     11-3932
     McMillan v. City of New York

 1

 2                        UNITED STATES COURT OF APPEALS

 3                             FOR THE SECOND CIRCUIT

 4                                   August Term 2012

 5          (Argued: October 11, 2012           Decided: March 4, 2013)

 6                            Docket No. 11-3932
 7   -----------------------------------------------------x

 8   RODNEY MCMILLAN,

 9         Plaintiff-Appellant,

10                                  -- v. --

11   CITY OF NEW YORK,

12         Defendant-Appellee.1

13   -----------------------------------------------------x

14   B e f o r e :    WALKER, LIVINGSTON, and DRONEY, Circuit Judges.

15         Plaintiff-Appellant Rodney McMillan appeals from the August

16   23, 2011 order of the United States District Court for the Southern

17   District of New York (Jed S. Rakoff, Judge) granting Defendant-

18   Appellee the City of New York’s motion for summary judgment. We

19   hold that the district court’s grant of summary judgment with

20   regard to the disability discrimination claim and failure to

21   accommodate claims was based on an incomplete factual analysis.

22   VACATED and REMANDED.

23                                        MICHAEL G. O’NEILL, New York, NY,
24                                        for Plaintiff-Appellant.
25

     1
       The Clerk is directed to update the case’s caption to reflect the
     corrected spelling of the plaintiff-appellant’s name.
 1                                  JANET L. ZALEON (Michael A. Cardozo,
 2                                  Kristin M. Helmers, Andrea O’Connor,
 3                                  on the brief), Corporation Counsel
 4                                  of the City of New York, New York,
 5                                  NY, for Defendant-Appellee.
 6

 7   JOHN M. WALKER, JR., Circuit Judge:

 8        One of the central goals of the Americans with Disabilities

 9   Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., is to ensure that,

10   if reasonably practicable, individuals are able to obtain and

11   maintain employment without regard to whether they have a

12   disability. To accomplish this goal, the ADA requires that

13   employers provide reasonable accommodations to qualified

14   individuals. See id. § 12112(b)(5). This case highlights the

15   importance of conducting a fact-specific analysis in ADA claims.

16        It is undisputed that Rodney McMillan’s severe disability

17   requires treatment that prevents him from arriving to work at a

18   consistent time each day. In many, if not most, employment

19   contexts, a timely arrival is an essential function of the

20   position, and a plaintiff’s inability to arrive on time would

21   result in his failure to establish a fundamental element of a prima

22   facie case of employment discrimination. But if we draw all

23   reasonable inferences in McMillan’s favor—as we must at summary

24   judgment—it is not evident that a timely arrival at work is an

25   essential function of McMillan’s job, provided that he is able to




                                      2
 1   offset the time missed due to tardiness with additional hours

 2   worked to complete the actual essential functions of his job.

 3        In our view, the United States District Court for the Southern

 4   District of New York (Jed S. Rakoff, Judge) did not conduct a

 5   sufficiently detailed analysis of the facts that tend to undermine

 6   the City’s claim that a specific arrival time is an essential

 7   function of McMillan’s position before granting summary judgment

 8   for the City. VACATED and REMANDED.

 9                                  BACKGROUND

10        McMillan has schizophrenia, which is treated with calibrated

11   medication. Despite this impairment, McMillan worked for ten years

12   as a case manager for the City’s Human Resources Administration

13   (“HRA”) before assuming his present role in 1997 as a case manager

14   for the HRA Community Alternative Systems Agency (“CASA”).

15   McMillan’s current job duties include conducting annual home

16   visits, processing social assessments, recertifying clients’

17   Medicaid eligibility, making referrals to other social service

18   agencies, and addressing client concerns. He also meets with

19   clients daily in the office.

