Affirming summary judgment against a temp agency employee’s ADA failure-to-accommodate claim, the Tenth Circuit explained that regular attendance was essential to her temp assignment as a receptionist and her vague requests for absences for cancer treatment, with no information on expected duration, was unreasonable on its face. Summary judgment was also affirmed against her discrimination claim under the Genetic Information Nondiscrimination Act (GINA) because she failed to make a prima facie showing that her assignment was ended based on her family’s history of breast cancer (Punt v. Kelly Services, July 6, 2017, McKay, M.).
Temp agency Kelly Services assigned its employee to be a receptionist at GE. Under the agreement between GE and Kelly, either company could end an assignment for any reason. In addition, the employee signed an application agreeing: “I understand I am responsible for maintaining regular contact with Kelly and failure to do so will indicate I have either voluntarily quit or am not actively seeking work.” The essential functions of her job included being “physically present” at the reception desk during business hours to greet and direct all visitors.
Cancer diagnosis. The employee began her receptionist assignment on October 24, 2011. Soon thereafter, she had a biopsy and was informed she had breast cancer. She allegedly told various GE and Kelly employees about her cancer diagnosis and her family history of breast cancer.
Absences. At the time her receptionist assignment began, the employee was instructed to work a 40-hour week, from 7:30 a.m. to 4:30 p.m. each day. The employee was absent on November 29, and was several hours late on October 24 and 27, as well as November 30. Only the November 30 lateness was explained. She also left work early on October 27 (by 30 minutes), November 2 (by 1.25 hours), and November 22 (by five hours). Her October 27 departure was unexplained but the other two were related to medical treatments. When she was absent, another temp covered her duties while also working as an administrative assistant to GE’s general manager.
Employee questions “fit.” On December 5, the employee emailed Kelly’s point-person for GE, stating: “After talking to my husband and doctor it is in my best interest not to come to work this week at all. I like my job at GE very much but I’m concerned that they are not going to be willing to work with me. I have barely missed work and they are already annoyed it sounds. . . . Getting surgery takes some appointment and tests and it sounds like GE [doesn’t] want me to take off anytime. I guess we should both be concerned if this will be a right fit. . . . I hope to continue on Monday.” The point-person asked the employee to call and “talk through this.” The employee emailed that she would call back, but she didn’t, despite the point person’s request to “contact me ASAP. I need to let GE know whether you are going to be at work tomorrow.”
Terminated. Meanwhile, GE’s general manager and HR director contacted Kelly’s point person to end the employee’s assignment because she was not showing up and they “needed an employee that’s going to be able to show up and fulfill the needs of the position.” The point person allegedly told the employee that GE’s HR director terminated the assignment because she “would be very unreliable having cancer.” Thereafter, the employee never contacted Kelly to ask for another assignment though she had “practically harassed them for work” in the past. Kelly offered her a one-day assignment in February 2012, but she turned it down because she already had work through a different temp agency.
Lawsuit. The employee filed suit against Kelly and GE under the ADA and GINA, alleging failure to accommodate her disability and discrimination based on her family history of cancer. Granting summary judgment against her claim, a federal court in Colorado found that she did not make out a prima facie case or show pretext.
Court need not fix overly broad discovery request. On appeal, the employee first challenged a ruling that one of her discovery requests was overly broad and unduly burdensome. She had asked Kelly for all documents showing all positions it filled in the Denver metro area that she could have filed from December 5, 2011, to the present. She claimed the magistrate judge erred by not sua sponte narrowing her request to something more manageable and compelling Kelly to respond. Disagreeing, the Tenth Circuit explained that counsel bore the ultimate responsibility for proper requests and expecting counsel to fulfill this duty was neither capricious nor unfair.
ADA claim fails on alternate grounds. Affirming summary judgment against the employee’s failure-to-accommodate claim, the appeals court first addressed the lower court’s conclusion that, absent direct evidence of discrimination, her claim had to be evaluated as a disparate treatment claim under the McDonnell Douglas burden shifting analysis. The appeals court explained that with failure-to-accommodate claims, the dichotomy between direct-evidence and circumstantial-evidence cases was inapplicable because there is no need to delve into the employer’s motivations—the failure to provide a reasonable accommodation to a qualified employee with a disability is inherently “on the basis of [the] disability.”
That said, the employee’s claim still failed because she did not request a plausibly reasonable accommodation. She claimed she did so when she told Kelly’s point person she planned “not to come to work this week at all” and indicated she need time off for “some appointments and tests” and “five times of radiation.” But to the appeals court, this request was not plausibly reasonable on its face because she informed neither Kelly nor GE of the expected duration of her impairment and was “very vague” on how much time she was going to miss.
In addition, the employee did not cite a single case where a leave of absence was a reasonable accommodation for a temporary employee. Her accommodation would have required GE to either go without a receptionist or accept a “super-temporary” employee to fill in for the temp. Furthermore, reporting to work consistently was a necessary part of the job and neither the employee’s past behavior nor her vague request for time off suggested she could fulfill that duty. On these facts, the employee’s requested accommodation was unreasonable as a matter of law.
Also, while the employee claimed Kelly failed to accommodate her because it did not contact her about additional jobs after her time at GE ended, it was undisputed she was required to contact Kelly for assignments and she did not do so.
GINA claim fails too. Also affirming summary judgment against the genetic information discrimination claim, the appeals court found too speculative the employee’s assertion that the defendants’ assumed a needed course of treatment based on her family’s history of breast cancer. Nor was there evidence that the knowledge of her family history contributed to the decision to terminate the employee. Even assuming she had presented such evidence, she failed to provide any evidence suggesting the legitimate reason for her termination was pretextual.
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