Before getting started on the blog entry for the week, breaking news today. The Supreme Court agreed to hear a case involving tester standing involving serial plaintiff Deborah Laufer. We discussed the case here in a blog entry that correctly predicted that the Supreme Court would hear the case. Now if only my predictive abilities were that good when it came to picking teams in the NCAA men’s tournament. For the second year in a row, I finished dead last in the men’s pool I was in. During the first two rounds of the tournament, my daughter was home for spring break, and it was a blast watching her school’s mens and women’s teams win both their conference tournament and participate in the NCAA tournament.


Turning to the case of the day it is Makekau v. Charter Communications, LLC decided on February 13, 2023, out of the United States District Court for Hawaii, which can be found here. As usual, the blog entry is divided into categories and they are: facts; when does the statute of limitations begin to run; burden of proof in reasonable accommodation cases; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.





Plaintiff worked as a customer service representative for Charter Communications for approximately seven years when she was placed on leave for a worker’s compensation injury. Her essential job duties were sitting at her desk, taking calls, and answering emails to try to sell Charter’s services to current and potential customers. The job did not require any heavy lifting or other physically taxing manual labor. During her seven years she performed her job duties without any substantial issues.


Plaintiff is clinically obese with a long history of diabetes and hypertension resulting in physical limitations related to neuropathy in her hands and feet. Her condition may impair her ability to walk, talk, see, work, and perform day-to-day activities. Her supervisors were aware of her symptoms, and her managers assisted her when she had diabetic episodes at work.


Over the course of her employment, she made three different requests for reasonable accommodations, including: 1) a parking accommodation request so that she did not have to walk so far to the facility after arriving; 2) requesting additional leave while injured on workers compensation and awaiting surgery; and 3) requesting that she be extended on the recall list.



When Does the ADA Statute of Limitations Begin to Run


  1. Request for ADA accommodations not filed with the EEOC within 300 days of the denial of the reasonable accommodation are time-barred.
  2. Each denial of a request for an ADA accommodation constitutes a separate and discrete discriminatory act, subject to its own unique statute of limitation timeline.
  3. You can have a continuing violation in a hostile work environment claim if: the events as part of that claim were sufficiently severe or pervasive; and 2) whether the earlier and later events amount to the same type of employment actions, occurring relatively frequently, or perpetrated by the same managers.



Burden of Proof in Reasonable Accommodation Cases


  1. When an individual notifies an employer of a need for an accommodation, that triggers a duty to engage in an interactive process by which the employer and employee can come to understand the employee’s ability and limitations, the employer’s needs for various positions, and a possible middle ground for accommodating the employee.
  2. In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th 2000) (en banc), a case that was vacated by the United States Supreme Court on other grounds, the Ninth Circuit held that an employer failing to engage in the interactive process in good faith is liable under the ADA if a reasonable accommodation would have been possible.
  3. At summary judgment, the burden rests with the defendant to demonstrate the unavailability of a reasonable accommodation.
  4. “Recognizing the importance of the interactive process, the Ninth Circuit also held that if an employer fails to engage in good faith in the interactive process, the burden at the summary judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.”
  5. Defendant had an affirmative duty to engage in the interactive process to find or attempt to find a reasonable accommodation for plaintiff, and there is no evidence in the record that the defendant did so or even attempted to do so.
  6. Defendant also failed to demonstrate at this stage that a reasonable accommodation would have been unavailable to the plaintiff even if it had engaged in the interactive process. Accordingly, a genuine issue of material fact exists as to whether reasonable accommodation would’ve allowed the plaintiff to perform her essential job functions with respect to request to have her leave extended and to be extended on the recall list.
  7. In a footnote, the court noted that plaintiff claimed that had defendant engaged in the interactive process to find a reasonable accommodation, she could have been able to return to work with breaks to stand up periodically from her desk, return on limited duty or for limited hours, take an alternative available job placement, work from home, etc. or do anything else to return to work.
  8. In a footnote, the court noted that unpaid medical leave may be a reasonable accommodation under the ADA. Even extended medical leave, or an extension of an existing leave can be a reasonable accommodation if it does not pose an undue hardship on the employer.





  1. This is not the first case we have seen using a repeated violations theory when it comes to the statute of limitations. We previously encountered that in a title II case out of Colorado, which we discussed here. It is important to keep in mind that the statute of limitations begins to run at the moment in time a request for a reasonable accommodation is denied and not when the person is terminated.
  2. Continuing violations is a doctrine the federal courts talk about a lot, but I rarely see accepted by the federal courts in a particular fact pattern.
  3. Magic words are not required to initiate the interactive process as we have discussed many times, such as here.
  4. The language of the court is a bit confusing. There is an entirely separate sentence saying that at summary judgment the burden rests with the defendant to demonstrate the unavailability of a reasonable accommodation. However, the very next sentence is quoting from another decision saying that the employer acting in bad faith with respect to the interactive process appears to be a condition precedent to the burden shifting with respect to showing the unavailability of a reasonable accommodation. As a preventive law matter, it wouldn’t be a bad idea, as the plaintiff did in this case, for a plaintiff to put in their complaint the types of accommodations that may work. I have seen many cases talking about the obligation of a plaintiff to put forward accommodations that might work in failure to accommodate cases.
  5. The interactive process is absolutely critical whenever a request for a reasonable accommodation is made. Don’t forget about its do’s and don’ts, which we discussed here.
  6. Be sure your job description discussing an employee’s essential job functions are current and based upon reality. Ultimately, it is what is happening on the ground that is going to be a critical factor in determining what are essential functions.
  7. Depending upon the jurisdiction, courts vary in how far under the hood they will look with respect to determining the essential functions of the job.
  8. Extending leave can be a reasonable accommodation. Reassignment to another position if it is a last resort can also be a reasonable accommodation. For that matter, just about anything can be a reasonable accommodation providing it gets the person with a disability to the same starting line as a person without a disability.
  9. Don’t forget about the Job Accommodation Network, here.
  10. The person who blows up the interactive process bears the liability.
  11. It may not always be clear when a reasonable accommodation request is denied. We do know that unreasonable delay in granting an accommodation is actionable under the ADA. We discussed such a case here.


In addition to the NCAA men and women’s tourney, baseball season starts up next week. Good luck to your teams. Go Braves, Cubs, and Chicago White Sox.