Tenth Circuit Rejects “Open-Ended, Indefinite Amount of Time Off from Work" Accommodation
A.J. Peters, Of Counsel
On December 19, 2023, the Court of Appeals for the Tenth Circuit affirmed summary judgment in Davis v. PHK Staffing[1] against an employee terminated for exceeding the limits of a no-fault attendance policy. The court found the employee’s request to leave early, arrive late, and all-together miss work on an unscheduled, as -needed basis for asthma attacks was not a plausibly reasonable accommodation. Instead, it amounted to a request to exempt her from performing an essential function of her job — regular attendance.
Background
Plaintiff Danielle Davis worked for seven months at the Hollywood Casino at Kansas Speedway as a supervisor and table-games dealer for blackjack, roulette, and craps. Davis suffered from occasional flare-ups of asthma.
Throughout her employment, Davis’s employer maintained a “no-fault attendance policy” by which an employee may accrue no more than 12 attendance points in a rolling 12-month period. Points would accrue for attendance “incidents” such as arriving late, leaving early, and absences.
Davis requested an accommodation for her disability in the form of not being assessed attendance points for asthma-related attendance incidents.[2] Davis eventually accumulated a total of 13 attendance points — several of which were because of asthma — and her employment was terminated under the no-fault attendance policy.
Davis v. PHK Staffing LLC[3]
Davis sued Hollywood Casino under the Americans with Disabilities Act (ADA), alleging it failed to accommodate her disability and terminated her employment as a result. The district court awarded summary judgment to Hollywood Casino on both claims, and Davis appealed.
The Tenth Circuit focused on the third prima facie element of Davis’s failure to accommodate claim, which required her to prove (1) she is disabled, (2) she is otherwise qualified, and (3) she requested a plausibly reasonable accommodation. The court held that a reasonable accommodation is one that will “presently, or in the near future, enable the employee to perform the essential functions of [the] job.” Finding that regular and reliable attendance was an essential function of Davis’s job — especially considering that attendance of casino dealers affects the business’s ability to offer table games— the Tenth Circuit agreed Davis’s request was not centered on a recovery from her condition, but instead was open-ended, indefinite, and therefore “not reasonable as a matter of law.” The court noted that Davis’s request “effectively sought an exemption from the essential job function of regularly and reliably attending work.”
As for her disparate treatment claim, the Tenth Circuit confirmed that violations of a no-fault attendance policy constitute legitimate, nondiscriminatory reasons for a termination. For a plaintiff to rebut that reason as mere pretext, Davis would need to show “weaknesses, inconsistencies, incoherences, or contradictions” in the employer’s reliance on the policy, which Davis failed to do.
Employers will want to keep in mind that, because Davis was not yet eligible for Family Medical Leave Act (FMLA)[4] leave at seven months’ employment, the Tenth Circuit did not rule on the availability of intermittent leave under FMLA jurisprudence. [5]
Employer Considerations
This case supports the viability of no-fault attendance policies as a means to address workplace attendance. This case also highlights the importance of addressing during the interactive process whether a leave request will be an open-ended pass from attending the job, as opposed to a plan that agreeably manages health impairments from time to time. As always, Campbell Litigation is available to assist with disability and accommodation issues under the ADA, FMLA, and state law.
[1] No. 22-3246, 2023 WL 8757073 (10th Cir. Dec. 19, 2023).
[2] Notably, Davis’s physician failed to provide necessary information to her employer to assess whether another accommodation would be reasonable or plausible.
[3] https://www.ca10.uscourts.gov/opinion/22-3246.
[4] Under FMLA jurisprudence, intermittent/reduced leave schedules are permissible under similar but different legal standards than ADA reasonable accommodations. For example, the leave must be medically necessary, and employees have obligations to provide reasonable notice.
[5] Additionally worth noting: this appeal caught the attention of the Equal Employment Opportunity Commission (EEOC), which filed an amicus brief supporting Davis. Although the Tenth Circuit expressly declined to consider arguments only raised by an amicus, the EEOC raised several arguments in its brief (eeoc.gov/sites/default/files/2023-02/Davis v PHK Staffing LLC 10C am-brf 01-23 sjw.html). The EEOC asserted that: (1) Davis’s asthma-related absences were infrequent and not of long duration, such that leave for isolated flare-ups might be reasonable; (2) Davis’s accommodation request was simply the start of an interactive process her employer had obligations to pursue; and (3) neither party addressed whether the leave request created an undue hardship to the employer.