Appeal from the United States District Court for the District of Kansas. (D.C. No. 5:11-CV-04185-EFM-KMH).
Luanne C. Leeds of Leeds Law, LLC, Topeka, Kansas, for Plaintiff-Appellant.
Peter J. Paukstelis, Office of General Counsel, Kansas State University, Manhattan, Kansas, for Defendant-Appellee.
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.
By all accounts, Grace Hwang was a good teacher suffering a wretched year. An assistant professor at Kansas State University, she signed a written one-year contract to teach classes over three academic terms (fall, spring, and summer). But before the fall term began, Ms. Hwang received news that she had cancer and needed treatment. She sought and the University gave her a six-month (paid) leave of absence. As that period drew to a close and the spring term approached Ms. Hwang's doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer term. But according to Ms. Hwang's complaint, the University refused, explaining that it had an inflexible policy allowing no more than six months' sick leave. The University did arrange for long-term disability benefits, but Ms. Hwang alleges it effectively terminated her employment. In response, she filed this lawsuit contending that by denying her more than six months' sick leave the University violated the Rehabilitation Act. Failing to see how this much followed, the district court dismissed her complaint and it is this ruling Ms. Hwang now asks us to reverse.
The Rehabilitation Act prohibits recipients of federal funding, like Kansas State, from discriminating on the basis of disability. 29 U.S.C. § 794(a). One way a disabled plaintiff can establish a claim for discrimination in the workplace is by showing that she is qualified for her job; that she can perform the job's essential functions with a reasonable accommodation for her disability; and that her employer failed to provide a reasonable accommodation despite her request for one. Once a plaintiff can show all these things, an employer generally may avoid liability only if it can prove the accommodation in question imposes an undue hardship on its business. See Sanchez v. Vilsack, 695 F.3d 1174, 1177 & n.2 (10th Cir. 2012); see also 29 U.S.C. § 794(d); Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002).
When it comes to satisfying her elemental obligations, Ms. Hwang's complaint fails early on. There's no question she's a capable teacher, no question she's disabled within the meaning of the Act. But there's also no question she wasn't able to perform the essential functions of her job even with a reasonable accommodation. By her own admission, she couldn't work at any point or in any manner for a period spanning more than six months. It perhaps goes without saying that an employee who isn't capable of working for so long isn't an employee capable of performing a job's essential functions -- and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation. After all,
reasonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work. See 42 U.S.C. § 12111(9); Mason v. Avaya Commc'ns, Inc., 357 F.3d 1114, 1122-24 (10th Cir. 2004); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159, 1168 (10th Cir. 2003); Mathews v. Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001) (" The idea of accommodation is to enable an employee to perform the essential functions of his job; an employer is not required to accommodate a disabled worker by . . . eliminating an essential function of the job." ).
Of course, an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day. And no one suggests anything like such unrelenting presence at her post was necessary for Ms. Hwang to fulfill the essential job functions of a teacher at Kansas State. See, e.g., Robert v. Bd. of Cnty. Comm'rs, 691 F.3d 1211, ...