PUBLISH
UNITED STATES COURT OF APPEALS Filed 7/1/96 TENTH CIRCUIT
APRIL L. HUDSON,
Plaintiff-Appellant,
v. No. 95-1253 MCI TELECOMMUNICATIONS CORP.,
Defendant-Appellees.
Appeal from the United States District Court for the District of Colorado (D.C. No. 94 N 1904)
Robert C. Ozer of Ozer, Ruppert & Ozer, P.C., Denver, Colorado, for Plaintiff- Appellant.
John R. Webb of Holme Roberts & Owen, Denver, Colorado (Edwin P. Aro of Holme Roberts & Owen, Denver, Colorado, and William L. Kasley of MCI Telecommunications Corp., San Francisco, California, with him on the brief), for Defendant-Appellee. Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Plaintiff brought this action to recover for her termination by defendant,
alleging that defendant’s actions violated the Americans with Disabilities Act
(“ADA”). The district court granted summary judgment to defendant. The court
held that plaintiff had failed to demonstrate that she was qualified to perform the
essential functions of her job with a reasonable accommodation by her employer.
Because the accommodation plaintiff urges, unpaid leave of indefinite duration,
does not constitute a “reasonable accommodation” under the ADA, we affirm.
Plaintiff April Hudson worked for defendant MCI Telecommunications
from January 6, 1993, until May 24, 1994. As a customer service representative,
Hudson’s duties included answering customer phone calls and placing phone calls
to current and potential MCI customers. These duties required Hudson to spend
approximately six hours per day on the phone and at the computer keyboard.
Although her performance and sales statistics were exemplary, Hudson had a
history of attendance problems at MCI.
On March 22, 1994, Hudson complained to her supervisor that she was
experiencing pain in her hands and arms. She was subsequently diagnosed with
-2- carpal tunnel syndrome. In response to her initial complaint, Hudson’s treating
physician issued restrictions providing that she was to take fifteen minutes off for
each hour of repetitive, digital activity. On April 13, 1994, Hudson’s physician
issued new restrictions prohibiting all typing and keyboard activity. From April
13, 1994, until the date of her termination, Hudson continued to work, coaching
other customer service representatives and performing a variety of office and
clerical tasks that did not involve typing or keyboard activity.
On May 24, 1994, after first being suspended for tardiness, Hudson was
terminated. In July, two months after her termination by defendant, Hudson
underwent nerve decompression surgery. In October, she was released from her
physician’s care with no specific work restrictions.
In September 1994, Hudson sued MCI, alleging discrimination and
harassment in violation of the ADA. MCI moved for summary judgment, arguing
that Hudson was neither disabled nor qualified under the ADA. The district court
granted MCI’s motion, holding that Hudson had failed to demonstrate a genuine
issue of fact with respect to whether she was qualified for her position at MCI. In
making its decision, the trial court assumed that Hudson was disabled within the
meaning of the ADA. Hudson appeals.
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual
-3- in regard to job application procedures, [or] the hiring, advancement, or discharge
of employees.” 42 U.S.C. § 12112(a). In order to maintain a claim under the
ADA, a plaintiff must demonstrate (1) that she is a disabled person within the
meaning of the ADA; (2) that she is qualified; and (3) that the employer
terminated her because of her disability. White v. York Int’l Corp., 45 F.3d 357,
360-61 (10th Cir. 1995).
Plaintiff argues that the district court erred by granting summary judgment
to defendant on the grounds that she failed to create a genuine issue of material
fact concerning her status as a qualified individual under the ADA. This court
has adopted a two-part analysis for determining whether a disabled individual is
qualified under the ADA:
First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.
White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-
94 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994)). Examples of possible
accommodations include “permitting the use of accrued paid leave or providing
additional unpaid leave for necessary treatment.” 29 C.F.R. Pt. 1630, Appendix
to Part 1630--Interpretive Guidance to Title I of the ADA, § 1630.2(o).
-4- Conceding that she was unable to perform the essential functions of her job
without accommodation, Hudson argues that her impairment was clearly
remediable and that defendants failed to reasonably accommodate her by refusing
to provide unpaid leave while she sought necessary treatment. To demonstrate
that providing unpaid leave was feasible in her case, she notes that, under
Colorado’s workers’ compensation scheme, MCI had the option of temporarily
removing her from the payroll. Under these circumstances, she acknowledges,
MCI would still have been required to bear the cost of her disability benefits.
