Lead Opinion
MARTIN, J., dеlivered the opinion of the court, in which MOORE, J., joined. LIVELY, J. (p. 1189), delivered a separate concurring opinion.
Roger Monette appeals the district court’s award of summary judgment in favor of the defendant Electronic Data Systems on his claim that the defendant discriminated against him on the basis of his disability, and the court’s refusal to allow him to file an amended complaint alleging retaliatory dis
Roger Monette worked as a customer service representative for defendant Electronic Data Systems. As part of his duties, Mon-ette delivered audio and visual equipment to various areas of the offiee. On February 17, 1993, Monette was injured when a television and video cassette recorder fell off the cart he was pushing, hitting him on the back and shoulder. Monette requested an indefinite medical leave, and received full pay and benefits from Electronic Data Systems for the next seven months. During that time Mon-ette submitted several medical reports from various physicians detailing his inability to return to work. In August of 1993, Monette filed for long-term disability benefits, claiming that he was completely incapacitated and unable to perform the necessary functiоns to return to his old job. Electronic Data Systems denied Monette’s application for long-term disability benefits and Monette’s full pay and benefits ceased on September 15.
Monette recovered from his total incapacitation soon thereafter, showing up to work unannounced and with a note from his doctor on October 11. Unfortunately, Monette’s position at Electronic Data Systems had been filled during his eight month absence. No other customer service representative positions were available.
Over the next thirty-seven days, during which time Monette was placed on unpaid personal leave, Monette’s supervisor Laura Frizzell conducted a job search in an attempt to find Monette another position with the company. To facilitate her efforts, Frizzell claims that she asked Monette to provide her with an updated resume and that Monette did not comply with this request. Monette disputes this fact. During her thirty-seven day search, Frizzell located a possible position in Midland, Michigan. However, Mon-ette did not want to move out of the Detroit area and did not interview for this position. Frizzell arranged for interviews for two computer operator positions that were available in thе Detroit area. Unfortunately, Monette did not receive an offer of employment after either of the interviews. Each interviewer stated that Monette lacked the requisite technical computer skills and that Monette was less than enthusiastic at his interviews. Having failed in its attempts to relocate Monette to another position, Electronic Data Systems permanently terminated his employment on November 19,1993.
Monette subsequently filed suit against Electronic Data Systems in state court, alleging that his former employer discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, and the Michigan Handicappers’ Civil Rights Act, Mich. Comp. Laws § 37.1102.
On December 14, the district court awarded summary judgment in favor of Electronic Data Systems on Monette’s state and federal disability discrimination claims. In an accompanying order, the district court also denied Monette’s motion to file a second amended complaint. Monette timely appealed to this Court.
In this appeal, Monette takes issue with the district court’s award of summary judgment and the district court’s refusal to allow him to file a second amended complaint. We review the district court’s award of summary judgment de novo. Summary
The district court concluded that it was unnecessary to determine whether Monette had established a prima facie case of discrimination under the Act, holding that Electronic Data Systems had established a legitimate, nondiseriminatory reason for terminating Monette. The court noted that the defendant filled Monette’s position while Monette was on medical leave and was informing the defendant that he was unable to perform his job under any circumstances. Accordingly, when Monette returned to work unannounced, no customer service representative slot was available. The court found that requiring Electronic Data Systems to hold Monette’s position open indefinitely, when it had no way of knowing whether or when Monette would return to work, would work an undue hardship on Electronic Data Systems. Further, the court recognized that the Americans with Disabilities Act did not require the defendants to ‘create’ another position for Mon-ette in the absence of an available vacancy. In light of its belief that Electronic Dаta Systems offered a legitimate reason for .replacing Monette, and did not fail to make reasonable accommodation for Monette’s handicap, the district court awarded summary judgment in favor of Electronic Data Systems.
In this appeal, Monette argues that Electronic Data Systems failed to reasonably accommodate his handicap by granting him only thirty-seven days of unpaid leave while they attempted to find a position for him. Instead, Monette claims that the only ‘reasonable’ accommodation would have been to allow Monette to remain on unpaid leave indefinitely until another position opened up within the company. Along - similar lines, Monette argues that the defendants should have considered him for jobs other than customer service representative or computer technician as a reasonable accommodation.
Electronic Dаta Systems asserts two arguments in rebuttal. First, the defendants point out that there were no jobs available when Monette returned to work. Second, the defendants argue that, even if they had a duty (under the requirement that they must make a reasonable accommodation to Mon-ette’s disability) to attempt find work for Monette, they reasonably accommodated his disability by placing him on unpaid medical leave for thirty-seven days while they attempted to place him in a new position.
