

Instead, in assessing whether an employee remains qualified with an accommodation of leave, the relevant inquiry is whether the requested leave would “allow [the] employee sufficient time to recover from an injury or illness such that the employee can perform the essential functions of the job (i.e., attend work) in the future”—that is, in the “near future.” Herrmann v. Salt Lake City Corp., 21 F.4th 666, 676 (10th Cir. 2021) (quotation marks omitted).[6] Accordingly, the district court should have asked whether time off for rest and recovery “would have permitted [Davis], in the near future, to perform[] the essential functions of h[er] job.” Dansie v. Union Pac. R.R. Co., 42 F.4th 1184, 1195-96 (10th Cir. 2022); see also Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221, 1229 (6th Cir. 2022) (when plaintiff requests leave as an accommodation, relevant inquiry is “whether [plaintiff] would be ‘otherwise qualified’ to perform her essential job functions with her proposed accommodation, in other words, when she returned to work”).

Here, there is no need to speculate about whether intermittent leave could have enabled Davis to perform the essential functions of her job “in the near future” because the record suggests it actually had that effect. At the onset of Davis’s initial flare-up, her treating physician recommended leave as an accommodation so Davis could recover. App. Vol. I at 109. Consistent with that advice, Davis took time off each day she suffered an asthma attack. Davis then returned to work, and there is no dispute that she was able to perform her job when she returned. Indeed, after the initial flare-up resolved, Davis appears to have continued working without any asthma-related problems for the next three-and-a-half months, and Hollywood has raised no concerns about her performance over that time.

Viewing the facts in the light most favorable to Davis, a reasonable jury could find that she was “qualified within the meaning of the ADA with the reasonable accommodation of intermittent leave.” Smith v. N. Shore-Long Island Jewish Health Sys., 286 F. Supp. 3d 501, 525 (E.D.N.Y. 2018).

B.            Davis was capable of regular and reliable attendance notwithstanding her occasional absences.

Even assuming for the sake of argument that the relevant inquiry was whether attendance is an essential function, Davis could still show that she was qualified. To be sure, when considering accommodations other than leave, this Court has said that “physical attendance in the workplace is itself an essential function of most jobs.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004). Even so, in cases involving disability-related absences, whether a person remains qualified turns on the duration and frequency of her absences. As the Seventh Circuit explains, “it is not the absence itself but rather the excessive frequency of an employee’s absences in relation to that employee’s job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.” Haschmann v. Time Warner Ent. Co., 151 F.3d 591, 602 (7th Cir. 1998). Furthermore, “[c]onsideration of the degree of excessiveness is a factual issue well suited to a jury determination.” Id. 

By any reasonable measure, Davis’s asthma-related absences were neither excessive nor frequent. To the contrary, they were few and largely far between. Davis alleges that asthma attacks caused her to miss work four times over seven months of employment, and the bulk of those absences occurred over a single two-week period. Nor has Hollywood offered evidence that Davis’s asthma-related absences would have escalated.

Under these facts, a reasonable jury could find that Davis was capable of regular and reliable attendance notwithstanding her occasional absences. See Carmona v. Sw. Airlines Co., 604 F.3d 848, 859-61 (5th Cir. 2010) (even if attendance was an essential job function, reasonable jury could find that plaintiff was qualified individual despite monthly flare-ups of arthritis that rendered him unable to work and for which he required intermittent leave); EEOC v. AutoZone, Inc., 2022 WL 4596755, at *12 (N.D. Ill. Sept. 30, 2022) (reasonable jury could find that “strict compliance with the [no-fault] attendance policy was not an essential function of the claimants’ jobs”).

 II.        A reasonable jury could find that unplanned intermittent leave was a reasonable accommodation under the circumstances.

