MARCUS, Circuit Judge:
The plaintiff, Tommy Holly ("Holly"), appeals from the district court's grant of final summary judgment in favor of his former employer, defendant Clairson Industries ("Clairson"), on Holly's claims that Clairson failed to reasonably accommodate his disability, in violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111-12117 ("ADA"),
After thorough review of this record, we conclude that genuine issues of material fact exist concerning whether strict punctuality was an "essential function" of Holly's position. Accordingly, the entry of summary judgment for Clairson on this issue was improper. Moreover, it was error for the district court to have held, in the alternative, that Holly is required to present evidence that his employer treated him differently than his non-disabled co-workers. Under the plain language of the ADA and the FCRA, an employer's failure to reasonably accommodate an "otherwise qualified" disabled employee itself constitutes unlawful discrimination, unless the employer can show "undue hardship." Accordingly, we reverse and remand for further proceedings consistent with this opinion.
The relevant facts in this summary judgment record, which we take in the light most favorable to Holly as the non-movant, see Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.2000) (per curiam), are these. Holly became a paraplegic in 1984, at the age of about 20, as a result of a motorcycle accident. Since then, Holly has been confined to a wheelchair for the majority of each day, although he is able to drive an automobile. Clairson hired Holly in 1986, shortly after Clairson's opening. Clairson is a custom plastic injections molder that manufactures, using an assembly line, industrial and medical devices such as disposable surgical tools. Holly was hired for the position of mold polisher, where for many years he worked in the tool room polishing molds after they came off the assembly line. Holly's shift ran from 7:00 a.m. to 3:00 p.m., although he normally worked more than forty, and sometimes as many as sixty, hours per week.
Although Holly has never had an attendance problem, he acknowledges that from the beginning of his employment at Clairson, his disability frequently caused him to arrive late to work.
For the first fifteen years or so of Holly's employment with Clairson, absenteeism and tardiness were primarily addressed at an employee's annual review, where supervisors had some discretion over whether to alter their recommendations for retention and salary raises based on an employee's tardiness. Mold polishers are directly supervised by the Mold Shop Manager. Thus, Holly addressed the tardiness problems caused by his disability by discussing them with the Mold Shop Manager. The Mold Shop Manager from 1988 to 1996, Steve Nilson ("Nilson"), and the Mold Shop Manager from 1999 to 2004, Dennis Miller ("Miller"), collectively served as Holly's immediate supervisor for some thirteen of Holly's seventeen years with Clairson. Each gave deposition testimony in this case. According to Miller, under this "flexible" policy, "[i]f the H[uman] R[esources] people would approach me and say that a man had been tardy or late or absent or whatever, I had the authority to tell them that it was okay by me for whatever reason."
Holly testified, and the record reflects, that when he was late to work, it was usually only by a minute or so. Both Miller and Nilson testified that on these occasions—which they agreed accounted for the vast majority of his tardies—they did not notice that Holly was late, and only learned of these tardies from Human Resources prior to an annual review. Holly gave various disability-related reasons for being a minute or so late. "Occasionally," he said, one of several picnic tables in the break room had been moved in front of the time clock, blocking his access to the clock from his wheelchair. Although Clairson normally moved such tables as soon as Holly asked it to do so, Holly's supervisor from 1996 to 1999, Greg Huff, noted on some of his annual reviews that some of the tardies recorded there were due to occasions when the time clock had been blocked by a table. Miller similarly confirmed that "[t]he break area where the time clock was situated was extremely small. And due to the number of employees that the company had, they had to have a lot of tables in the breakroom to accommodate the people during their breaks and the time clock was back behind the tables. So when [Holly] came into the break area, he had to weave his way through the tables to get back to the clock. And it was like that up to, probably, six months before I left" in May of 2004.
