Fired Employee Could Not Show FMLA or ADA Violations


By Jeffrey Rhodes June 2, 2020
FMLA handbook and stethoscope

​The 5th U.S. Circuit Court of Appeals ruled that an employee fired after applying for medical leave had no viable discrimination or retaliation claims, because she violated an attendance policy when her final absence resulted from her arrest for driving while intoxicated (DWI).

The plaintiff worked as a process technician for Shell Chemical LP from 2012 until her termination in 2016. She was subject to Shell's attendance policy, which required that employees be at work on time, make every reasonable effort to minimize the amount of time away from work, notify an immediate supervisor promptly if they were not able to be at work, and comply with Shell's notification and medical-documentation requirements.

Formal violations of the policy were called chargeable offenses or occurrences. These included absences that did not qualify for leave under the Family and Medical Leave Act (FMLA) or were otherwise unexcused.

Shell employees were subject to three successive levels of formal discipline after exceeding two offenses in a rolling 12-month period and receiving a counseling session: an oral reminder documented in writing, a written reminder and finally decision-making leave.

Shell claimed that within one year, the plaintiff had nine chargeable offenses for being absent from work without FMLA approval, failing to properly report that she was off work or being significantly late for her shift. In July 2015, the plaintiff received an oral reminder when she did not show up for her shift without informing her supervisor. That reminder was memorialized in writing, cautioning that any further incidents could result in disciplinary action up to and including termination.

In September 2015, the plaintiff took another non-FMLA approved absence, and her supervisors issued her a written reminder. The plaintiff said that the FMLA should have covered some of her absences, and she needed to resolve issues with her medical certifications. Her supervisors delayed issuing the written reminder to give the plaintiff time to contact her doctors and a third party, the Reed Group, which administered Shell's FMLA policy.

In February 2016, after additional occurrences, the plaintiff's supervisors contacted the Reed Group to determine whether she had submitted paperwork to convert her prior occurrences to protected leave. The plaintiff had not corrected any of the deficiencies in her paperwork, and the Reed Group did not approve the previously identified absences as FMLA-qualifying leave.

On March 10, 2016, Shell issued the plaintiff a written reminder in a disciplinary meeting with her supervisors and the HR representative. That night, the plaintiff drove intoxicated and wrecked her truck. She called a supervisor on duty a few hours before her 4 a.m. shift and informed him that she crashed her truck and might not make it to work.

The plaintiff never returned to Shell. A few days after missing her shift, she applied to the Reed Group for FMLA leave for anxiety. She did not request FMLA approval for her March 11 absence. After a brief investigation into the plaintiff's absence, Shell management decided to fire her. The company could not reach her by phone, so it mailed her termination letters on March 30 and April 8.

The plaintiff sued Shell for failing to restore her to an equivalent position following FMLA leave and interfering with her FMLA rights by firing her while she was on FMLA-protected leave. She also alleged that Shell failed to make reasonable accommodations, in violation of the Americans with Disabilities Act (ADA).

[SHRM members-only toolkit: Coordinating Leaves of Absence]

Shell moved for summary judgment, which the district court granted.

On appeal to the 5th Circuit, the plaintiff argued that the occurrences Shell relied on as a basis for firing her were not accurate. Nonetheless, the court found that the plaintiff had not shown that any mistakes by Shell in calculating her absences were a pretext for discrimination.

The court further found that Shell had shown that it would have fired the plaintiff for her final absence regardless of whether she took FMLA-protected leave.

The court noted that the day after the plaintiff's supervisors warned her that she could be fired if she violated the attendance policy, she did so. The 5th Circuit added that the fact she missed work because she was incarcerated for her second DWI within a year "further legitimizes Shell's justification."

Finally, the plaintiff could not show failure to accommodate because she did not allege that she had an actual disability, only that Shell viewed her as disabled. To establish a failure-to-accommodate claim, the plaintiff had to show she had a disability, not that she was regarded as disabled, the court stated.

For these reasons, the 5th Circuit upheld the dismissal of the plaintiff's claims on summary judgment.

Amedee v. Shell Chemical LP, 5th Cir., No. 19-30525 (March 30, 2020).

Professional Pointer: An employee does not automatically obtain protection from termination simply by applying for FMLA leave before a final decision is rendered. An employer can proceed with termination if it has a valid reason.

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


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