The ADA imposes an affirmative obligation on employers to make reasonable accommodations for employees with disabilities. 42 U.S.C. § 12112(b)(5)(A). The statute provides that such accommodations may include allowing some kinds of leave—for example, “part-time or modified work schedules”—or making other workplace modifications or adjustments that enable an individual to perform the essential functions of her job. 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(2)(ii). “The reasonableness determination depends on the facts of each case taking into consideration the particular individual’s disability and employment position.” Dansie, 42 F.4th at 1193 (quotation marks omitted).

Critically, intermittent leave may be a reasonable accommodation for chronic conditions under some circumstances. As the Seventh Circuit explains: “Time off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home.” Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003); see also Benson v. Wal-Mart Stores E., LP, 14 F.4th 13, 28 (1st Cir. 2021) (“[A]uthorizing some absences or tardiness . . . is akin to a modified work schedule where [the worker] is excused from working when her disability necessitates treatment.”); Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017) (“Intermittent time off . . . may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA].”); Cehrs v. Ne. Ohio Alzheimer’s Rsch. Ctr., 155 F.3d 775, 781-83 (6th Cir. 1998) (reasonable jury could find that intermittent leave was reasonable accommodation for plaintiff’s chronic condition). At least one circuit has specifically held that intermittent leave may be an appropriate accommodation for asthma flare-ups. King, 30 F.4th at 562.

Here, the district court did not appear to reject the notion that intermittent leave may be a reasonable accommodation under at least some circumstances. The court nonetheless determined that Davis’s specific leave requests, whether retroactive or prospective, were per se unreasonable for two reasons. Add. 1 at 12-13. Both are mistaken.

A.           Davis’s request for retroactive leave was facially reasonable.

The district court first reasoned that Davis’s request for Hollywood to excuse her previous absences was unreasonable because requests for “retroactive leniency” are per se unreasonable. Add. 1 at 13. But excusing prior absences is no different than granting retroactive leave, which, as the Sixth Circuit recently explained in King, is “not per se unreasonable.” 30 F.4th at 563. In that case, the plaintiff suffered an asthma flare-up (much like Davis’s), which unexpectedly caused her to miss fourteen days of work over a five-week period. Id. at 557. The Sixth Circuit held that, under those circumstances and given the small amount of leave involved, “retroactively granting emergency leave can be a reasonable accommodation.” Id. at 562-63. Indeed, the court noted that employers not uncommonly adopt “practices of granting retroactive leave in unforeseeable situations like this.” Id. at 563. That conclusion was bolstered, the court reasoned, by the fact that the employer’s own policies allowed employees to request retroactive leave and the employer had partially granted the plaintiff’s request, thereby “admitt[ing] that retroactive . . . leave was a reasonable accommodation in this case.” Id. 

This case is on all fours with King. Davis’s initial flare-up unexpectedly caused her to miss three days of work over a two-week period. Davis was unable to request advance leave for asthma attacks she could not foresee, so she asked Hollywood to excuse her absences after the fact, effectively requesting retroactive leave. Stephanie Beck—Hollywood’s Human Resources Generalist—testified that it was “possible” under Hollywood’s policies to excuse Davis’s disability-related absences and to “remove” the resulting attendance points. App. Vol. II at 68 (14:11-23), 74 (43:3-6).[7] And Hollywood has not argued—let alone attempted to prove—that excusing Davis’s prior absences would have imposed an undue hardship.

Given the short amount of leave Davis sought and Beck’s testimony, a reasonable jury could find that retroactive leave was a reasonable accommodation. See AutoZone, 2022 WL 4596755, at *15 (reasonable jury could find that “excusing points the claimants incurred due to their disabilities would have been a reasonable accommodation”).

This Court’s decision in DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017), on which the district court relied, does not compel a different result. DeWitt did not establish a blanket rule that retroactive accommodations are per se unreasonable, and the case did not involve a request for retroactive leave. Instead, the employer fired a worker at a customer service call center for intentionally hanging up on callers while she was on a “Last Chance Agreement” and in violation of the company’s code of conduct. Id. at 1305-06. Here, by contrast, Hollywood has never alleged that Davis engaged in intentional misconduct.

