Non specific job description forces ADA case to a jury trial
 Aug. 23, 2013

On June 27, 2013, a federal judge ruled in Szarawara vs. Montgomery County, that a night-shift emergency dispatcher with diabetes and hypertension, whose doctor stated that his health would be improved by working day shifts, could proceed on his claim that refusal to allow him to work day shifts violated the ADA. In denying the employer’s motion to dismiss at the initial stage of the litigation, the judge rejected the argument that language in a job description requiring employees to be able to work “various shifts” made working the night shift an essential function of this individual’s job.

The employee suffered from headaches, dizziness, and loss of focus, all of which affected his work performance. After receiving three disciplinary warnings, he told his manager that he believed that his performance problems were caused by his diabetes and hypertension. He provided documentation showing that his doctor had prescribed “proper sleep patterns” which would include “working during daytime hours.” As an alternative to a reassignment to day-shift hours, his manager suggested unpaid medical leave, which he declined. Szarawara then offered to accept part-time night-shift employment, or a transfer to a lower paying day-shift job, but the county refused to make either change. After resigning from his night-shift dispatcher position, believing it to be in the best interest of his health, he sued.

Szarawara claimed that he could have performed all of the essential functions of his job if he had been permitted to work day shifts. In response, the county argued that a request to move to the day-shift was unreasonable because working night shifts was an essential function of the dispatcher’s job. The court disagreed, noting that the job description simply required working “various shifts and rotating schedules.” It had no language that rendered working night shifts an essential function of the dispatcher’s job. The absence of more specific language created a factual issue that precluded dismissal of the ADA claim at the initial stage of the litigation. In addition, the court refused to accept the employer’s argument that the employee should have tried other ways to improve his condition before seeking to change his night-shift schedule. The court also pointed out that the language of the doctor’s note, which seemed to put the onus of improvements in his health primarily on the patient, did not relieve the county of its independent obligations under the ADA.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a “recovering litigator,” who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at or 480-607-5847.


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