Labor & Employment Law Daily Hospital manager with Crohn’s disease, fired after refusing to take leave when not medically necessary, advances ADA, FMLA claims
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Friday, July 30, 2021

Hospital manager with Crohn’s disease, fired after refusing to take leave when not medically necessary, advances ADA, FMLA claims

By Kathleen Kapusta, J.D.

The hospital claimed it fired the employee for “FMLA-related insubordination” after she came to work on a day it had designated as FMLA leave.

A dietary manager who suffered from Crohn’s disease, and who was terminated for “FMLA-insubordination” when she came to work on a day her hospital employer designated as FMLA leave pursuant to a rigid schedule it imposed in response to her doctor’s note stating she needed a reduced schedule, can proceed to trial on her ADA and FMLA retaliation and interference claims based on her termination, as well as her ADA failure-to-accommodate claim and disability discrimination claim based on her termination. While the federal court in Kansas granted summary judgment against her ADA hostile work environment claim as well as various claims not based on her termination, it found the employee was entitled to summary judgment against the hospital’s after-acquired evidence defense (Johnson v. Norton County Hospital, July 23, 2021, Lungstrum, J.).

As a dietary manager, the employee assessed patients, counseled them pursuant to those assessments, performed weekly patient visits, and supervised employees in the dietary department. Her regular presence at the hospital was essential to her job.

Diagnosis. After she was diagnosed with Crohn’s disease in 2017, she occasionally used vacation days and sick leave to manage the symptoms of her disease. In August 2018, she gave her supervisor, the hospital CEO, a doctor’s note stating she needed three consecutive days off, which the CEO forwarded to the HR director with a note stating that she “could not justify a department supervisor/manager position that isn’t even working enough that she has to take leave without pay.”

Improvement plan request. The following month, the employee provided a doctor’s note excusing her form work on two consecutive days in September for medical treatment. In mid-December, the HR director provided the employee with a health care provider certification form to be completed by her doctor. Shortly after that, the CEO emailed the hospital’s HR consulting firm, asking for help in creating an improvement plan for the employee because this “whole thing of not working the full 36 hours/week has gone on a long time.”

Around that same time, the hospital received the certification form from the employee’s doctor but sent it back three weeks later stating only that a completed from needed to be returned within seven days. In January, the employee experienced a flare-up of her Crohn’s disease. She sought medical treatment on three separate days and was scheduled for a colonoscopy on January 17. On January 21, the hospital received the certification from her doctor indicating that she needed a reduced schedule of three days a week through May and would likely need a one-month period of continuous leave.

Rigid schedule. In response, the CEO determined that a Monday-Wednesday-Friday schedule would work best for the hospital and the employee would use six hours of FMLA leave on Tuesdays and Thursdays. Although the employee objected because she did not want to stay home on FMLA leave when she was capable of working, the CEO told her it was required to proactively protect her FMLA days and she could not work on Tuesdays and Thursdays unless she submitted a new certification form. When she tried to work the following Tuesday, she was fired.

Failure to accommodate. Turning first to the employee’s ADA failure-to-accommodate claim, the court, addressing cross-motions for summary judgment, found the employee failed to show the absence of a disputed fact issue as to whether she had a physical impairment that substantially limited a major life activity. Although she argued that Crohn’s disease “can” affect a person’s major life activities and listed symptoms a person with Crohn’s disease “can” exhibit, she did not show that the disease substantially limited her own major life activities. Nor did she show she was regarded as disabled or had a record of disability. Thus, she was not entitled to summary judgment on this claim.

Denying the employer’s motion as well, the court, rejecting the hospital’s assertion the employee wanted to “set her own schedule” or work from home, found little evidence showing she asked the hospital to waive the physical attendance requirement or that she wanted to work from home whenever it suited her. Rather, she requested intermittent leave for scheduled medical appointments with unscheduled leave as needed for flare-ups, which was what the hospital approved on its notice of designation of leave.

Interactive process. The court also cited evidence that the hospital did not engage in the interactive process including that the CEO, who was concerned about the amount of the leave the employee had already taken, unilaterally imposed a rigid schedule and was not open to alternative arrangements. And while the CEO argued that the Monday-Wednesday-Friday schedule matched the employee’s FMLA physician certification, the court noted that the certification was inconsistent in several places, which called into question whether the hospital relied on it in good faith.