20        CASA’s flex-time policy allows employees to arrive at the

21   building anytime between 9:00 and 10:00 a.m. Due to elevator wait

22   times, they are not considered late unless they arrive at the

23   office after 10:15 a.m. When an employee is late, the tardiness can

24   be approved or disapproved by a supervisor. When a tardiness is

                                        3
 1   approved, an employee may apply accumulated annual leave, sick

 2   leave, or other “banked time” (i.e., additional hours worked) to

 3   cover the time missed due to the late arrival and still be paid in

 4   full. If the employee does not have or does not wish to use his

 5   banked time, the time prior to the late arrival is unpaid. Under

 6   their collective bargaining agreement, CASA employees are required

 7   to take a one-hour break for lunch unless they receive prior

 8   approval to work overtime through lunch, and under CASA’s flex-time

 9   policy, they may leave between 5:00 and 6:00 p.m. CASA employees

10   are expected to work approximately 35 hours per week, excluding

11   their one-hour break for lunch.

12        Although McMillan testified that he usually wakes between 7:00

13   and 7:30 a.m., his morning medications make him “drowsy” and

14   “sluggish.” As a result, he often arrives late to work, sometimes

15   after 11:00 a.m. The City makes no allegations that McMillan

16   malingers; instead, it is undisputed that his inability to arrive

17   at work by a specific time is the result of the treatment for his

18   disability.

19        Prior to 2008, and for a period of at least ten years,

20   McMillan’s tardy arrivals at CASA were either explicitly or tacitly

21   approved. At some time in 2008, his supervisor Loshun Thornton, at

22   her supervisor Jeanne Belthrop’s direction, refused to approve any

23   more of McMillan’s late arrivals. As explanation, Thornton stated



                                       4
 1   that she “wouldn’t be doing [her] job if [she] continued to approve

 2   a lateness every single day.”

 3        After Thornton stopped approving his late arrivals, McMillan

 4   repeatedly made verbal requests for a later start time to avoid

 5   being disciplined for tardiness. Thornton informed McMillan that a

 6   later start time would not be possible because he could not work

 7   past 6:00 p.m. without a supervisor present.

 8        On June 9, 2008, Thornton and Belthrop held a “supervisory

 9   conference” with McMillan to discuss his continued tardiness. A

10   memorandum describing the meeting noted that his late arrivals were

11   due to his medication. The memorandum also noted Thornton’s request

12   that McMillan speak with his treating physician to determine if his

13   schedule could be altered. In October and December, his treating

14   psychiatrist wrote two letters stating that McMillan’s medication

15   schedule should not be altered.

16        On May 8, 2009, McMillan was fined eight days’ pay for his

17   late arrivals. In December 2009, Belthrop recommended additional

18   disciplinary action in light of McMillan’s “long history of

19   tardiness.” In March 2010, the City brought charges of “Misconduct

20   and/or Incompetence” against McMillan. On April 22, 2010, in a Step

21   II grievance hearing resulting from the March 2010 charges, a City

22   representative recommended that McMillan’s employment be

23   terminated. McMillan’s union representative argued that there were

24   mitigating circumstances due to McMillan’s disability.
                                       5
 1        On March 23 and April 22, 2010, McMillan formally requested

 2   accommodations for his disabilities,2 including a later flex start

 3   time that would permit him to arrive at work between 10:00 a.m. and

 4   11:00 a.m. These requests were forwarded to Donald Lemons, the

 5   Deputy Director of HRA’s Equal Employment Opportunity Office, for

 6   evaluation. After speaking with Thornton and others, but not with

 7   McMillan, Lemons determined that McMillan’s request for a later

 8   flex start time could not be accommodated because there was no

 9   supervisor at the office after 6:00 p.m. Ultimately, the City

10   reduced the recommended sanction of termination to a thirty day

11   suspension without pay.

12        Contending that the City’s response to his request for

13   accommodations was insufficient, McMillan brought suit alleging

14   violations of the ADA, the New York State Human Rights Law, N.Y.

15   Executive Law § 290, et seq., and the New York City Human Rights

16   Law, N.Y.C. Administrative Code § 8-101, et seq. McMillan alleged

17   that he often worked past 7:00 p.m. and that the office is open

18   until 10:00 p.m., so that he could arrive late and still work 35

19   hours per week. Alternatively, McMillan asserted that he would be

20   willing to work through lunch to bank time. McMillan argued that



     2
       In addition to his schizophrenia, McMillan was also born without a
     left arm, and therefore he requested a headset for voice activation
     software and a reduced caseload. The parties dispute the adequacy
     of the City’s response to these requests. The district court
     dismissed these claims as well.
                                      6
 1   these suggested accommodations would allow him to complete the

 2   essential functions of his position.