The analysis of claims under the Americans with Disabilities Act roughly parallels those brought under the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1995). Maddox v. University of Tennessee,
Defining and applying an appropriate framework for analyzing claims of discrimination based on an individual’s disability has proven to be a difficult task.
In Title VII cáses applying the McDonnell Douglas/Burdine formula, where no direct evidеnce of discrimination exists, a plaintiff may establish a ■prima facie case of discrimination by establishing that: 1) she is a member of a protected class; 2) she is qualified for the position; 3) she suffered an adverse employment decision; and 4) she was replaced by a member outside the protected class. Ang v. Procter & Gamble Co.,
In Pushkin v. Regents of Univ. of Colorado, the Tenth Circuit developed a modified burden shifting approach' — modeled on the McDonnell Douglas framework' — for analyzing disability discrimination claims.
The record is clear that Dr. Pushkin established that he had the necessary ability despite his handicap. The examining committee, however, focused on the handicap continuously in connection with determining whether to admit him to the residency program. It emphasized factors such as the effect of the handicap on patients and the resulting effect on Dr. Pushkin. Thus, the issue is not merely whether the handicap played a prominent part in his rejection, as in cases dealing with alleged discrimination on the basis of race, for example (where race is never expressly mentioned as a consideration), the issue is whether rejecting Dr. Pushkin after expressly weighing the implication of his handicap was justified.
Id. at 1385-86. Thus, the court expressly recognized that the evidence established that the defendants had taken Dr. Pushkin’s disability into account when making the decision to refuse admission into the program. Believing that the McDonnell Douglas framework must be modified to take account of the ‘unique’ fact that defendants often rely on an individual’s disability in disability discrimination cases, the Tenth Circuit established the following test in Pushkin:
1) The plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and was rejected under circumstances which gave rise to the inference that his rejection was based solely on his handicap;
2) Once a plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite of his handicap, or that his rejection from the program was for reasons other than his handicap;
3)The plaintiff then has the burden of going forward with rebuttal evidence showing that the defendants’ reasons for rejecting the plaintiff are based on misconceptions or unfounded factual conclusions, and that reasons articulated for the rejection other than the handicap encompass unjustified consideration of the handicap itself.
The Pushkin court apparently believed that this test would take account of the fact that employers often rely on an employee’s disability in making employment decisions, a fact rarely present in Title VII race or gender discrimination cases. What the court failed to recognize, however, is that when an employer admits (or the evidence establishes) that its decision was based upon the employee’s disability, direct evidence of discrimination exists. Because direct evidence of the employer’s discrimination exists, application of the McDonnell Douglas burden-shifting framework is inappropriate. Cf. Healey v. Southwood Psychiatric Hosp.,
The Tenth Circuit recently recognized this problem in White v. York Int’l Corp.,
We developed an analysis in Pushkin, much like the McDonnell Douglas test applicable in Title VII cases, in order to “sharpen the inquiry into the elusive factual question of intentional discrimination.” Under our Pushkin analysis, a plaintiff establishes his prima facie ease by showing that he is “an otherwise qualified handicapped person apart from his handicap,” and that he had been rejected under circumstances which give rise to an inference that his rejection was based solely on his disability. Obviously, the Pushkin analysis will not find application in all eases. Where, as here, an employer readily acknowledges that the decision to terminate the employee was premised, at least in part, on the employee’s disability, the ultimate purpose of Pushkin analysis will have been achieved from the outset. In such cases, the objective claims presented may be tested through the application of traditional burdens of proof....
Id. (citations omitted). Thus, the White court recognized that the Pushkin-modiñed McDonnell Douglas approach is not applicable when the employer admits taking the employee’s handicap into account in making its employment decision, and instead attempts to defend its decision on the ground that the plaintiff is not otherwise qualified for the position, with or without reasonable accommodation.
This Circuit has recited the Pushkin test at least twice during the course of analyzing a claim under the Rehabilitation Act. See Harris v. Adams,
The burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of the plaintiffs prima facie case. Once a prima facie case has been presented, the burden shifts to the defendant employer to demonstrate that the challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. If the plaintiff fails to establish a prima facie case, it is unnecessary to address the question of reasonable accommodation.
