Employment Law Daily Firing disabled employee but not coworker for same policy violation suggested pretext
Wednesday, April 25, 2018

Firing disabled employee but not coworker for same policy violation suggested pretext

By Lorene D. Park, J.D.

Evidence that a funeral home employee was fired after a deceased body was left overnight without refrigeration, while a coworker who had signed for custody of the body wasn’t even questioned, suggested the reason for firing the employee was pretextual, concluded a federal district court in Tennessee, denying the employer’s motion for summary judgment against his ADA discrimination and retaliation claims. However, the employee’s FMLA claims failed because he did not follow the employer’s procedures for requesting FMLA leave (Everson v. SCI Tennessee Funeral Services, LLC dba Forest Lawn Funeral Home, April 20, 2018, Campbell, W., Jr.).

The employee, who worked as a funeral director and then manager at a funeral home, was diagnosed with Meniere’s Disease in 2000, but it didn’t affect his work until 2010, when he had his first outpatient ear procedure. The employee’s supervisor granted about a week off for that procedure and approved an afternoon off in October 2014 for a second procedure. On January 9, 2015, the supervisor responded to the employee’s request for a week off for a third procedure by saying “That’s fine Tre. Whatever time you need.” However, the employee was terminated only two days after his request. According to the employer, he was fired for leaving an unembalmed body at one of the facilities without refrigeration in violation of company policy. Claiming this was pretext, the employee filed suit under the ADA and FMLA.

No FMLA violations. Moving for summary judgment, the employer argued that the employee’s FMLA interference claim failed because he did not follow the notice requirements, which were outlined in the employee handbook and which required that he contact the employer’s leave and disability center. In response, the employee argued that the law did not require him to invoke the FMLA by name and it was enough that he told his supervisor he needed time off for a medical procedure.

While the employee’s argument might have had merit before 2009, the court explained that it failed under a 2009 amendment to 29 C.F.R. § 825.302(d), which “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” Here, the employee had read and acknowledged his familiarity with the notice requirements but he never followed the procedure for requesting FMLA or notified anyone at the company of his need for FMLA. Nor did the employee identify any unusual circumstances preventing him from following the employer’s notice requirement. Consequently, his FMLA interference claim failed.

For the same reason, summary judgment was granted against the employee’s FMLA retaliation claim because he did not engage in activity protected by the Act.

ADA discrimination and retaliation claims. However, the employee’s ADA discrimination claim survived the employer’s motion. According to the employer, the undisputed materials facts showed that: its refrigeration policy requires unembalmed decedents to be put in a designated refrigeration unit within 24 hours of taking custody; the employee understood and received training on the policy; he had a deceased body brought in to the Lakeview location for a family viewing on January 9, 2015 and was present when it was delivered; and it was discovered on January 10 that the body was not refrigerated but instead was left out overnight in a visitation room.

While the court found this to be a facially legitimate and nondiscriminatory reason for firing the employee, it also found that he raised a triable issue on pretext, including evidence that another employee at that location who was responsible for the deceased body was not fired or even disciplined. According to the employee, he never waited on customers at the Lakeview location, had no keys to that facility, and did not know where the paperwork was. He also asserted that the other employee, who was a licensed funeral director, had signed the chain of custody form for the body, and took responsibility of it from the employee, who left the facility soon after. Moreover, even though a supervisor saw that the other employee had signed the custody form, he did not question the other employee as to why the body was still in the parlor rather than the crematory. Because this suggested the reason for the employee’s termination was pretextual, his disability discrimination claim would go to trial.

For the same reason, a jury could find that the proffered reason for the employee’s discharge was pretext for retaliation under the ADA, so that claim survived the employer’s motion as well.

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