Earl v. Mervyns Inc.

• Decision Date: 30 March 2000
• Docket Number: No. 99-4264,99-4264
• Citation: 207 F.3d 1361
• Parties: (11th Cir. 2000) Debra K. EARL, Plaintiff-Appellant, v. MERVYNS, INC., d.b.a. Mervyns California, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1361

207 F.3d 1361 (11th Cir. 2000)

Debra K. EARL, Plaintiff-Appellant, v. MERVYNS, INC., d.b.a. Mervyns California, Defendant-Appellee.

No. 99-4264.

United States Court of Appeals, Eleventh Circuit.

March 30, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.

Before BLACK and HULL, Circuit Judges, and GOODWIN^*, Senior Circuit Judge.

PER CURIAM:

Appellant Debra K. Earl appeals the district court's grant of summary judgment in favor of Appellee Mervyns, Inc., on Appellant's claims of violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12117, and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2615(a). We conclude Appellant was unable to perform the essential functions of her job and that she failed to identify any reasonable accommodation that would allow her to perform the essential functions of her job. In addition, we determine Appellee did not terminate Appellant for engaging in a protected activity. We therefore affirm the district court's grant of summary judgment.

I. BACKGROUND

Appellant began working as a Store Area Coordinator for Appellee's Pompano Beach, Florida, store in late April 1992. One of Appellant's principal responsibilities was preparing her department for the store's morning opening in the morning. This involved obtaining cash for her registers, stocking merchandise, and arranging displays, as well as ensuring that the department was properly equipped to run during the day. When Appellant was scheduled to work, she was the only Area Coordinator in her assigned department.

Appellee's punctuality policy allows its employees 15 "punctuality infractions"¹ in a 365-day period. The policy has a three-step corrective action plan that applies to employees who have received 15 punctuality infractions within a 365-day period: (1) a documented warning, (2) a written warning, and (3) a probationary warning. After an employee is given a probationary warning, she may be discharged. The policy provides that an employee who is on the corrective action plan and receives more than two punctuality infractions during the corrective action period will be advanced to the next step of the corrective action policy or fired if no other step is available.

Appellant began arriving to work late beginning in November 1992. On August 23, 1993, Appellant received her first documented warning. According to Appellee, Appellant temporarily controlled her tardiness and was removed from documented warning. Appellant's tardiness recurred, however, and on January 24, 1995, she was again placed on documented warning for being late 29 times within a 365-day period. Appellant then informed Appellee's management that she was suffering from the mental condition Obsessive Compulsive Disorder (OCD), and that this condition was the cause of her tardiness. By May 4, 1995, Appellant had been late 33 times within a 365-day period, and thus proceeded to the written warning step of the corrective action policy. Six days later, Appellant brought in documentation from her doctor stating that she suffered from OCD, which caused her to be late to work.

On September 23, 1995, Appellant was placed on the third step of the corrective action policy, probationary warning, after being late several additional times during the corrective action period. On that same day, Appellee offered to permit Appellant to "clock in" up to 15 minutes ahead of her scheduled shift and receive appropriate overtime pay, which other employees were not allowed to do. On or about that same day, Appellant requested that she be allowed to "clock in" at whatever time she arrived, without reprimand, and be permitted to make up that time at the end of her shift. Appellee rejected this request as unreasonable. Appellant's doctor admitted that no other accommodations for her OCD would have allowed her to arrive to work on time. In late 1995, Appellee offered to schedule Appellant on the afternoon or evening shift at her request.

Appellant subsequently incurred at least two additional punctuality infractions, which would have warranted dismissal under the terms of Appellee's policy. Nevertheless, on December 7, 1995, although Appellant could have been discharged under the terms of the policy, Appellee provided Appellant with a second probationary warning.

Appellant was late at least twice more after her second probationary warning. Thus, on Friday, February 16, 1996, Appellee's store manager suspended Appellant for tardiness. The store manager then informed the district team relations leader of Appellant's suspension and inquired as to whether Appellant would be discharged or reinstated. On Monday, February 19, 1996, Appellee decided to terminate Appellant for tardiness. Appellant subsequently was told to report back to the store for an exit interview on February 22, 1996. Appellant did not attend this interview. Rather, her husband appeared and delivered a request for Appellant's disability leave.

Appellant brought an action against Appellee on February 22, 1996, alleging claims pursuant to the ADA and the FMLA. Appellee moved for summary judgment. On January 25, 1999, the district court granted summary judgment in favor of Appellee. Appellant brings this appeal.

II. ANALYSIS

In assessing a summary judgment motion, we must examine the evidence in the light most favorable to the non-moving party. See Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Summary judgment is proper if there are no genuine issues of material fact. See id.

A. ADA Claim

Under the ADA, an employer may not discriminate against " 'a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.' " Hilburn, 181 F.3d at 1226 (quoting 42 U.S.C. § 12112(a)). The burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims. See id. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) she is disabled; (2) she is a qualified individual; and (3) she was subjected to unlawful discrimination because of her disability. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998).

The parties do not dispute that Appellant has a disability for purposes of the ADA. Rather, the issue is whether Appellant is "qualified" under the ADA. An individual is "qualified" if she, with or without reasonable accommodation, can perform the essential functions and job requirements of the position the individual holds. See 42 U.S.C. § 12111(8); Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). An employer must provide reasonable accommodations for employees with known disabilities unless such accommodations would result in undue hardship to the employer. See Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). An accommodation is reasonable, and thus required under the ADA, only if it allows the employee to perform the essential functions of the job. See LaChance, 146 F.3d at 835 (citing 29 C.F.R. § 1630.2(o)(2)(ii) (1995)).

"Essential functions" are the fundamental job duties of a position that an individual with a disability is actually required to perform. See 29 C.F.R. § 1630.2(n)(2)(1). In determining what functions are deemed essential, the ADA states "consideration shall be given to the employer's judgment ... and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). A job function also may be essential if there are a limited number of employees among whom performance of the job can be distributed. See 29 C.F.R. § 1630.2(n)(2)(ii); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir.1997).

Under these standards, we must address whether punctuality is an essential function of Appellant's job as Store Area Coordinator to determine whether she is "qualified" for purposes of the ADA. Appellant admits that without an accommodation she could not arrive at work punctually on a regular basis, regardless of the shift for which she was scheduled. Therefore, if we conclude punctuality is an essential function of Appellant's job, then Appellant cannot perform the essential functions of her job without an accommodation.²

Appellant argues we must examine the specific aspects of her position to determine whether punctuality is an essential or merely marginal function of her job. Appellant asserts Appellee failed to present any evidence that Appellant was unable to complete the duties of her job because of her lateness and that Appellee failed to present any evidence of lost sales, lost profits, disruption of store operations, or increased theft because of her lateness.

Despite these assertions, we conclude punctuality is an essential function of Appellant's job as Store Area Coordinator. Initially, as directed by the ADA, see 42 U.S.C. 12111(8), we note Appellee placed a high priority on punctuality. Appellee's policy handbook contained a detailed punctuality policy and Appellee implemented a comprehensive system of warnings and reprimands for violations of the policy. The policy specifically states that "unscheduled absences or repeated tardiness make it difficult for your teammates to do their jobs and serve our guests...." The record also indicates that Appellee consulted Appellant more informally on several occasions about the consequences of her repeated tardiness.

In addition to Appellee's description of Appellant's job, the nature of Appellant's position provides further support for the conclusion that punctuality is an essential function of her job. We...