In Harris v. Adams,
It is clear then that, although this Circuit has relied on Pushkin to state the analysis to be used in disability discrimination cases, we have not independently examined whether the test is warranted or appropriate in every case. We believe that it is not. As the Tenth Circuit noted in White, the test is inappropriаte for cases in which the employer acknowledges that it relied upon the plaintiffs handicap in making its employment decision. White,
Turning to cases in which the employer relies on the employee’s disability in its deci-sionmaking, the disputed issue will almost always be whether the employee is “otherwise qualified” to perform the job. See Norcross v. Sneed,
In cases in which the plaintiff is seeking some accommodation on the part of the employer, and is claiming that he or she would be qualified to perform the essential functions of the job with such reasonable accommodation, the disputed issues will be whether such accommodation is reasonable, whether such accommodation would impose an undue hardship upon the employer, and/or whether the plaintiff is capable of performing the job even with the suggested accommodation, each of which may also be resolved through direct, objective evidence. The Americans with Disabilities Act provides a guide for determining the burden of proof in these eases. 42 U.S.C. § 12112(b)(5)(A) states that an employer has “discriminated” against a disabled individual by:
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.
The language of this provision makes it clear that the employer has the burden of persuasion on whether an accommodation would impose an undue hardship. However, the disabled individual bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable. The Seventh Circuit has described the employee’s initial burden on this issue as showing “that the accommodation is reasonable in the sense both of efficacious and of proportional to costs.” Vande Zande v. State of Wisconsin Dep’t of Admin.,
Similarly, if a disabled individual is challenging a particular job requirement as unessential, the employer will bear the burden of proving that the challenged criterion is necessary. 42 U.S.C. § 12112(b)(6) provides guidance on this issue. That provision of the statute states that an employer discriminates within the meaning of the statute by:
using qualification standards, employment tests or other selection criteria that screen out or tend to screen оut an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.
This language indicates that an employer bears the burden of proving that a particular hiring policy is “job-related” and “consistent with business necessity.” Although this section of the statute expressly concerns only qualification standards, testing procedures, and selection criteria that tend to screen out disabled individuals, we believe its clear import dictates that employers bear the burden of proving that a challenged job requirement is job-related. We note again, however, that the disabled individual retains the burden of proving that he or she is qualified to perform the essential functions of the job absent the challenged job requirement.
Distinguishing between cases that involve direct evidence of discrimination and those in which the plaintiff is not able to introduce direct evidence is vital because the framework for analyzing the two kinds of cases differs. See Norcross,
We must say a word about what is normally meant by the phrase “prima facie ” case, at least as it is used in the context of the McDonnell Douglas burden-shifting formula. “Prima facie," as used in this context, represents a certain set of facts, each of which are established by objective evidence under traditional burdens of proof, from which the fact finder will presume the existence of anothеr fact, absent proof to the contrary. In Title VII cases, this presumed fact is of course, the defendant’s “intent” to discriminate against the plaintiff. “Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of ‘producing evidence’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason’.” Hicks,
The Supreme Court recently explained the effect of a prima facie case — and the employer’s burden of production in rebuttal — in Hicks:
If the finder of fact ... finds that the prima facie case is supported by a preponderance of the evidence^] it must find the existence of the presumed fact of unlawful discrimination and must, therefore, render a verdict for the plaintiff [if the defendant fails its burden of production].... Thus, the effect of failing to produce evidence to rebut the McDonnell Douglas ... presumption is not felt until the prima facie case has been established, either as a matter of law (because the plaintiffs facts are uncontested) or by the fact finder’s determination that the plaintiffs facts are supported by a preponderance of the evidence. It is thus technically accurate to describe the sequence as we did in Burdine: “First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima fa-cie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” .... As a practical matter, however, and in the real-life sequence of a trial, the defendant feels the “burden” not when the plaintiffs prima facie case is proved, but as soon as evidence of it is introduced. The defendant then knows that its failure to introduce evidence of a nondiscriminatory reason will cause judgment to go against it unless the plaintiffs prima facie ease is held to be inadequate as a matter of law or fails to convince the fact finder. It is this practical coercion which causes the McDonnell Douglas presumption to function as a means of “arranging the presentation of evidence.”
Id. at 510 n. 3,
With these comments in mind, we believe a plaintiff may establish a prima facie case of handicap discrimination by showing that: 1) he or she is disabled, see Jasany,
To sum up, if the plaintiff has direct evidence that the employer relied on his or her disability in making an adverse employment decision, or if the emplоyer admits reliance on the handicap:
1) The plaintiff bears the burden of establishing that he or she is “disabled.”