The district court’s categorical rejection of retroactive accommodations is incorrect for another reason. Under the ADA, modifying workplace policies is a form of reasonable accommodation. See 42 U.S.C. § 12111(9)(B). That includes no-fault attendance policies: EEOC guidance provides that, absent a showing of undue hardship or alternative effective accommodations, “[i]f an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave.” EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, at *15 (Oct. 17, 2002); see also 29 C.F.R. pt. 1630, app. § 1630.2(o) (“[O]ther accommodations could include . . . providing additional unpaid leave for necessary treatment[.]”); Holly, 492 F.3d at 1261-63 (modifying no-fault attendance policy may be reasonable accommodation for disability-related tardiness). Thus, if Davis had asked Hollywood to modify its no-fault attendance policy to provide additional leave—for example, by allowing her to accrue more than 12 points—that could have been a reasonable and prospective form of accommodation.

Under the circumstances here, however, there is no meaningful difference between providing additional leave and granting retroactive leave. In either scenario, Hollywood would have allowed Davis to accrue more absences before hitting a terminable threshold. Penalizing Davis merely because she articulated her request in a retroactive fashion promotes form over substance and frustrates the ADA’s remedial purpose. Cf. Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 798 (10th Cir. 2020) (en banc) (declining to introduce requirements into ADA failure-to-accommodate claims that “would significantly frustrate the ADA’s remedial purposes”), cert. denied, 141 S. Ct. 2858 (2021).

B.            Davis’s request for prospective leave was facially reasonable.

The district court concluded that Davis’s request for prospective leave was also unreasonable because it was an “open-ended request for potentially unlimited leave for her asthma going forward.” Add. 1 at 13. Neither the record nor the law supports that determination.

Contrary to the district court’s reasoning, Davis’s request was not impermissibly “open-ended” or “unlimited.” This Court has held that “[f]or a leave request to be reasonable, an employee must ‘provide an expected duration of the impairment (not the duration of the leave request).’” Herrmann, 21 F.4th at 676 (quotation marks omitted). The rationale is straightforward: providing an expected duration of an impairment allows an employer to “determine whether [the] employee will be able to perform the essential functions of the job in the near future.” Id. at 676-77 (quotation marks omitted). This Court has also aptly recognized that this requirement is more fluid in “chronic impairment cases” where “an estimate of when symptoms will subside and allow return to work [may be] the best an employee or medical provider can offer, given that chronic conditions can last a lifetime.” Id. at 677.

Additionally, in assessing the reasonableness of a leave request, courts also consider “whether the requested leave generally complies with the employer’s leave policies.” King, 30 F.4th at 562. In Rascon, for example, this Court concluded that a plaintiff’s request for four months of leave to complete medical treatment was reasonable where the employer’s policies allowed both paid and unpaid disability leave—and in greater amounts than the employee had requested. 143 F.3d at 1334.

Here, Davis provided an expected duration of her impairment when she requested leave. In the form accompanying her request, Davis’s treating physician diagnosed her impairment as temporary and listed the “expected duration of the impairment” as fourteen to twenty-one days. App. Vol. I at 108. That prognosis proved correct. The record suggests that Davis’s initial flare-up lasted only a few weeks and resolved soon after. Indeed, as noted above, Davis appears to have continued working at Hollywood without any asthma-related problems for the next three-and-a-half months. Although Davis could not forecast whether and when she might suffer another flare-up or how long it might last, she provided as much information as she was reasonably able to under the circumstances.

There is also evidence that Davis’s request complied with Hollywood’s leave policies. Beck—Hollywood’s Human Resources Generalist—agreed that the forms Davis submitted “can be used to request intermittent leave under Hollywood’s ADA policy.” App. Vol. II at 68 (13:19-21). And even if Beck were wrong, Hollywood could have modified its attendance policy to provide additional leave as discussed above. See supra n.7; cf. 29 C.F.R. § 825.702(b) (Department of Labor regulation concerning interaction of FMLA with federal and state anti-discrimination laws, stating “the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation.”) (emphasis added).

