Labor & Employment Law Daily Punctuality was essential function of firefighter’s job; late arrival not reasonable accommodation
Monday, November 18, 2019

Punctuality was essential function of firefighter’s job; late arrival not reasonable accommodation

By Marjorie Johnson, J.D.

“Just because an employer has, in the past, done more than required to accommodate an employee who cannot fulfill all the requirements of his job does not mean that the employer must continue to do so.”

A black firefighter/EMT discharged for chronic tardiness failed to convince the Eleventh Circuit to revive his Rehab Act disability bias claim, in which he asserted his lateness was caused by his ADHD and other medical conditions. Affirming summary judgment against him, the appeals court, in an unpublished decision, held that punctuality was an essential function of his job and that allowing him to arrive up to an hour late without notice was not a reasonable accommodation. Nor would the court revive his race bias claim, in which he asserted that his white supervisor’s racial animus influenced the black fire chief’s decision to fire him since a white firefighter he claimed was treated more favorably had a different supervisor and engaged in less egregious conduct, and thus was not similarly situated (Hartwell v. Spencer, November 13, 2019, per curiam, unpublished).

The firefighter worked for a U.S. Navy military complex for more than 16 years before being fired for excessive tardiness by the same fire chief who had hired him. The firefighters worked on alternating 24-hour shifts, and though the employee was frequently late, he rarely received more than verbal reprimands until 2011, when the fire department changed its policy and he began reporting to a less forgiving supervisor.

Change in policy. A 2008 memorandum of agreement (MOA) with the local union had allowed firefighters to informally exchange up to 59 minutes at the beginning or end of their shifts without prior approval. While the MOA was in place, the employee often found someone to cover for him when he was late. But in 2011, management abandoned the MOA because it conflicted with Navy “business rules” requiring strict timekeeping and compensation for any employee working overtime. Thus, firefighters could only exchange time occasionally and had to receive prior approval from a supervisor.

New supervisor. Around the same time, the employee’s long-time supervisor retired, and his successor did not appreciate his chronic lateness. As a result, he began receiving more frequent discipline that increased in severity, starting with written warnings and escalating to two suspensions. After he signed a “last chance” agreement to avoid a third suspension in October 2014, he was late again a few months later and suspended for 14 days. After he was late again, his supervisor issued a written proposal that he be removed from federal service.

At this point, the employee notified his supervisor that he had been diagnosed with ADHD, persistent depression, and generalized anxiety disorder. He said that these conditions caused him to be chronically late, in part by causing insomnia, for which his doctor prescribed medication that caused early morning drowsiness. As a reasonable accommodation, he asked to be allowed to use up to an hour of sick leave on the mornings that he was late. He also asked that the MOA be reinstated so that he could exchange time informally with other firefighters without prior approval. However, the fire chief accepted his supervisor’s proposal and terminated him.

Punctuality an essential function. Because the employee undisputedly expected to continue his pattern of frequent tardiness indefinitely, and the only accommodation he sought was permission to arrive up to an hour late without prior notice, the pivotal issue was whether punctuality was an essential function that he could perform with or without a reasonable accommodation. He did not dispute the importance of having a full staff of firefighters present at the fire station and available to respond to emergencies, which was also supported by testimony by the region fire chief and the applicable standard operating procedure (SOP). The chief also explained that if a firefighter was late, someone from the departing shift must stay on longer, which decreased safety due to the fatigue and increased costs due to overtime.

Accommodation not reasonable. The Eleventh Circuit held that reporting to work on time was an essential function of the firefighter/EMT and rejected the employee’s contention that his requested accommodation was reasonable since the fire department had allowed early/late relief for several years without adverse consequences. But “just because an employer has, in the past, done more than required to accommodate an employee who cannot fulfill all the requirements of his job does not mean that the employer must continue to do so.” Because the employee could not perform this function with or without his requested accommodation, he was not “otherwise qualified” within the meaning of the Rehab Act.

No “cat’s paw” race bias. The employee also failed to revive his race bias claim, in which he used a “cat’s paw” theory to argue that the chief’s decision to terminate him was based on his supervisor’s racially motivated disciplinary actions and recommendation to terminate him. In support, he claimed that the supervisor made race-based comments, such as referring to another black firefighter as a “little monkey,” telling him that he thought his children went to school for free because they were black, and warning another firefighter that the employee liked to “play the race card.”

However, he failed to establish that racial animus, and not his chronic lateness, was the real reason for his supervisor’s disciplinary actions. He attempted to establish discriminatory intent through comparator evidence, but the white firefighter whom he claimed was treated more favorably was not similarly situated since he had a different supervisor. This difference was “especially significant” as the other supervisor’s lenience did not suggest that his own supervisor treated white firefighters differently.

The white firefighter was also tardy much less frequently than the employee, whom the chief testified was late “almost every shift.” In comparison, the white firefighter had been late only 10 times over several years. Since there was no other evidence to support his allegation that his supervisor’s alleged racial animus was the real reason for his termination, summary judgment was also properly granted as to his race bias claim.

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