Labor & Employment Law Daily Only FMLA interference claim is revived for intelligence analyst denied permanent post due to attendance problems
Thursday, February 21, 2019

Only FMLA interference claim is revived for intelligence analyst denied permanent post due to attendance problems

By Lisa Milam, J.D.

In a somewhat narrow FMLA interference win, the appeals court grappled with a number of salient disability and accommodation issues before also affirming summary judgment in the agency’s favor on her Rehabilitation Act claims.

An operations analyst may pursue her FMLA interference claims against the Office of the National Intelligence Director (ODNI), the Fourth Circuit held, vacating a district court’s grant of summary judgment in her employer’s favor on this cause of action. However, the appeals court found the court below had rightly disposed of the employee’s numerous Rehabilitation Act claims, as well as her FMLA retaliation claim. Dissenting in part, Chief Judge Gregory offered a detailed (and more sympathetic) retelling of the facts, concluded that his colleagues misunderstand the nature of the employee’s depression disorder, and lamented that ODNI had lost a talented employee—one who was entrusted, in fact, with “the high-stress, high-profile Edward Snowden case,” and who had “worked tirelessly and impeccably on that assignment” (Hannah P. v. Coats, February 19, 2019, Thacker, S.).

Depression, attendance problems. Several months into a five-year term as an operations analyst, the employee informed her supervisors she had been diagnosed with depression. She treated her condition through counseling and prescribed medication. Two years later, she was thrust into the pressure-cooker role of coordinating the National Intelligence Director’s response to Edward Snowden’s unauthorized disclosure of highly classified information, a high-stress assignment with tight deadlines and long hours, including weekends. To that end, she was placed on a “maxi flex” schedule—80 hours over a two-week period—but without set hours on any given day. She started and ended her work days later than the usual business hours. Her atypical work schedule continued even after the high-profile assignment ended 18 months later, although it was her supervisor’s expectation that her schedule would return to normal.

In fact, her work hours grew more erratic. The employee came to work well after normal business hours and racked up numerous unplanned absences. On some occasions she wouldn’t arrive until after 2 pm; some days, she was unreachable for hours, failing to return repeated phone calls from work to her cell and home phone. When her supervisors did manage to reach her, they found her “lethargic or almost unconcerned” about her truancy, and took note of her sad, “almost trance like” demeanor. At that point, she told her supervisors she recently changed her medication.

The attendance plan(s). Then management worked out an arrangement: The employee was to either get to work by 10 am or else inform her supervisor if she wasn’t going to make it by that time; if she didn’t show up or call by 11 am, her supervisor would contact her by phone. But she didn’t follow the plan. She often arrived much later than 10 am, never notifying her supervisor of her planned arrival time. So her supervisors changed the plan: The onus would now be entirely on the employee to reach out by phone; her supervisors would not be calling her. She asked them to give the first plan more time to work, to no avail.

Leave of absence, application for permanent position. The employee’s psychiatrist recommended that the employee take four weeks of leave, but her supervisors asked that she first meet with an EAP counselor. She cancelled her leave request after the EAP meeting, explaining that her request was “on hold” and that she would instead continue with the EAP counseling sessions. But she soon changed her mind and, after her attendance problems persisted, she again requested, and now was granted, four weeks of leave. Prior to starting her leave period, she applied for a permanent position with the agency and, although the interview panel recommended her for the job, ODNI’s chief management officer concluded her “recent performance is not consistent with a potentially good employee.”

Lawsuit. The employee sued under the Rehabilitation Act alleging ODNI failed to accommodate her depression, unlawfully disclosed her confidential medical information, and refused to hire her for the permanent position. She also asserted FMLA interference and retaliation claims. The district court granted summary judgment in ODNI’s favor on all claims. The Fourth Circuit affirmed as to all but her FMLA interference claim, finding the lower court erred in concluding that the employee’s disclosure of her depression diagnosis was insufficient to put ODNI on notice that she may have qualified for the FMLA’s protections.

