By Harold S. Berman J.D.
A technician for Shell who incurred excessive absences, failed to report to work after an accident due to drunk driving, and was then terminated while on FMLA leave, could not proceed with her FMLA interference and retaliation, or ADA discrimination claims.
A Shell Chemical technician who had nine unapproved absences within a year, and was then terminated after she failed to report for work following her accident and arrest for driving while drunk, could not claim that Shell denied her FMLA benefits, or terminated her because she sought FMLA leave or because she had a disability under the ADA, a federal district court in Louisiana ruled. The court granted Shell’s summary judgment motion, finding that although Shell fired her while she was on FMLA leave, it made its termination decision before the start of her leave for the sole reason that she had incurred excessive unapproved absences unrelated to FMLA leave. Nor did the employee show she was disabled (Amedee v. Shell Chemical LP-Geismer Plant, May 31, 2019, Dick, S.).
Excessive absences. The employee worked as a technician for Shell Chemical. She alleged she suffered from a lifelong condition of scoliosis and back pain. Under Shell’s attendance policy, unexcused absences, including absences that did not qualify as FMLA leave, were considered chargeable offenses. Further, if an employee exceeds two incidents within 12 months, the employee becomes subject to a formal disciplinary process, which includes progressive discipline in the event of additional infractions up to termination.
According to Shell, between February 2015 and February 2016, the employee incurred nine unapproved absences that did not qualify for FMLA leave. The employee disputed a few of the absences, but did not offer any evidence to support her assertions.
Drunk driving incident. In response to her unexcused absences, Shell sent the employee reminders, and initiated counseling sessions. In mid-March 2016, the employee got in an automobile accident, and was arrested and issued a citation for driving while intoxicated. She was scheduled to report to work early the next morning, and called her supervisor to tell him she would not be coming to work because of the accident. She requested that her absence be coded as “sick,” and maintained she was experiencing back pain from the accident. She did not apply for FMLA leave for her absence that day, but did apply for FMLA leave beginning a few days later.
Termination. While the employee was on her subsequent FMLA leave, Shell terminated her for failing to report to work or to properly report time off. The employee maintained she was on FMLA leave at the time Shell terminated her, and that she properly reported her leave, and provided the necessary medical documentation.
The employee sued, alleging Shell terminated her because of her back pain and medical treatment, and failed to make reasonable accommodation, in violation of the ADA. She also alleged FMLA interference and failure to restore her to an equivalent position. Shell moved for summary judgment.
FMLA interference. The court granted Shell’s summary judgment motion on the employee’s FMLA interference claim, finding Shell did not deny the employee her FMLA benefits. The employee’s March 2016 auto accident and arrest, after which she called in sick and did not fulfill her scheduled overtime shift, was the final “occurrence” which caused Shell to terminate her. There was no evidence the employee sought approval for FMLA leave for the date of the accident, but only requested and took FMLA leave beginning a few days later.
That Shell terminated the employee while she was on her subsequent FMLA leave did not necessarily mean that Shell interfered with her FMLA rights. Rather, Shell was entitled to terminate the employee because it showed it would have done so even had she not taken FMLA leave. Shell offered evidence that it decided to terminate her because of, and immediately following her car accident, arrest, and consequent inability to appear for her scheduled overtime shift, independent of her subsequent FMLA leave.
FMLA retaliation/discrimination. For similar reasons, the court also dismissed the employee’s claim that Shell failed to restore her to an equivalent position. There was close temporal proximity between the employee’s FMLA leave and her termination, which occurred during her FMLA leave. However, it was undisputed that the same day as Shell counseled the employee about her absences and warned her of the possibility of termination for additional absences, she consumed alcohol, got in an accident, was arrested for her second DWI, and consequently called in “sick” and did not report for her overtime shift.
Before her accident and unexcused absence, she had numerous unapproved absences unrelated to FMLA leave, as well as early departures and late arrivals, and Shell made her aware of these occurrences. She failed to provide the medical documentation required to convert her unexcused absences into approved leave. Shell followed its own internal discipline procedures, and there was no evidence of any retaliatory animus related to her previous FMLA leave.
ADA discrimination. The court also granted summary judgment against the employee’s ADA discrimination claim. She offered no evidence to support her assertion that she had a disability of coronary heart disease. Nor did the employee produce any admissible evidence to support her claim that Shell regarded her as disabled because of issues with her back. Consequently, there was no admissible evidence from which a trier of fact could conclude that Shell considered the employee to be disabled, or that any perceived disability motivated her termination.
Even if the employee were disabled or regarded as disabled, she did not bring any evidence showing she was qualified for her position. She had previously represented to the Social Security Administration that she was unable to work shortly before her termination, but she also brought evidence that she requested an accommodation for a job she could perform with accommodation, and so it was disputed whether she would have been qualified to perform her job with reasonable accommodation under the ADA notwithstanding her representations of disability to the Social Security Administration. However, as with her FMLA claims, Shell showed it fired her for a legitimate, nondiscriminatory reason.
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