A University of North Carolina (UNC) campus police officer who was fired after she could not return to work after six months of medical leave could not establish Family and Medical Leave Act (FMLA) or disability discrimination claims, the 4th U.S. Circuit Court of Appeals ruled.
The plaintiff worked as a police officer for UNC-Chapel Hill since 2012. Prior to her employment, she had received treatment for depression, anxiety and attention deficit (hyperactivity) disorder. Yet when she applied for employment, she certified that she had never before experienced psychological problems such as depression, according to the defendant in a brief.
As a campus police officer, the plaintiff carried a variety of weapons, including a pistol, a shotgun and a rifle, the defendant noted. Shortly after her hire, beginning in late 2012, the plaintiff experienced anxiety with crying spells, which began to impact her work. In February 2013, she received a written warning from her supervisor for three successive incidents of insubordination.
In 2015, the plaintiff took and failed a previously scheduled police competency exam. She became tearful and emotional with a supervisor. She confided in a co-worker that she was having concerns about her ability to do her job given her mindset, noting that she had recently experienced a physical assault off the job.
In response to the plaintiff's self-reported concerns about her mental state, the UNC-Chapel Hill police chief placed her on a 30-day investigatory status with pay leave and delivered a letter directing her to undergo a fitness-for-duty examination by an external agency.
Nearly a month after her paid investigatory leave period ended, she submitted a request for FMLA leave. She submitted a certification from her health care provider stating that she could not perform the executive, cognitive and physical functions of her job through at least Jan. 30, 2016.
The day before her FMLA leave expired, the plaintiff sent UNC-Chapel Hill a letter from her nurse practitioner indicating that she was not ready to return to work, the brief stated. Rather than separate her from employment, UNC-Chapel Hill placed her on unpaid administrative leave. On Jan. 4, 2016, she contacted the police chief and asked to return to work. She did not provide any letter or documentation from her doctor clearing her to return to work. The police chief informed her that she would need to receive a second fitness-for-duty examination evaluation.
UNC-Chapel Hill told the plaintiff that she could request an accommodation for her disability. In response, she submitted an accommodation request form and requested to be placed on light duty for an indefinite duration. Yet she failed to submit a documentation of disability form.
In March 2016, the plaintiff had been on leave for six months. She was unavailable to work, and she had not submitted the paperwork necessary to request any form of disability leave or work accommodation. On March 4, 2016, UNC-Chapel Hill separated her from employment.
The plaintiff filed a lawsuit against UNC alleging failure to accommodate under Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, and retaliation and interference under the FMLA. The district court granted UNC's motion to dismiss her claim under Title II of the ADA and for interference under the FMLA, and later granted UNC's motion for summary judgment on the two remaining claims. The plaintiff appealed to the 4th Circuit.
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In a per curiam decision, the 4th Circuit upheld the dismissal of her claims. It found that Title II of the ADA—which addresses discrimination by public entities in delivering services, programs or activities—does not apply to public employment discrimination claims. The court further found that the plaintiff could not establish failure to accommodate because her request for indefinite light-duty work was not a reasonable accommodation. Finally, the court found that her lack of availability for work after her FMLA leave expired doomed her FMLA claims.
Boone v. Board of Governors of the University of North Carolina, 4th Cir., No. 19-1758 (June 11, 2021).
Professional Pointer: Employers should engage with employees who cannot return after FMLA leave to see if a reasonable accommodation, which may include additional leave, can enable the employee to continue working there. Nevertheless, a request for open-ended post-FMLA leave will seldom constitute a reasonable accommodation under the ADA.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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