Obviously, I missed a blog entry last week. I have a good excuse. My daughter’s bat mitzvah was July 8. While the bat mitzvah and the reception and everything else went great (she did a great job!), the hangover was considerable. Once the hangover subsided, I had a client matter to attend to. However, I am back this week.

The case for this week is Punt v. Kelly Services, a 10th Circuit case decided July 6, 2017. As is usual, the blog entry is divided into categories and they are: facts and plaintiff’s problems with the case; failure to accommodate nuggets; and takeaways. Of course, the reader is free to focus on any or all of the categories.


Facts and Plaintiff’s Problems with the Case

  1. The suit involved an allegation by a temporary employee whose assignment by a staffing agency, Kelly Services, to work as a receptionist for another business was terminated after she missed significant amount of work while being tested for breast cancer and after informing the agency that she needed to take a full week plus an additional unknown amount of time off for more tests, appointments, and radiation treatment due to her cancer. However, plaintiff’s case had numerous problems with it and those follow below.
  2. As is typical with temporary employees from staffing agencies, the business, which happened to be General Electric, could ask the temporary agency to remove any of its temporary employees from their assignment for any reason. The temporary agency also had the right to cancel any employee’s assignment on its own initiative.
  3. When the plaintiff initially applied for employment with the temporary services, she signed an employment application stating that the duration of any assignment she accepted depended upon the needs of the temporary agency’s customer and that an assignment could be canceled at any time by the temporary agency or the customer.
  4. The application also stated that upon completion of each assignment she would notify the temporary agency of her availability for work and failure to do so indicated that she either voluntarily quit or was not actively seeking work.
  5. In the six weeks plaintiff was assigned to work as a receptionist at General Electric, she never worked the full 40 hour work week. In fact, she was absent from work on six occasions, two corresponded with holidays and three corresponded with documented medical appointments. One absence was unexplained. She was also late to work on three different occasions and did not offer an explanation for being late on two of those dates. She also left work early on three occasions with one of those departures being unexplained.
  6. When plaintiff would be gone from work, another temporary employee had to take over her duties and responsibilities.
  7. Plaintiff did not respond to the temporary agency request for information once the plaintiff told the temporary agency that she was concerned about her cancer treatment.
  8. Plaintiff lied to the temporary agency about what actually happened with her MRI.
  9. Once the temporary agency terminated her, plaintiff never contacted the temporary agency to ask for another assignment even though she has been very aggressive with the temporary agency in the past with respect to seeking work.
  10. The temporary agency offered plaintiff a one day assignment at a different business, but the plaintiff turned the assignment down because she already had work through a different temporary staffing agency.
  11. After February 2012, plaintiff never contacted the temporary agency to tell them she was available for a job assignment and the temporary agency did not contact plaintiff with any additional job offers.


