A Capehart Scatchard Blog

Tenth Circuit Court Of Appeals Finds Employer Properly Rejected Request For Telecommuting And Additional FMLA Leave

By on May 2, 2013 in FMLA with 0 Comments

Doyle Brown worked as a warehouse supervisor for Mueller Supply Company.  He supervised Mueller’s warehouse, including all shipping and receiving.  He advised his own supervisor, McGill, that he had cancer and would need surgery in April 2005.  Even though the company employed too few people at the work site to trigger FMLA, the company nevertheless offered Brown FMLA leave.  Brown returned to work following his surgery in May 2005.

In January 2006, Mueller approved intermittent FMLA leave for recurrent health-related absences.  One year later, on January 24, 2007, Brown presented a note from his doctor indicating that he had serious health conditions and would need to be out of work until February 8, 2007.

On February 7, 2007, Mueller sent Brown a letter stating that he had exhausted his 12 weeks of FMLA leave.  On the same date Brown presented a new note stating that he would need three more weeks of leave until March 1, 2007.  Mueller then terminated Brown on February 8, 2007 for poor work performance and excessive absences.  Brown offered to come to work against doctors’ orders but the company refused. Brown then sued under the ADA and argued that the company failed to make reasonable accommodations.

At some point Brown passed away and his personal representative, Valdez, proceeded on the case.  She argued that Brown could have performed the essential job functions had the company offered him the opportunity to work from home.  The court noted that Brown had conceded in his deposition that physical attendance in the workplace was required.  He maintained that he could use technology to perform many of the essential functions of the job, but he conceded that at home he could not perform quarterly or random inventory counts, could not interact with customers in the warehouse, and could not effectively supervise his staff.  Not being in the warehouse would make it hard to know whether his employees had completed job tasks.  Based on these statements, the court concluded that working from home was not a reasonable accommodation.

Next, Valdez argued that additional leave would have been a reasonable accommodation.  The court said, “A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment.”  The court said, “Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work.”  The court added, “In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007.” Further, no doctor said that his conditions would be resolved by March 1, 2007.

Valdez also argued that the company failed to engage in the very important interactive process to determine whether there was a potential reasonable accommodation.  The court rejected this argument as well.  “Accordingly, an employer is not required to engage an employee in a futile interactive process where, as we have concluded was the case here, no reasonable accommodation was possible.”

In short, the ADA case was dismissed.  The opinion is interesting because employers are generally advised to engage in the interactive process.  But here the court held that the interactive process would have been of no utility since all of the requests for accommodation were simply not reasonable.


This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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