Holly testified that at other times, pallets of raw materials blocked the interior or exterior entrance to the break room. Because Clairson was short on storage space, he explained, it tended to store both raw materials and finished product in any dry place it could find. Holly testified that Miller often fought with Archie Mann, the person in charge of the production area in the warehouse, about the fact that "hallways, entrances, [the] tool room and occasionally the breakroom" were blocked, but that Mann would respond that he had nowhere else to place the materials, and that "more than once" Miller unblocked these places himself. Miller confirmed that Holly had complained to him "on several occasions" about various blockages and that Miller had discussed the problem with
Holly also said that "occasionally" he was unable to clock in on time because he was in a long line of fellow employees also trying to clock in.
More rarely, Holly was noticeably late— by thirty minutes or more. Such lateness occurred when Holly lost bowel control while driving to work—a consequence of his disability—and had to return home to change before heading back to work again. Holly did not feel comfortable discussing this problem with Nilson, but when Holly's co-worker, Miller, was promoted to Mold Shop Manager, Holly confided in Miller.
Mold Shop Managers were required to have their annual review of employees approved by Effinger. Nilson testified that Holly's number of tardies would "jump out" compared to those of other mold polishers, and that Holly sometimes did not receive a raise or received a lower raise
Clairson concedes that Holly had a good attendance (as opposed to a punctuality) record, and that "[o]ther than Holly's [tardiness] problems, he was a good employee." In fact, Clairson approved numerous and regular merit raises for Holly throughout his seventeen-year tenure at Clairson
Holly's performance evaluations by all four Mold Shop Managers who supervised Holly during his seventeen years at Clairson support this testimony. They consistently gave Holly good-to-excellent reviews, and described him as a "very dependable" and "reliable" employee who "always hangs in there when [needed]," and as "a real asset to our shop." Holly's supervisors also praised him for his "excellent" productivity and initiative, for his "very good work," and for "always help[ing] out when polishing is scarce."
In March of 2003, Clairson hired Cloteen Kilkelly ("Kilkelly"), an employee benefits specialist, to advise Clairson on how to make some changes in that area. (In November of 2003, Kilkelly became Executive Vice President and then, in April of 2004, President.) On June 15, 2003, on Kilkelly's recommendation, Clairson instituted a new, "no-fault" Attendance Policy. Under the policy, each absence from work counts as one "occurrence," while each partial absence—or tardy—counts as a one-half occurrence. An employee who clocks in even one second past his shift start time receives a one-half occurrence. The policy provides for a progressive series of verbal and written warnings as an employee accrues more occurrences, and provides for immediate termination upon the accrual of eighteen tardies (or nine occurrences) within one year.
As the company's Employee Manual explains, the policy employs a "No-Fault Standard":
Thus, as Kilkelly testified, tardy employees may not make up lost time during breaks or after their shift. Nor may they plan to be excusably tardy for any reason, including to see a doctor (unless their medical condition results in their missing five or more consecutive days of work). Even paid vacation counts toward an employee's "occurrence" allotment. Moreover, the Employee Manual states that "[a]ttendance is an essential job function for all at the Company. Employees with American Disability Act [sic] situations are not exempt from this policy."
The Employee Manual explains its rationale this way. As for the "Attendance Policy" in general, the handbook says:
With respect to "Partial Absences/Tardiness" in particular, the handbook explains:
Kilkelly testified that the purpose of the no-fault standard was to "take the subjectivity somewhat out of people being treated differently by different supervisors" and "to address the chronic offender." She confirmed that under this standard, there are no acceptable reasons for being tardy.
Miller testified that once Holly learned of the new policy, Holly approached Miller, then his immediate supervisor, and "said to me that you know, `It's going to be
Miller also said that he expressed to Nilson his concerns that under the new policy employees with medical problems would be disadvantaged:
Nilson, in turn, who was at the time a vice president of the company, testified that only Clairson's president, Kilkelly, had the authority to veto a termination, and that with respect to Holly, he "had gone to HR trying to reverse occurrences, because it's very difficult to replace an employee of that talent. And I was told that the system is in place for a reason, and no exceptions can be made." Nilson said he argued to Human Resources, "I need this employee in my department, it's extremely hard to replace a mold polisher and because our department is not as attendant [sic] sensitive as other departments in the company, I wanted to retain him." However, Holly's disability apparently did not specifically enter into Nilson's conversation with Human Resources about retaining Holly.