FMLA interference claim revived. The appeals court held a reasonable jury could find the employee’s disclosure of her depression and her initial request for psychiatrist-recommended leave was sufficient to trigger ODNI’s responsibility to inquire further about whether she was seeking FMLA leave. “We have held that disclosure of a potentially FMLA-qualifying circumstance and an inquiry into leave options is sufficient to create a material question of fact regarding whether an employee triggered her employer’s FMLA obligations,” the court explained, and the employee had informed her supervisors of her depression on several occasions.

A reasonable jury also could look to her psychiatrist’s recommendation as putting the employer on notice that its employee was inquiring about potentially FMLA-qualifying leave—thus triggering its duty to inquire further about whether she in fact was seeking FMLA leave.

Although ODNI argued she was unable to demonstrate that her depression was a “serious health condition,” this argument was premature, given that the employer had not made any inquiry into whether her depression was an FMLA-qualifying condition. ODNI’s argument “would allow it to use its own failure to determine whether leave should be designated as FMLA-protected to block liability,” the court reasoned, stating it has refused “‘to allow an employer to take advantage of its own lapse in such a way.’”

Moreover, ODNI also interfered with her rights under the Act by failing to provide notice of the availability of FMLA leave. The lack of notice prejudiced her because, the record showed, if she had been aware of the availability of FMLA leave, she could have structured her leave differently: She would have used only sick leave for her four weeks off, but she used a combination of sick leave and annual time instead.

Accommodations provided. The employee could not resurrect her Rehab Act claims, though. ODNI provided the employee with at least two reasonable accommodations for her mental disability, the district court correctly found. First, her supervisors forged an accommodation allowing her to call in when she was going to be late, but she didn’t follow that plan. So they tried another accommodation: referring her to the EAP. Despite these accommodations, her attendance problems were not resolved. The employee told the Fourth Circuit that her supervisors improperly rescinded the call-in arrangement when it unilaterally concluded the plan was not working—insisting that the Rehab Act demands a collaborative process to find a workable solution. But the appeals court pointed out that ODNI did, in fact, collaborate, and only acted on a unilateral basis when the accommodation didn’t work.

The employee also contended that her request for a leave of absence was improperly delayed—a “one month lapse” that caused her “immense emotional stress.” But this argument was not supported by the record. She requested leave and then withdrew her request two business days later without explanation, and then renewed her request, which was granted within two weeks. In the interim between her initial leave request and her leave approval, her supervisors were actively considering her leave request, and they referred her to the EAP for counseling in the meantime. “The Rehabilitation Act does not require an employer to provide the exact accommodation that an employee requests,” the appeals court noted, finding that summary judgment was properly granted to ODNI on the employee’s reasonable accommodation claim.

No improper medical exam. The employee also alleged that ODNI wrongfully required her to undergo a medical examination. First she asserted she was subjected to an unlawful pre-employment medical exam when she was referred to the EAP, noting that she was contemplating applying for permanent jobs at ODNI at the time. But she had not yet done so, so she was not a job applicant, but rather, a current employee who was referred to an EAP in lieu of discipline for ongoing attendance issues. While the employee also argued her attendance issues were caused by her stress in trying to find a permanent position at ODNI, “stress and frustration surrounding obtaining permanent employment with Appellee does not transform her EAP referral into a pre-employment medical examination,” the court rebuffed.

And there was no showing that referral to the EAP constituted a prohibited medical examination of a current employee. The EAP was intended to be used as a voluntary counseling service, not as a mandatory medical examination. Indeed, the EAP counselor repeatedly stated she had not conducted a medical exam. At any rate, even if the EAP were a mandatory medical exam, on these facts, summary judgment was still appropriate, because referral to the EAP in this case was job-related and consistent with business necessity. ODNI had reason to believe that her ability to perform the essential job functions was impaired by her ongoing attendance issues.

Attendance as essential. The employee challenged whether the EAP referral in fact was a business necessity, arguing that her job performance was excellent, but “job performance alone does not create a genuine issue of material fact,” the court wrote. “Attendance was also an essential function,” one which the record clearly demonstrates she was incapable of fulfilling at the time of her EAP referral. For emphasis, the court reiterated its holding that “a regular and reliable level of attendance is a necessary element of most jobs.”

