Employee Fired After Telework Request Loses Discrimination and Retaliation Claims

​A program review specialist for the Texas Department of Agriculture (TDA) could not establish disability discrimination or retaliation when she was fired a year after her request to work remotely due to medical issues, the 5th U.S. Circuit Court of Appeals ruled.

The plaintiff began working for TDA in June 2012 in the Food and Nutrition Division, where she audited participants in the Child and Adult Food Care Program and Summer Food Service Program, which receive federal funding.

The plaintiff had lupus, anemia and other illnesses, requiring her to be absent from work and sometimes take leave under the Family and Medical Leave Act (FMLA). The plaintiff's responsibilities required onsite inspections to observe and confirm that the sites were complying with state and federal regulations.

In January 2016, the plaintiff returned to work after a long-term medical leave and requested accommodations permitting her to telework and to work a compressed workweek. TDA granted the request in part, allowing her to work four 10-hour days. TDA denied the telework request because her duties could not be performed solely from home due to the onsite inspections. TDA's strict policy concerning telework, which was updated in 2015, granted such requests only in extraordinary circumstances, and the plaintiff needed training to improve performance.

According to the plaintiff, she was not given a reason for the denial and she had been allowed to telework from 2012 until she took medical leave in 2015. In August 2016, the plaintiff's manager gave her a written warning for failure to meet expectations, a pattern of excessive absenteeism and tardiness, inadequate job performance, and insubordination. The plaintiff submitted a rebuttal, and TDA amended the warning to delete certain absences and tardy arrivals.

In October 2016, the manager gave the plaintiff another written warning for leaving work early and arriving late; accruing overtime without supervisor approval; late arrivals to sites being audited; and performance issues including failure to submit accurate and timely administrative reviews, failure to follow TDA's travel policy, and insubordination.

The plaintiff did not provide a rebuttal to the warning. TDA gave her another written warning in April 2017 because of her failure to improve, which listed dates of absences and tardy arrivals to both the office and site visits, as well as late or incomplete assignments, and notified the plaintiff that she was being placed on a 90-day probationary period, during which she needed to improve her performance or face discipline up to and including termination.

The plaintiff provided a rebuttal to this warning, but no amendments were made. About midway through the probation period, the manager gave the plaintiff a written progress report stating that the plaintiff was not meeting the expectations specified in the probation memorandum. The plaintiff again provided a rebuttal to this memo, but no changes were made.

When the probationary period ended, TDA informed the plaintiff that management was assessing her progress. The plaintiff's supervisory chain decided to discharge her because of her failure to correct her performance deficiencies during her probation, excessive absenteeism and tardiness unrelated to protected FMLA leave, and insubordination. The plaintiff received a termination memorandum on Aug. 17, 2017.

After her termination, the plaintiff brought suit against TDA asserting employment, disability and discrimination claims. The defendants filed a motion to dismiss, which the district court granted in part and denied in part. The defendants then moved for summary judgment on the plaintiff's retaliation claim under the FMLA and her discrimination claim under the Rehabilitation Act. The district court granted the motion, dismissed the plaintiff's claims and entered final judgment against the plaintiff.

On appeal, the plaintiff argued that TDA wrongfully denied her telework request and skipped steps in its progressive disciplinary policy, including the step of instituting a six-month-long performance improvement plan prior to discharge. She also argued that the Aug. 17th termination memo did not include any reasons for her termination.

The 5th Circuit rejected these arguments, finding that TDA's reasons for terminating the plaintiff were well-documented over a one-year period. It also found that TDA's disciplinary policy did not mandate a specific order of escalating consequences. It thus upheld the dismissal of her claims.

Houston v. Texas Department of Agriculture, 5th Cir., No. 20-20591 (Nov. 5, 2021).

Professional Pointer: Employers can protect against employee claims contesting their discipline by allowing flexibility in their disciplinary policies and by rigorously documenting employee performance and conduct issues.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.