You Can't Perform Essential Job Duties if You Aren't There

Terri Basden worked as a dispatcher for a company that transported workers from one train to another train. It doesn't sound terribly exciting, but heck, it's a paycheck.

In January 2008, she fell after having a dizzy spell at home. She was treated at an emergency room, where the news got worse: the treating physician detected signs of multiple sclerosis. She also missed work.

She missed work again on the following dates, with a physician's note provided after each absence:

• January 14 to 17;
• February 1;
• March 13 to 15;
• April 7, 8, and 11 to 14;
• May 22 until termination.

Prior to her final termination, she requested an unpaid 30-day leave of absence. Unfortunately, that leave is only provided for employees with at least a year’s tenure. She was two-weeks shy of that mark. Her leave was denied, and when she didn’t return to work following a three-day suspension, she was terminated.

The ADA Doesn’t Help

Basden pressed an Americans with Disabilities Act claim in the lower court, but was tossed via summary judgment. Why? In order to prevail on an ADA claim, a plaintiff must show that:

1. she is disabled;
2. she is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation;
3. her employer took an adverse action against her because of her disability.

Her case fails the “essential functions” test due to her inability to avoid regular and sporadic absences. At the time of her termination, she hadn’t been conclusively diagnosed, nor was it clear that she could control her illness enough, through treatment and medication, to regularly attend work. In fact, her subsequent employment only lasted a short time, and included a two-week absence due to the effects of MS.

A plaintiff whose disability keeps her from coming to work cannot perform the essential functions of her job, and thus cannot qualify for ADA protections.

Neither Does the FMLA

Per the plain language of the statute, FMLA protections only apply to those who have 12 months of tenure. She was two weeks shy.

The Employer Messed Up — But Not Enough

Basden argues that her employer failed to engage in the interactive accommodation exploration process required under the ADA and that it did not establish that her requested accommodation (the leave, requested two weeks early) was unreasonable.

You know what? She might be right, but she still loses. Employers are, indeed, required to engage in such an accommodation exploration process. However, the failure to engage in the process is not an independent basis for liability. It’s only actionable if it would have identified an accommodation that would’ve helped the individual.

But as we’ve already stated, Basden failed to prove that she could perform the essential functions of the job (by showing up regularly). She had attendance issues there. Even after unemployment, she had to take leave at the next job as well.

The employer’s skipped step doesn’t help when she can’t prove her prima facie case.

Related Resources:

• Basden v. Professional Transportation, Inc. (Seventh Circuit Court of Appeals)
• It’s Not a Pretext if the Employer Believes It’s True (FindLaw’s Seventh Circuit Blog)
• Don’t Let the Door Hit You… (FindLaw’s Seventh Circuit Blog)