A correctional officer whose doctor restricted her from working the graveyard shift (6 p.m. to 6 a.m.) may pursue her ADA failure to accommodate and constructive discharge claims, according to a federal court in New Mexico. Maes v. City of Espanola (D.N.M. January 13, 2014).

Plaintiff’s doctor wrote that plaintiff’s working the graveyard shift “caused her a number of medical problems including severe insomnia, migraine headaches, and much worsened depression.” Her doctor advised against plaintiff’s working any “sustained” period of graveyard shifts, according to the court. A later doctor’s note said that she would “not tolerate full/graveyard type shift work.”

In addition to rotating 12 hours shifts, correctional officers were also assigned to standby for the shift they were not scheduled to work, on a rotating basis, in weekly increments, to fill in for absences. When the plaintiff was scheduled for a week of graveyard shift standby, she sought to be excused. Her supervisor told her she could line up a replacement but that the standby schedule was her responsibility. While on standby, the plaintiff was called in, reported in, but left before the end of the shift. The next day, her supervisor told her that her leaving early, in effect, was a resignation. While the plaintiff disagreed, the next day, she resigned, stating in her letter that “the stress and, what I consider mental abuse…leaves me no other opton…”

The court denied the employer’s motion for summary judgment on these ADA claims, holding that a jury should decide whether defendants failed to reasonably accommodate plaintiff’s medical condition and whether the circumstances of her discharge were sufficient to be a constructive discharge.

This decision does not discuss a few issues that seem to warrant discussing. The doctor’s note said the plaintiff could not work a “sustained period of graveyard shifts” or “full/graveyard type shift work.” Is working graveyard on standby only working a “sustained” or “full” graveyard shift? A second issue not discussed is whether working the graveyard shift, or rotating shifts, or standby shifts is an essential function of the correction officer position. We have posted about other decisions that addressed that issue here and here. If it were an essential function, the issue would be whether there was an accommodation the employer could provide that would enable to plaintiff to fulfill that function.