Medical information not elicited. The employee also alleged that ODNI violated the Rehab Act by disclosing or misusing confidential medical information. For one, she contended her supervisors wrongfully sought confidential medical information when they elicited information from her about her depression (and improperly disclosed that information in the EAP referral memo). But she had voluntarily told at least four of her supervisors of her depression diagnosis and that she was under the care of a psychiatrist and counselor, and the Rehab Act does not protect information shared voluntarily.

Yet the employee contended these disclosures were not voluntary because they were made in response to inquiries about her disability. However, the facts showed the inquiry was not a medical one, it was about her attendance. Nor was an inquiry into her attendance a de facto inquiry into her depression. She contended that the supervisor who inquired about her attendance knew she was depressed (pointing to his comments that “she didn’t sound well” on the phone and that she was in a “trance like” state) and that her attendance problems were linked to her condition. She cited cases from other circuits in support of the notion that “asking a question ‘likely to elicit’ information about a disability amounts to a medical inquiry.” But there was not enough evidence to create a genuine issue that the supervisor knew about her depression diagnosis, or that he was aware that asking about her repeated absences and tardiness would elicit medical information about her depression.

Inquiry into behavior. Indeed, the employee’s absences could have been due to myriad nonmedical causes, the appeals court noted, and to adopt the employee’s argument on this point “would require us to find that where an employer might know that a particular bad work behavior is connected to a medical condition, the employer cannot inquire into the behavior without running afoul of the ADA and Rehabilitation Act’s prohibition on medical inquiries. We have held expressly the opposite.”

No improper disclosure by EAP psychologist. The employee also claimed that the EAP psychologist wrongfully disclosed confidential medical information gathered during her EAP session to her supervisors. Specifically, she said the EAP psychologist told the supervisors that the employee had raised concerns about ODNI’s record retention policies, and also that the employee said that it was low motivation—not depression—that was making it so hard for her to make it into work. Yet this wasn’t medical information, the court pointed out; it was nonmedical information and so wouldn’t have triggered the Rehab Act’s confidentiality protections. There was no Rehab Act violation here even if the EAP psychologist had improperly disclosed medical information, the court added, because ODNI did not rely on the employee’s depression diagnosis (or any other medical information) in rejecting her for a permanent position.

No pretext shown here. The employee could not rebut ODNI’s proffered reasons for rejecting her for a permanent position: perpetual issues with attendance, timeliness, and reporting absences to her superiors. She tried to establish that this reason was a “ruse” by pointing to inconsistencies between the decision-maker’s statement to the EEOC (that he had no knowledge of her disability) and an email a year earlier, in which he discusses her depression—an email he conveniently failed to disclose to the EEOC, she pointed out.

The appeals court saw no concern here, though. The emails were focused on her attendance problems, not her disability, and reflected the supervisors’ belief that her depression was under control and their concerns that her attendance problems persisted despite the accommodations. As for her attempt to call into question whether she even had significant attendance problems, the court pointed to the record evidence: She failed to come into work or call in before 10 a.m. 13 times in the 46 days between ODNI’s initial attempt to accommodate her and implementation of the revised accommodation plan.

She also argued that her disability was the source of her attendance problems. “We have no doubt that [her] struggle with depression was the cause of her attendance issues, and we are sympathetic to the toll this condition took on a highly talented employee,” wrote the court. Still, her employer was entitled to take her attendance problems into account in deciding whether to hire her permanently. The Rehab Act did not compel the employer “‘to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition.’”

As for her argument that her attendance had improved in the two weeks since she returned from leave, the appeals court conceded the relevant inquiry was the job applicant’s performance at the time of the employment decision but reasoned that the employer need not evaluate those two weeks in a vacuum. And in the end, it was not for the court to decide whether ODNI made the right choice by refusing to hire her; it need only determine whether ODNI had made an illegal choice.

For similar reasons, the appeals court affirmed summary judgment in ODNI’s favor on the employee’s FMLA retaliation claim, finding that the employee had not rebutted ODNI’s legitimate, nonretaliatory reason for the adverse employment decision.

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