Even tasks performed rarely can be ‘essential’ under ADA

By Joy Waltemath

By Lorene D. Park, J.D.

Although some of the many tasks set forth in the job description for a groundskeeper were only rarely, if ever, required, a federal district court did not err in finding that all of them were essential and the employer expected her to be able to perform each one as needed, concluded the Eleventh Circuit in an unpublished opinion. Due to the employee’s severe leg injury, she could not safely and consistently traverse uneven and wet surfaces or perform other essential functions, even with the use of an ATV and adaptive equipment. Consequently, she was not a “qualified individual” and summary judgment was affirmed against her ADA and Rehab Act claims (Bagwell v. Morgan County Commission, January 18, 2017, per curiam).

Heavy-duty job. The employee was hired in April 2015 to work as a groundskeeper at West Park, a community recreational facility with four baseball fields, a soccer field, a football field, a nature trail, and a paved walking path. The job description, which is quoted in the lower court’s summary judgment opinion, set forth a very long list of manual and other functions, including landscaping, sweeping, picking up trash, cleaning pavilions, preparing athletic fields, installing irrigation systems, painting, plumbing, moving furniture, performing minor construction and repair to buildings, housekeeping, and operating power tools and various machinery including a tractor, mower, and chain saw. The job description also stated that the position entails “very heavy work demands.” A county commissioner testified that the county usually employs two groundskeepers at West Park.

Injured leg. In September 2013, the employee was badly injured in a motorcycle accident. Her right kneecap was crushed in eight places and she suffered a broken femur. She tried to return from FMLA leave on February 7, 2014, presenting a note from her physician stating she had no restrictions, but a county commissioner observed that she walked with a limp. The commissioner said she would have to be “cleared” by a county doctor. After evaluation by a physician and occupational therapist, it was concluded that she could not walk or stand more than one-third of the work day and that she had “balance problems on uneven surfaces.” After reviewing the job description, it was concluded that she was not medically qualified to be a groundskeeper. She was terminated.

All functions in job description were “essential.” Affirming summary judgment against the employee’s subsequent discrimination, failure-to-accommodate, and retaliation claims under the ADA and Rehab Act, the Eleventh Circuit rejected her argument that the lower court erred in finding that the essential functions of her job included all the duties in the job description.

According to the employee, most of the tasks in the job description were either “marginal” or never performed by her, and her “essential functions” were mowing grass; maintaining ball fields; picking up trash with pinchers; cleaning restrooms; raking leaves out of drainage ditches; and picking up small tree limbs and branches.

But even deferring to her assertion that some of the functions in the job description were rarely performed, it was clear that the county expected the person holding the groundskeeper position to be capable of performing those tasks as needed, explained the appeals court. An employer’s judgment is among the factors considered by courts in determining whether a task is essential, and that judgment is given substantial weight. Furthermore, the employee failed to present any evidence contradicting the county’s expectations for the position beyond her own envisioning of what the job entailed. Thus, the district court did not err by finding that the “essential functions” included all those listed in the written job description.

Employee could not perform all essential functions. Likewise, the lower court did not err in finding that the employee was unable to perform the essential functions of the groundskeeper position with or without reasonable accommodation, even considering all the accommodations she suggested throughout the litigation. The essential functions required traversing uneven and wet surfaces, standing, and walking—none of which the employee could do safely and consistently, even with the use of an ATV and adaptive equipment.

Because the employee could not perform the essential functions of her position, she was not a “qualified individual” under the ADA. Summary judgment was therefore affirmed on her reasonable accommodation and “regarded as” claims. The retaliation claim also failed because the employer had already started termination proceedings before the employee engaged in protected activity by requesting accommodations.

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