By Marjorie Johnson, J.D.
Even if the employee’s irritable bowel syndrome had actually caused all of her tardiness, early departure, excessive break-taking, and full-day absences, she required “vastly more flexibility and time off than she proposed” and could not establish that she remained qualified for her job.
An employee who suffered from irritable bowel syndrome (IBS), and was demoted due to lack of leadership and fired for excessive tardiness after having a 59-percent absenteeism rate, failed to revive her ADA and FMLA claims. Affirming summary judgment against her in an unpublished decision, the Sixth Circuit found that she was not qualified for her position as an auditor since in-person, regular attendance was an essential function of the job, which entailed reviewing healthcare claims by accessing information from secure on-site computers, including a large volume of confidential and HIPAA-protected personal information. Moreover, her proposed accommodation of occasional flexibility to arrive late and leave early when her symptoms flared up wouldn’t have “come close” to solving her attendance issues, which were seemingly unrelated to her IBS (Popeck v. Rawlings, Co., LLC, October 16, 2019, Cook, D., unpublished).
Intermittent FMLA leave. In 2009, the employee was hired as an auditor for Rawlings, which provides accounting and financial services to health insurers. She excelled over the next few years and was promoted to audit manager. However, in 2013 she was diagnosed with IBS, a digestive disease that caused bouts of severe stomach cramping and sudden diarrhea. As a result, she was granted intermittent FMLA leave so that she could arrive late or leave early when her symptoms flared up.
Demoted. Meanwhile, management grew concerned with her leadership, with her supervisor complaining that her team members came in late, took excessive breaks, left early, and generally underperformed. Finding that she too indulged in “excessive breaks,” the supervisor concluded that she could not curb her team’s poor work habits. As a result, she was demoted back to an entry-level auditing position.
ADA gap-filling leave. After she exhausted her annual FMLA allotment around November, she was invited to apply for an ADA accommodation until her FMLA leave renewed in December. Her doctor submitted paperwork identifying the accommodation of being able to arrive late or leave early, which was approved until her FMLA leave resumed.
Terminated. After her long breaks and absences continued, she received a disciplinary notice which noted that she arrived to work late or departed early 14 times. She attributed her absences to reasons unrelated to her IBS, such as oversleeping, traffic, and trick-or-treating with a friend’s child. When she exhausted her FMLA leave by July, she was denied her renewed request for gap-filling leave. After she continued to excessively miss work, she was ultimately terminated.
ADA claims fail since not “qualified.” Because the employee was undisputedly not a “qualified individual,” she failed to revive her ADA clams for disability bias, failure to accommodate, and failure to engage in the interactive process. The Sixth Circuit explained that since “regular, in-person attendance constitutes an essential function of most jobs, an employee who cannot meet a job’s attendance requirements usually cannot establish qualified individual status.” Thus, at issue was whether such attendance constituted an essential function of the auditor position and if so, whether a reasonable accommodation would enable the employee to perform that function.
In-person attendance was essential. The employee did not dispute that auditors primarily reviewed healthcare claims by accessing information from secure computers at the company’s offices and were prohibited from working remotely because of the “large volume of confidential and HIPAA protected personal information.” And while certain IT workers were occasionally permitted remote access from home during nights and weekends, the company had never allowed auditors who accessed confidential information—like the employee—to work remotely. Thus, because all auditing work had to be done on-site, in-person attendance on a regular basis constituted an essential function of her job.
No reasonable accommodation. The employee also failed to suggest a reasonable accommodation that would have enabled her to regularly perform her in-person work. While she proposed occasional flexibility to arrive late and leave early when her symptoms flared up, such an accommodation would not have “come close to solving her attendance problem” even if her IBS had actually caused all of her tardiness, early departure, excessive break-taking, and full-day absences. Indeed, by the time she was fired she had missed work nearly 60 percent of the time. Because she required “vastly more flexibility and time off than she proposed,” she could not establish that she remained “qualified” for her job.
No FMLA interference. Finding that summary judgment was also properly granted on her FMLA interference claim, the appeals court rejected her argument that the employer violated its regulatory duty to designate certain instances of leave as ADA leave rather than FMLA leave. Since she was unable to establish that she was entitled to ADA leave, the company had no duty to grant her leave under that statute.
No retaliation. The employee also couldn’t revive her ADA and FMLA retaliation claims since she failed to refute the non-retaliatory reasons for demoting and firing her. In an attempt to show pretext, she argued that the company did not strictly enforce its break policies and that other nondisabled workers took excessive breaks without consequence. However, she didn’t address the crux of the proffered reason for her demotion—her ineffective leadership of her team. And while she also argued that the employer gave a “shifting” rationale for her discharge, its reason had not changed.
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