To be clear, although a jury could find that intermittent leave was a reasonable accommodation here, that does not mean Hollywood was required to grant Davis’s request exactly as she made it. Davis’s proposal of a “plausible accommodation” was simply enough to initiate the interactive process, Wickware v. Manville, 676 F. App’x 753, 766 (10th Cir. 2017) (citation omitted), during which Hollywood could have proposed alternative accommodations or suggested limitations on the amount of intermittent leave Davis could take.

Moreover, an employer is not required to provide intermittent leave as an accommodation if doing so “would impose an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). To establish an undue hardship, an employer “must show special (typically case-specific) circumstances.” Aubrey v. Koppes, 975 F.3d 995, 1010 (10th Cir. 2020) (quotation marks omitted); see also 42 U.S.C. § 12111(10) (defining “undue hardship” and providing non-exhaustive list of factors to be considered). Here, for instance, that inquiry might involve evidence about whether other employees are on call to fill in for absent workers, how many tables Hollywood typically operates, whether Hollywood stands to lose revenue (and how much) if it is unable to operate the desired number of tables, and the like. However, Hollywood did not raise an undue hardship defense in its summary judgment briefing before the district court. See App. Vol. I at 77-86.

In short, because Davis provided an expected duration of her impairment and Hollywood’s own policies either allowed intermittent leave or could have been modified to do so, a reasonable jury could find that her leave requests were facially reasonable. See Ormsby v. Sunbelt Rentals, Inc., 205 F. Supp. 3d 1204, 1211 (D. Or. 2016) (“A reasonable juror could find plaintiff’s proposed accommodations that he be given intermittent leave and/or that he be excused from the advanced notice requirement when appropriate could be reasonable.”).

III.        A reasonable jury could find that Hollywood fired Davis “on the basis of” her disability.

Finally, the district court determined that Davis’s disparate treatment claim also failed under the McDonnell Douglas burden-shifting approach[8] because, even if she could make out a prima facie case, she could not show that Hollywood’s enforcement of a neutral attendance policy was pretextual. App. 1 at 10-12. For two independently sufficient reasons, McDonnell Douglas is not the proper framework in which to consider Davis’s claim. And for the same reasons, Hollywood’s policy does not shield it from liability.

A.           Hollywood’s failure to accommodate Davis’s disability led to her termination.

In discriminatory discharge cases like this one, the burden-shifting approach does not apply when a plaintiff alleges both that her employer failed to accommodate her disability and that the failure to accommodate led to her termination. That is because “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination,” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), and “failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination,” EEOC v. Dolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018); cf. Exby-Stolley, 979 F.3d at 797 (failure to accommodate “is unlawful discrimination”) (quotation marks omitted).[9] Thus, an employer’s “[f]ailure to consider the possibility of reasonable accommodation for such disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge . . . because of the disabilities.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995) (Rehabilitation Act case).[10]

In these circumstances, an employer’s neutral policy does not shield it from liability. See US Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002) (“neutral rules” do not “create an automatic exemption”). As this Court has correctly recognized, “the point of the reasonable accommodation mandate” is “to require changes in otherwise neutral policies” that prevent individuals with disabilities from enjoying the same privileges, benefits, and opportunities as other employees. Cinnamon Hills Youth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012). Accordingly, “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him.” Dolgencorp, 899 F.3d at 435; see also Holly, 492 F.3d at 1263 (“Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.”).

Here, because a reasonable jury could find that Hollywood failed to accommodate Davis’s disability (by refusing to excuse her asthma-related absences) and that Hollywood’s failure to accommodate led to Davis’s termination, it could likewise find that Hollywood fired Davis “on the basis of” her disability.

