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Medley v. Valentine Radford Communications7/19/2005
has expressly found that regular and reliable attendance is necessary for most jobs. Id.; see also Spangler, 278 F.3d at 850. Regular attendance is essential since a plaintiff must be present to do the job. Kinnaman, 79 F. Supp.2d at 1103 n.9. The court held that plaintiff did not establish that she could perform any of the functions of her job without accommodation because she could not perform an essential function of her job - attending work regularly. Id. at 1103. Because plaintiff did not identify or provide supportive evidence of any reasonable accommodation that would have enabled her to regularly attend work, she did not meet her burden of showing that she could perform the essential functions of her job with reasonable accommodation. Id. An employer is not required to put up with employees who do not come to work and is not required to provide indefinite leaves of absence. Id. at 1103-04. An indefinite leave is not reasonable because it does not actually allow the employee to work; the employee is not there. Id. at 1104.
Although there is no suggestion that Ms. Medley missed work for any reason other than her health problems, her case is otherwise similar to Kinnaman. She missed an excessive amount of work. She stayed away for five weeks after her approved leave of absence expired, even knowing that she had to provide a doctor's note. And she provides no explanation why she did not provide that note from the psychiatrist after she saw him to justify the five weeks that she had missed.
And like the plaintiff in Kinnaman, she is skipping the issue of her excessive absenteeism and trying to go straight to the question of whether or not Valentine Radford made an effort to reasonably accommodate her. But she has not answered the threshold question of whether or not she is disabled within the statute. Although she did get well over the next year after she was fired, when she was terminated Valentine Radford had no way of knowing when she would be able to work regularly. So she was not able to perform an essential function of her job - working regularly. And it was unreasonable to expect Valentine Radford to give her an indefinite leave of absence. Kinnaman, 79 F. Supp. 2d at 1104. Ms. Medley's absences were irregular enough that Valentine Radford was unsure about her regular attendance in the future. And considering how generous Valentine Radford had already been in giving Ms. Medley time to return to work and provide them with the proper paperwork for her absence, it was not unreasonable for Valentine Radford to end the employment relationship.
We acknowledge that Ms. Medley had a horrible medical condition, but she also had ample time to comply with Valentine Radford's short-term disability policy to validate her missed work from November 1 on, and she chose not to do so. She was aware of the fact that she needed to provide a doctor's note, and her failure to do so left Valentine Radford in the awkward position of trying to accommodate her illness while having no proof of that illness under its policies. Although Ms. Medley's physical health problems were severe, Valentine Radford could not be expected to allow her to miss work regularly because of them. See Pickens v. Soo Line R.R. Co., 264 F.3d 773, 775, 777-78 (8th Cir. 2001) (plaintiff was a conductor, hurt his back, and after he returned to work he would regularly make himself unavailable for work by exercising his right to "lay off" as needed for his back problems; employer was entitled to judgment as a matter of law on ADA claim because regular, reliable attendance was required and unfettered ability to not work was not a reasonable accommodation - plaintiff's suggested method of only working when he feels like it was not re
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