On February 27, 2017, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a disability discrimination lawsuit. Whitaker v. Wisconsin Department of Health Services, No. 16-1807 (7th Cir. 2/27/2017). The employer terminated the employee’s employment when she failed to return to work, after exhausting several consecutive leaves of absence under the Family and Medical Leave Act and her employment contract. The employee alleged that the employer violated the Rehabilitation Act by failing to accommodate her disability (recurrent back pain) and terminating her employment because of her disability. Summary judgment was warranted because the employee failed to establish that she was an otherwise qualified employee, i.e., able to perform her essential job functions with or without reasonable accommodation. Regular attendance is an essential job function under the Americans with Disabilities Act and the Rehabilitation Act, but the employee did not establish that with additional leave, she could return to work on a regular basis.
To prevail on her disability discrimination claim under the Rehabilitation Act, the employee was required to show that: (1) she is disabled within the meaning of the statute; (2) she was otherwise qualified for the job in question; (3) she was discharged or subjected to other adverse employment action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance. An employer is generally permitted to treat regular attendance as an essential job requirement, and need not accommodate erratic or unreliable attendance. If an employee is not present at work, he or she is usually unable to perform his or her job. The employee’s argument–that with additional leave, she would have been able to return to work on a regular basis–was not supported by sufficient evidence. The backdrop that she had repeatedly requested additional medical leave whenever her leave was about to expire undercut her position and compounded her evidentiary shortcomings.