Plaintiff Who Could Get to Work On Time By Waking Up An Hour Earlier Was Not Entitled An Accommodation Allowing Her to Be Late.
Years ago, I had a legal assistant who was unable to get to work on time. I finally told her that she had to be in at 8:30 as that was when everyone else started their work day. Three days later, she appeared in my office, walked in and slapped a speeding ticket on my desk and insisted that I pay it because it was my fault that she was speeding to get to work on time. When I suggested that she leave home earlier she indicated that “that was not going to happen.” She ended up leaving shortly thereafter and I hadn’t thought about her since—until I read the recent decision from the U.S. District Court for the Western District of Pennsylvania in Colonna v. UPMC Hamot, (September 25, 2017).
In that case, the Plaintiff Jessica Colonna began working at the University of Pittsburg Medical Center’s (“UPMC”) busy medical practice in an administrative capacity in 2006. In 2014 she developed dry eyes and needed to take eye drops in the morning to allow her to see properly. Her work required her to be in attendance at 8:30 when patients began arriving. The problem was that she needed between 60-90 minutes between waking and driving for the drops to work and permit her to drive safely to UPMC and she just could not get there on time.
She was written up several times for tardiness and requested, as an accommodation, that her hours be adjusted so that she could comfortably make it to work on time. The employer considered the request and suggested instead that she wake up earlier each day. Her attendance did not improve (within a one month span she had been disciplined for late arrivals of 13, 9, 19, 28, 24, 15, 18, 37, and 13 minutes) and she was fired. She sued. The Court granted summary judgment to UPMC.
The Court reasoned that the requested accommodation was not reasonable. “Here, Plaintiff requests an accommodation because her extremely dry eyes make it difficult for her to see when she wakes up in the morning, and she ‘really just need[s] maybe an hour leeway if needed to get my eyes to a point where I feel comfortable functioning/driving to work.’” The Court found that Colonna could safely drive to work by waking up earlier in the morning. Because her doctor confirmed that Plaintiff needed 60 to 90 minutes between waking in the morning and driving to be safe and because she lived ten-fifteen minutes from work “she would not have been required to wake at a prohibitively early hour to apply her ocular moisturizers and arrive to work by 8:30 am.” The Court distinguished Colonna’s case from one in which a plaintiff claims she is disabled because her vision fails at unpredictable hours or predictable hours when she is at work. “When an employee, as here, can manage and overcome her limitations with minor effort, she does not require an accommodation for purposes of the ADA. Because Plaintiff could perform the essential functions of her job without accommodation, a fortiori she was not entitled to an accommodation … and UPMC Hamot did not discriminate against her by denying an accommodation.” Sometimes the law and common sense do coincide.
Importantly, the Court also found that Colonna did not have a viable claim that UPMC failed to engage in an interactive dialog. “[A] review of the record reveals that Defendant acted conscientiously and in good faith throughout the process. … UPMC reviewed Plaintiff’s request for a reasonable accommodation three times, reopening her case each time she contacted the disability specialist or provided additional information about her health condition. [UPMC’s Disability Coordinator] called Plaintiff on three occasions to discuss her medical treatment and confirmed with [Colonna’s doctor] that an accommodation was not necessary because Plaintiff could perform her essential job functions simply by awaking earlier in the morning.” The Court also noted that UPMC did not penalize Colonna for late arrivals while they were engaged in the interactive process and offered to arrange for Plaintiff to ride to work with co-workers. “This good faith engagement and communication entitles Defendant to summary judgment.”
Even though it may have seemed like UPMC did not have to do anything, the fact that it engaged with Colonna in a good faith effort to resolve the situation, inured to its benefit. Maybe I should have paid my assistant’s ticket after all.