2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: a) without accommodation from the employer; b) with an alleged “essential” job requirement eliminated; or c) with a proposed reasonable accommodation.
3) The employer 'will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.12
If the plaintiff seeks to establish his or her case indirectly, without direct proof of discrimination, the plaintiff may establish a pri-ma facie case of discrimination by showing that: 1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiffs disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.
We turn now to the merits of Monette’s arguments on appeal. The district court assumed as established the elements of Mon-ette’s prima facie case and held that Monette had failed to show that Electronic Data Systems’ proffered reasons for its action were pretextual, apparently analyzing the case under a McDonnell Douglas type framework. However, we believe this approach to be inappropriate on the facts of this case. The defendant’s explanation for the decision to replace Monette was that Monette was on medical leave, unable to perform the job under any circumstances, and that, because only one customer service representative was employed in the building, the need to replace Monette was urgent. Viewed properly, all of these reasons are related to Monette’s handicap. In other words, the defendant’s own explanation for its action established that it relied on Monette’s disabled status to replace him.
This is not to say, however, that thе district court improperly awarded summary judgment to the defendant. Under the approach outlined above, Monette is required to show that he is otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation from the defendant, and Monette bears the initial burden of establishing that the accommodation he seeks is “reasonable.” Monette proposes as a possible accommodation (which he claims is reasonable) a requirement that the defendant should have kept him on unpaid medical leave indefinitely until another customer service representative or receptionist position opened up. While it is true that employers may be required, as a reasonable accommodation, to transfer a disabled employee to a vacant position for which he or she is qualified, employers are under no duty to keep employees on unpaid leave indefinitely until such position opens up. Cf. 42 U.S.C. § 12111(9)(A)-(B) (defining “reasonable accommodation” to include “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position”) (emphasis added). If, perhaps, an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08 (giving as an example a situation in which an employer knows that a particular position will become vacant within a week). However, employers simply are not required to keep an employee on staff indefinitely in the hope that some position may become available some time in the future. Moreover, employers are not required to create new positions for disabled employees in order to reasonably accommodate the disabled individual. See Fedro v. Reno,
Monette does not explicitly offer another possible accommodation as an alternative, although he makes a somewhat halfhearted claim that the defendant replaced him “rather quickly.” We view this as a claim that the defendant could have “reasonably” accommodated Monette by leaving his position open or perhaps filling it temporаrily. This claim must also fail. The defendant offered uncontradicted evidence that only one customer service representative worked in Monette’s building, and adequately explained the need to have a customer service repre
Finally, Monette relies on evidence that, on two other occasions, the defendant held an individual’s job open while the individual was on medical leave. These facts, according to Monette, indicate that the defendants discriminated against him by not affording him similar treatment. Viewing these facts as evidence that the defendant could have reasonably accommodated Monette by holding his position open, we have already explained why we find this argument unpersuasive as it pertains to Monette’s customer service representative position. We note also that the two occasions upon which Monette relies are not similar to his own. In one instance, an employee suffered a heart attack, and was on leave for three months from a management position dissimilar to Monette’s customer service representative position. In the other, which occurred after Monette’s termination, the defendant was required by law to hold the employee’s position open. See Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D) (requiring employee to furnish employee with twelve weeks of leave during any twelve-month period if the employee’s health condition so requires). Neither of these incidents creates an inference that the defendant discriminated against Monette. Arguably, one could draw the opposite inference, namely that the defendant regularly attempted to accommodate temporarily disabled employees whenever possible. However, we nеed not draw an inference either way. As we have explained, neither of the these employees were similarly situated to Monette.
In sum, Monette failed to propose a “reasonable” accommodation with respect to his claim that the defendant should have kept him on unpaid leave until a position for which Monette was qualified became vacant. Additionally, Monette has failed to create a genuine issue of material fact regarding the defendant’s explanation that keeping his position open while Monette was on open-ended disability leave would impose an undue hardship. Accordingly, the district court appropriately awarded summary judgment on Monette’s claim.
