201 U.S. App. LEXIS 16594 (10th Cir.) 2018.

by Claudia Tran

The United States Court of Appeals for the Tenth Circuit (which includes Kansas) recently held that an employer can require an employee to perform essential job functions, even if only very rarely requested. In Mielnicki v. Wal-Mart Stores, Inc., the court addressed a former Walmart employee’s claim of disability discrimination under the Americans with Disabilities Act (ADA). The Tenth Circuit Court affirmed summary judgment, holding that cleaning restrooms was an essential function of her maintenance associate position, even though she had been asked to clean restrooms only once in 14 years, and her refusal to perform the essential function justified her termination.

The plaintiff, Simone Mielnicki, sued her former employer, Walmart, for failing to provide reasonable accommodation under the ADA. The district court dismissed her complaint, and she appealed her ADA claim to the Tenth Circuit, arguing that the district court erred by determining that she was a maintenance associate and that cleaning the restrooms was an essential function of her job. Ms. Mielnicki, who has a developmental disability, was employed by Walmart for 14 years, moving from shopping-cart attendant to maintenance associate. When she accepted her position as a maintenance associate, she signed a job description which indicated that she both did and did not “have the ability to perform the essential functions of this position either with or without a reasonable accommodation,” and the description stated that cleaning restrooms was an essential function of the position.

For several years, Ms. Mielnicki served in the maintenance associate position without cleaning the restrooms, as Walmart had other employees to do that task; however, when one of the other associates left, she was asked to clean the men’s restroom, and she refused because she was afraid a man would attack her there. She also submitted a medical accommodation questionnaire from her doctor affirming that she was medically not cleared to clean restrooms due to social deficiencies as well as concerns that cleaning products would exacerbate a skin condition. Walmart placed Ms. Mielnicki on personal leave, pending job reassignment if a suitable position were to become available. She was formally terminated after she obtained other employment.

In order to prove a prima facie ADA claim, a plaintiff must establish that (1) she was disabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential functions of her job; and (3) she was fired because of her disability. This case in particularly hinged on the second element, and the Tenth Circuit determined that “[p]rovided that any necessary job specification is job-related, uniformly enforced, and consistent with business necessity, the employer has a right to establish what a job is and what is required to perform it.”

The Tenth Circuit ultimately rejected Mielnicki’s argument that she was a maintenance associate in title only and not in duty, re-stating from a previous case that, “[w]e are reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Further, in response to the plaintiff’s argument that Walmart had not required her to clean bathrooms previously during her tenure as a maintenance associate, the Court noted that just because they did not direct her to clean restrooms did not mean it was not an essential function, and also reiterated that, “we have held that an employer may require an employee to be able to perform functions that she might rarely, or even never, need to perform.”

Ultimately, the Court concluded that Walmart excused the plaintiff from performing an essential function of the position even though it was not required to do so, and “an employer that goes beyond what is required under the ADA to permit an employee to perform only some of the essential functions of the position is not then estopped from insisting that the employee perform all of the essential functions of her job.”