On October 1, 2003, Holly received a verbal warning, pursuant to the policy, after being late eight times, for a total of four occurrences. On February 12, 2004, after being late three more times and accumulating a total of 5.5 occurrences, he received a second verbal warning. On March 23, 2004, Holly received a written warning after he was late one more time and reached six occurrences. On April 14, 2004, he received a second written warning after he was late two more times, for a total of seven occurrences. On May 3, 2004, after Holly was late four more times and reached nine occurrences, Holly was automatically terminated. According to Clairson's records, Holly had been late a total of one hour and thirteen minutes over eighteen episodes. On twelve of those occasions, Holly was tardy by only one minute. He was also late by five minutes on two occasions, by six minutes once, and by
After receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission ("EEOC"), Holly commenced this lawsuit against Clairson in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, for failure to reasonably accommodate his disability, leading to his termination, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 ("ADA"), and its Florida analog, the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01 ("FCRA").
The district court granted final summary judgment to Clairson on both of Holly's claims. The court determined that strict punctuality, as defined by Clairson's policy, was an essential function of Holly's position, and that no reasonable accommodation would enable him to perform that function. The district court also sua sponte held, in the alternative, that Holly's claims failed because he did not provide any evidence that Clairson treated him differently from non-disabled employees. Holly timely appealed.
As the district court correctly observed, disability-discrimination claims under the FCRA are analyzed using the same framework as ADA claims. See D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n. 2 (11th Cir.2005). We therefore consider both claims together. See id.
We review de novo a grant of summary judgment on ADA claims, construing the facts in the light most favorable to the non-moving party. Lowe v. Ala. Power Co., 244 F.3d 1305, 1307 (11th Cir.2001). "Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id.
Under the controlling law in this Circuit, "[t]he burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims." Earl, 207 F.3d at 1365. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; (2) he is a qualified individual;
A. Prong Two: "Qualified Individual"
In order to make out the second prong of his prima facie case, Holly must prove that he is a "qualified individual"— that is, someone with a disability who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also Earl, 207 F.3d at 1365. "Accordingly, an ADA plaintiff must show either that he can perform the essential functions of his job without accommodation, or, failing that, . . . that he can perform the essential functions of his job with a reasonable accommodation." D'Angelo, 422 F.3d at 1229 (quotation marks omitted). An accommodation is "reasonable" and necessary under the ADA, in turn, only if it enables the employee to perform the essential functions of the job. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1259-60 (11th Cir.2001); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998); see also 29 C.F.R. § 1630.2(o)(1)(ii) ("The term reasonable accommodation means: . . . Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position. . . ." (emphasis added)). "If the individual is unable to perform an essential function of his job, even with an accommodation, he is, by definition, not a `qualified individual' and, therefore, not covered under the ADA. In other words, the ADA does not require the employer to eliminate an essential function of the plaintiff's job." D'Angelo, 422 F.3d at 1229 (quotation marks and alterations omitted). On the other hand, "the ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal functions." Lucas, 257 F.3d at 1260 (emphasis added).
