Pension & Benefits News Employee’s refusal to relocate, not illness, led to discharge
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Friday, December 7, 2018

Employee’s refusal to relocate, not illness, led to discharge

By Pension and Benefits Editorial Staff

Granting an employer’s motion for summary judgment in a lawsuit brought primarily under the ADA and FMLA, a federal district court in Kansas ruled that the evidence showed it was an employee’s refusal to relocate as part of a reorganization, and not her disability or use of FMLA leave, that led to her discharge. Although the employee contended that the employer created a paper trail in order to fire her after she began experiencing health issues in the work place, the court noted that the employer did not contend that she was fired for performance issues. Nor did the employee point to any evidence that called into question the employer’s given reason for its decision—that she refused to take, or even respond to, the options it offered. Accordingly, the employer’s summary judgment motion was granted.

Hired, experiences health issues. In 2006 the employee was diagnosed with lymphangioleiomyomatosis (LAM), a chronic lung disease, and told she had one year to live. The prognosis, however, was wrong and in 2014 she was interviewed and hired into a position as an Employee Assistance Manager I with the BNSF Railroad at its location in Kansas City, Kansas. She disclosed her condition during the hiring and application process. According to the employee her symptoms manifest as "getting too tired" and, rarely, shortness of breath or chest pain. She informed her employer that there were no restrictions related to her condition. However, her symptoms manifested shortly after she began working for BNSF, making her late for a new employee orientation. This resulted in a flurry of communications with her supervisors. On another occasion the employee had to leave work early because of a migraine and was verbally counseled. The next month she received a mid-year performance review of "needs improvement" although it was subsequently upgraded. Nonetheless, her supervisor prepared a Performance Action Plan for her (distinguished from the more formal Performance Improvement Plan).

‘Just keep your health in check.’ In late September the employee was scheduled to make a presentation at a team meeting in San Diego but her breathing problems resulted in her being unable to travel. She attempted to make the presentation via teleconference, but her supervisors told her not to because her cough "was scaring [her] teammates." Shortly thereafter the employee took short-term disability leave because of her lung impairment. When she returned in January her employer considered placing her on a formal PIP but instead she was assigned to a new supervisor. However, the employee contends that things did not go well with the new supervisor, who told her to "just keep your health in check and things will be okay." A few months later the employee had to leave another series of meetings early because of the smoky conditions where they were being held.

Reorganization. In June 2016 the employee was deployed to help at a Texas train collision. The employer became concerned about her emotional response, as well as her negative reaction to learning that some of her coworkers had expressed concerns about her. She was pulled out of Texas and returned home. A few days later she went on short-term disability leave. While she was out her supervisors discussed concerns about her work performance and deficiencies they perceived and created some documentation related to that. Once the employee exceeded her 12 weeks of leave she was informed by letter that the EAM I position in Kansas City was being eliminated and a new one created in Billings, Montana. In fact, during the second half of 2016 the employer had undergone a significant reorganization, which resulted in the elimination of one division and multiple layoffs.

In November, when the employee returned from leave, she was given the option of moving to Billings, but told that prior to doing so she would have to spend 60 days on a Performance Improvement Plan. She was also given the option of severance and the option of finding another position with the employer. When she failed to make a decision within the provided time she was fired. She filed suit and in response BNSF moved for summary judgment.

Reorganization, not performance, caused discharge. The court granted the employer’s motion. The employee’s disparate treatment claim under the ADA failed to pass muster, the court explained, because none of the alleged facts created an inference of discriminatory intent. Assuming the employee established a prima facie case, the court explained, she nonetheless failed to provide evidence casting doubt on the employer’s reason for firing her, i.e., that she failed to accept any of the options given to her after a system-wide reorganization led to elimination of her position. The uncontroverted facts supported the employer’s version of events regarding the reorganization. Documentation of the employee’s activities, which she characterized as an attempt to "paper" her employment file, did not create an inference of pretext. There was no support for the employee’s contention that her activities were excessively documented either before or after she began experiencing disability-related issues. Moreover, the employer never contended that it fired the employee for reasons relating to performance.

Her disability harassment claim—based on being counseled for leaving work early, being told not to make a presentation because of a cough, being told to "just keep [her] health in check and things will be okay," and being criticized for performance and behavior—failed because the instances were neither sufficiently severe nor pervasive. The employee’s accommodation claim also failed.

FMLA claim fails. With regard to her FMLA retaliation claim (the employee waived any interference claim), the court found no genuine issue of material fact with respect to the employer’s legitimate, non-discriminatory reason for firing her. While the employee took issue with the fact that one of the options involved a PIP and moving 1,000 miles away, the court noted that the employer was under no legal obligation to reinstate the employee to her former position because it was undisputed that her FMLA leave extended beyond the 12-week statutory entitlement period. The employee’s remaining Title VII and workers’ compensation claims were also dismissed.

SOURCE: Mall v. BNSF Railway Company (D. Kan), No. 2:17-CV-02257-JAR-JPO, November 14, 2018.

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