May 21, 2019

Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

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