By Robert Margolis, J.D.
Summary judgment in the airline’s favor was affirmed against an employee’s ADA claims arising from the company’s refusal to continue her work-from-home arrangement post-merger.
American Airlines could rescind the “Work from Home Arrangement” (WFHA) of an employee with multiple sclerosis based on a supervisor’s determination that the essential job functions of her position changed following the company’s merger with US Airways. A federal district court properly granted summary judgment to the airline in her suit under the ADA and state law, the Seventh Circuit held, agreeing with the lower court that she was not a qualified individual because she could not perform the essential functions of the post-merger job. One judge dissented (Bilinsky v. American Airlines, Inc., June 26, 2019, Kanne, M.).
More than 15 years after she started working for American, the employee became a communications specialist in the airline’s flight service department in 2007. Her employment continued without issue after she contracted multiple sclerosis (MS) in the late 1990s. Although the position reported to American’s headquarters in Fort Worth, Texas, she and the hiring manager reached the WFHA, which permitted her to work primarily from her home in Illinois.
Merger changed the job. After American merged with US Airways in December 2013, the VP of the flight service department, transitioning the communications team to one “with a higher degree of in-person engagement,” required that all employees with Fort Worth-based jobs work in Texas. The department transitioned into conducting more live events and crisis management functions in and around the corporate headquarters. Employees within the department testified that after the merger, stress was increased, responsibilities changed, and there was an increased demand for services that could only be performed locally.
Relocation not an option. According to the employee’s medical records, however, excessive heat aggravated her MS symptoms, causing her discomfort and reducing her ability to function. She requested as an accommodation that her current WFHA be continued because, while she could work in the office in Dallas, living in that climate outside of the office would affect her condition. However, the VP denied her request because he wanted his entire communications team physically housed at the Texas headquarters. Asked what other accommodations American could make that would allow her to work there, the employee made clear that “unless the company could provide a tube of air conditioning around her body 24 hours a day,” there was no possible accommodation available.
Discharge. Although the employee applied for two other positions, she was not selected for either. She was ultimately terminated when she was unable to find a new job. She then sued, asserting ADA failure-to-accommodate and retaliation claims against the airline.
Not a qualified individual. The employee’s primary challenge to the district court’s ruling concerned its finding that she was not a “qualified individual” because she was unable to perform the essential job functions. Because there was no written job description, the determination came down to the employer’s judgment that physical presence was required for the position post-merger.
There was no dispute that the employee could perform the essential functions of her job before the merger. However, the employer contended that the merger fundamentally changed the nature of the position such that a regular physical presence at Texas headquarters became an essential function. Because the employee could not perform that function by working remotely from her Chicago home, and because she could not relocate to Dallas, the employer argued that she was not qualified for the revamped post-merger position.
The job changed—not her condition. The appellate court highlighted the evidence that the nature of the job did in fact “evolve” from independent activities that can readily be performed remotely—such as curating website content and responding to written questions from employees—to “team-centered crisis management activities, involving frequent face-to-face meetings with team members on short notice to coordinate work.” As such, the court distinguished this case from precedent that the employee relied on, where there were no changes in the job tasks over time, only changes in the plaintiff’s condition. In this case, the job changes applied to everyone in the department—as the testimony from other team members confirmed.
The employee countered that she had performed the job successfully for years working remotely, and that her termination resulted solely from a new (post-merger) supervisor’s preferences, which did not amount to an essential function. While relevant, this evidence did not address whether those essential functions had changed after the merger, though. And while the employee indicated she was “always willing” to pick up work or do a project, if she were to continue working remotely, she would not be able to “do things that you needed to support an event” in Dallas, which had become an increasingly important part of the job after the merger, as her former coworkers testified.
At most, the employee showed that her job responsibilities evolved slowly, according to the appellate court. But even a slow transition to new responsibilities, as opposed to an instant change all at once, does not preclude a finding that the job’s essential functions ultimately changed.
A limited holding. The appellate court stressed that its holding is limited to the facts of the case. Without a change in circumstances, employers cannot rescind accommodations that they may find to be “inconvenient or burdensome.” But in this case, there was a “unique intervening event,” the “major merger” between two large corporations, with the ensuing need to synchronize the entities’ policies and procedures. That would inevitably result in changes in individual job responsibilities. In such a case, an employee cannot defeat summary judgment simply by showing that before the transformative event, she could perform the job’s essential functions.
Working at home. The Seventh Circuit also offered a “note of caution to future ADA litigants” about how changing technology has affected the calculus of accommodations that workers be permitted to work from home. The court noted that in a 1995 decision, it indicated “it would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home,” while predicting that “communications technology advances” would no doubt change that stance. Twenty-four years later, technological advances have made work-at-home accommodations less “extraordinary,” the appellate court noted, though the determination of their reasonableness will still be context-specific.
Dissent. “This case raises the kind of issue about flexible working arrangements under the Americans with Disabilities Act that we are likely to see more often,” noted Judge Hamilton in dissent. While agreeing with “a good deal” of the majority’s decision, the dissent argued that a jury should decide whether presence at Dallas headquarters was indeed an essential function of the employee’s position post-merger. “Courts do not and should not merely take at face value an employer’s claims about a job’s essential functions,” adding: “The unusual absence of a written job description here should raise our eyebrows about this grant of summary judgment.”
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