Monday, May 4, 2015

ADA case fails on "essential functions" prong

The Americans with Disability Act is like a huge rubber band that requires employer and employee to be flexible in accommodating a disabled employee's disability. So these cases can be hard to predict. But one central element of these claims is that that the employer does not have to accommodate the employee if he cannot perform an essential function of the job even with an accommodation.

The case is Snowden v. Columbia University, a summary order decided on April 16. In these cases, we ask what were the essential functions of the job. For Snowden, it was sorting, filing, bending, reaching and stooping. (The decision does not tell us this, but my guess is that plaintiff was a file clerk). A plethora of factors helps the courts determine what is an "essential function," including the employer's judgment, written job descriptions, the amount of time plaintiff spent performing the function, etc., etc., etc.

The case was dismissed on summary judgment. The Court of Appeals (Walker, Calabresi and Raggi) affirms. Plaintiff argued on appeal that the parties had vigorously contested the essential functions of her position in the district court. In particular, she says the jury must decide if lifting heavy boxes was an essential function. The Second Circuit disagrees, citing plaintiff's deposition testimony and Rule 56.1 statements, in which he made certain admissions that support the employer's position.

This reminds me of a practice tip when handling cases in the Second Circuit on appeal from summary judgment. In preparing for oral argument, take a look at the Rule 56.1 statement. District judges of course review them in deciding what facts are material. The Court of Appeals does also. Fifteen years ago I argued an appeal without double-checking the Rule 56.1 statement. One of the judges asked me about a fact that plaintiff had admitted in that document. My response was not exactly Clarence Darrow. In preparing for argument, I have checked the Rule 56.1 statements ever since.

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