Holly argues that Clairson failed to accommodate his disability by not allowing him to occasionally clock in to work late and make up any lost time during breaks or overtime, as he had been allowed to do for fifteen years prior to the implementation of the new policy. Clairson responds that strict punctuality, as defined by its policy, is an essential function of Holly's position as mold polisher, and that as such, it is not required to eliminate this critical function. Assuming arguendo that this is true (and we return to this central question below), it is clear from the fact that Holly violated Clairson's punctuality policy on several occasions, and indeed by Holly's own admission, that his disability prevents him from performing this function without an accommodation. It is also clear that permitting Holly to occasionally clock in late and make up lost time over breaks and after hours would not allow him to perform the function of strict punctuality, as defined by Clairson's policy, according to which tardiness by mere seconds constitutes an infraction which cannot be made up, regardless of the cause of the tardiness. Thus, assuming that strict punctuality, as defined by Clairson's no-fault policy, is an essential function of Holly's position, the accommodation Holly suggests would "require [Clairson] to eliminate an essential function of [Holly's] job," something the ADA does not require Clairson to do. We therefore agree with the district court that if strict punctuality is indeed an essential function of Holly's position as a mold polisher, then he cannot perform this function "with or without reasonable accommodation,"
However, Holly argues that strict punctuality—clocking in at precisely 7 a.m. each morning—is a marginal, not an essential, function of his position. A "reasonable accommodation" may include "parttime or modified work schedules." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) (quoting 42 U.S.C. § 12111(9)(B)); EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2 EEOC Compl. Man. (CCH), § 902, No. 915.002 (Oct. 17, 2002) [hereinafter "EEOC Enforcement Guidance"], Question 36 ("Possible reasonable accommodations could include adjustments to starting times. . . . Example: An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. . . . [I]f this individual can [perform his job responsibilities] by regularly working a schedule of 10:00 a.m. to 6:30 p.m., a reasonable accommodation would be to modify his schedule so that he is not required to report for work until 10:00 a.m."). Thus, Holly argues that rather than terminating him, Clairson could have reasonably accommodated him simply by altering this marginal function to allow him occasionally to clock in late and make up that time during breaks or after his shift ends, the very course of conduct followed by Clairson for the bulk of Holly's employment.
It is by now clear that essential functions "are the fundamental job duties of a position that an individual with a disability is actually required to perform." Earl, 207 F.3d at 1365; see also 29 C.F.R. § 1630.2(n)(2)(i). Moreover, "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8); see also D'Angelo, 422 F.3d at 1230. Applying this factor to the case at hand, the district court found "ample evidence" that punctuality is an essential function of Holly's position. Order at 16. The court cited the existence of the punctuality policy itself, Clairson's rationale for the policy, as stated in the handbook—that tardy employees "may delay assembly operations and force other employees to stand idle," and Kilkelly's testimony that tardiness and attendance were concerns for the employer. Id. In relying almost exclusively on this evidence, the district court stressed that "it is within the employer's discretion to determine what job functions are essential and it is beyond dispute that Clairson made attendance and punctuality essential functions, both through its discipline of employees and clearly established policies." Id. at 16-17.
However, when considering the employer's judgment regarding what is an essential function, we have previously considered not only the company's "official position," but also testimony from the plaintiff's supervisor. See, e.g., D'Angelo, 422 F.3d at 1230. Here, the two men who supervised Holly for the vast majority of his many years at Clairson, including his last year or so during which the new policy was in effect, each testified that Holly's job was not time sensitive, and, notably, that precise punctuality didn't matter. Nilson said that "[i]n the Mold Shop Department a tardiness issue did not affect how work was done, versus, as it is in production. Manufacturing is really sensitive where mold building is
Moreover, "[w]hether a function is essential is evaluated on a case-by-case basis by examining a number of factors." D'Angelo, 422 F.3d at 1230 (quotation marks omitted and emphasis added); see also 29 C.F.R. § 1630.2(n)(3)(i) ("Evidence of whether a particular function is essential includes, but is not limited to: The employer's judgment as to which functions are essential. . . ." (emphasis added)). Thus, as we observed recently in D'Angelo, although "the employer's view is entitled to substantial weight in the calculus," this factor alone may not be "conclusive[ ]." Id. at 1233. Indeed, if it were considered to be conclusive, then an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is "essential," avoid the clear congressional mandate that employers "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).