We turn now to the district court’s refusal to allow Monette to file a second amended complaint. The parties do not agree on the appropriate standard of review on this issue. This disagreement apparently stems from some confusion as to the grounds upon which the district court relied in denying Monette’s motion to file the amended complaint. Normally, we review a district court’s denial of leave to file an amended complaint under an abuse of discretion standard. LRL Properties v. Portage Metro Hous. Auth.,
It is not immediately apparent whether the district court denied leave to file the amended complaint on the ground that it was untimely filed, or whether the district court relied on its belief that the complaint as amended could not withstand a motion to dismiss. However, because the bulk of the district court’s opinion explains that it did not believe Monette’s amended complaint would withstand a motion to dismiss, we review the district court’s decision de novo. Martin v. Associated Truck Lines,
Monette sought to amend his complaint to assert a claim for retaliatory discharge under Mich. Comp. Laws § 418.301(11), which provides:
A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted а proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.
Taking the facts as stated in Monette’s amended complaint as true, we believe the district court erred in refusing to allow him to file an amended complaint. It may be that Monette will be unable to withstand a motion for summary judgment on this claim, after the parties have taken discovery on the issue. However, because a complaint should be dismissed for failure to state a claim only where “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Conley v. Gibson,
Further, even if we were to view the district court’s order on this issue as holding that Monette’s motion for leave to file an amended complaint was untimely, the court abused its discretion by failing to inquire into whether allowing the amendment would cause undue prejudice to the defendant. In Foman v. Davis,
In the absence of any apparent or declared reason — such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave should, as the rules require, be “freely given.”
Id. at 182,
The judgment of the district court is AFFIRMED IN PART, and REVERSED IN PART, and the case is REMANDED for proceedings in accordance with this opinion.
Notes
. Doris Monette, Roger Monette's wife, also asserted a claim against Electronic Data Systems seeking damages for loss of consortium. Loss of consortium claims are contingent upon recovery by the spouse under Michigan law. Accordingly, our resolution of the issues on appeal also governs Ms. Monette’s claim.
. Monette spends several pages of his brief establishing that he physically could have performed his former duties with reasonable accommodation from Electronic Data Systems. However, it appears to this Court that this argument is irrelevant. The defendants are not disputing that Monette could have performed the duties of his former job if a position had been available, and we assume this fact to be true for the purposes of this appeal.
. Claims of handicap discrimination under Michigan law essentially track those under federal law. See Sandison v. Michigan High School Athletic Ass'n, Inc.,
. For claims brought under the Rehabilitation Act, plaintiffs must also establish that the defendant is a recipient of federal funding. See Doherty,
. Plaintiffs may proceed on any one or more of several theories of discrimination. For example, under a disparate impact theory, disabled individuals may bring a claim against a facially neutral policy or statute which affects disabled individuals in a significantly discriminatory manner. See Alexander v. Choate,
Like Title VII, the Americans with Disabilities Act requires employers to eliminate ostensibly neutral barriers that disparately impact the disabled. See 42 U.S.C. § 12112(b)(3)(A)-(B). Similarly, in cases analytically similar to Title VII disparate impact claims, employers are required to reasonably accommodate disabled individuals unless such accommodation imposes an undue hardship, e.g., 42 U.S.C. § 12112(b)(5)(A), and are required to eliminate qualifications standards or job requirements that disparately disadvantage the disabled unless such requirements are "job-related,” and/or "essential” to satisfactory performance of the job. Id. at § 12112(b)(6).
. In McDonnell Douglas, the Court characterized the fourth prong of the test as requiring that the plaintiff show “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the plaintiff's] qualifications.”
This reasoning does not apply with equal force to other types of discrimination claims. For example, a claim of gender discrimination under Title VII is a claim by the plaintiff that she was discriminated against because she is a woman. Because the claim is founded upon the allegation that the defendant discriminated on the basis of the plaintiff's female status, a lesser inference of discrimination arises if it is established that the defendant hired another female. Conversely, if the plaintiff shows that the defendant hired a male, a greater inference that the defendant discriminated on the basis of the plaintiff's female status exists. Despite the foregoing comments, however, we do not believe a disabled individual need always establish that he or she was replaced by someone outside the protected class as part of her prima facie case. See infra n.ll.
. The court in White characterized the Pushkin case as one in which "the plaintiff claimed that the University's stated reason for denying him admission to its psychiatry program was a pretext for unlawful discrimination based on his disability.” White,
With these facts in the record, we fail to see why burden shifting was necessary to conclude that the defendants had discriminated against the plaintiff by reason of his disability in violation of the Rehabilitation Act. The plaintiff had established: 1) that he was disabled; 2) that he was qualified despite his disability; and 3) that the defendants rejected his application solely on the basis of his disability. Because the plaintiff had established that he was qualified for admission despite his disability, and the defendants' justification for concluding otherwise was based on his disability, the defendants had no reason other than the plaintiff's disability to rely on in justifying their decision. Accordingly, the admissions committee's decision became one based solely on the plaintiff's disability.
