Labor & Employment Law Daily Machine operator deemed unable to perform ‘any & all’ job functions was not a qualified individual under the ADA
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Wednesday, January 6, 2021

Machine operator deemed unable to perform ‘any & all’ job functions was not a qualified individual under the ADA

By Kathleen Kapusta, J.D.

It would defy common sense, said the court, to demand the employer disregard the employee’s doctors’ opinions and allow her to prematurely return to work.

Agreeing with the court below that a machine operator who had suffered serious head and back injuries in a June 2016 car accident was not a qualified individual under the ADA at the time of her termination, the Seventh Circuit, affirming summary judgment against her failure-to-accommodate claim, pointed out that her doctors made clear she could not return to work in any capacity between August and September 2016. And while she argued that her employer could have granted her additional leave, by October, the court observed, the company knew she had been unable to perform her job’s essential functions for months and she would not be cleared to return for several additional months and thus additional leave was not a reasonable accommodation (McAllister v. Innovation Ventures, LLC dba Living Essential, December 30, 2020, Flaum, J.).

Injuries. After her June 2016 car accident, the employee, in addition to undergoing spinal surgery, also received treatment for a herniated disc, spinal cord compression, central cord syndrome, a closed-head injury, and a “complex,” multi-direction laceration. She sought short-term disability benefits and FMLA leave and on her certification, her doctor stated that she could not perform “any & all” functions. He estimated that she could not return to work until early September.

Termination. In late August, a physician assistant concluded that the employee was not quite ready to go back to work. In October, her doctor determined that she needed a neuropsychological evaluation, which would take at least six more weeks, before she could be cleared to return to work. Although her FMLA leave had expired, the employer granted her request for additional leave after she scheduled an appointment for a neuropsychological evaluation with another doctor. By mid-November, however, the doctor had not completed the evaluation and the employee’s physician determined that she could not return to work until February 2017. Rather than extend her leave further, the employer terminated her.

The employee subsequently sued, asserting failure-to-accommodate in violation of the ADA and the district court, finding she was not qualified under the ADA, granted summary judgment to her employer.

Doctors’ evaluations. On appeal, the employee first argued that she could have returned to work as a machine operator in August and September 2016 but her employer was unwilling to accommodate her lifting restrictions. Rejecting this contention, the court pointed out that not only did her physician, in June, report to her employer that she was unable to perform “any & all” job functions until September, the physician assistant, in late August, concluded that the employee was not “quite ready to go back to work” and needed another six weeks. “It would defy common sense,” said the court, to demand her employer “disregard these well-documented medical opinions and allow” the employee to jeopardize her safety by prematurely returning to work.

Lay testimony. And while the employee pointed to testimony from her sister and boyfriend to show she could have returned to work, a lack of foundation and inconsistencies in the sister’s deposition and affidavit statements rendered her testimony insufficient to rebut the doctor’s and physician assistant’s professional opinions. Similarly, her boyfriend’s statements were too “conclusory and uninformative” to present a genuine fact issue, said the court, finding the employee failed to show she could perform the essential functions of her job during August and September 2016. Thus, she was not a qualified individual under the ADA.

Other jobs. Although she also argued that she could have performed a light duty “rework” job or filled a vacant assembly position during that time period, the court again pointed out that the “same threshold problem described above remains: her doctors precluded her from working in any capacity, even a desk job.” As to her contention that had her employer offered to accommodate her, her doctors would have cleared her to work, this, said the court, “relies on the faulty assumption that her doctors would have allowed her to return to work under any circumstances.” Nor was there any evidence to support her assertion that her doctors ordered her to stay home because her employer refused to accommodate her.

Extended leave. Also rejected was her argument that even if no other accommodations were available, her employer could have granted her additional leave. She contended that if her employer had permitted her to return to work during some period in August or September 2016, then she would not have needed the months-long leave that she requested and would only have requested “a few weeks” of leave. But even assuming she worked in August and September, the employer would have needed to grant her leave from October 2016 until February 2017, when her doctor expected to clear her, said the court, and thus her claim she would have only “requested a few weeks of leave in October” was unsupported by the record. “Affording [the employee] such prolonged leave effectively excused her inability to work, which the ADA does not require of employers.”

Interactive process. Finally, as to her contention that her employer’s alleged refusal to engage in an interactive process prevented her from “finding and requesting a reasonable accommodation,” the court pointed out that the company could not have engaged in an interactive process when her doctors had already barred her from working. Because she was not qualified to do her job due to her doctors’ orders, the court noted that “this case falls into the category of cases in which an employer’s alleged failure to adequately engage in the interactive process is immaterial.”

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