The Fourth Circuit has held that the ADA does not require an employer to
grant an employee indefinite leave as an accommodation. Myers v. Hose, 50 F.3d
278, 283 (4th Cir. 1995). Rejecting an employee’s claim that his employer failed
to accommodate his disabling condition, the court concluded that the term
“reasonable accommodation” refers to those accommodations which presently, or
in the near future, enable the employee to perform the essential functions of his
job. Id.
In support of her argument that her impairment was clearly remediable,
Hudson points to reports prepared by the physicians MCI selected for her
pursuant to Colorado’s workers’ compensation scheme. On both forms upon
which she relies, the treating physician checked “No” in response to the question,
“Is permanent impairment anticipated?” The first form was completed on March
-5- 22, 1994. The second form was completed on April 13, 1994. Based on these
reports, Hudson argues, defendants knew that her full recovery was anticipated
and that temporary leave was accordingly a reasonable accommodation.
These reports, however, also indicate that Hudson’s initial work
restrictions, one fifteen-minute break from repetitive activity per hour, had been
expanded to bar all keyboard work. In addition, the hand specialist to whom
Hudson was later referred, Dr. David Conyers, found that her condition had not
improved when she met with him on May 4, 1994, despite ongoing physical
therapy and her use of a splint.
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PUBLISH
UNITED STATES COURT OF APPEALS Filed 7/1/96 TENTH CIRCUIT
APRIL L. HUDSON,
Plaintiff-Appellant,
v. No. 95-1253 MCI TELECOMMUNICATIONS CORP.,
Defendant-Appellees.
Appeal from the United States District Court for the District of Colorado (D.C. No. 94 N 1904)
Robert C. Ozer of Ozer, Ruppert & Ozer, P.C., Denver, Colorado, for Plaintiff- Appellant.
John R. Webb of Holme Roberts & Owen, Denver, Colorado (Edwin P. Aro of Holme Roberts & Owen, Denver, Colorado, and William L. Kasley of MCI Telecommunications Corp., San Francisco, California, with him on the brief), for Defendant-Appellee. Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Plaintiff brought this action to recover for her termination by defendant,
alleging that defendant’s actions violated the Americans with Disabilities Act
(“ADA”). The district court granted summary judgment to defendant. The court
held that plaintiff had failed to demonstrate that she was qualified to perform the
essential functions of her job with a reasonable accommodation by her employer.
Because the accommodation plaintiff urges, unpaid leave of indefinite duration,
does not constitute a “reasonable accommodation” under the ADA, we affirm.
Plaintiff April Hudson worked for defendant MCI Telecommunications
from January 6, 1993, until May 24, 1994. As a customer service representative,
Hudson’s duties included answering customer phone calls and placing phone calls
to current and potential MCI customers. These duties required Hudson to spend
approximately six hours per day on the phone and at the computer keyboard.
Although her performance and sales statistics were exemplary, Hudson had a
history of attendance problems at MCI.
On March 22, 1994, Hudson complained to her supervisor that she was
experiencing pain in her hands and arms. She was subsequently diagnosed with
-2- carpal tunnel syndrome. In response to her initial complaint, Hudson’s treating
physician issued restrictions providing that she was to take fifteen minutes off for
each hour of repetitive, digital activity. On April 13, 1994, Hudson’s physician
issued new restrictions prohibiting all typing and keyboard activity. From April
13, 1994, until the date of her termination, Hudson continued to work, coaching
other customer service representatives and performing a variety of office and
clerical tasks that did not involve typing or keyboard activity.
On May 24, 1994, after first being suspended for tardiness, Hudson was
terminated. In July, two months after her termination by defendant, Hudson
underwent nerve decompression surgery. In October, she was released from her
physician’s care with no specific work restrictions.
In September 1994, Hudson sued MCI, alleging discrimination and
harassment in violation of the ADA. MCI moved for summary judgment, arguing
that Hudson was neither disabled nor qualified under the ADA. The district court
granted MCI’s motion, holding that Hudson had failed to demonstrate a genuine
issue of fact with respect to whether she was qualified for her position at MCI. In
making its decision, the trial court assumed that Hudson was disabled within the
meaning of the ADA. Hudson appeals.