According to the EEOC's regulations implementing the ADA, other factors to be considered include: "(1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs." D'Angelo, 422 F.3d at 1230 (quotation marks omitted) (citing 29 C.F.R. § 1630.2(n)(3)); see also Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.2000) (same). In addition, the EEOC regulations identify three nonexclusive bases on which a job function may be deemed essential: "(1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; and (3) the function is highly specialized so that the incumbent in the position was hired for
Several of these factors have little or no bearing on this case. The record contains no information, for instance, regarding the terms of any collective bargaining agreement, or the work experience of current and past mold polishers (other than the testimony of Miller and Nilson, both former mold polishers, that this job is not time-sensitive). A few other factors apply to some extent to the situation at hand but are not very illuminating. Thus, for instance, mold polishers spend very little time on the job performing the function of strict punctuality, the reason the position of mold polisher exists is certainly not to perform the function of being punctual, and Holly was not hired for his expertise in performing the highly specialized function of punctuality. On the other hand, to the extent that strict punctuality is important, one polisher's duty to be punctual cannot be redistributed to another polisher.
Far more illuminating in this case is a consideration of the consequences of not requiring Holly to perform the function of strict punctuality. According to Clairson, these consequences would be dire. "The reason that employee tardiness is such an issue at Clairson," it says, "is that tardy employees can delay Clairson's assembly operations and force other employees to stand idle until the tardy employee's portion of the product assembly can be completed." Clairson says that this reasoning holds equally true for the position of mold polisher, and that punctuality is an essential function of Holly's position "because [Holly] is one of many employees involved in assembling products for Clairson. As Holly stated himself in his deposition, `some jobs take 80 hours to complete and another job might take 10 minutes.' Consequently, tardiness can slow product assembly." Memo. of Law in Support of Mtn. for Sum. J. at 8; see also id. at 9 ("[Clairson's] manufacturing business requires its employees to work together to assemble products and punctuality is therefore essential."). The district court agreed, and found that "Holly worked on the assembly line, polishing the steel tooling after it was formed from the molds." Order at 2. This record, however, is not so clear.
As a threshold matter, the record does not suggest that Holly "worked on the assembly line." To the contrary, the record indicates that the mold shop where polishers work is actually separate from the assembly line which was in a different room of the warehouse, and that Holly and others polish the molds after they come off of the assembly line. Miller testified, for example, that Holly "polished the steel tooling after we were finished machining it" (emphasis added). Even Kilkelly testified that as mold polisher, Holly "would sit at a table and the steel molds that come off of the—from another area, mold maker, the steel must be polished" (emphasis added). Nor is there any record evidence that mold polishers are required to "work together [with other employees] to assemble products." That is, there is no evidence that other mold polishers would need to wait for Holly to arrive in order to complete their own mold polishing. Nor is there any evidence of any post-polishing stage of manufacturing, such that employees in that department would have their work delayed by the tardiness of a mold polisher. Cf. EEOC Enforcement Guidance, Question 43 ("If the result of modifying one employee's work hours . . . is to prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship."). Instead, the best inference we can draw from this record in favor
The district court considered the argument that Holly's work as a mold polisher was not time sensitive, but rejected it:
Id. at 16. But there is no discussion whatsoever in this record of Clairson's overhead costs under any circumstances, and we can find no record evidence to support the court's finding of increased overhead. Indeed, it is particularly difficult to imagine an actual increase in overhead costs due to Holly's tardiness since the vast majority of the time he was late by only one minute, and the accommodation he was permitted for some fifteen years, and which he seeks again now, involves his making up any lost time the same business day. Similarly, there is no record evidence that Holly was paid overtime in the past when he made up lost time during his breaks or after his shift, nor has he requested overtime pay as part of the accommodation he currently seeks.
In sum, although Clairson makes the bare assertion that strict punctuality by mold polishers is important in order to keep production moving, the record contains virtually no evidence that Holly needed to work with others to complete his work, that his tardiness ever caused production to slow down or caused any other detriment to Clairson, or that he ever failed to complete his molds on time. To the contrary, Holly's supervisors, former mold polishers themselves, testified that Holly's work was not time-sensitive, that he was able to make up his lateness the same day without impacting business, and that he was a valuable employee they fought to retain.
