Plaintiff's position is that her handicap was limited to her neurological disorder and that she was discriminated against on that basis. For purposes of ruling on this motion, I assume that plaintiff was handicapped.
Was plaintiff qualified to perform the essential functions of her position, despite disability? See School Bd of Nassau County v. Arline, 480 U.S. 273, 285, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) ("the definition of 'handicapped individual' is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief") (emphasis in original); Doe v. New York University, 666 F.2d 761, 775 (2d Cir 1981). The Supreme Court has interpreted the phrase "otherwise qualified" to refer to "one who is able to meet all of a program's requirements in spite of . . . handicap." Arline, 480 U.S. at 287 n 17; Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir 1991).
To be qualified, the individual must satisfy the requisite skill, experience, education and other job-related requirements of the employment position and must be able to perform the essential functions of the position, with or without reasonable accommodation. Arline, 480 U.S. at 287 n 17; 45 CFR 84.3(k) (1985); Gilbert, 949 F.2d at 641; Matzo v. Postmaster General, 685 F. Supp. 260, 263 (DDC 1987), aff'd 274 U.S. App. D.C. 95, 861 F.2d 1290 (DC Cir 1988).
In the present case, plaintiff satisfied the skill, education and experience requirements of the job. Plaintiff's performance appraisals did not indicate any problems or deficiencies in those areas and indeed did not mention outbursts or difficulties in getting along with other people at the workplace.
Where dismissal is based on factors covered by a positive job appraisal, the appraisal becomes suspect, as do the articulated reasons for dismissal. One may draw the inference that the reasons given are pretextual and that the employee was in fact fired (or in this case placed upon permanent disability) because of her handicap. See Ostrowski v. Atlantic Mutual Ins Companies, 968 F.2d 171, 182 (2d Cir 1992).
The employer's personnel policy encompassed two separate types of employee evaluation, one being periodic written appraisals of job performance based on the employee's duties and responsibilities, and on goals to be achieved on the job, including significant positive or negative influence that the employee had on the job performance of others. In contrast, managers were to identify separately and deal early with problems relating to "conditions of employment" including attendance and personal conduct. The employer's personnel materials indicate that conditions of employment were generally considered to be those which did not impact the technical aspects of performance.
Whether or not plaintiff was "otherwise qualified" to perform the essential functions of the job turns on the significance of absences and interpersonal relations, factors the employer cites as the basis for decline in plaintiff's ability to perform, and as the reasons for her ultimate removal from active employment, in light of the employer's official job description for a staff systems analyst and office educator. See Overton v. Reilly, 977 F.2d 1190, 1195 (7th Cir 1992) (employer's job description relevant to determination of essential functions of the job); Schmidt v. Bell, 1983 WL 631, *9, 33 Fair Empl. Prac. Cas. (BNA) 839 (DC Pa 1983) ("Deference must be given to the decision of those persons who are in the best position to evaluate whether the individual is able to fulfill the essential functions of the position in spite of the handicap."); EEOC Title I Regulations (employer's judgment as to what the essential functions of the job are can be considered).
By plaintiff's own definition of her duties at deposition, her actual presence in the workplace and predictable availability were essential so that projects could be developed against deadlines important to the employer; so that new systems could be tested in collaboration with other employees; and so that plaintiff was available to attend planning meetings and training sessions. "Some degree of regular, predictable attendance is fundamental to most jobs," Walders v. Garrett, 765 F. Supp. 303, 310 (ED Va 1991), aff'd 956 F.2d 1163 (4th Cir 1992), and particularly to a job in an organizational setting in which assignments may require team interaction for project development within a timeframe relating to marketing of the product.
What is most significant, however, is not absences as such, but whether or not the job is completed in a timely manner in light of the work involved. See United States EEOC v. AIC Security Investigation, Ltd., 820 F. Supp. 1060, 1064 (ND Ill 1993) ("What is material is that the job gets done . . . This is necessarily a fact intensive determination.") Plaintiff was supposed to function as a component of a research facility developing and testing technically sophisticated products.
It is certainly a "job-related requirement" that an employee, handicapped or not, be able to get along with co-workers and supervisors. Thus, conduct associated with a handicap, as distinct from the handicap itself, may be relevant to the determination of whether a person is qualified. Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 517 (2d Cir 1991), cert. denied 113 S. Ct. 54, 121 L. Ed. 2d 24 (1992); see Doe v. Region 13 Mental Health-Mental Retardation Comm'n, 704 F.2d 1402, 1408 (5th Cir 1983).
An employer may certainly require an employee's presence at the workplace when interaction with others is essential to the task to be performed; the employer may also require that employees, whether handicapped or not, not cause, or contribute to, undue interruptions and hostility in the workplace. See Schmidt v. Bell, 1983 WL 631, *14, 33 Fair Empl. Prac. Cas. (BNA) 839 (DC Pa 1983) ("Mr. Schmidt's post traumatic stress disorder is manifested by his resentment of any type of authority. . . . His volatile, explosive personality is exacerbated under stress and [his job] is inherently stressful. His handicap presents an insurmountable barrier to his employment.").