 3        On August 23, 2011, the district court granted summary

 4   judgment for the City and dismissed all of McMillan’s claims with

 5   prejudice. After noting that it could not distinguish between

 6   absenteeism and tardiness, the district court observed that a court

 7   was “required to give considerable deference to the employer’s

 8   judgment and its general policies” in “determining whether the

 9   ability to arrive at work within a designated time period with some

10   degree of consistency is an essential function of plaintiff’s job.”

11   McMillan v. City of New York, No. 10 Civ. 4806 (JSR), 2011 WL

12   5237285, at *5, *6 (S.D.N.Y. Aug. 23, 2011). Because the City

13   “determined that an ability to consistently arrive at work within a

14   one-hour time frame is a fundamental requirement of plaintiff’s

15   position,” the district court granted summary judgment to the City

16   “on the ground that plaintiff cannot state a prima facie case of

17   disability discrimination because he has failed to demonstrate that

18   he could perform the essential functions of his job with or without

19   reasonable accommodation.” Id. at *6. As an alternative basis for

20   its holding, the district court found that McMillan could not

21   demonstrate that the City’s legitimate business reason for his

22   discipline—his repeated tardiness—was pretext for discrimination.

23        The district court also dismissed McMillan’s claims that the

24   City failed to provide him with reasonable accommodations. The

                                      7
 1   district court concluded that McMillan’s request for a later start

 2   time was “unreasonable as a matter of law because [he] has failed

 3   to demonstrate that he would be able to arrive at work on time even

 4   if he were granted a later flex starting time.” Id. at *7.

 5                               DISCUSSION

 6        On appeal, McMillan challenges the district court’s findings

 7   (1) that arriving at work by 10:15 a.m. was an essential function

 8   of his job; (2) that he was unqualified because of his tardiness,

 9   which was undisputedly a result of his disability; (3) that his

10   requested accommodations were unreasonable; and (4) that his other

11   failure to accommodate claims were without merit. “We review an

12   award of summary judgment de novo, construing the evidence in the

13   light most favorable to the nonmoving party and drawing all

14   reasonable inferences in his favor.” McElwee v. Cnty. of Orange,

15   700 F.3d 635, 640 (2d Cir. 2012).

16        “Claims alleging disability discrimination in violation of the

17   ADA are subject to the burden-shifting analysis originally

18   established by the Supreme Court in McDonnell Douglas Corp. v.

19   Green, 411 U.S. 792 (1973).” McBride v. BIC Consumer Prods. Mfg.

20   Co., 583 F.3d 92, 96 (2d Cir. 2009). In accordance with this

21   familiar standard,

22        [t]o establish a prima facie case under the ADA, a
23        plaintiff must show by a preponderance of the evidence
24        that: (1) his employer is subject to the ADA; (2) he was
25        disabled within the meaning of the ADA; (3) he was
26        otherwise qualified to perform the essential functions of
                                         8
 1         his job, with or without reasonable accommodation; and
 2         (4) he suffered adverse employment action because of his
 3         disability.
 4
 5   Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)

 6   (quotation marks omitted). The parties do not dispute the first,

 7   second, or fourth elements. The district court’s decision turned on

 8   its analysis of the question presented by the third: whether

 9   McMillan was “otherwise qualified to perform the essential

10   functions of his job, with or without reasonable accommodation.”

11   Id.

12         An employer may also violate the ADA by failing to provide a

13   reasonable accommodation. A plaintiff states a prima facie failure

14   to accommodate claim by demonstrating that

15         (1) plaintiff is a person with a disability under the
16         meaning of the ADA; (2) an employer covered by the
17         statute had notice of his disability; (3) with reasonable
18         accommodation, plaintiff could perform the essential
19         functions of the job at issue; and (4) the employer has
20         refused to make such accommodations.
21
22   McBride, 583 F.3d at 97 (quotation marks omitted).