These factors distinguish this case from Earl, relied on by Clairson and the district court, where we held, after considering not only the employer's "emphasis on the importance of punctuality," but also "the importance of [her] timely presence at her job" as store area coordinator, that punctuality was indeed an essential function of the plaintiff's position. 207 F.3d at 1366. Unlike Holly's position of mold polisher,
As a result, the most that can be said for Clairson's position is that a genuine dispute of material fact exists regarding whether punctuality as defined by Clairson's policy is an essential element of Holly's job, and it was thus error for the district court to have taken this issue away from the fact-finder and awarded summary judgment to Clairson.
B. Prong Three: "Subjected to Unlawful Discrimination"
Although Clairson did not claim that Holly failed to make out the third prong of his prima facie case — that he was subjected to unlawful discrimination because of his disability — the district court sua sponte held, in the alternative, that summary judgment for Clairson was warranted because "Holly has not identified a single comparator or put forth a single shred of evidence that he was treated differently from any non-disabled employee who violated Clairson's attendance policy."
Under the ADA, an employer may not discriminate against "a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees." 42 U.S.C. § 12112(a); see also Earl, 207 F.3d at 1365. "[T]he term `discriminate' includes . . . not making reasonable accommodations to the known physical . . . limitations of an otherwise qualified individual with a disability who is an . . . employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business. . . ." 42 U.S.C. § 12112(b)(5)(A). Thus, an employer's failure to reasonably accommodate a disabled individual itself constitutes discrimination under the ADA, so long as that individual is "otherwise qualified," and unless the employer can show undue hardship. There is no additional burden on Holly to show that Clairson enforced its punctuality policy in a discriminatory manner by granting leniency under the policy to Holly's non-disabled co-workers while denying Holly the same leniency, nor any subsequent burdens on Clairson to show that it had "any legitimate non-discriminatory reasons for terminating Holly" or on Holly to "establish that these reasons were pretextual." Order at 22-23 n. 54.
Put another way, Clairson is not insulated from liability under the ADA by treating its non-disabled employees exactly the same as its disabled employees. In race and sex employment discrimination cases, discrimination is usually proved by showing that employers treat similarly situated employees differently because of their race or sex. However, the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances — namely, when different treatment would
US Airways, Inc. v. Barnett, 535 U.S. 391, 397-98, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002); see also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647-48 (1st Cir.2000) (reversing district court's holding that accommodating plaintiff by permitting her medical leave beyond that allowed under the company's own policy is per se unreasonable, and requiring an "individualized assessment" of plaintiff's need); EEOC Enforcement Guidance, Question 17 ("If 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, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation."); id., Question 22 ("An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees." (emphasis added)).
In sum, the fact that Holly's non-disabled co-workers were equally subjected to Clairson's punctuality policy is not relevant to the question whether Clairson discriminated against Holly by failing to reasonably accommodate his disability, and it was error for the district court to hold otherwise.
Because there plainly are genuine issues of material fact concerning whether Holly is a qualified individual within the meaning of the ADA, the entry of summary judgment for Clairson on this issue was improper. Moreover, it was error for the district court to grant summary judgment for Clairson on the alternative ground that Holly failed to provide evidence of disparate treatment. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
There is, however, considerable irony in Clairson's complaint that Holly never requested an accommodation when Clairson's no-fault policy specifically provides that employees "with American Disability Act situations are not exempt from this policy," and thus that the only time that evidence of a medical condition, such as a physician's note, is appropriate is when an employee wishes to apply for a medical leave from work of five or more consecutive days. We note, also, that despite the arguable futility of doing so, Holly immediately approached his direct supervisor upon learning of the new policy. According to Miller, Holly "said to me that you know, `It's going to be extremely difficult for me to do this with my problems that I have.'" See EEOC Enforcement Guidance, Question 1 ("An employee tells her supervisor, `I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing.' This is a request for a reasonable accommodation."); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir.1998) ("A request as straightforward as asking for continued employment is a sufficient request for accommodation.").