Employee’s ADA Reasonable Accommodation Claims Slip on ‘Qualified’ Evidence

Frank Ferreri

New Orleans, LA (WorkersCompensation.com) – Part of doing a job almost always requires showing up for work, but when it comes to the Americans with Disabilities Act, it can also determine whether an employee has a case.

As the employee in Villareal v. Tropical Texas Behavioral Health, No. 20-40782 (5th Cir. 08/10/21) learned, a worker’s inability to perform a job even with accommodations will leave a court hard-pressed to find that she was “qualified” under the law.


A program specialist for a behavioral health care provider had a daughter who experienced several illnesses. The specialist requested time off to attend her daughter’s medical appointments, and the company exempted the specialist from a company policy prohibiting absences within the first three months of being hired and granted her request.

After the specialist received a promotion to a supervisor position, she received a coaching plan that highlighted productivity challenges she was having and documented the specialist’s failure to meet the company’s targeted number of treatment hours. The specialist did not agree with the coaching plan, so she did not sign it.

About a month later, the specialist requested and the company approved intermittent FMLA leave so that the specialist could care for her daughter’s medical needs. On top of FMLA leave, the company allowed the specialist to cover her absences with paid time off and leave without pay.

Due to ongoing productivity issues, the specialist received an evaluation highlighting her poor attendance described her as a “problematic employee” who did not “foster a harmonious work environment.”

After this, the specialist asked to be placed back in the nonsupervisory role, which the company granted. Following this move, the specialist required surgery, for which she took FMLA leave and also had to miss work due to follow-up appointments.

Several months after the specialist’s surgery, her daughter required open-heart surgery, and the specialist was diagnosed with clinical depression.

Rejected Accommodations

When the specialist’s FMLA leave expired, she informed her supervisor that she would need to work fewer hours per week and requested a reduced schedule as an accommodation. The supervisor denied the request, explaining that the company needed employees to perform her job function.

The specialist then proposed two flex-schedule alternatives, with one being a 33-hour week and the other 35 hours per week. In response, the company offered a flex schedule if the specialist could commit to taking no unprotected leave for 3-4 months. She declined this option as well as the company’s offer to transfer her to a position that would let her plan her own schedule as it would require driving, which was a problem due to the specialist’s anti-depression medication.

The company terminated the specialist, citing her attendance issues and rejection of proposed schedule flexibilities. The specialist sued, claiming the company violated the ADA by failing to provide her with a reasonable accommodation.

The District Court held in favor of the company, prompting the specialist to appeal to the 5th U.S. Circuit Court of Appeals.

In the 5th Circuit, an ADA plaintiff must prove the following elements to prevail on a failure-to-accommodate claim: 1) the plaintiff is a qualified individual with a disability; 2) the disability and its consequential limitations were known to the employer; and 3) the employer failed to make reasonable accommodations for such known limitations.

In the specialist’s case, the “qualified” part sunk her case. The court explained that for an employee to establish that she’s qualified, she must show that she can perform the essential functions of her job with or without an accommodation. Because the specialist could not attend work, even with the accommodations offered, she could not show that she was a qualified individual in the court’s eyes.

“That is because ‘[a]n essential element of any … job is an ability to appear for work,” the court concluded.

As a result, the 5th Circuit Upheld the District Court’s ruling in the company’s favor.

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