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Lawrence Peikes and Bryan Watson, Wiggin and Dana LLP

On September 10, 2009, the United States Court of Appeals for the Tenth Circuit rejected a disabled employee's discrimination and retaliation claims under the American with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq., and in so doing held that a rarely required job function may be deemed essential if the potential consequences of employing an individual who is unable to perform the function are sufficiently severe.  Hennagir v. Utah Department of Corrections (10^th Cir. Sept. 10, 2009).  The ruling clarifies the circumstances under which job requirements may be deemed "essential" and offers important lessons for employers about the obligation to accommodate employees with disabilities.

Barbara Hennagir began working as a physician's assistant (PA) at the Utah Department of Corrections (DOC) facility located in Gunnison, Utah in April 1997.  At the time of Hennagir's hire, the DOC did not require physical safety training for medical and clinical staff.  In 2001, however, the DOC issued a mandate requiring that all clinical staff who came in contact with inmates obtain a Peace Officer Standards and Training (POST) certification.  The move was due in large part to a 1999 attack on a medical technician by an inmate.  Because Hennagir's position required daily contact with inmates, she reported to POST training as required.  However, the DOC excused Hennagir from physical activities because she suffers from several autoimmune disorders, including lupus, fibromyalgia, rheumatism, and avascular necrosis.  As a result, she was never POST-certified.

In late 2003, the DOC notified Hennagir that she could not remain in her position at the Gunnison facility because she was not POST-certified.  The DOC offered to allow Hennagir to transfer to a mental health facility in Draper, Utah, where POST certification was not required, in lieu of termination.  Hennagir ultimately refused the transfer and instead requested an exception to the certification requirement through an internal grievance process.  She argued that the exception would be a reasonable accommodation of her disabilities and that the offer of a transfer to the Draper facility was not an acceptable substitute because that facility was located over 100 miles from her home.  She later filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging a violation of the ADA.  In July 2004, the DOC issued a final determination on Hennagir's grievance stating that all Gunnison PA's were required to be POST-certified, again leaving Hennagir with a choice of transfer or termination.

Instead of choosing either of the DOC's options, Hennagir exhausted her FMLA leave and then went on long-term disability leave.  While on leave, Hennagir filed a second EEOC charge alleging that the DOC and its medical director committed various acts of retaliation against her, including altering her performance evaluation and proposing to transfer her to the Draper facility.  In March 2005, before Hennagir returned from leave, the EEOC found reasonable cause to believe she had been the victim of disability discrimination and that the DOC's transfer offer was not a reasonable accommodation.  During the conciliation efforts that followed, the DOC offered Hennagir a medical position at Gunnison, at the same salary, auditing, reviewing, coordinating, and monitoring the contract care of inmates.  After Hennagir refused this option, the DOC terminated her employment.

In the ensuing district court litigation, the DOC successfully moved for summary judgment on Hennagir's claims for discrimination, denial of reasonable accommodation, and retaliation.  The district court concluded that Hennagir "[was] neither disabled nor qualified for the [PA] position at [Gunnison]" and that her proposed accommodations were not reasonable.  Turning to Hennagir's retaliation claims, the district court determined that neither the proposed transfer nor the performance evaluations were materially adverse actions and, in any event, the DOC had taken these measures for legitimate, nondiscriminatory reasons.  The U.S. Court of Appeals for the Tenth Circuit affirmed this ruling in its entirety.

The court of appeals commenced its analysis by reciting the three requirements for proving a prima facie case under the ADA: Hennagir had the burden of proving that (1) she is disabled as defined by the ADA; (2) she is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) she suffered discrimination on the basis of her disability.  The court explained that Hennagir could not satisfy the "qualified individual" prong because she could not fulfill an essential requirement of her job, namely, POST certification.

A specific feature of a job can only be "essential" if it is universally applicable to all employees in the particular position.  If so, then the court assesses whether the requirement is fundamental to the position by examining a variety of factors, including the employer's view as to the essentiality of the function, written job descriptions, terms of a collective bargaining agreement, and work experience of incumbents in similar jobs.  Emphasis is placed on the employer's judgment regarding whether a job function is essential and the potential consequences of not requiring an employee to perform the function.  Indeed, because the analysis "is not intended to second guess the employer or require him to lower company standards," a standard set by an employer will not be deemed to be discriminatory so long as it is job-related, uniformly enforced, and consistent with business necessity.

Applying the foregoing, the Tenth Circuit explained that the DOC required all Gunnison PAs to be POST-certified, and all medical personnel had in fact become certified.  The DOC's decision makers unanimously agreed that POST certification would help the medical staff handle the myriad risks that presented on a daily basis due to their direct contact with inmates.  Furthermore, the consequences of not imposing the requirement were demonstrated by the 1999 attack on a noncertified medical technician.  The court explained that even though POST certification was not required when Hennagir was hired, and despite the fact she performed her job successfully for several years prior to the requirement, the ADA does not limit an employer's ability to establish or change the essential functions of a job.  In light of the significant risks involved, the court concluded that POST certification was an essential function of the PA position and rejected Hennagir's argument that the threat of attack was so remote as to render certification a nonessential duty.

Having determined that POST certification was an essential job function, the court then addressed whether there was any reasonable accommodation that would allow Hennagir to remain employed by the DOC.  The court rejected the accommodations Hennagir proposed because each of them essentially required a waiver of POST certification.  No employer, the court emphasized, is required to accommodate a disabled employee by modifying or eliminating an essential function of the job.  Hennagir's retaliation claims were similarly rejected by the Tenth Circuit, which agreed with the district court that the DOC's proposed transfer was not a materially adverse action and there was no causal connection between Hennagir's protected activities (i.e., filing of an EEOC charge) and the changes to her performance evaluation.

Employer Notes: The Hennagir decision demonstrates that a particular duty may be deemed essential even though it is not a routine part of the job or otherwise performed on a regular basis.  An employer must, however, be prepared to articulate a sound business necessity to show the essential nature of the rarely required duty.  To that end, employers should always consider underlying business justifications while drafting job descriptions and assigning employee duties.  Employers should also conduct a similar analysis whenever they wish to implement new or different job requirements.

Hennagir had also argued that the DOC refused to engage in an interactive process to develop a reasonable accommodation.  The court never addressed this issue directly because Hennagir failed to show that a reasonable accommodation was possible.  Nonetheless, the case highlights the importance of negotiating in good faith with employees who request reasonable accommodations.  The fact that Hennagir was presented with multiple options would have undoubtedly closed the door on her claims that the DOC failed to make good-faith attempts to accommodate her disabilities.

Lawrence Peikes and Bryan Watson, Wiggin and Dana.  You can contact Mr. Peikes at lpeikes@wiggin.com and Mr. Watson at bwatson@wiggin.com.