B.            Hollywood’s attendance and leave policy is facially discriminatory.

Even putting aside Davis’s failure-to-accommodate claim, Hollywood’s attendance policy does not shield the company from liability for another reason. Based on Hollywood’s characterizations, a jury could reasonably find that the policy was not neutral, but rather facially discriminatory. See Herrmann, 21 F.4th at 678 (facially discriminatory policy is direct evidence of discrimination).

Notwithstanding Beck’s testimony cited above, Hollywood insists that its attendance policy does not allow an employee to incur “unscheduled absences without incurring attendance points” even if the employee’s disability caused the absences. App. Vol. I at 153 (¶ 16). At the same time, Hollywood’s policy allows employees to take unplanned leave without accruing points for other reasons, including, most critically, for work-related injuries. Hollywood’s Employee Guidance Manual states that an “[a]bsence due to work-related injury” is “[t]ime away from work that is not considered an incident under the Attendance and Punctuality Policy.” App. Vol. I at 92. In other words, Hollywood has an express policy of allowing unplanned leave for employees who are injured on the job, but not for employees with non-work-related disabilities.

Hollywood’s attendance policy thus facially treats a subset of individuals with disabilities less favorably than other, similarly situated employees. See Cehrs, 155 F.3d at 783 (“Prohibiting employees with disabilities from taking a leave of absence as a reasonable accommodation, while allowing other employees to take advantage of the employer’s leave policies, would result in employees with disabilities being treated differently and worse than other employees.”). Hollywood has offered no justification for treating individuals with non-work-related disabilities worse than employees who are injured on the job. Nor has it explained why those employees are not similarly situated.

Under these facts, a reasonable jury could find that Hollywood discriminated against Davis by firing her under a facially discriminatory policy. See Washington v. Matheson Flight Extenders, Inc., 440 F. Supp. 3d 1201, 1209-10 (W.D. Wash. 2020) (reasonable jury could find that employer’s “express policy of creating light duty positions for employees injured on the job while refusing to create such positions for employees with non-work-related disabilities” was discriminatory under state law).

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment on Davis’s failure-to-accommodate and disparate treatment claims should be reversed, and the case should be remanded for further proceedings.

Respectfully submitted,

 

GWENDOLYN YOUNG REAMS

 Acting General Counsel

 

JENNIFER S. GOLDSTEIN

 Associate General Counsel

 

DARA S. SMITH

 Assistant General Counsel

 

/s/ Steven Winkelman

STEVEN WINKELMAN

 Attorney

 

Equal Employment Opportunity Commission

Office of General Counsel

131 M Street NE, Fifth Floor

Washington, DC 20507

(202) 921-2564

steven.winkelman@eeoc.gov

January 24, 2023

CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief complies with the type-volume requirements of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it contains 5,471 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).

This brief also complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it was prepared in a proportionally spaced typeface using Microsoft Word in 14-point Century font.

 

/s/ Steven Winkelman

STEVEN WINKELMAN

 Attorney

January 24, 2023

CERTIFICATE OF DIGITAL SUBMISSION

I certify that the electronic version of the foregoing brief, prepared for submission via ECF, complies with the following requirements:

(1) All required privacy redactions have been made under Federal Rule of Appellate Procedure 25(a)(5) and Tenth Circuit Rule 25.5;

(2) With the exception of any redactions, every document submitted in digital form or scanned PDF format is an exact copy of the written document filed with the clerk; and

(3) The ECF submission has been scanned for viruses with the most recent version of Windows Defender and is virus-free according to that program.

 

/s/ Steven Winkelman

STEVEN WINKELMAN

 Attorney

January 24, 2023

CERTIFICATE OF SERVICE

I certify that on January 24, 2023, a copy of the foregoing brief was electronically filed using the Court’s CM/ECF system, which will result in service on all counsel of record.

I further certify that seven (7) paper copies of the foregoing brief will be filed with the Court as required by Tenth Circuit Rule 31.5.

 

/s/ Steven Winkelman

STEVEN WINKELMAN

 Attorney

January 24, 2023