There has been much talk in law review articles and some seminars about the disappearing jury trial in federal courts.  The courts are granting dismissals and summary judgments more and more.  So, these days, the true battle is often over the employer’s motion for summary judgment.  Mike Maslanka recognizes that new dymanic when he pens his post regarding a 2d Circuit Court of Appeals case.  

The decision in McMillan v. City of New York is important because it sheds some light on the accommodation process.  In McMillan, a worker was allowed a window between 9 and 10:00 a.m. in which to report for work.  Due to his disability, he took medication which caused drowsiness.  The drowsiness caused him to arrive late for work, as late as 11:00 a.m.  He was disciplined and received a 30 day suspension without pay.  he sued.  

The district court granted the employer’s motion for summary judgment.  It found that arriving for work on  time was an essential function of the job.  With his medication, the worker could not satisfy this essential function.  But, the 2d Circuit reversed and said the court needed to engage in a "penetrating" factual analysis.  The court noted that if the window lasted an hour, then perhaps arriving on time was not truly an essential function of this job.  The district court should first look at that issue before granting summary judgment, said the court of appeals.  The appellate court rightly noted that the issue is not pretext.  No one disputed that the worker was late.  The issue was whether he could perform the essential functions of the job and whether arriving timely was an essential function of this job.  See the court’s decision here. 

The appellate court is right in this decision.  But, note Mike’s reaction.  Mike Maslanka represents primarily employers.  He describes this decision as a win for the plaintiff, which it is.  But, should it be a win for the plaintiff?  The plaintiff must still try his case before a jury.  There is no guarantee he will win.  Things have changed so much in the past 30 years that now, winning summary judgment is seen as a win – by both sides of the docket.  See Mike’s post.