. Some courts have distinguished cases in which an employee claims that a particular job requirement is not essential for satisfactory job performance from those in which an employee seeks a reasonable accommodation on the part of the employer. See, e.g., Prewitt,
. In a simple case in which the only disputed issue is whether the employee is otherwise qualified, without any accommodation, to perform the essential functions of the job, resolution of this issue is dispositive. For example, suppose a disablеd individual brings suit, claiming that she can perform the essential functions of the job without accommodation from the employer. The employer, on the other hand, asserts that the plaintiffs handicap precludes satisfactoiy performance of essential job functions. The employer, in this hypothetical case, has admitted reliance on the disability, although the employer has not admitted sole reliance on the plaintiff’s disabled status. Instead, the employer claims that the plaintiff's disability precludes him or her from performing satisfactorily the essential functions of the job. However, resolution of the disputed factual issue of the plaintiff's ability to do the job will resolve two elements required to establish the plaintiff’s claim of disability discrimination in such a case. If the plaintiff establishes that she is in fact able to perform the essential functions of the job, that element of her claim is satisfied. In addition, the plaintiff has also established that she suffered an adverse employment decision solely because of her disability. Because the employer has no reason left to rely on to justify its decision other than the employee’s disability, the employer's decision becomes one based solely on the plaintiff's disabled status.
. The interrelationship between the terms "reasоnable” accommodation and “undue hardship” is perhaps somewhat complex. In a case-specific context, the terms are virtually mutually exclusive in the sense that "undue hardship” defines which accommodations an employer will be required to adopt. If an employer shows that a proposed accommodation imposes an undue hardship, then it would be “unreasonable” to require this employer to adopt that accommodation, regardless whether another employer, in a different factual context, may be required to adopt that same accommodation. More broadly, however, the terms can co-exist. In our view, determining whether a proposed accommodation is “reasonable" requires a factual determination of reasonableness (perhaps through a cost-benefit analysis or examination of the accommodations undertaken by other employers) untethered to the defendant employer's particularized situation. Once a determination is made that a proposed accommodation is, in a sense, "generally”
. We do not believe that the plaintiff need necessarily establish that he or she was replaced by
. When the employee seeks a reasonable accommodation, she must establish that a "reasonable" accommodation is possible, and bears a traditional burden of proof that she is qualified for the position with such reasonable accommodation. If the plaintiff establishes that a reasonable accommodation is possible, the employer bears the burden of proving that such reasonable accommodation would impose an undue hardship. See Benson v. Northwest Airlines, Inc.,
. At least two courts have held that a plaintiff must show that his or her employer had "actual or constructive” knowledge of the disability as part of a prima facie Americans with Disabilities Act claim. Morisky v. Broward County,
. Consider, for example, a situation in which Monette had suffered a somewhat less egregious injury, and he was permanently limited to working four hours per day. Suppose he worked four hours per day for one month, at the end of which the defendants terminated him and replaced him with a new employee. Suppose also that the defendant justifies its decision on the ground that a full-time customer service representative was needed, and Monette was only showing up to work half days, an unacceptable situation for the defendant. This justification would not be unrelated to Monettе’s disability. Rather, Monette's disability (which rendered him unable to work full time) is the reason he is replaced, although the defendant has couched its explanation in terms of Monette’s job performance. Properly analyzed, the dispositive issue in this hypothetical case is whether Monette is “otherwise qualified” despite his disability with a reasonable accommodation from the employer (for example, the defendant might hire another part time employee to work the afternoon shift).
Concurrence Opinion
concurring.
I concur in the result reached by the majority, but do not join in the entire opinion. In my view, the record clearly shows that EDS laid Monette off and ultimately terminated him because of his disability. This, then, was direct evidence and no discussion is required of the burden of proof when a plaintiff seeks to show by indirect evidence that the reason for the employer’s adverse action was his handicap. The plaintiff having shown by direct evidence that he was terminated because of his disability, he was still required to show that he was “otherwise qualified.” Although the plaintiff had ample opportunity to demonstrate that he was otherwise qualified, the record reveals that he failed to do so. Furthermore, I agree that the 37-day paid period represented a reasonable accommodation, and that the district court erred in denying the plaintiffs motion to file an amended complaint.