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual
-3- in regard to job application procedures, [or] the hiring, advancement, or discharge
of employees.” 42 U.S.C. § 12112(a). In order to maintain a claim under the
ADA, a plaintiff must demonstrate (1) that she is a disabled person within the
meaning of the ADA; (2) that she is qualified; and (3) that the employer
terminated her because of her disability. White v. York Int’l Corp., 45 F.3d 357,
360-61 (10th Cir. 1995).
Plaintiff argues that the district court erred by granting summary judgment
to defendant on the grounds that she failed to create a genuine issue of material
fact concerning her status as a qualified individual under the ADA. This court
has adopted a two-part analysis for determining whether a disabled individual is
qualified under the ADA:
First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.
White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-
94 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994)). Examples of possible
accommodations include “permitting the use of accrued paid leave or providing
additional unpaid leave for necessary treatment.” 29 C.F.R. Pt. 1630, Appendix
to Part 1630--Interpretive Guidance to Title I of the ADA, § 1630.2(o).
-4- Conceding that she was unable to perform the essential functions of her job
without accommodation, Hudson argues that her impairment was clearly
remediable and that defendants failed to reasonably accommodate her by refusing
to provide unpaid leave while she sought necessary treatment. To demonstrate
that providing unpaid leave was feasible in her case, she notes that, under
Colorado’s workers’ compensation scheme, MCI had the option of temporarily
removing her from the payroll. Under these circumstances, she acknowledges,
MCI would still have been required to bear the cost of her disability benefits.
The Fourth Circuit has held that the ADA does not require an employer to
grant an employee indefinite leave as an accommodation. Myers v. Hose, 50 F.3d
278, 283 (4th Cir. 1995). Rejecting an employee’s claim that his employer failed
to accommodate his disabling condition, the court concluded that the term
“reasonable accommodation” refers to those accommodations which presently, or
in the near future, enable the employee to perform the essential functions of his
job. Id.
In support of her argument that her impairment was clearly remediable,
Hudson points to reports prepared by the physicians MCI selected for her
pursuant to Colorado’s workers’ compensation scheme. On both forms upon
which she relies, the treating physician checked “No” in response to the question,
“Is permanent impairment anticipated?” The first form was completed on March
-5- 22, 1994. The second form was completed on April 13, 1994. Based on these
reports, Hudson argues, defendants knew that her full recovery was anticipated
and that temporary leave was accordingly a reasonable accommodation.
These reports, however, also indicate that Hudson’s initial work
restrictions, one fifteen-minute break from repetitive activity per hour, had been
expanded to bar all keyboard work. In addition, the hand specialist to whom
Hudson was later referred, Dr. David Conyers, found that her condition had not
improved when she met with him on May 4, 1994, despite ongoing physical
therapy and her use of a splint. Based on her continuing irritation, Conyers
concluded that “it would be unwise to start [Hudson] back on typing and keyboard
work.” Through the date of Hudson’s termination, Conyers’s notes do not discuss
her prospects for recovery. On the day after she was terminated, an entry in his
notes mentions the possibility of surgery for the first time.
On these facts, this court concludes that Hudson has failed to present a
genuine issue of material fact for trial. This court agrees with plaintiff that a
reasonable allowance of time for medical care and treatment may, in appropriate
circumstances, constitute a reasonable accommodation. In this case, however,
plaintiff has failed to present any evidence of the expected duration of her
impairment as of the date of her termination. The physicians’ reports upon which
plaintiff relies indicate only that permanent impairment was not anticipated at the
-6- time the reports were prepared. The forms provide no indication, however, of
when plaintiff could expect to resume her regular duties at MCI. Moreover, Dr.
Conyers’s notes through the date of her termination underscore the uncertainty of
her prognosis. Under these circumstances, it makes no difference that MCI had
the option of removing her from the payroll and paying the costs of her disability
benefits. MCI was not required to wait indefinitely for her recovery, whether it
maintained her on its payroll or elected to pay the cost of her disability benefits.
Accordingly, Hudson has failed to present evidence from which a reasonable jury
could find that the accommodation she urges, unpaid leave of indefinite duration,
was reasonable.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
-7-