Pension & Benefits News Therapist fired for refusal to resolve severe mental illness, not because of FMLA leave
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Friday, August 9, 2019

Therapist fired for refusal to resolve severe mental illness, not because of FMLA leave

By Pension and Benefits Editorial Staff

Although an employee with a long history of suicidal ideation and severe mental illness may have been terminated while on FMLA leave, she was not fired because she took leave but rather because she was a danger to herself and possibly the at-risk teens she worked with, ruled a federal court in Colorado, granting summary judgment against her FMLA interference claim. Nor could she advance her disability discrimination claims as she was not a qualified individual within the meaning of the ADA and there was no evidence she requested a reasonable accommodation. Her state-law claims, including invasion of privacy, also failed.

Without disclosing her conditions—major depressive disorder recurrent episode (chronic), personality disorder, disorganized thinking, auditory hallucinations, and dissociative identity disorder including multiple personalities—on her professional license or job applications, the employee began working as a mental health counselor for a residential care facility that provides therapy to at-risk teens. Several months later, she told a supervisor about a prior suicide attempt and some of her mental health history. With her supervisor’s encouragement, she shared the information with coworkers at a staff meeting.

Promoted. Although Colorado law prohibits such facilities from hiring or continuing to employ individuals whose physical or mental health or emotional or psychological makeup impairs their ability to protect the health and safety, or who could endanger the physical or psychological well-being, of the children in their care, the employee was not disciplined because she was meeting her job requirements at the time. Indeed, she was promoted a few months later to therapist.

FMLA leave. Not long after, she told her supervisor she was experiencing anxiety and other symptoms and was seeking treatment. When she experienced suicidal ideations at work, she went to the ER, where she spent the night. She then requested and was granted FMLA leave. Indicating that she would be incapacitated for at least three weeks, her doctor stated it would be "medically necessary" for "her to attend follow-up treatment appointments" for up to six hours per day and referred her for a two-week partial hospitalization plan and six-week intensive outpatient program.

Terminated. After only attending the programs a few times, the employee sought to return to work. At a meeting with two supervisors, she told them she had ceased treatments and was experiencing financial anxiety because of the unpaid FMLA leave. One supervisor suggested she find another job or quit and apply for unemployment benefits and both advised her that she wouldn’t be able to come back to work until she was cleared by her doctor. Believing she had been terminated—her employer’s paperwork reflected that she had been involuntarily terminated three days after the meeting with her supervisors—she applied for unemployment benefits.

FMLA interference. Suing under the FMLA, the employee argued her employer unlawfully interfered with her right to medical leave. Although the court was not persuaded that offering her unemployment benefits or suggesting she take another job were adverse actions, the employer did terminate her while on FMLA leave, observed the court. Nonetheless, she failed to establish a prima facie case of FMLA interference.

The employee pointed to her expert witness, who had evaluated her more than a year later and concluded that she likely would have been able to return to work safely. But at the time of her termination, the court pointed out, she was unable to perform her job and there was no indication she was or could become psychologically unimpaired such that her employer could legally continue her employment. "She simply sought immediate reinstatement," the court observed, finding that she was not fired because she took leave but rather because she was a danger to herself and the teens she counseled.

Because of the financial hardships of unpaid leave, the court observed, the employee seemed unwilling or unable to finish treatment. Instead she demanded immediate reinstatement even though she had not been cleared to return to work. Because she was not willing to address her impairment, it was reasonable for her employer to believe that termination would provide her with more resources than unpaid leave and she failed to show its actions were related to anything other than her severe mental illness and express refusal to resolve it.

Disability discrimination. Turning to her allegation that she was unlawfully terminated based on her disability, the court again pointed out that because of her mental condition and the serious symptoms she had been experiencing, she was not permitted by law to work at the facility at the time of her discharge and therefore she was not "qualified" within the meaning of the ADA.

Reasonable accommodation. Nor was there any evidence she had requested a reasonable accommodation. While she argued that a limited leave for medical treatment can qualify as a reasonable accommodation, the question, said the court, "is not what we now know, or what the opinion of an expert who examined the plaintiff in 2019 is, but what was known and requested at the time of the adverse action." And here, her claim she would have been able to perform her job’s essential functions had she asked for a reasonable accommodation did not refute the fact that she never in fact requested one. Nor did she show how she was qualified to work as a therapist given her existing medical condition and failure to disclose those conditions to the licensing board.

Invasion of privacy. As to her invasion of privacy claim, the employee alleged her supervisor publicly disclosed her mental health conditions, when, after the employee had gone to the hospital, the supervisor called another supervisor to discuss telling the team about the incident, contacted a doctor for advice on what to say, and then told coworkers that the employee was not returning because of medical reasons. This all occurred, however, after the employee personally told her coworkers about her mental condition, suicide attempts, and suicidal ideations and thus under these circumstances, said the court, her supervisor could not be liable for disclosing facts the employee already disclosed.

Outrageous conduct. Also rejected was her claim that a second supervisor engaged in extreme and outrageous conduct in violation of state law when, despite her being "eminently qualified to work as a therapist," her "then-existing mental ailments made her particularly susceptible to stress," and the supervisor terminated her and told her to seek less-stressful work as a waitress. To the contrary, said the court, the record reflected that the supervisor demonstrated sympathy for the employee and it did not go beyond the bounds of decency or offend community notions of acceptable conduct to tell her under the circumstances here that she was "terminated," or to offer her suggestions as to how to improve her financial situation. Nor was there any evidence showing she experienced severe emotional distress as a result.

SOURCE: Melville v. Third Way Center, Inc., (D. Colo.), No. 1:18-cv-01230-DDD-SKC, July 25, 2019.

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