By Pension and Benefits Editorial Staff
A bus driver who alleged she was fired in violation of the ADA and the FMLA will not move forward with those claims, a federal district court in New York ruled. The biggest single stumbling block for her claims was the court’s conclusion that she was unqualified to perform the essential functions of her job based on her overall poor attendance record preceding her FMLA request. She was absent on 13 occasions over the course of a ten-month period. The defendant’s motion for summary judgment was granted in part and the employee’s cross-motion was denied. The court declined to exercise supplemental jurisdiction over remaining NYSHRL and NYCHRL claims.
Absences and mishaps. In 2015 the plaintiff was hired as a probationary bus operator by the Manhattan & Bronx Surface Transit Operating Authority. Her probationary period, set to expire approximately one year later in July 2016, was extended through October. By mid-July 2016 she had been absent from work on 13 occasions, including dates in October, November, and December of 2015 and February and July of the following year. She was counseled regarding her failure to submit a doctor’s note regarding two of the October absences. She also had other infractions during that time, including striking a tree with her bus, recklessly cutting off a customer while driving the bus, and failing to submit required paperwork.
Becomes disabled, takes leave, fired. In mid-July 2016 she began to experience symptoms of a urinary problem and soon requested FMLA leave for "interstitial cystitis." She applied for FMLA leave on July 21 and provided certification from her health care provider. She was subsequently approved for intermittent leave for the period between July 24, 2016 and October 23, 2016. She was absent from work from July 18 through October 5 as a result of her condition. When she returned to work on October 6, she was fired.
She filed suit, alleging violations of the ADA, the FMLA, NYSHRL, and NYCHRL. The defendants moved for summary judgment and the employee filed a cross-motion. The employer’s motion was granted and the employee’s motion was denied.
Chronic absenteeism makes her unqualified. With regards to the employee’s ADA claims, for discrimination and failure to provide accommodation, the court concluded that the employee failed to establish a prima facie case. With regards to the former, although the employer did not dispute that the employee was disabled or that it was subject to the ADA, it argued that the employee could not demonstrate that she was otherwise qualified to perform the essential functions of her job. They contended that the employee’s overall poor attendance record and performance issues made her unqualified for her position, which was fatal to her claim.
"Showing up" is essential. The court agreed. The employee was absent on 13 occasions over the course of 10 months, the court noted, and it agreed that her poor attendance record deemed her unqualified. "The reason for [t]his should be plain," the court explained, "as showing up to work is an essential function of employment." The fact that the employee contended that her July 2016 absences were attributable to her medical condition did not change its conclusion, the court explained, because the ADA does not require employers to put up with chronic absenteeism, even if the problems are caused by their disability. Moreover, "bolstering" that conclusion was the fact that the employee’s tenure had been "punctuated by other infractions." Those incidents occurred while she was in a probationary period and poor job performance during that period provided an additional basis for finding the employee not qualified.
No request for accommodation. With regards to her accommodation claim, the court explained that it was "axiomatic" that the employee has actually requested an accommodation. However, in this case there was no evidence that she had done so. She maintained that her use of sick leave was not an undue hardship for the employer, but that contention was not sufficient to satisfy her burden, the court explained.
No request for leave on dates indicated. Similarly, the employee’s FMLA claims suffered from fatal flaws, the court concluded. With regards to interference, the employee contended that she was denied FMLA leave for July 18 and July 19, two absences that had been treated as ordinary sick absences and supported her termination. However, there was nothing in the record to indicate that she had actually requested FMLA leave for those dates. Instead, she requested leave to commence on July 22, a date that matched up with the doctor’s certification she provided as part of her FMLA request. To the court it seemed "self-evident that a plaintiff cannot be denied leave that she failed to request." Her FMLA retaliation claim failed for the same reason as her ADA discrimination claim, the court explained. She failed to make a requisite showing that she was qualified for her position.
The court declined to exercise supplemental jurisdiction over the remaining NYSHRL and NYCHRL claims and dismissed them without prejudice.
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