In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee of the New York City Department of Education could not establish a prima facie case of disability discrimination, because she could not prove herself to be “otherwise qualified” within the meaning of the Americans with Disabilities Act (ADA). Rios v. Dept. of Education, 2d Cir., No. 08-1262-cv, unpublished, November 2, 2009.

Wilda Rios, an employee of the New York City Department of Education (DOE), alleged that her employment termination was based upon her disability, and that the employer’s claim that she was terminated for attendance policy violations was simply a pretext for that discrimination. When the district court granted summary judgment in favor of the Department of Education, Rios appealed. The Second Circuit affirmed the decision, finding that Rios’ frequent absences removed her from the protection of the ADA.

Discriminatory discharge claims under the ADA are reviewed under the McDonnell Douglas shifting burden analysis. That analysis requires the plaintiff first to set forth a prima facie case showing that he or she is disabled within the meaning of the ADA and is “otherwise qualified” to perform the essential functions of the job in spite of the disability, with or without reasonable accommodation. Next, the employer is required to proffer a “legitimate business reason” for its adverse employment action. The final burden shifts back to the plaintiff, who then must prove that the employer’s proffered reason is a pretext, and that the actual reason for the adverse action is discrimination.

In Rios’ case, there was documentary evidence that Rios “repeatedly failed to show up for work on time or at all for a variety of reasons, many of which were unrelated to her claimed disability.” In response to those absences, the DOE imposed certain disciplinary actions, and ultimately terminated Rios’ employment.

While Rios claimed that her firing was based upon her disability, the DOE argued that her attendance at work was an essential function of her position. The Court agreed with the employer, and specifically found that by imposing discipline for Rios’ excessive absences, the DOE demonstrated the essential nature of Rios’ attendance and punctuality to her job. Because Rios was unable to establish a regular attendance pattern, she was not “otherwise qualified” to fulfill one of the essential functions of the position, and therefore was unable to establish a prima facie case under the ADA. In addition, even if the Court had found that Rios’ prima facie case had been effectively established, the DOE’s motion for summary judgment would have been granted on the basis that Rios showed no actual evidence that the DOE’s legitimate business reason for Rios’ firing was simply a pretext for discrimination.

This case shows the importance of the consistent enforcement of an employer’s attendance policy (and documentation of an employee’s violation of that policy) to the defense of a claim of discrimination under the ADA. By implementing and enforcing such a policy, an employer indicates the essential nature of an employee’s attendance, and can use such information to underscore the legitimacy of disciplinary actions related to an employee’s violation of the same.