By Brandi O. Brown, J.D.
A winery employee who missed work because of emergency surgery, but who failed to explain his need for leave beyond saying it was “personal,” cannot proceed with his state-law disability discrimination claims against his former employer, a federal district court in California ruled. He presented no evidence raising a genuine dispute of fact that his employer knew or perceived that the employee suffered from a disability and his pretext argument, based on non-pleaded claims for interference with his FMLA/CFRA rights and failure to investigate his request for leave, likewise were insufficient. The defendant’s motion for summary judgment was granted (Brown v. Constellation Brands, Inc., October 4, 2018, McAuliffe, B.).
Intermittent leave. In 2016, after nearly 25 years of employment with a winery in Madera, California, the “all purpose” employee in the bottling department was fired for excessive absences. According to the employer’s policies governing union workers, an employee could be fired if he or she incurred nine or more instances of absenteeism. Beginning in 2015, the employee had requested, and received, intermittent leave for a stomach condition. In 2016 he continued to use intermittent leave for that condition. Based on that experience, he was aware of the need to report potential FMLA absences to both HR and Liberty Mutual, the employer’s leave service vendor.
Had surgery, said leave was “personal.” On June 27, 2016, the employee reported an absence that was for “FMLA Pending.” The next day when he called out, however, he informed his employer that his absence for that date and the dates that followed was “personal.” In fact, the employee was scheduled for emergency surgery to treat a cyst that had developed in his gluteal area. He also did not tell anyone in management that he took time off for surgery when he returned to work in mid-July.
By that point he had incurred a sufficient number of infractions to justify termination. Later in the month, HR conducted an audit of his absences. Although the HR employee who conducted the audit noted that the employee had “called out FMLA” on June 27 and that he was “Under Doctor’s care” for some of the dates in July, she also noted that no doctor’s note had been received. Moreover, Liberty Mutual, when asked, informed the employer that the employee did not have FMLA approved leave for June 27 or for the dates in July.
We got his number. Having no doctor’s note in hand, in early August the employer issued a Disciplinary Action Report based on 11 attendance infractions, with two of those infractions being noted as “FMLA pending.” The employee signed the report. Later that month he was absent again and his manager asked HR to look into the absence, noting the potential for termination. HR later confirmed that the employee was eligible for sick leave on that date and a manager responded, “so he escapes . . . for now.” The HR manager responded, “for now…..but we got his number …..and it isn’t his seniority one! He still needs to be spoken to in my opinion.”
Termination. As of mid-September, the employer still had not received documentation excusing the employee’s June and July absences. When the employee was again absent from work on September 19 and failed to report his absence at least one-half hour prior to the start of shift as required, the employer assessed him with another infraction and he was suspended. The employer decided to fire him and, only after reaching that decision, it finally received a faxed doctor’s note regarding the June and July absences. The note stated only that he was under a doctor’s care. The union confirmed the employer’s termination decision and the employee filed suit, alleging disability discrimination, failure to accommodate, and wrongful discharge.
Interference as pretext. The employer demonstrated a legitimate, nondiscriminatory reason for the employee’s discharge, the court concluded. However, in combating the employer’s demonstration of a legitimate, nondiscriminatory reason, the employee did not directly argue pretext. Instead, he advanced a non-pleaded claim for interference with his FMLA/CFRA rights and failure to investigate his request for leave. Although it was “likely” that the employee had waived any such claim, the court considered the merits of the claim and found it lacking.
The primary hurdle for the employee was that he failed to provide notice of a qualifying need for leave. Although he asserted that there was a triable issue regarding whether the employer had knowledge of his need for qualifying leave, because they knew he had requested FMLA leave on the June 27, it was undisputed that he informed the employer on June 28 that he would not be at work on that day, or the following dates, for “personal” reasons. He presented no evidence that he ever informed Liberty Mutual or his employer that he had a new medical condition, not related to the condition for which he had received intermittent leave. In fact, he testified that he did not specifically tell his employer that he had undergone emergency surgery to remove a cyst and he testified that he did not want everyone to know where the cyst was located.
Knowledge of disability? With regard to whether the employer knew or perceived the employee to suffer from a disability that related to the absences, his failure to provide information about his new condition was pivotal. The employee could have been under a doctor’s care for reasons other than disability. The comments made about the employee escaping and the employer having “his number” were stray remarks, the court added, and were not sufficient to raise a genuine dispute. Without any other evidence sufficient to support an inference of pretext, the employee was unable to withstand the employer’s motion.
The court also granted the motion with regard to the remaining claims, including failure to accommodate, retaliation for requesting accommodation, failure to engage in interactive process, failure to prevent discrimination, retaliation, and wrongful termination.
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