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Termination for Misconduct Did Not Violate ADA
Walz v. Ameriprise Financial Inc., 8th Cir., No. 14-2495
An employer that terminated an employee for erratic and disruptive behavior caused by her bipolar affective disorder did not violate the Americans with Disabilities Act (ADA) because the employee’s conduct rendered her unqualified for her position and she never requested a reasonable accommodation, according to the 8th U.S. Circuit Court of Appeals.
Ameriprise Financial Inc. employed Marissa Walz as a process analyst from 1996 to 2012. She had been diagnosed with bipolar affective disorder. Beginning in March 2012, her co-workers and supervisor began noticing behavioral problems, including inappropriate outbursts during meetings, talking very rapidly and not making sense, becoming excited and easily agitated, and sending incomprehensible e-mails. Walz admitted that the ability to work well with others was important for her job and that the position required people, teamwork, communication and time management skills.
Walz’s immediate supervisor repeatedly tried to talk to her about her behavioral problems and offered to help. Walz responded with rude and insubordinate behavior, at one point even challenging her boss to fire her.
After continued complaints from co-workers and further unsuccessful attempts to speak to Walz about her behavior, her boss gave her a written warning.
Walz then applied for Family and Medical Leave Act (FMLA) leave, which was granted by the third-party vendor that handled leave requests for Ameriprise. She did not disclose the reason for her FMLA leave directly to Ameriprise.
Walz returned to work after submitting a doctor’s note to her boss clearing her to return to work and indicating that she had been “stabilizing on her medication.” Upon her return to work, she reviewed and signed a document that explained Ameriprise’s policy against disability discrimination and the procedure for requesting a reasonable accommodation.
Do everything you reasonably can to offer help to employees with mental illnesses, and resort to discipline only if those offers are rejected. The supervisor’s repeated offers of assistance probably won this case for the employer.
A few months later, Walz’s erratic behavior returned. Her boss warned her that she needed to be more gentle with her co-workers, but the behavior continued. Ameriprise ultimately fired Walz due to her repeated misconduct.
Walz sued Ameriprise, claiming that the company terminated her because of her disability and failed to reasonably accommodate her disability in violation of the ADA. The district court granted summary judgment to Ameriprise, dismissing the claims. The 8th Circuit affirmed.
To establish a violation of the ADA, Walz needed to show that she was a “qualified” individual with a disability, meaning that she could perform her essential job functions “with or without a reasonable accommodation.”
The appellate court held that Ameriprise did not have to provide Walz with a reasonable accommodation that would have allowed her to perform her job because Ameriprise repeatedly offered to help her and she never notified the company that she had a disability or needed a reasonable accommodation in response to these offers.
The court rejected Walz’s argument that her behavior, coupled with her FMLA request and the note from her doctor, sufficiently put Ameriprise on notice that she had a disability that needed to be accommodated.
The note, from a doctor affiliated with Allina Mental Health Services, explained that her medication had stabilized her condition, but did not inform Ameriprise of Walz’s bipolar disorder.
The court also rejected her contention that Ameriprise should have forced her to take leave as a form of reasonable accommodation, pointing out that Ameriprise granted her leave when she requested it and that her supervisor repeatedly suggested that she could take time off if needed. The court reasoned that an employer does not have a duty to “guess” an employee’s disability and force her to take leave.
By Michael A. Warner Jr., an attorney with
Franczek Radelet PC, the
Worklaw® Network member firm in Chicago.
FMLA Leave Granted, but Interference Claim Viable
Gordon v. U.S. Capitol Police, D.C. Cir., No. 13-5072
An employee who received all of the Family and Medical Leave Act (FMLA) leave she requested could still bring a claim against her employer for interference with her FMLA rights, the U.S. Court of Appeals for the D.C. Circuit ruled.
Judy Gordon was an armed officer with the U.S. Capitol Police. She had depression and asked the Capitol Police to open an FMLA leave bank. The Capitol Police allotted her 240 hours of leave to be used at future unspecified dates.
Employers should never engage in negative, discouraging or bullying verbal or nonverbal reactions to employees’ FMLA-related inquiries and requests.
Before Gordon used any of her leave, a police captain told her that an upper-level manager was “mad” about FMLA requests being granted without his knowledge and that he had vowed to “find a problem” with the leave request. Two months later, even though Gordon had not used any of her leave time, supervisors informed her that she needed to undergo a fitness-for-duty exam because she had said that she had “severe and incapacitating” depression in the paperwork she filed months earlier. The exam concluded she was fit for duty.
About four months after she asked her employer to create the leave bank, Gordon made her first request to use leave. According to her complaint, her manager initially refused her request and demanded a doctor’s note. However, Gordon admitted that her manager did grant the leave shortly after she made the request.
Gordon sued for interference with her FMLA rights, but the trial court dismissed the complaint because she could not show that she was denied any FMLA benefits to which she was entitled.
The D.C. Circuit reversed and resurrected the claim. Even though Gordon was granted and ultimately took the requested FMLA leave, the Capitol Police’s actions in requiring a fitness-for-duty exam and the comment about looking for problems with her leave request could have had a “reasonable tendency” to interfere with her FMLA rights.
By Nonnie L. Shivers, an attorney in the Phoenix office of
‘Similarly Situated’ Employee Defined for Bias Cases
Austin v. Long, 8th Cir., No. 14-2044
Co-workers in discrimination cases can be considered “similarly situated in all relevant respects” if they engage in misconduct that is comparable to or more serious than the misconduct of the plaintiff, the 8th U.S. Circuit Court of Appeals held, ruling that a black prosecutor could proceed to trial on his race bias claims.
Gary Austin was employed by the First Judicial District for the state of Arkansas as a deputy prosecuting attorney. Fletcher Long was the prosecuting attorney for the First Judicial District and Austin’s manager. Austin was employed from January 2006 through August 2011, at which time his employment was terminated, allegedly for poor performance in several aspects of his job, including failing to be available to colleagues during office hours, deviating from office policy on felony bond reduction orders and expungement orders, and incurring extraordinary expenses without prior approval. Following his discharge, Austin brought claims of race discrimination against Long.
All employers should broaden their definition of what constitutes a similarly situated employee when considering appropriate discipline or discharge. It is not enough to consider only those employees who have engaged in the same misconduct as the employee at issue.
Long filed a motion for summary judgment. In opposing the motion, Austin argued that the stated reasons for discharge were pretextual because Long had failed to discharge two white prosecutors who engaged in more serious misconduct—one had been convicted of driving while intoxicated and one had received a formal sanction from the Committee on Professional Conduct for ethics violations. The district court denied Long’s motion for summary judgment.
The 8th Circuit affirmed, noting that “the similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone. Co-workers can be similarly situated in all relevant respects if their misconduct is comparable to or more serious than that of the plaintiff.”
By Erin E. Williams, an attorney in the St. Louis office of
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