Employment Law Daily Firing employee after C-section instead of briefly extending FMLA leave supports ADA claim
Wednesday, August 23, 2017

Firing employee after C-section instead of briefly extending FMLA leave supports ADA claim

By Lorene D. Park, J.D.

An employee who was fired soon after delivering her baby by caesarean section—because her FMLA leave had expired and she did not return or provide a fit-to-return certification—failed to show she was denied a benefit to which she was entitled under the Act, held a federal district court in Georgia, because she took 12 weeks of leave. The court also granted summary judgment against her claims of discrimination based on race, gender, and pregnancy, because she failed to show a similarly situated individual outside her protected class was treated more favorably. However, her ADA failure-to-accommodate claim survived the employer’s motion because the HR director knew she had the C-section and remarked that she would need a short time to recover, but the employer failed to offer a short leave extension, which a jury could find would have allowed her to perform the essential functions of her position in the “immediate future” considering her doctor released her to work just days after her FMLA leave expired (Grant v. Hospital Authority of Miller County, August 16, 2017, Abrams, L.).

The employee worked as a pharmacy technician at a nonprofit medical facility. She had received a handbook which stated that FMLA leave would be exhausted concurrent with paid leave, and required employees to submit a “work/fitness for duty certificate” when returning from FMLA leave. The employer also prominently posted posters in common areas regarding FMLA leave.

Emergency C-section. On September 15, 2014, the employee experienced pregnancy complications, including high blood pressure that her doctor could not control. She was ordered to bed rest for one week. She gave her doctor’s order to HR and she was approved for FMLA leave. On December 5, the employee gave birth via emergency caesarean section (C-section). She told the HR director of her daughter’s premature birth and she was informed that her FMLA leave would expire on December 9 and she was expected to return on that date. However, the HR director also said she understood the employee would need time to recover from her C-section.

Fired after leave expired. Thereafter, the employee called the HR director several times but could not reach her and the director did not call back as she said she would. The employee did not return on December 9 and did not explicitly request additional leave; nor did the employer offer an extension of unpaid leave. She was released by her doctor on December 12 but did not notify the employer. She was terminated effective December 18 for failure to report to work after her FMLA leave expired and failure to obtain a release from her doctor as required by the handbook and as her supervisor had reminded her to do during her leave. The employee was told that she could apply for other positions when she was released to work and the employer had multiple job postings, but she never looked to see what was available after her termination.

No race discrimination. Granting summary judgment against the employee’s Section 1981 claim that she was discriminated against because she is black, the court found that she failed to make a prima facie showing that her employer treated similarly situated employees outside her protected class more favorably. She pointed to a white female employee who also took FMLA leave for childbirth, but that comparator was not similarly situated because her leave period did not exceed 12 weeks and she returned. Even assuming the employee made out a prima facie case, she failed to show that the reason for her termination (failure to return to work or to provide a doctor’s release when her FMLA leave expired) was pretext for race discrimination.

No sex or pregnancy discrimination. Likewise, the employee’s Title VII and PDA claims also failed because she did not make a prima facie showing that the employer treated men or non-pregnant women more favorably. She also failed to put forth specific instances—a mosaic—from which a jury could infer gender or pregnancy discrimination on the part of the employer.

ADA claims proceed in part. Results were mixed on the employee’s ADA claims. She failed to show disparate treatment based on disability due to the same lack of comparator evidence that doomed her other discrimination claims. However, she raised a triable issue of fact on whether the employer failed to accommodate her. The parties agreed, for purposes of the motion, that the employee was disabled and that the employer did not accommodate her. Thus, her failure-to-accommodate claim hinged on whether she was a qualified individual.

Though the employer argued that she could not perform her job functions while on leave because she could not work at all, the court found a triable issue because the ADA “covers people who can perform the essential functions of their jobs presently or in the immediate future.” Here, the employee was absent due to complications from childbirth that were resolved shortly after her C-section. A jury could find that a reasonable accommodation would have enabled her to perform the essential functions of her job in the immediate future. Specifically, she informed the HR director on December 8 that she had a C-section and the director noted she would need time to recover. However, the director did not ask if she needed an accommodation or offer one. Given that the employee was cleared by her doctor on December 12, a short leave of absence could have enabled her to return to work “in the immediate future.” There was no evidence that such a short leave would be an undue hardship, so the court found that the employer was not entitled to judgment as a matter of law.

FMLA claims fail. On the other hand, because the employee presented no evidence that she was denied an FMLA benefit (she received 12 weeks of FMLA leave) and she failed to submit a fit-for-duty certificate, she did not show the employer interfered with her rights under the Act. Summary judgment was also granted against her FMLA retaliation claim because she presented no evidence that the proffered reason for her termination was pretextual or that the employer was motivated by retaliatory or discriminatory animus when it terminated her for not providing a fit-for-duty certificate or returning upon the expiration of her leave.

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