Employment Law Daily Salvation Army auditor with MS gets another chance to show failure to get her old job back was ADA, FMLA retaliation
Thursday, August 2, 2018

Salvation Army auditor with MS gets another chance to show failure to get her old job back was ADA, FMLA retaliation

By Joy P. Waltemath, J.D.

Reversing and remanding in part, the Eleventh Circuit credited pretext evidence that a decisionmaker who refused to hire an auditor back into her old position after her audit manager position was eliminated actually did so because she had multiple sclerosis, for which she had taken FMLA leave and requested accommodations, not because of alleged performance problems and what the decisionmaker called “combative” behavior during the interview for her old job. The decisionmaker’s statements before the interview that she felt “corner[ed]” into hiring the auditor, her questions about whether the auditor was “well enough” to travel, her interview questions about the auditor’s doctor’s appointments, and contrary testimony from the auditor’s supervisor about the auditor’s interview behavior and excellent job performance history were enough evidence for a reasonable jury to infer that the refusal to hire was based on the auditor’s MS. However, the auditor’s failure-to-accommodate claim was not revived, but her FMLA interference claim was also remanded (Batson v. The Salvation Army, July 31, 2018, Prior, J.).

Work history. An auditor for the Salvation Army (TSA) for more than a decade received promotions and consistently positive performance reviews—in her last review (2012) before being terminated, she exceeded expectations in every category and had “grown nicely” in her new role as audit manager. After she was diagnosed with MS in 2010, she attempted to request an accommodation under the ADA by a meeting scheduled first for December 2012, but later rescheduled a number of times; it never took place. In January 2013, she took her first two-week FMLA leave, and intermittent leave after that.

Requested accommodations. In early 2013, the auditor met with HR to discuss her concerns about her MS, complained that a supervisor had disclosed her medical diagnosis to another employee, and submitted her physician’s “ADA Interactive Process Questionnaire” that requested adjustments to her travel schedule and occasional telecommuting due to her MS. She was told her accommodation request was denied. She also filed a grievance about the disclosure of her diagnosis. The day HR met with her supervisors to discuss that grievance, they sought to eliminate her audit manager position, explaining that it was no longer needed.

Unsuccessfully applied for old job. She then took additional FMLA leave and when she returned, her position had been eliminated. After internal disagreements over whether it could permit the employee to fill the senior auditor position that she had held previously without violating its posting policy, TSA required her to apply and interview for her old job. Assured that the application process was just a formality, the auditor was the only person to apply. During the interview, however, the auditor was questioned repeatedly about her appointments with doctors and ability to travel, to which she responded that she believed they were not permitted to ask about her medical condition. TSA decided against hiring her for her former position, citing her conduct in the interview and “performance issues”—three occasions in 2012 when she submitted a late report. She was fired.

Lawsuit. She sued alleging disability discrimination, FMLA interference, and retaliation under both the FMLA and ADA, but the trial court granted summary judgment on all her claims. It ruled she lacked evidence that TSA denied her reasonable accommodation request; evidence of pretext on her retaliation claim, and evidence of FMLA interference. On appeal, although the Eleventh Circuit agreed that she had not shown a failure to accommodate, it reversed as to her FMLA interference and ADA and FMLA retaliation claims.

Failure to accommodate. The auditor asked TSA, through the ADA questionnaire completed by her physician, to adjust her travel schedule and allow her to telecommute occasionally, a request TSA denied. However, she took FMLA leave a week later; when she returned, she learned her position had been eliminated, and she lost her job entirely shortly thereafter. That meant to the appeals court she had offered no evidence that before her FMLA leave and her termination, she had needed either of the accommodations she previously had requested generally; before that time, she received all of the time off and adjustments to her schedule that she had requested. While agreeing that the record established TSA’s intent to deny her accommodation, the Eleventh Circuit found she lacked evidence of a “specific instance in which she needed an accommodation and was denied one,” dooming her failure-to-accommodate claim.

ADA and FMLA retaliation. After finding the ADA retaliation claim was administratively exhausted (even though she only marked the discrimination box on her EEOC charge), the appeals court then addressed both her ADA and FMLA retaliation claims together on the merits; specifically, whether the auditor successfully rebutted TSA’s assertedly legitimate, nondiscriminatory reason for failing to hire her into her old position by evidence of pretext. It found that she had.

Rejected for her old job. The decisionmaker said she rejected the auditor for her old job for two reasons: her poor performance in the interview and her “recent performance issues.” The Eleventh Circuit found ample evidence suggesting these explanations were pretextual. As to her interview performance, the court pointed out that even before the interview, the decisionmaker’s emails reflected she did not want to hire the auditor, asking about whether TSA could appoint another candidate and expressing concerns about the auditor’s health.

Interview performance. At the interview itself, the decisionmaker asked multiple questions about the employee’s health and its impact on her ability to meet the demands of the job: Would she give advance notice when she had a doctor’s appointment? Could she meet the position’s “very demanding” travel requirements? The auditor said she could stick with her schedule as she had for the past seven years, “with minor requests here and there.” When asked a third question related to her medical condition, the auditor said she believed she could not be questioned about her illness. This evidence could support a jury finding that the decisionmaker was concerned about her disability and her need for FMLA leave, not her interview performance.

Conflicting evidence. Pointing to conflicting evidence about interview performance, which the decisionmaker characterized as combative, the auditor and another individual present testified that she never raised her voice or yelled and that she answered the questions satisfactorily. A reasonable jury could infer from these contrasting descriptions of the interview that the decisonmaker’s failure to hire the auditor based on her alleged interview performance was pretextual, concluded the Eleventh Circuit.

What performance issues? As to the decisionmaker’s second explanation, that she decided not to hire the auditor because of performance issues (including missing report deadlines), the court pointed out the decisionmaker had not previously supervised the auditor. She relied on performance issues reported by another supervisor, yet that supervisor testified that the auditor’s performance evaluations historically were excellent and that she had almost always received the highest-level ranking. He conceded that the auditor had missed three deadlines in 2012, but they did not concern him, and he didn’t recall her missing any deadlines earlier than that. Other supervisors held similarly positive views of her performance, which were in evidence and supported the inference that the decisionmaker’s concerns about the auditor’s performance were pretextual.

“Think through the rationale.” Finally, although the district court credited the decisionmaker’s post-interview email that she needed to “think through the rationale” for not hiring the auditor as meaning she needed time to give her decision more thought, the appeals court also found it could be interpreted to mean that the decisionmaker decided not to hire her because of her illness, but recognized the need to come up with an alternative justification. That was enough evidence of pretext to send her retaliation claims to a jury, concluded the appeals court.

It also credited the same pretext evidence as raising a genuine material fact issue as to whether she would have been terminated regardless of her request for FMLA leave, thus reviving her FMLA interference claim as well.

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