By Cynthia McNabb and Kim Lowe
In Aponte v. Akima Global Services, a District Court judge ruled that the Miami, Florida-based Department of Corrections’ contractor, Akima Global, did not discriminate against its former employee when it terminated her for chronic absenteeism. Regular attendance is a valid job qualification for corrections officers and Aponte’s spinal injury prohibited her from fulfilling that job duty, among others.
Omairylis Aponte suffered from a chronic back condition that caused back pain and necessitated several procedures and surgeries. Aponte exhausted all Family and Medical Leave Act (FMLA) leave, took a leave of absence as provided in the applicable Labor Agreement, and had dozens of approved and unapproved leave days due to her back pain. Ultimately, Akima Global terminated Aponte due to what it termed her “chronic absenteeism” and the fact that Aponte was limited by her doctor to lifting no more than 30 lbs. while the job duties required at least a 50 lb. lift capacity. The documentation from Aponte’s doctor also forbade her from bending and kneeling as required by the job description. Aponte then sued Akima Global for terminating her in violation of the Americans with Disabilities Act (ADA) and related statutes.
Aponte argued first that her firing was discrimination on the basis of her disability, and secondly that the Department of Corrections discriminated against her by failing to provide a reasonable accommodation like additional excused leave.
Akima Global argued that it had already allowed Aponte several unexcused absences on top of all her excused leave, but her condition meant that she could not attend work regularly and therefore was not qualified for the job of corrections officer. It further argued that because of Aponte’s restrictions on lift, bending and kneeling, there was no accommodation available due to the nature of the corrections officer position. Corrections officers must be able to react to emergency security issues, including unruly inmates, and Aponte could not adequately do so with her doctor’s restrictions.
The judge agreed with the Akima Global’s argument, finding that Aponte was not qualified for the job under the ADA.
“In this Circuit, where an employee’s regular attendance is an essential function of her job and the employee’s absences are serial and sporadic, the employee is not a ‘qualified individual’ for the purposes of [an ADA claim].”
Because regular attendance is essential to being a corrections officer, and Aponte failed repeatedly to limit her unexcused absences, she could be terminated without violating the ADA. As to accommodations, the only accommodation suggested by Aponte was leave from work, which the Court held
“does not allow [Aponte] to perform any of the essential functions of her job…”
This case stands for the proposition that, while granting leave can sometimes be a reasonable accommodation, there are limits to how much leave is reasonable. Using all excused leave, allowing an employee off an unexcused leave of absence, with no prognosis that the need for leave will ever resolve, is grounds for the court to determine that an employee no longer holds the qualifications necessary for the position.
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