Employment Law Daily Jury to say if physical presence on-site was essential to program director job
Tuesday, July 25, 2017

Jury to say if physical presence on-site was essential to program director job

By Joy P. Waltemath, J.D.

Denying summary judgment to a staffing company that fired an individual from a program director position at a client (Citicorp) after several knee injuries kept her from a three-days-a-week on-site client presence, a federal district court in New York found a jury question on whether working on-site was an essential function of the job. The court pointed to evidence of discussions during the employee’s job interview that working on-site could be adjusted or eliminated, as well as the fact that her replacement was only able to be on-site “a few days monthly” (Fatcheric v. The Bartech Group, Inc., July 19, 2017, Pauley, W., III).

Physical presence essential? The critical issue in the fired employee’s lawsuit was whether working on-site was an essential function of the program director position, and it was one that the court found in dispute. She had been hired for the position in March; at her interview with the staffing company, her supervisor’s notes reveal both an initial three-days-a-week on-site schedule and also adjusting the on-site demand and working “remote 5 days a week.” In April, the employee fell on her way to Citi, injuring her knee and foot and requiring surgery, which kept her off-site until June, when she returned to working three days weekly on-site. But in August, she injured her other knee; she did not work on-site again until November, which resulted in strained relations between the client and her employer. In December, the employee was again injured on her way to work; she notified her supervisor that she would only be out a few weeks, but that same day, her supervisor recommended that she be fired, and the supervisor’s recommendation was authorized. It was not communicated to the employee, however, until she returned to work—against her doctor’s recommendation that she not commute—on January 5.

Multiple inconsistencies. In addition to evidence that a lesser schedule of on-site work, potentially including working remotely every week, had been discussed, the court looked at the job description, which said the individual should build “subject matter expertise within . . . the client’s environment,” but it did not explicitly indicate that being physically present on-site was a requirement. Plus, the staffing company had different on-site expectations for its program directors depending on the client. Also, the staffing company appeared to have inconsistent expectations of the employee’s predecessor or successor. Her predecessor in the program director position for Citi appeared to have simply abandoned his job—he simply “stopped showing up for work . . . no-call, no-show,” said the employee’s supervisor. This was not simply a failure to appear on-site. And internal employer email indicated that her replacement was only able to be on-site “a few days monthly.” The disputed facts here made it impossible for the court to determine if working on-site was an essential function of the program director position.

Undue burden. The staffing company argued that it could meet its burden of demonstrating an undue hardship in making a reasonable accommodation. But its argument that it would have been an undue burden to accommodate her request to work remotely was premised on its belief that on-site work was an essential function of the job, which the court found in dispute, so the employer was unable to convince the court to accept this argument.

Legitimate nondiscriminatory reason. As for her wrongful termination claim, the employer also said it could meet its evidentiary burden to show a legitimate nondiscriminatory reason for her discharge. The staffing company contended that terminating the program director was legitimate and nondiscriminatory because her continued inability to be on-site was impairing its relationship with Citi. However, the court was concerned about a number of disputed facts. First, the staffing company decided to terminate her even though the two contacts at Citi wanted to discuss it further before determining “that a change needed to be made.” There was no record evidence of any further discussions at Citi, although a staffing company HR director noted in email that Citi was complaining of “too many gaps in service delivery.” Still, the employee’s injury this time was unlike the others in that she was only expected to be out a short time, and “Citi may have been more willing to accommodate a short absence” this time, the court pointed out, concluding, “Ultimately, too many material facts are in dispute to warrant summary judgment.”

Individual liability? Finally, the employee had alleged her supervisor was individually liable under the New York City and state laws as an aider and abettor as one who “actually participates” in the discrimination. Here, the supervisor acted as the messenger by informing the employee of her termination; she was also the one who recommended that the employee be terminated, making summary judgment inappropriate on this claim as well.

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