Best Ohio Disability Discrimination Attorney Answer: Is a medical leave from work a reasonable accommodation for my disability? What does it mean when my boss says that it would be an “undue hardship” to give me a disability accommodation? Does my job have to give me an accommodation to help me do my job?
At Spitz, The Employee’s Law Firm, our employment lawyers continue to work every day to help current employees that been refused disability accommodations by their employers and former employees who have been wrongfully fired because of disability discrimination in the workplace.
As our employment discrimination lawyers have blogged before, all employees are protected under Americans with Disabilities Act (“ADA“) and R.C. § 4112.02(A) from being discriminated against or retaliated against by their employers on the basis of their actual or perceived disability. (See My Job Is Discriminates Against Me Because I’m Disabled!; Top Disability Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not Accommodate My Anti-Social Disorder?; and Is It Wrongful Termination To Fire Disabled Workers?). These laws also prohibit employers from making pre-employment, disability-related inquiries of job applicants. Moreover, The ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?)
Today, we examine the question of whether an employer can refuse one requested disability accommodation simply because they provided a previously requested disability accommodation.
Recently, the Second Circuit Court of Appeals reversed summary judgment in favor of an employee who brought disability discrimination claims against his former employer, University at Buffalo School of Medicine and Biomedical Sciences. In Dean v. University at Buffalo School of Medicine and Biomedical Sciences, the court examined whether Dean was given a reasonable accommodation for his disability. In conducting its analysis, the court set forth the proper burden of proof for an employee-plaintiff to make a reasonable accommodation claim: “in employment-related claims based on a failure to accommodate, the plaintiff bears the initial burdens of both production and persuasion as to the existence of an accommodation that would allow the plaintiff to perform the essential functions of the position in question, as well as a ‘light burden of production’ as to the facial reasonableness of the accommodation.” The court then explained: “The burden of persuasion then shifts to the defendant to rebut the reasonableness of the proposed accommodation. This burden of non-persuasion is in essence equivalent to the ‘burden of showing, as an affirmative defense, that the proposed accommodation would cause [the employer] to suffer an undue hardship.’”
In Dean, the employee enrolled in a four-year M.D. course in August 2004. Dean had to complete two separate phases of the course to advance, each comprising of two years of study. To progress to the latter stage a student must pass all first-phase modules and electives, a second-year clinical competency examination, and Step 1 of the USMLE administered by the National Board of Medical Examiners (“NBME”). A student gets three opportunities to pass the Step 1 exam, with all attempts to be completed in one academic year exclusive of official (non-study) leaves of absence. As such, Dean had until May 31, 2007 to complete Step 1 of the USMLE.
The University allowed Dean to take “study leaves” before his first and second attempts at Step 1 of the exam. The first leave was in June, 2006 and thereafter Dean failed the exam the first time. Then, Dean enrolled in a PASS program, a private preparation course for the exam, before taking the exam a second time. Dean noted that prior to attending the program he was “ridden with depression, stress, and anxiety,” and asked for an “extra month in the Pass Program to succeed” but did not expressly request medical leave. Dean ultimately retook Step 1 on February 16, 2007, and again failed.
Sometime after failing the test for a second time, Dean became disabled and began experiencing increased symptoms of depression. In April, 2007, Dean met with several mental health doctors in order to treat for his depression symptoms. As a result of this treatment, Dean was given, and presented to the University, a doctor slip recommending a three-month leave of absence due to situational depression.
After presenting the slip to the University, Dean received responses from Dr. Nielsen, by letter and email, informing him that the note provided insufficient information to support an extended leave. Dr. Nielsen advised Dean that the dean of the University, Dr. Michael Cain, would not grant any additional extensions and that Dean was to sit for Step 1 by May 31, 2007. Thereafter, Dean followed up with his doctors who sent additional information to the University and the leave of absence committee recommending a leave of absence for Dean. As a result of this new information, the University granted Dean a leave of absence until June 30, 2007, a date approximately six weeks after Dean began taking new medication for his depression, but for full three months originally requested.
Thereafter, Dean followed up again with his doctors who again requested from the University a three-month leave of absence because Dean had not significantly improved in his treatment for depression. As a result, the University extended Dean’s leave of absence until July 28, 2007. Thereafter, in mid-July, Dean showed dramatic improvement in his recovery from depression symptoms and in late-July, one of Dean’s physicians left a voicemail with the University that Dean should be able to sit for the exam “with an additional month of preparation time.” Dean did not sit for the exam by July 28, 2007 nor did he request any further extensions. As a result, he was dismissed from the University and filed a lawsuit.
In answering the question of whether the University reasonably accommodated Dean’s disability, the court noted that it did provide Dean with some type of accommodation, giving him leaves until July 28, 2007 to take the exam. Ultimately, however, the court held that the University fell short:
Defendants posit that the accommodation offered Dean was reasonable since he had studied during two extended periods of leave prior to any reported mental health condition, such that additional study time would not have been necessary. In alluding to the year Dean spent preparing for the Step 1 exam, the district court appeared to embrace this theory.
We disagree. As an initial matter, we harbor serious doubt that earlier periods of study suffice to prepare a student for a later examination, particularly when the student twice failed that very exam. Further, contrary to the district court’s conclusion, Dean offered evidence to establish that he was not treated in an evenhanded manner with respect to similarly situated students. According to Dean’s evidence, UBMED granted a set period of study leave to students prior to each sitting of the examination. Dr. Hoover attested to a “longstanding policy” of affording students six to eight weeks exclusively for exam preparation prior to each attempt at Step 1 of the USMLE. Dean similarly testified at his deposition. While it is unclear how many days or weeks Dean spent effectively studying after beginning pharmacological treatment, by any measure Dean’s period of preparation time in late July 2007 did not span the six to eight weeks allegedly afforded, as a matter of school policy, to medical students who had also failed two prior attempts at the Step 1 exam. Given this policy, a juror could reasonably infer that the abbreviated study period encompassed within Dean’s leave would not have been effective. We therefore cannot conclude that Defendants afforded Dean a plainly reasonable accommodation.
The court also examined whether the University could show that granting the extended leave or more preparation time would be an undue hardship, and again answered in the negative:
Thus, the non-persuasion burden falls to Defendants. In order to obtain summary judgment, it was incumbent upon Defendants to submit a factual record establishing that in rejecting Dean’s requested scheduling modification they diligently assessed whether the alteration would allow Dean the opportunity to continue in the M.D. program without imposing undue financial and administrative burdens on UBMED or requiring a fundamental alteration to the academic caliber of its offerings. Where, as here, the record is devoid of evidence indicating whether Defendants evaluated these considerations in determining the reasonableness of the accommodation sought, we decline to extend the deference we ordinarily accord to the professional, academic judgments of educational institutions. To do otherwise might “allow academic decisions to disguise truly discriminatory requirements.” We do not mean to suggest that Defendants have obscured the basis for their decision to cloak discriminatory intent. Rather Defendants’ failure to adduce evidence as to the basis for denying Dean’s requested modification to the exam schedule precludes any conclusion on summary judgment as to the unreasonableness of that accommodation.
Based on these holdings, the court remanded the case back to the district court for further analysis as to the ADA claims. Further, the court neglected to examine the University’s Eleventh Amendment immunity defense as to the ADA claim, leaving that for the district court to analysis for the first time having not done so when it originally granted summary judgment.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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