## Facts

- Rodney McMillan worked for New York City’s Human Resources Administration as a case manager at the Community Alternative Systems Agency (CASA).
- McMillan had schizophrenia treated with medication that caused morning drowsiness and sluggishness, leading to frequent late arrivals, sometimes after 11:00 a.m.
- CASA maintained a flex-time policy permitting arrival between 9:00 and 10:00 a.m., and employees were not treated as late unless arriving after 10:15 a.m.; supervisors could approve or disapprove tardiness.
- For at least about ten years before 2008, McMillan’s late arrivals were approved or tolerated, and it was undisputed the tardiness resulted from disability-related treatment.
- Around 2008, McMillan’s supervisor stopped approving his daily lateness and discipline began.
- McMillan sought schedule-based accommodations, including working later (the office allegedly remained open until 10:00 p.m.) and working through lunch to make up time; he supplied a doctor’s note.
- The City rejected these accommodation requests, imposed discipline including an eight-days’ pay fine, and ultimately terminated McMillan for a “long history of tardiness.”
- McMillan sued under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate.
- The district court granted summary judgment to the City, reasoning timely arrival was an essential function and treating tardiness as equivalent to absenteeism.

## Issues

1. Whether arriving by a specific time (by 10:15 a.m.) was an “essential function” of McMillan’s job such that his disability-related tardiness meant he was not a qualified individual under the ADA.
2. Whether, in light of the flex-time policy, long-standing approvals, and proposed schedule modifications, a reasonable jury could find the City failed to provide a reasonable accommodation (and relatedly failed to engage adequately in the accommodation process).

## Decision

- The Second Circuit vacated the grant of summary judgment and remanded.
- The court held the district court’s essential-function analysis was incomplete and insufficiently tied to the record.
- Drawing reasonable inferences for McMillan, the court found it was not evident that timely arrival was essential where he claimed he could make up time and still perform the job’s substantive duties.
- The City’s flex-time policy and long history of permitting McMillan schedule flexibility tended to contradict the City’s claim that punctual arrival by 10:15 a.m. was essential.
- The court rejected the district court’s conflation of tardiness with absenteeism and treated the punctuality question as fact-dependent.
- The court concluded the record could support a jury finding of failure to accommodate, making summary judgment for the City improper.

## Legal Principles

- Whether a job function is “essential” under the ADA requires a fact-specific inquiry grounded in the actual job duties, employer policies, and workplace practice.
- Physical presence at work is often important, but it does not automatically make a fixed arrival time an essential function in every position.
- An employer’s written policies (including flex-time rules) and its long-term actual practice in permitting schedule flexibility are probative evidence in the essential-function analysis.
- On summary judgment, courts must draw all reasonable inferences in favor of the nonmoving employee; if the record permits a finding that punctuality is not essential, the issue should proceed to a factfinder.
- Schedule adjustments that allow an employee to complete core duties by offsetting late arrivals with additional work time may constitute reasonable accommodation, depending on the facts.

## Conclusion

The Second Circuit held that the record, including the employer’s flex-time policy and years of tolerated disability-related tardiness, could allow a reasonable jury to find that arriving by a specific time was not an essential function and that the City may have failed to reasonably accommodate McMillan, requiring vacatur of summary judgment and remand.


McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013)