23         In discrimination claims based both on adverse employment

24   actions and on failures to accommodate, the plaintiff “bears the

25   burdens of both production and persuasion as to the existence of

26   some accommodation that would allow [him] to perform the essential

27   functions of [his] employment.” Id. at 97; Borkowski v. Valley

28   Cent. Sch. Dist., 63 F.3d 131, 137-38 (2d Cir. 1995).

                                       9
 1     I.     Determining the Essential Functions of a Position

 2          Although a court will give considerable deference to an

 3   employer’s determination as to what functions are essential, there

 4   are a number of relevant factors that may influence a court’s

 5   ultimate conclusion as to a position’s essential functions. Stone

 6   v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (stating that

 7   relevant factors to consider include the employer’s judgment,

 8   written job descriptions, the amount of time spent on the job

 9   performing the function, the mention of the function in a

10   collective bargaining agreement, the work experience of past

11   employees in the position, and the work experience of current

12   employees in similar positions (citing 29 C.F.R. § 1630.2(n)(2))).

13   “Usually, no one listed factor will be dispositive.” Id. A court

14   must avoid deciding cases based on “unthinking reliance on

15   intuition about the methods by which jobs are to be performed.”

16   Borkowski, 63 F.3d at 140. Instead, a court must conduct “a fact-

17   specific inquiry into both the employer’s description of a job and

18   how the job is actually performed in practice.” Id.

19          The district court appears to have relied heavily on its

20   assumption that physical presence is “an essential requirement of

21   virtually all employment” and on the City’s representation that

22   arriving at a consistent time was an essential function of

23   McMillan’s position. While the district court’s conclusion would be

24   unremarkable in most situations, we find that several relevant

                                       10
 1   factors here present a somewhat different picture: one suggesting

 2   that arriving on or before 10:15 a.m.—or at any consistent time—may

 3   not have been an essential requirement of McMillan’s particular

 4   job. For many years prior to 2008, McMillan’s late arrivals were

 5   explicitly or implicitly approved. Similarly, the fact that the

 6   City’s flex-time policy permits all employees to arrive and leave

 7   within one-hour windows implies that punctuality and presence at

 8   precise times may not be essential. Interpreting these facts in

 9   McMillan’s favor, along with his long work history, whether

10   McMillan’s late and varied arrival times substantially interfered

11   with his ability to fulfill his responsibilities is a subject of

12   reasonable dispute.

13        This case highlights the importance of a penetrating factual

14   analysis. Physical presence at or by a specific time is not, as a

15   matter of law, an essential function of all employment. While a

16   timely arrival is normally an essential function, a court must

17   still conduct a fact-specific inquiry, drawing all inferences in

18   favor of the non-moving party. Such an inquiry was not conducted

19   here.3



     3
       The district court could not “discern a principled distinction
     between total absence from work on certain days and partial absence
     from work on most days,” because “the fundamental problem is that
     the employee is not physically present at the job site, an
     essential requirement of virtually all employment.” McMillan, 2011
     WL 5237285, at *5. However, there is an important distinction
     between complete absence and tardiness in jobs that require work to
     be done at the office: an absent employee does not complete his
                                      11
 1        The City and district court relied on cases that are

 2   distinguishable, because the plaintiffs’ positions in those cases

 3   absolutely required plaintiffs’ presence during specific business

 4   hours. The plaintiffs’ requested accommodations of flexible start

 5   times would have therefore impaired an essential function of their

 6   jobs. See Guice-Mills v. Derwinski, 772 F. Supp. 188, 199 (S.D.N.Y.

 7   1991), affirmed, 967 F.2d 794, 798 (2d Cir. 1992) (finding that “an

 8   administrative shift commencing at 7:30 or 8:00 a.m. was an

 9   essential requirement of the head nurse position” because the

10   plaintiff was a head nurse who supervised others); Carr v. Reno, 23

11   F.3d 525, 529 (D.C. Cir. 1994) (finding that a flexible arrival

12   time would not allow plaintiff to meet a specific 4:00 p.m. daily

13   deadline and that the failure to make this deadline would

14   constitute an undue hardship to the employer). These cases do not

15   hold that, as a matter of law, a specific starting time is an

16   essential function of all jobs. Indeed, the D.C. Circuit has


     work, while a late employee who makes up time does. Similarly,
     while it may be essential in many workplaces that all tasks be
     performed by employees who are both physically present and
     supervised, these requirements are not invariably essential. Thus,
     depending on the requirements of the position, an employee might
     need to be physically present and supervised only for certain
     tasks. By way of example, and without expressing any view on the
     question, it might be necessary for a supervisor to be present when
     McMillan meets with clients in the office, but not when he fills
     out forms. The district court appears to have simply assumed that
     McMillan’s job required at least seven hours of work each day and
     that the work could not be successfully performed by banking time
     on some days to cover tardiness on others, while working a total of
     at least 35 hours each week. A fact-specific inquiry, however,
     requires consideration of this possibility on remand.
                                     12
 1   distinguished Carr in finding that certain requests for flexible

