Refusing time off to a temp worker for missing work due to breast cancer treatments didn’t amount to disability discrimination for a buyer and staffing firm. The companies weren’t obliged to provide time off for treatment as a reasonable accommodation under the Americans with Disabilities Act, the US Tenth Circuit Court of Appeals ruled last week. It also rejected a claim the temp worker was discriminated against under the Genetic Information Nondiscrimination Act.
Kelly Services had placed Kristin Punt as a receptionist at a GE controls Solutions location in Longmont, Colo., for six weeks in 2011 in an assignment that was terminated by GE. Punt received the cancer diagnosis in November of that year shortly after beginning the assignment.
The Court of Appeals noted plaintiff’s attorneys did not cite a single case where a court found a leave of absence to be reasonable accommodation for a temporary employee. It also found plaintiff’s request for time off to be vague.
“Under all of the circumstances of this case, and especially in light of plaintiff’s position as a temporary employee whose physical presence at the workplace was the most essential function of her job, we are persuaded the accommodation plaintiff requested from GE was unreasonable as a matter of law,” the judges wrote in their decision.
Punt began working at GE on Oct. 24, 2011, and the assignment was terminated on December 5, 2011. Punt never worked a full week during that time and had at least one unexplained absence, according to court records. There were also instances of arriving late and leaving early.
Ultimately, Punt notified Kelly in an email at 10:37 a.m. on Monday, Dec. 5, 2011, that she would not be able to come into work that week.
“After talking to my husband and doctor it is in my best interest not to come to work this week at all,” Punt wrote in the email. “I like my job at GE very much but I’m concerned that they are not going to be willing to work with me. I have barely missed work and they are already annoyed it sounds. … Getting surgery takes some appointments and tests and it sounds like GE [doesn’t] want me to take off anytime. I guess we should both be concerned if this will be a right fit. Let me know what you think. I hope to continue on Monday.”
That same day, GE’s general manager and HR director contacted Kelly and said they needed an employee that is going to be able to show up and fulfill the needs of the position, according to court records. The staffing firm then let Punt know that her temp assignment had been terminated.
Punt never contacted Kelly for another assignment, and later turned down an offer by Kelly for a one-day assignment on Feb. 13, 2012, at a different business.
The Court of Appeals decision upheld the previous ruling by the District Court.
In addition, it upheld the District Court’s ruling against Punt’s claims of discrimination under the Genetic Information Nondiscrimination Act. Punt’s attorneys had also argued their client’s removal came after she told Kelly and GE workers about her family history of cancer. However, the Court of Appeals ruled Punt presented no evidence the removal was based on her statements and provided no argument the companies’ legitimate nondiscriminatory reason was used as a pretext for GINA discrimination.
Attorney Joan Bechtold told Bloomberg BNA the ruling raises questions over what rights a temporary worker has under the ADA. “Are they saying temporary workers have no right to request leave under the ADA?” Bechtold told Bloomber BNA. Bechtold had filed an amicus brief in the lawsuit in favor of Punt for the National Employment Lawyers Association and the National Disability Rights Network.