Court Holds Flexible Work Week Not Reasonable Accommodation


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

Rebecca Murphy was employed by Samson Resources Company as an Accounting Assistant. Her duties included preparing vouchers and journal entries to record invoices, timely process payments to third parties, and ensure that transactions were properly approved, coded and paid on a timely basis. Notably, she worked under close supervision and her job description stated that regular and punctual attendance was an essential job function.

During her employment, Murphy experienced migraine headaches which at times required her to leave work. Initially, Samson permitted her to “make up” time missed for those unplanned absences but, over time, she was unable to make up all the time missed from work and in fact, had a negative paid time off balance. Additionally, some performance issues began to develop including data entry errors, payments to the wrong vendors and untimely payments. Those deficiencies were documented.

Due to her migraines, in June 2008, Murphy applied for an FMLA leave which application was granted by Samson. She thereafter used FMLA leave on an intermittent basis for approximately 3 months at which time she applied and was approved for a short-term disability (STD) leave. The Company’s STD policy mandated doctor certification explaining the necessity for the employee’s absence, and Murphy complied with that requirement during the first 2 months of her leave.

On November 10, she submitted a doctor certification from her neurologist excusing her from work until November 20. On November 21, she emailed Samson promising to submit a new doctor certification after her appointment with the doctor the following week. However, she did not submit any updated doctor certification extending her leave and, in accordance with its STD policy statement, Samson terminated her on December 1 for job abandonment. Murphy then sued claiming a violation of the Americans with Disabilities Act, the FMLA, as well as some state breach of contract claims. The district court in Oklahoma granted summary judgment to Samson on all claims after which Murphy filed an appeal to the United States Court of Appeals for the Tenth Circuit.

In reviewing her ADA claims, the court noted that a plaintiff must establish: (1) they are a disabled person as defined by the ADA; (2) that they are qualified with or without a reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that they suffered discrimination by their employer or prospective employer. In the instant case, the court focused on whether Murphy was “qualified” within the meaning of the ADA. That inquiry requires that the individual be able to perform the essential functions of the job, and if they cannot do so, whether any reasonable accommodation by the employer would enable them to so perform. The Court of Appeals agreed with the District Court that Samson’s job description which stated that regular and punctual attendance was an essential function of the job was entitled to deference, and that Murphy could not perform that essential function. Murphy then argued that Samson could have provided her a flexible work schedule as a reasonable accommodation. The courts disagreed holding that such an accommodation was “unreasonable on its face” due to the time sensitive nature of the tasks to be performed by Murphy and the requirement for close supervision of her work. The key piece of evidence here was Samson’s ability to demonstrate how the nature of the work to be performed, most notably its time sensitivity, and the requirement for supervision was a key element in the court’s decision. The court distinguished a decision out of the First Circuit which it held that a flexible work schedule was a reasonable accommodation because the plaintiff in the First Circuit case had been allowed to work such a schedule for several years, and had not been reprimanded for her attendance. The court here agreed with the Eighth Circuit which has consistently held that an employee’s request to be relieved from an essential function of the position is not, as a matter of law, a reasonable or even plausible accommodation.

Murphy then argued that an extended leave pursuant to Samson’s STD policy was another form of reasonable accommodation. The Court noted that time off for medical care or treatment may indeed constitute a reasonable accommodation; however, the employee must provide an expected duration of the impairment holding “‘without an expected duration of an impairment, an employer cannot determine whether an employee will be able to perform the essential functions of the job in the near future and therefore whether the leave request is a reasonable accommodation.” In this case, Murphy failed to present evidence of the expected duration of her leave.

Murphy also attempted to raise a claim of retaliation for exercising her rights under the FMLA. In support, she argued that her application for a transfer to another position was the retaliatory act. That claim was rejected by the Court since the application for the internal transfer was submitted before Murphy applied for FMLA leave. Furthermore, the court found the employer’s refusal to submit the application for consideration due to Murphy’s attendance and performance issues, were legitimate reasons and not a pretext for discrimination. Murphy also argued that her failure to submit an updated doctor’s certification for her STD leave was used by Samson as a pretext for retaliation. She claimed that she was diligent in her efforts to submit her doctor certifications to Samson. In rejecting that argument, the court noted that Samson’s policy stated that if an employee did not return to active employment after STD benefits ceased, the employee would be considered to have abandoned their job and would be terminated. Moreover, the Court found that Murphy did not comply with her own email stating that she was going to see her neurologist and get another note or letter supporting her need for an extension of her STD leave. Her STD leave had expired and, in accordance with Samson’s policy, when she did not return to work she was considered to have abandoned her job.

Once again, this decision reinforces the importance of maintaining written job descriptions which describe the essential functions of the position, including attendance; that an employer document performance issues, applications for FMLA leave, and actively manage FMLA leaves by, requesting and maintaining current information as to employees expected dates of return and supporting medical documentation.

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