Employment Law Daily Not currently diagnosed with sleep apnea, fired dispatcher can’t show FMLA or disability bias
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Friday, March 9, 2018

Not currently diagnosed with sleep apnea, fired dispatcher can’t show FMLA or disability bias

By Joy P. Waltemath, J.D.

Affirming summary judgment against FMLA interference and retaliation and disability bias claims of a 911 dispatcher who was fired after being late repeatedly, the Seventh Circuit found it was not established that she actually suffered from sleep apnea at the time and clearly was not under continuing treatment for it to qualify as a serious health condition. Her prior tardiness was not constructive notice of her need for FMLA leave, and the decision to terminate her was made before she requested FMLA during her termination meeting. Although she had taken several FMLA leaves during her tenure and had been disciplined within months, she failed to show that any of the disciplinary actions were unwarranted and had no direct evidence linking her discipline to her FMLA leaves; temporal proximity wasn’t enough to support her retaliation claims. Finally, whether or not the dispatcher had a disability, she had not shown that she suffered an adverse action because of a disability; the supervisor who fired her did so after warning her that her repeated tardiness could cost her the job, and he did not know she suffered from sleep apnea (Guzman v. Brown County, March 7, 2018, Coleman, S.).

Disciplinary history. The dispatcher worked at the county’s 911 call center from 2002 until she was fired in 2013. In 2006 she was diagnosed with sleep apnea and treated for it; in 2008, she had gastric bypass surgery, which appeared to alleviate her sleep apnea. She had not been re-diagnosed with sleep apnea when she was fired. But she did have a checkered disciplinary history. She received five verbal or written warnings about her use of vacation time or casual time between 2004 and 2013; three verbal or written warnings for failure to timely complete mandatory proficiency tests; and one verbal warning for failure to report to work (she mistakenly believed she was not scheduled). She also had taken several FMLA leaves during her tenure, and several of these disciplinary actions happened shortly after her return from those leaves. In the second half of 2012 and early 2013 she was late four times, and after the fourth incident, where she said she had overslept, received a written warning that if she were late again, she could be fired.

Tardiness leads to termination. But she was late again within days, and the county determined to fire her. Although she brought a doctor’s note to the meeting at which she was terminated, it said only that she “most probably” had sleep apnea and that she “needs to be re-tested and treated.” The parties disputed whether she provided the note before or after she was told she was being fired, and whether she asked for FMLA leave during or after that meeting. Nonetheless, she was fired, and she sued, alleging FMLA interference and retaliation as well as disability discrimination and retaliation. The district court granted the county summary judgment against all her claims.

No serious health condition. In the Seventh Circuit’s view, it was not clear from the evidence that the dispatcher even suffered from sleep apnea at the time she was fired, given the contents of the doctor’s note which said only that it was likely. What was clear was that she was not receiving inpatient care for sleep apnea or receiving continuing treatment for it. Consequently, she did not show she even had a serious health condition qualifying her for FMLA leave.

No FMLA notice. Notwithstanding that finding, the appeals court also disagreed with the dispatcher’s argument that the county had constructive notice of her need for FMLA leave from her repeated and allegedly uncharacteristic tardiness. But five instances of oversleeping over a period of more than eight months was not “the sort of stark and abrupt change which is capable of providing constructive notice of a serious health condition,” concluded the court. (At the time, the dispatcher had also attributed non-medical reasons to her late arrivals, the court also pointed out.) Finally, even if the dispatcher had provided actual notice at the time of her termination meeting, it was undisputed that the decision to fire had already been made by an individual who had no notice of her sleep apnea before actual notice of a request for FMLA leave had been made. Thus, her FMLA interference claim failed on appeal.

No FMLA retaliation. Here, the appeals court succinctly noted that the decision to terminate the dispatcher’s employment was made by an individual with no knowledge of her sleep apnea, and her request for FMLA leave at the termination meeting a week later could not have “caused” her termination. Her contentions that earlier FMLA leaves had been followed by disciplinary action relied only on temporal proximity, said the court, which was not enough to establish a fact issue to survive summary judgment, and she did not contend that any of the earlier disciplinary action had been unwarranted.

Plus, the dispatcher’s claim that other individuals who had not taken FMLA leave but who had been late to work were treated more favorably was hampered by a “self-drafted” document naming 27 comparators she had identified. But that document was a hot mess: she didn’t identify when the comparators were late or how late they were, what shift they worked at the time, who their supervisor was at the time, or what their disciplinary history was at the time. Some of them worked different shifts or held different job titles, and she really didn’t know if they had taken FMLA leave or not. For this and other reasons, her FMLA retaliation claim was properly denied.

No viable disability claims. Saying it need not decide whether the dispatcher was a qualified individual with a disability, the appeals court said that even if she was, she failed to identify any evidence to show she suffered an adverse employment action resulting from her alleged disability. The decisionmaker did not know that she had sleep apnea prior to deciding to fire her; instead, she was fired for her repeated failures to show up to work on time, not as a result of a disability.

Accommodation. In fact, there was no evidence that the county was even aware of dispatcher’s initial diagnosis of sleep apnea or subsequent treatment. Her 2011 fitness-for-duty exam failed to even mention sleep apnea, although it did say she “no longer has excessive need for sleep or sleep hunger and is really feeling much more like her normal self.” The only other record evidence as to whether the county was informed that she had sleep apnea was disputed (either her last day late or the day she was terminated), but the conduct for which the dispatcher was fired had already occurred. The undisputed evidence establishes that she was fired based on her repeated late arrivals, the last of which occurred before her conversation with her immediate supervisor (not the decisionmaker), when she may have revealed she might have sleep apnea. “After the fact requests for accommodation do not excuse past misconduct,” stressed the appeals court.

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