According to the
Court’s opinion, the plaintiff had concerns about the proper completion of forms
being submitted to the Centers for Medicare and Medicaid (CMS). Concerned that she was participating in fraud,
she contacted the employer’s compliance hotline. A compliance officer investigated her
concerns and assured her that she was properly completing the forms in
compliance with CMS protocols. The plaintiff
conducted her own research and contacted the CMS subcontractor, an employee of
which reinforced her concerns. She
forwarded these emails to her supervisors and was again contacted by the compliance
officer who said that the subcontractor supervisors agreed that the employer’s
practice was appropriate.
Meanwhile, the
plaintiff was occasionally napping at her desk and reported that she would be
late one day because her new medication was making her drowsy. After a number of sleeping incidents (none of
which violated employer policy), she was referred to EAP for a fitness for duty
evaluation based on her impaired functioning.
She requested FMLA and STD, was referred to a psychiatrist and time off
work by EAP and released to return to work by her new psychiatrist. In the meantime, the employer requested a new
FMLA certification. The employee did
provide the new certification or return to work.
The employer ordered
her to return to work by October 1 or be fired.
The plaintiff responded by filing a Charge of Discrimination and
providing a list of conditions about her return to work, including how the CMS
forms would be completed. When she
refused to complete the forms as instructed, she was terminated for refusing to
perform her duties. This litigation
ensued focused only on the fitness for duty evaluation by EAP and the delay in
reinstating her to work. Surprisingly,
she did not bring a whistleblower claim or wrongful termination claim.
The Court
applied a “but-for” causation standard under the ADA and Ohio law. It did not apply the ADAA definition of
perceived disability. Instead, it found
that she had to prove that the employer regarded her “actual,
nonlimiting impairment substantially limits one or more major life activities.” In any event, it rejected her argument that
her referral for an EAP evaluation was evidence of that the employer perceived
her as disabled under the ADA:
“[A] defendant
employer’s perception that health problems are adversely affecting an
employee’s job performance is not tantamount to regarding that employee as
disabled.” . . . An employer’s request
that an employee undergo a medical exam “may signal that an employee’s job
performance is suffering, but that cannot itself prove a perception of a
disability because it [alone] does not prove that the employer perceives the
employee to have an impairment that substantially
limits one or more of the employee’s major life activities.” . . . ..
“Deteriorating [employee] performance may be linked to motivation or other
reasons unrelated to disability.” . . . (citations omitted).
Defendant stated on
the referral form that “impaired functioning” was the basis for [her] referral.
The report of the doctor who examined [her] stated that she was referred for
evaluation because she was “falling asleep at work,” and generally had a
“difficult” relationship with her manager. These reasons for referral are
directly related to [her] ability to do her job.
In addition,
the plaintiff failed to show that the employer was at fault for her delay in
returning to work. The plaintiff refused
to cooperate with providing either medical certifications or a fitness for duty
from her own psychiatrist and was still
invited back to work. While there may
have been a miscommunication about her return to work, the delay was not
attributable to any perception of a disability.
Moreover, her submission of a list of conditions to her return reflected
the fact that she was in no hurry to return to work. Finally, the employer’s alleged irritation
with her concerns about the CMS form were not attributable to any perception of
disability.
The retaliation
claim was easily dismissed because the plaintiff could not show that the employer’s
reason for her termination – her refusal to complete the CMS forms as
instructed – was merely a disguise for unlawful retaliation. Indeed, she admitted that she would probably
still be employed if she had completed the form as instructed.
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