 2   schedules are not unreasonable as a matter of law. See, e.g., Breen

 3   v. Dep’t of Transp., 282 F.3d 839, 843 (D.C. Cir. 2002); see also

 4   Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34-35 (1st

 5   Cir. 2000) (noting that the employer bears the burden of

 6   demonstrating that a regular and reliable schedule is an essential

 7   job function). 

 8        On the present record, it appears to us that a reasonable

 9   juror could find that arriving at a specific time was not an

10   essential function of the case manager position, provided that

11   McMillan still would be able to complete his work in a sufficiently

12   timely fashion. Accordingly, on the present record, the district

13   court erred in concluding that summary judgment was appropriate on

14   this basis.

15     II.   Performance of Essential Functions

16        After the essential functions of the position are determined,

17   the plaintiff must demonstrate that he or she could have performed

18   these functions, with or without reasonable accommodation, at the

19   time of the termination or discipline. See Borkowski, 63 F.3d at

20   137-38. This burden is not heavy: “It is enough for the plaintiff

21   to suggest the existence of a plausible accommodation, the costs of

22   which, facially, do not clearly exceed its benefits.” Id. at 138.

23   “Reasonable accommodations” may include adjustments to work

24   schedules or other job restructuring. See 45 C.F.R. § 84.12(b)
                                      13
 1   (2005). Of course, “[a] reasonable accommodation can never involve

 2   the elimination of an essential function of a job.” Shannon v.

 3   N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003).

 4        McMillan has suggested that he could work through lunch and

 5   work late in order to “bank” time. If his lunchtime overtime and

 6   tardy arrivals were approved, he would then be able to apply this

 7   banked time against future late arrivals. On this record, and

 8   drawing all inferences in McMillan’s favor, we conclude that

 9   McMillan has suggested a plausible accommodation, meeting his

10   burden at this stage of the analysis.

11     III. Undue Hardship

12        If a plaintiff suggests plausible accommodations, the burden

13   of proof shifts to the defendant to demonstrate that such

14   accommodations would present undue hardships and would therefore be

15   unreasonable. See Borkowski, 63 F.3d at 135, 138. An “undue

16   hardship” is “an action requiring significant difficulty or

17   expense.” 42 U.S.C. § 12111(10)(A).

18        The City already has a policy of allowing employees to “bank”

19   any hours they work in excess of seven hours per day and apply

20   banked time against late arrivals, provided that those late

21   arrivals are approved. Because there is no evidence that pre-

22   approving McMillan’s tardiness would constitute an undue burden on




                                     14
 1   the City, the question is whether McMillan would be able to bank

 2   sufficient time to cover his late arrivals.

 3        The district court correctly concluded that assigning a

 4   supervisor to work past 6:00 p.m. would constitute an undue

 5   hardship. However, McMillan was presumably unsupervised when he

 6   made home visits for his clients or when he worked past 7:00 p.m.

 7   It is unclear from this record whether his home visits or after-

 8   hours work was supervised and, if not, whether McMillan could bank

 9   these unsupervised hours.4

10        Even if McMillan could not bank post-6:00 p.m. time, he also

11   states that he would be willing to work through his one-hour lunch.