Further, the employee’s doctor did not state on the certification that she required a rigid schedule and a reasonable jury could find the doctor was recommending a reduced leave schedule averaging three days per week until May. Thus, a jury could find the hospital failed to engage with the employee in good faith.

Unreasonable? Turning to the hospital’s assertion the employee’s request was unreasonable because her doctor indicated her condition would last a “lifetime” and that her condition was deteriorating, the court noted that her certification indicated she would only need modifications until May. And while she may have suggested working from home or coming into work on days the hospital designated as FMLA leave, there was evidence indicating she suggested that as a way to perform her job on the days the hospital was requiring her to take leave even if it was not medically necessary. Accordingly, a reasonable jury could find she requested a plausibly reasonable accommodation that did not impose an undue hardship on the hospital and that the hospital rejected it. Thus, this claim could proceed to trial.

Disability discrimination. As to the employee’s claim the hospital fired her based on her disability, the court noted the hospital claimed she was fired for insubordination and failing to adhere to the work schedule set by the CEO. But not only was there evidence the CEO was looking for reasons to fire her, a jury could find discriminatory animus from the hospital’s apparent failure to engage in the interactive process, its unwavering adherence to a confusing and inconsistent physician certification without seeking clarification, its continued insistence that the certification required a rigid schedule, and its inability to explain why it formally approved intermittent and unscheduled leave while making the employee take leave every Tuesday and Thursday.

While the hospital claimed it relied on the expertise of its HR consultant and it honestly believed it could fire the employee, the honest-belief doctrine, the court observed, “focuses on the employer’s belief in the particular facts underlying the reason or reasons for the employment decision—typically facts about the employee’s conduct or performance—not in the purported legality of the employment decision.” Finding fact issues as to whether the hospital terminated the employee based on her disability, the court denied summary judgment against this claim.

ADA retaliation. While the employee claimed there were numerous adverse actions upon which she could base her ADA retaliation claim, the court found the only viable claim was based on her termination. Rejecting the hospital’s assertion that she could not show its stated reason for firing her was pretextual, the court noted evidence she sought intermittent leave and the short span of time between the hospital’s apparent approval of this request and her termination, along with evidence she was fired for refusing to take more leave than was medically necessary, was sufficient to create a fact issue. There was also evidence that despite approving unscheduled leave for the employee, the hospital required her to adhere to a rigid schedule and that the CEO was increasingly aggravated by her need for leave. Accordingly, this claim could also proceed to trial.

FMLA interference. As to the employee’s FMLA interference claim based on her termination, the hospital argued that it lawfully fired her for “FMLA-related insubordination” because she disobeyed her supervisor’s direct order to not come into work on a day designated as FMLA leave. Its decision, it claimed, was based on a sincere belief that permitting her to work on Tuesday would have interfered with her FMLA rights.

However, the court observed, a reasonable jury could find the hospital unilaterally and unreasonably placed her on a part-time and fixed schedule that would have required her to use more FMLA leave than was medically necessary. A jury could also find that the hospital interfered with her FMLA rights when it forced her to take leave on Tuesdays and Thursdays regardless of medical necessity and then fired her when she was unwilling to agree to the forced leave. Because fact issues existed as to whether her termination was related to the exercise of her FMLA rights, the court denied summary judgment as to this claim.

FMLA retaliation. Her FMLA retaliation claim based on her termination also survived summary judgment. It was undisputed she was terminated within hours of refusing to take more FMLA leave than was medically necessary and the hospital admitted it terminated her for FMLA-related insubordination. While a jury might find she was insubordinate, it might also find she was fired as punishment for objecting to the hospital’s unilateral leave schedule that required her to take more FMLA leave than was medically necessary.

After-acquired evidence. Finally, the court addressed the hospital’s assertion that her damages were limited under the after-acquired evidence doctrine because after her termination, it discovered she had used hospital computers to make disparaging comments about the hospital and its managers, she had forwarded confidential information to her personal email account, and she had used the hospital’s email system for personal purposes. The CEO, however, testified that she would not have been terminated based solely on one of those issues.

The hospital, however, argued that the CEO was not asked whether it would have terminated her based on a combination of those issues. In response to the employee’s motion for summary judgment, it submitted the CEO’s affidavit stating that the combination of those offences would have justified firing the employee. But because the CEO did not aver that she would in fact have fired the employee for those offenses, the employee was entitled to summary judgment on this claim.

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