Employment-Ninth Circuit Finds That A Plaintiff Is Not A Qualified Individual For ADA Purposes If She Cannot Meet Her Employer’s Attendance Requirements

In Samper v. Providence St. Vincent Medical Center, No. 10-35811 (9th Cir. 2012), the plaintiff, Monica Samper (“Samper”), was appealing the district court’s summary judgment against her. Samper had been employed by Providence St. Vincent (“Providence”) as a neo-natal intensive care unit (“NICU”) nurse for eleven years. Since at least 2005, she has had fibromyalgia, a condition that limits her sleep and causes her chronic pain. Providence’s attendance policy allowed only five unplanned absences in a twelve month period. Samper worked only part-time, but she regularly exceeded the allowed number of such absences. At one point, Samper sought permission from Providence to take an unspecified number of unplanned absences from her job. Her request was denied. Providence later terminated Samper due to the excessive absences.

This suit ensued. Samper claimed that Providence had violated the Americans with Disabilities Act (the “ADA”), by failing to provide her with reasonable accommodation for her illness. The issue for the Ninth Circuit Court of Appeals (the “Court”): was compliance with Providence’s attendance policy an essential part of Samper’s job, so that her inability adhere to the policy means that she cannot be a qualified individual for ADA purposes?

In analyzing the case, the Court said that, to establish a prima facie case for failure to accommodate under the ADA, Samper must show that (1) she is disabled within the meaning of the ADA, (2) she is a qualified individual able to perform the essential functions of the job with reasonable accommodation, and (3) she suffered an adverse employment action because of her disability. Prong (1) and (3) are met, particularly with the fibromyalgia, but does Samper meet prong (2)? The Court felt that prong (2) is not met, since regular attendance-which Samper did not have-is an essential function of the NICU nurse position.

The Court explained that NICU nurses must have specialized training, and it is very difficult to find replacements, especially for unscheduled absences. As a NICU nurse, Samper’s job unites a trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment. This is not a job where it is possible to argue that workers were basically fungible with one another, so that it did not matter who was doing the job on any particular day. As to the possibility of a reasonable accommodation, Samper requests unlimited unplanned absences. She essentially asks for a reasonable accommodation that exempts her from an essential function-the job attendance. Thus, no reasonable accommodation had been identified. The Court concluded that Samper did not meet prong (2) for establishing her prima facie case, and affirmed the district court’s summary judgment against her.