Failure to Accommodate Nuggets

  1. Failure to accommodate claims do not require evidence of discriminatory intent, whether such evidence be direct or circumstantial. That is, the only reason the accommodation is required is because of a disability, and therefore, the failure to provide a reasonable accommodation to a qualified employee with a disability is inherently on the basis of the disability regardless of the employer’s motivation.
  2. Assuming the employee has provided notice to the employer of a disability, any limitations resulting from that, and the accommodations she wishes to receive, then the employer’s failure to provide a reasonable accommodation for the disability establishes the required connection between the disability and the alleged discrimination without the need to inquire into the employer’s subjective motivations.
  3. Since intentional discrimination is not a part of failure to accommodate claims, then McDonnell Douglas doesn’t apply either.
  4. McDonnell Douglas’ purpose is determining whether reasonable fact finder can infer from circumstantial evidence that the employer’s motives were discriminatory, but that is not an issue in failure to accommodate cases. In fact, adopting McDonnell Douglas is likely to confuse the analysis of failure to accommodate claims. That is, the distinction between direct-evidence and circumstantial-evidence simply does not apply when there is no need to inquire into the issues of the employer’s subjective motivations. Accordingly, failure to accommodate cases should be classified as a separate category of cases requiring no evidence of discriminatory intent in any form.
  5. The question of what type of ADA claim is involved in a particular case is determined by the allegations in the plaintiff’s complaint and not on the type of evidence.
  6. A modified burden-shifting framework assessing failure to accommodate claims makes sense in order to provide a useful structure by which a District Court can determine whether the various parties have put forth sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodation offered or not offered. Without such a structure, a court would have difficulty figuring out who should prevail on summary judgment.
  7. The modified framework involves: 1) the employee must make an initial showing that she is an otherwise qualified person with a disability and that she requested a plausible reasonable accommodation; 2) once that is done, the burden of production shifts to the employer to present evidence that either conclusively rebuts one or more elements of plaintiff’s prima facie case or establishes an affirmative defense, such as undue hardship or another affirmative defense available to the employer; and 3) if the employer is able to meet its burden of production as described just above, then summary judgment will be appropriate for the employer unless the employee then presents evidence establishing a genuine dispute regarding the affirmative defenses and/or rehabilitates any challenged elements of her prima facie case so as to establish a genuine dispute of material fact as to the challenged elements.
  8. An employee’s request to be relieved from the essential function of her position is not as a matter of law a reasonable or even a plausible accommodation.
  9. Physical attendance in the workplace is an essential function of most jobs and an employee’s request to work from home is as a matter of law unreasonable where the employer has decided that physical presence at the workplace is an essential function of the position.
  10. Since the term “reasonable accommodation,” refers to those accommodations presently or in the near future that enable the employee to perform the essential functions of his job, an employee is required to inform his or her employer of the expected duration of the impairment, which the plaintiff did not do.
  11. Plaintiff did not cite to a single case where a court found that a leave of absence is a reasonable accommodation for a temporary employee assigned to fill a position at a business by a temporary-staffing agency. To hold otherwise, would impose considerable difficulties on General Electric.
  12. For temporary employees, the ability to report to work consistently is a necessary part of the job.
  13. Plaintiff’s past behavior and her vague request for more time off suggest that she would not be able to meet the job’s requirement of reporting to work consistently in the future.
  14. The most essential function of a temporary employee’s job is physical presence at the workplace and therefore, plaintiff’s request was unreasonable as a matter of law.
  15. The temporary agency did not have to contact the plaintiff about additional job positions after her assignment with General Electric was terminated because the plaintiff did not carry out her obligations to the temporary agency asking for additional assignments when she was terminated per the contract she signed.



  1. Failure to accommodate claims do not require evidence of discriminatory intent says the 10th Circuit. Remember, an employer can escape damages if they can show they acted in good faith.
  2. Some reasonable accommodation requests may be unreasonable as a matter of law. See also this blog entry.
  3. McDonnell Douglas does not apply to failure to accommodate cases, though modifying it is helpful so that courts can smoothly decide summary judgment motions.
  4. The distinction between direct-evidence and circumstantial-evidence simply makes no sense in failure to accommodate claims. See also this blog entry, discussing the distinction between direct-evidence and circumstantial-evidence makes no sense at all in any situation, but arguably holding that McDonnell Douglas applies everywhere.
  5. The question of the type of ADA claim depends upon the plaintiff’s complaint and not on the type of evidence, which is a point made by the Seventh Circuit in the case referenced in the blog entry mentioned in ¶ III 4.
  6. An essential function of a temporary employee’s job is attendance. To my mind, always saying that goes too far. As a matter of preventive law, I would still prefer to go about it as discussed in this blog entry. That said, companies are retrenching in a big way from freely allowing remote working.
  7. While the court acknowledges that just because the employer has decided that something is an essential function of the job does not make it so, the court goes out of its way to say that the employer’s judgment as to what is an essential function of the job is given big time weight. Accordingly, employers want to make sure that their job descriptions are current and accurate as to what the essential functions are.
  8. Unlimited leave or leave without a specific duration is not a reasonable accommodation.
  9. Following the terms of a contract can make a big difference in terms of how it case plays out.
  10. Can you say interactive process?

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