Plaintiff denies that she was the cause of the 1985 disruptions. She does, however, admit to at least one physically aggressive act in May 1985; to on-going disagreement with her managers and other employees; to unwillingness to cooperate with management decisions as to how to resolve past incidents; and to mistrust of her managers after learning that the employer provided legal services to the computer trainer in connection with her suit against him. She was concededly absent from the workplace for extended periods of time. See Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir 1992) (head nurse unable to come to work until two hours after others because of disability not "otherwise qualified" because no management person would be available).
These factors are sufficient to support the employer's action, unless the employer's ultimate decision was a pretext for discrimination against plaintiff on the basis of handicap. See St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Doe v. Region 13 Mental Health-Mental Retard. Com'n, 704 F.2d 1402, 1408-09 (5th Cir. 1983); Carr v. Barr, 1992 WL 159191, *4 (DDC 1992).
One fact in the record which may support plaintiff's contention that some inappropriate factor -- although not necessarily plaintiff's handicap -- was in the minds of some of the employer's personnel is a notation in a document made by a single member of the first disability panel review committee in February 1986, stating: "Had no problem with case. 'Someone not unsat [unsatisfactory] today - can you force her out of business.' Yes. MDIP." See Misek-Falkoff v. International Business Machines, 144 F.R.D. 48, 49 (SDNY 1992).
In context, however, the notation is not persuasive of discriminatory intent. The company's decisionmakers creditably rejected this suggestion in 1986, and plaintiff continued to be an employee. It was not until more than a year later, in June 1987, that the decision was taken to place plaintiff on disability: in the interim additional persistent problems had been experienced with plaintiff not related to technical competence but to inability to get along in the workplace, and to unpredictable, extended absences from the workplace.
Where there are external indications of serious difficulties in the interaction between an employee and other employees and staff of the employer, as is the case here, the reality of perceptions of the supervisors, regardless of the correctness of those perceptions, presents a problem for the employer.
If reasonable accommodation can enable an otherwise qualified plaintiff to perform the essential functions of a job, the plaintiff must provide it. School Bd of Nassau County v. Arline, 480 U.S. 273, 287 n 17, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987); Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir 1991); Treadwell v. Alexander, 707 F.2d 473, 477 (11th Cir 1983).
Accommodation is not reasonable if it "either imposes 'undue financial and administrative burdens,' or requires a 'fundamental alteration in the nature of [the] program.'" Arline, 480 U.S. at 287 n 17, quoting Southeastern Community College v. Davis, 442 U.S. 397, 410, 412, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979).
A plaintiff has the initial burden of coming forward with at least a facial showing that the handicap can be accommodated. Gilbert, 949 F.2d at 642. Plaintiff asserts that she could be accommodated by being permitted to work at home, which appears at first glance to be reasonable because the employer's business is computer research and development.
Work at home does not create total insulation from supervisors or coworkers. Personal contact would still be required at critical junctures, triggering chances of recurrent outbursts. Plaintiff required training, and a trainer could not effectively provide training to plaintiff at home and, in any case, teaching requires the type of interaction that is at issue here. An employer is not required to accommodate a disabled employee by eliminating one of the essential functions of a job. Gilbert, 949 F.2d at 642; Hall v. United States Postal Service, 857 F.2d 1073, 1078 (6th Cir 1988); Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir 1985).
The employer made reasonable accommodations by allowing plaintiff to rest in the medical department during the day, to park in handicapped parking areas whenever requested, to take extended absences for medical reasons, and to work part-time and "to tolerance" as needed. The employer also changed her office from time to time at her request, and permitted her to attend law school at night although she was not always coming to work during the day.
Plaintiff has asserted that these accommodations were inadequate and unacceptable. A plaintiff may not, however, complain successfully about the employer's choices if reasonable. "That [the employer] could have provided a different set of reasonable accommodations or more accommodations does not establish that the accommodations provided were unreasonable or that . . . additional accommodations were necessary." Wynne v. Tufts Univ. School of Med., 1992 WL 46077 (D Mass 1992), aff'd 976 F.2d 791 (1st Cir 1992), cert. denied 113 S. Ct. 1845, 123 L. Ed. 2d 470 (1993).
Dated: White Plains, New York
May 13, 1994
VINCENT L. BRODERICK, U.S.D.J.
INDEX OF SEALED COURT EXHIBITS TO MEMORANDUM ORDER
Exhibit No. Footnote Source
1 8 Def's Notice of Motion, Exh I
2 11, 12 Def's Notice of Motion, Exh O
3 13 Def's Notice of Motion, Exh P
4 15 Def's Reply Aff, Exh E
5 16 Pl's Aff, Exh 28
6 19 Pl's Aff, Exh 13
7 21, 36 Def's Notice of Motion, Exh G
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