12   The City has a policy, based on a collective bargaining agreement,

13   of not allowing employees to work through lunch unless they receive

14   advanced approval. The district court concluded, without further

     4
       McMillan’s request to work unsupervised after 6:00 p.m. is not
     unlike a request to work from home. Both accommodations are
     potentially problematic because they are unsupervised. We have
     implied, however, that unsupervised work might, in some cases,
     constitute a reasonable accommodation. See Nixon-Tinkelman v.
     N.Y.C. Dep’t of Health & Mental Hygiene, 434 F. App’x 17, 20 (2d
     Cir. 2011) (summary order) (remanding to the district court to
     consider, inter alia, whether it would have been reasonable for the
     defendants to have allowed plaintiffs to work from home); DeRosa v.
     Nat’l Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (suggesting
     that employer had provided a reasonable accommodation by allowing
     employee to work from home). The majority of cases on this issue,
     however, find that requests to work without supervision are
     unreasonable. See Konspore v. Friends of Animals, Inc., No.
     3:10cv613 (MRK), 2012 WL 965527, at *12 (D. Conn. Mar. 20, 2012)
     (citing cases). The question of whether McMillan can reasonably
     perform portions of his job without supervision, as he apparently
     has been permitted to do previously, should be considered on
     remand.
                                     15
 1   explanation, that “plaintiff’s proposed accommodation could not

 2   have been accommodated without undue hardship.” McMillan, 2011 WL

 3   5237285, at *8 n.5. We disagree. On the limited record before us,

 4   such pre-approval does not strike us as “requiring significant

 5   difficulty or expense.” 42 U.S.C. § 12111(10)(A).

 6        Additionally, although the parties do not discuss this in

 7   their briefs, it might be the case that on some days McMillan would

 8   be able to arrive (relatively) early. If he also worked through

 9   lunch or stayed through 6:00 p.m. on those days, he would be able

10   to bank that time against future tardiness as well.

11        On the present record, we cannot find as a matter of law that

12   McMillan’s suggested accommodations would constitute undue

13   hardships to the City and are therefore unreasonable.5 Accordingly,

14   McMillan states a prima facie case of discrimination based on his

15   disability and, at least with regard to his late arrivals,6 a prima

16   facie case for failure to provide accommodations.



     5
       The district court found McMillan’s request to arrive by 11:00
     a.m. “unreasonable as a matter of law because plaintiff has failed
     to demonstrate that he would be able to arrive at work on time even
     if he were granted a later flex starting time.” McMillan, 2011 WL
     5237285, at *7; see also McBride, 583 F.3d at 99-101. This
     analysis, however, is based on the district court’s faulty
     assumption that no disputed factual issues exist as to whether a
     timely arrival was an essential function of the case manager
     position.
     6
       McMillan also brings failure to accommodate claims with regard to
     his request for software training and a reduced caseload. On
     remand, the district court should reconsider these claims in light
     of this opinion.
                                      16
 1        As a final matter, the district court found that, even if

 2   McMillan could state a prima facie case of discrimination, he could

 3   not demonstrate that the City’s legitimate business reason for

 4   disciplining him—his repeated tardiness—was pretextual.

 5        While the burden-shifting McDonnell Douglas analysis is useful

 6   in most discrimination cases, it is not helpful here. When the

 7   reason given by the employer for the adverse employment action is

 8   unrelated to the employee’s disability, the McDonnell Douglas

 9   approach can be used to weed out non-viable claims of

10   discrimination based on circumstantial evidence. When the parties

11   agree that the employer complains of conduct that is the direct

12   result of the employee’s disability, however, there is no need to

13   evaluate whether the employer’s adverse employment action made in

14   response to that conduct is pretextual. See Teahan v. Metro-N.

15   Commuter R.R. Co., 951 F.2d 511, 514, 516 (2d Cir. 1991).

16        Here, it is undisputed that McMillan was tardy because of his

17   disability and that he was disciplined because of his tardiness. In

18   other words, McMillan was disciplined because of his disability.

19   Pretext is not an issue in this case; instead, McMillan need only

20   demonstrate that, with reasonable accommodations, he could have

21   performed the essential functions of his job.

22        For the reasons given above, on this record, we cannot

23   conclude that a reasonable juror would find McMillan’s claims to be

24   without merit. If the factual record is developed further, some or
                                     17
1   all of McMillan’s claims may not survive summary judgment. On the

2   record before us, however, dismissal is premature.

3                               CONCLUSION

4        For the foregoing reasons, the district court’s order granting

5   summary judgment to the City with regard to the federal, state, and

6   city law claims is VACATED and the case is REMANDED for further

7   proceedings consistent with this opinion.




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