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SNAPSHOT

 

September, June 20112010

A Monthly Legal Update for Governmental Agencies

 

 

  Erin E. Byrnes

Lessons from EEOC Hearings on Use of Leave as a Reasonable Accommodation in ADA Cases

602.792.5713 [email protected]

Ms. Byrnes has been practicing for 11 years and has specialized in defending government entities in civil rights and employment litigation since 2002. This work has included defending Title VII, ADA, ADEA, and FLSA lawsuits, as well as § 1983 lawsuits.

On June 8, 2011, the Equal Employment Opportunity Commission (EEOC) held hearings to examine the use of leave as a reasonable accommodation for workers under the Americans with Disabilities Act (ADA). Several EEOC attorneys testified, as did lawyers from public interest groups and those who defend large employers. Below are a few policy and administration tips, gleaned from the hearings, for your entity’s consideration and use. 

Employers must be careful in using “no fault” leave policies – Many employers have policies that dictate that an employee is automatically terminated after using the allotted leave time. Employers must be willing to examine alternative accommodations, including job reassignment, or reduced hours, in considering how to accommodate a disabled employee. As a matter of best practices, employers’ leave policies should make clear that leave can be extended or adjusted as a reasonable accommodation, so long as that alteration does not result in an undue hardship to the employer.

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When using leave as a reasonable accommodation, employers must engage in an individualized analysis – Employers should evaluate what constitutes an appropriate duration of leave under the ADA on a case-by-case basis, even when the employer has a fixed leave policy. Even those employers with generous leave policies – for instance a full year – may run afoul of the ADA’s reasonable accommodation requirements if those employers fail to engage in an individualized analysis specific to the disabled employee’s needs and requests. Bottom line: Leave that can never be extended is not in keeping with the ADA’s requirements.

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Employees are only entitled to pay for sick leave when they have accrued paid leave. Nothing in the ADA requires that employees receive paid sick leave as a reasonable accommodation.

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It is risky to have employee leave time, worker’s compensation, and disability benefits administered by different entities/persons – Many employers are segregating the administration of employee leave from oversight of workers’ compensation and/or disability benefits. This creates increased risk due to the potential lack of sharing key information. For instance, personnel administering benefits might receive a doctor’s note with restrictions on an employee’s return to work. The benefits team will use this with respect to certifying the employee’s continued right to receive benefits, but might fail to give the doctor’s note to the HR coordinator for use in ADA accommodation, or facilitating return to work. It is important that personnel responsible for administering these areas have access to, and share, all critical and relevant information to their individual functions.

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When an employee is unable to return to his/her original position at the end of a period of leave, due to continued limitations, the employer must take additional steps to accommodate the employee – Sometimes a disabled employee who has been out on leave for accommodation purposes will be unable to resume his/her original job functions in their entirety. Absent undue hardship, an employer can only satisfy its obligation to reasonably accommodate the employee by investigating other alternatives, like reassignment to another position.

She also has special expertise in Indian law matters. Ms. Byrnes is admitted in Arizona, Oklahoma, federal district court, and eight tribal courts in Arizona.

Lisa S. Wahlin 602.792.5707 [email protected]

Ms. Wahlin spent 16 years in government practice as a prosecutor and civil litigator before moving to private practice in 2007. Her expertise is in wrongful death and personal injury, as well as government liability defense, including civil rights defense, police liability, and jail/corrections defense. She is admitted to practice in Arizona, the U.S. District Court of Arizona, and the Ninth Circuit Court of Appeals.

Graif Barrett & Matura, P.C. 1850 North Central Avenue Suite 500 Phoenix, Arizona 85004 602.792.5719

 

SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.

 

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A Monthly Legal Update for Governmental Agencies

 

 

Case Law Update Arizona Court of Appeals

Slaughter v. Maricopa County, et al., 2011 WL 1812521 (App. 2011) Plaintiff Slaughter was a security guard for the Maricopa County Superior Court. On March 7, 2005, she sued Maricopa County for sex and age discrimination and for an alleged hostile work environment. The County moved for summary judgment on Slaughter’s claims, arguing that it could not be held liable because Slaughter’s actual employer was the State of Arizona. Plaintiff contested the notion that the State was her actual employer, but also argued that if that were true, the County had acted as the State’s agent with respect to plaintiff’s employment. The court denied the County’s motion and allowed the plaintiff to amend her lawsuit to add the State as a defendant. The State then filed a motion to dismiss, arguing that Slaughter failed to file a notice of claim with the State, as required by A.R.S. § 12-821.01(A), prior to filing her lawsuit. The trial court denied this motion, noting that Slaughter’s amended complaint alleged she had filed a timely notice of claim prior to initiating her lawsuit. The court then ordered the parties to engage in limited discovery to ascertain which entity was Slaughter’s actual employer, whether she had filed a timely notice of claim with the State, and whether her lawsuit against the State was timely. This court directed the parties to complete this discovery by July 31, 2008. In April 2009, the State then moved for summary judgment on the grounds that Slaughter had failed to produce any evidence that she complied with the notice of claim statute by filing her notice directly with the State. It also asked the court, in the alternative, to dismiss plaintiff’s claims for failure to prosecute. The County joined in the latter part of the motion. The trial court granted the motion for summary judgment, finding Slaughter had failed to demonstrate an issue of material fact existed on the issue of whether she timely served a notice of claim with the State. Similarly, the court dismissed Slaughter’s claims against the County for failure to prosecute. On appeal, Slaughter said the trial court erred in granting summary judgment because a material issue of fact existed as to whether Slaughter’s filing of her notice of claim on the County was likewise sufficient filing with the State, in light of her theory that the County was acting as the agent of the State with respect to her employment. In furtherance of her agency argument, plaintiff noted that she had applied for employment with the County, was ultimately hired and paid by the County, and was never notified that she worked for any entity other than the County. According to Slaughter, this evidence was sufficient to preclude summary judgment because a fact issue existed as to whether filing her notice of claim with the County simultaneously constituted filing with the State.

