Inability to Attend Work on Regular Basis Dooms Claims

By Rosemarie Lally, J.D. August 12, 2021
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​An office assistant's inability to perform the essential functions of her position because she could not come to work on a regular and reliable basis could not be resolved through a reasonable accommodation under the Americans with Disabilities Act (ADA), the 8th U.S. Circuit Court of Appeals ruled. Further, her inability to show that her employer's legitimate nondiscriminatory reason for firing her—excessive unexcused absences—was pretextual doomed her Family and Medical Leave Act (FMLA) claim.

A response center that services electric utilities and monitors security and medical alarms nationwide hired the plaintiff as the sole office assistant in one of its offices in 2012. In 2015, the plaintiff was diagnosed with reactive arthritis, an autoimmune disease with symptoms including gastrointestinal illness, joint pains and anemia. Her physician certified her illness as a serious health condition and told her employer she would need a couple full days and half days off each month.

The employer approved up to two full days and two half days of intermittent FMLA leave per month but noted that absences beyond that would be eligible for points under its attendance policy. The policy provided that unexcused absences that are not FMLA-eligible or part of an approved leave of absence generate points that progressively lead to verbal and written warnings, followed by termination if an employee receives 10 points in a rolling 12-month period.

The employer terminated the plaintiff in March 2017 for violating its no-fault attendance policy by accumulating 11 points for unexcused absences. The plaintiff filed suit, alleging her termination violated her rights under the ADA and the FMLA, but the district court granted the employer summary judgment.

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On appeal, the plaintiff argued that issues of fact existed as to whether the employer violated the ADA and the FMLA by discriminating against her.

The 8th Circuit affirmed the district court's ruling. Examining the ADA discrimination claim, the court noted that a plaintiff must establish an initial case of disability discrimination by demonstrating 1) that she had a disability as defined by the ADA; 2) that she was qualified to perform the essential job functions with or without a reasonable accommodation; and 3) a causal connection between an adverse employment action and the disability.

The plaintiff failed to prove the second element, as she was unable to perform the essential functions of her position because she could not come to work on a regular and reliable basis, the court found. The job description for the position listed tasks such as answering phones and greeting visitors that could be performed only when physically in the office, making attendance an essential function of the office assistant job, the court said. "[I]ntermittent FMLA leave does not excuse an employee from the essential functions of the job," the court stated.

The court similarly rejected the plaintiff's claim for failure to accommodate under the ADA because she "cannot establish that more FMLA leave or a part-time schedule would have been a reasonable accommodation because her daily job duties required her regular and reliable physical presence at the office." Although she argued that a reasonable jury could conclude that the employer failed to engage in an interactive process to accommodate a known disability when it did not provide more leave, it was her responsibility to formally request an accommodation. Nothing in the record shows she told her employer she needed additional leave, the court said.

Finally, the court found the plaintiff failed to show sufficient evidence of the required causal connection between asserting her ADA rights and her termination to support a retaliation claim. Noting that the employer accommodated the plaintiff's disability for nearly a year, the appeals court found summary judgment had been properly granted.

Turning to the plaintiff's claim that her employer interfered with her FMLA leave benefits by assessing unexcused absence points when she was entitled to take FMLA leave, the court found that the plaintiff had not given sufficient notice of her intention to take FMLA leave. She failed to follow the company's call-in procedure on three occasions and failed to mention that two additional absences were related to her reactive arthritis, accumulating four-and-a-half points. The court said she was required to affirmatively invoke the FMLA and not leave it to the employer to guess whether she was taking FMLA leave.

Further, the plaintiff consistently requested FMLA leave beyond the days certified by her doctor but never attempted to increase the amount of intermittent FMLA leave approved by her employer. Her doctor had the opportunity to adjust his estimate of monthly time needed when the employer asked for recertification of the employee's condition so it could determine whether she needed additional leave, but he did not do so.

Finally, the 8th Circuit agreed with the lower court's finding that the plaintiff failed to show a causal connection between her requests for FMLA leave and her termination, because eight months had elapsed between her first FMLA request and her termination. Further, the court noted evidence that the employer had first warned the plaintiff about excessive absences in 2014 before her reactive arthritis was diagnosed.

Even assuming the plaintiff established an initial case of discrimination, the appeals court agreed with the district court that she did not meet her burden to show that the employer's legitimate nondiscriminatory reason for firing her—accumulating 10 points of unexcused absences—was pretextual.

Evans v. Cooperative Response Center Inc., 8th Cir., No. 19-2483 (May 4, 2021), petitions for en banc rehearing and panel rehearing denied (June 8, 2021).

Professional Pointer: A clear employee conduct policy that stresses the importance of regular attendance, citing it as an "essential job function for all employees," and specifying the consequences of repeated and unexcused absences is helpful in establishing the employer's judgment that regular and reliable attendance is essential to the business. A uniformly enforced no-fault attendance policy also strengthens an employer's claim that adverse consequences stemming from excessive unexcused absences are based on legitimate nondiscriminatory reasons and are not pretextual.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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