The State countered by arguing that even if the County were the State’s agent for the purposes of plaintiff’s employment, this did not obviate plaintiff’s obligation under the notice of claim statute to file her notice directly with the State. Additionally, the State and the County pointed to evidence that both entities had advised Slaughter in August 2005 that the notice of claim she served on the County’s Board of Supervisors was served on the wrong entity, and that her true employer was the State. The court of appeals affirmed summary judgment in favor of the State. In so doing, it rejected Slaughter’s request that it apply the holding of another case – Ames v. State – which found that service of a notice of claim on the Arizona Department of Transportation effectively constituted service on the State. The court found Slaughter’s case to be distinguishable, noting that she “did not serve the State with her notice of claim, but served an entirely different governmental body.” (Emphasis added). In other words, the court held Plaintiff’s service of the notice of claim on the County did not constitute service on the State, even where plaintiff argued the County was acting as the agent of the State, since the statute requires that notice be served on the “person or persons authorized to accept service for the public entity” and Rule 4.1(h) of the Arizona Rules of Civil Procedure indicate that service on the State is effectuated via service on the attorney general. Further, the court noted that plaintiff knew, as of February 2006, that the State (not the County) was her employer, yet she took no action to notify the State of her claim. Therefore, there was no evidence Slaughter complied with the notice of claim statute. The Court of Appeals then considered whether the trial court properly dismissed plaintiff’s claims against the County for failure to prosecute. Noting that a dismissal for failure to prosecute is not disturbed on appeal absent a showing of abuse of discretion, the court of appeals likewise upheld judgment in favor of the County. The court’s affirmation was predicated on its finding that there was no evidence that Slaughter conducted any discovery, or that she took any other action in furtherance of her claim, after amending her complaint. Yuma Valley Land Co., LLC v. City of Yuma, 2011 WL 1812783 (App. 2011) Plaintiff Yuma Valley Land Company owned real property (the “Subject Property”) in an unincorporated area of Yuma County. Yuma Valley Land Company optioned the right to develop the Subject Property for residential and/or commercial use to Parkway Place Development and Saguaro Desert Land, who also were plaintiffs in this case. The group (collectively referred to as “the Developers” herein) sued the City of Yuma in June of 2009, alleging the City was required to provide water and sewer services to the Subject Property, even though it was not within City limits. According to the Developers, the City was so obligated because it had provided water and service to the

SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.

 

 

   

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A Monthly Legal Update for Governmental Agencies

 

 

Arizona Court of Appeals (Continued)

property adjacent to the Subject Property and, by so doing, had effectively precluded the Developers from contracting for those services with another utility provider. Consequently, the Developers sought a declaratory judgment affirming that (1) the City could not charge the Developers development fees as a condition of providing water and sewer to the Subject Property and (2) affirming the City was required to provide said services to the Subject Property at the same rates found in the City’s Development Fee Schedule. The City moved to dismiss, arguing that because the Subject Property was not within City limits, and given that there was no contract between it and the Developers to provide water or sewer services, the City was under no obligation to provide such services. The Developers opposed dismissal, continuing to argue that the City’s decision to provide those services to the property adjacent to the Subject Property rendered it impossible for them to contract for those services with any entity other than the City. The trial court granted dismissal, noting the dearth of Arizona authority to establish that “the impossibility of a property owner to obtain water or sewage services from an alternative source gives rise to a duty on the part of a City or municipal entity to provide such … services.” The court of appeals affirmed. It reasoned that while a municipality can operate a public utility and, in the course of doing so, may provide services to nonresidents, there is no duty to provide such services to nonresidents, in the absence of a statute or contractual agreement to the contrary. Once a municipality undertakes providing service to nonresidents, however, it must do so in a nondiscriminatory manner and cannot discontinue that service for so long as the municipality owns or controls the utility. The court of appeals also rejected the Developers’ contention that the foregoing “general rule” does not apply in situations where the municipality makes it impossible for nonresidents to receive the relevant services in other ways, from other providers. Simply put, the court found no authority supporting such an exception.

SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.