Sixth Circuit Rejects Shortened Limitations Periods Under Title VII, the ADA and the ADEA, but Affirms that Employee Could Not Show She Was Singled Out

 

Last month, the Sixth Circuit expanded its earlier prohibition against the contractual shortening of limitations periods from Title VII claims to cover the ADA and the ADEA as well, but agreed that the contract would still apply to shorten the limitations periods applying to ERISA, §1981 and Ohio Civil Rights Act claims.    Thompson v. Fresh Products LLC, No. 20-3060 (6^th Cir. Jan. 15, 2021).    In addition, the Court affirmed the employer’s summary judgment on the employee’s discrimination and failure to accommodate claims on the grounds that she failed to show that she was singled out for the RIF on account of her race, age or disability and because being able to work a full shift on the assembly line was an essential function of her job.  Among other things, her sample sizes were too small to provide a meaningful statistical analysis. 

According to the Court’s decision the Plaintiff was hired in July 2016, worked the third shift and was one of the company’s most productive employees on the assembly line.  Upon being hired, she signed an Employee Handbook Acknowledgment which shortened the time period for suing the employer to six months, or such reasonable time if a court later found six months to be too short.     In October, she requested to work part-time on account of arthritis in her back.  While her supervisor agreed to look into it, no one responded to her request.  Later, the company realized that it needed to reduce its workforce and requested which staff would agree to work 10-hour shifts instead of 8-hour shifts.  Plaintiff was the only employee who did not agree to work a 10-hour shift (due to child care responsibilities) and was ultimately laid off at the end of January along with three other employees (and two others who had either had indicated that they could or would no longer work). 

The Plaintiff promptly filed OCRC and EEOC Charges under Title VII, the ADA and the ADEA.  She filed suit within 90 days after her Charge was dismissed.  The trial court granted summary judgment to the employer and the Sixth Circuit affirmed that she failed to satisfy her prima facie burden of proof.  

The first issue involved whether her lawsuit was timely when it was filed more than six months after she was laid off.   The Court agreed that the Employee Handbook Acknowledgement barred her OCRA claims under Ohio law.  However, it found that the limitations periods for claims under Title VII, the ADA and the ADEA were substantive statutory rights which could not be limited by contract, especially considering the national policy in favor of a uniform limitations period.  (Of course, never mind that the limitations period to file a Charge is not uniform).  Accordingly, it found her federal claims to be timely.

The Court rejected her failure to accommodate claim because her request to work part-time was unreasonable and because the Sixth Circuit does not recognize an independent cause of action for an employer’s failure to engage in the interactive process.    While the duty to engage in the interactive process is mandatory, “failure to engage in the interactive process does not give rise to an independent claim.”  She failed to carry her burden of proving that her requested accommodation was objectively reasonable.  No other employee was permitted to work part-time on that production line and the Court refused to consider the fact that the employer permitted one employee to work part-time in a different department under different working conditions.  It also did not discuss the employer’s obligation to discuss potential transfers to a different position.

Although the handbook does not state that employees must work full time, it states that production workers must be able to work 10–12 hours at a time—at least the length of a full shift. Shaferly testified that Fresh Products does not have part-time production workers because it is too difficult to manage with the amount of turnover at the company, and Hartman testified that it would be very difficult to have someone leave in the middle of a shift because it would require “figur[ing] out how to move someone else to take their spot” or “cover [their] machine.”

The Court also rejected her discrimination claim because she could not show that she was singled out for the RIF on account of her disability in light of her admission that she had never indicated a willingness or ability to work the 10-hour shifts.  Indeed, she “was the only employee who stated she could not work either shift, never selected a preference for one of the shifts when Shaferly followed up after the survey, and did not voluntarily quit.” 

The Court rejected the argument that she could not prove that she had a disability because she did not have any lifting restrictions imposed by her physician after she had been hired and had continued to work full-time until she was laid off because she had such medical restrictions imposed while working at a prior employer.  The Court also rejected the argument that she was unqualified for her position because she was unwilling to work 10-hour shifts because of the ambiguity in the employer’s request in seeking “preferences” instead of willingness or ability. 

The Court also found that she could not prove that she was singled out for the RIF on account of her age.  Only five employees were laid off and all of them were over the age of 40.  However, two of them were not comparable because one volunteered for the RIF and the other announced that she had to leave on February 1 (to go to jail).    The other two employees had admittedly poor production records.  When the Plaintiff pointed to the retention of a younger female, the Court pointed out that there was no evidence that that the comparator was less qualified than Plaintiff.  When the Plaintiff pointed to one young employee who was retained even though he had poor production and attendance compared to her, the Court pointed out that:

The probative value of this evidence in the age-discrimination context is undermined by the fact that, according to the final list of those considered for layoff (excluding those who quit or were terminated for cause before the layoff), half of the other employees who had lower production numbers or higher absenteeism than Thompson and were retained were members of the protected class (i.e., forty or older), and two were older than Thompson at the time of the RIF. This evidence does not tend to show that Thompson was singled out because of her age.

The Court also rejected her statistical “evidence” that she was singled out for the RIF on account of her race.

[W]ith the exception of [the employee] who informed Fresh Products that she would be incarcerated, the five employees terminated as part of the RIF were all black, Hispanic, or biracial; and 2) of the 18 people considered for layoff, 78% were black. These statistics suffer from the same shortcomings as those provided in support of Thompson’s ADEA claim: the sample sizes are too small to be reliable, and Thompson has failed to provide any analysis of the statistics’ significance. They also do not address a comparison to the relevant pool: roughly 70% of Fresh Products’ employees are black, Hispanic, or biracial.

When the Plaintiff identified a white employee who was retained with poorer production and attendance that her, the Court pointed out that:

[O]f the ten employees with lower productivity or higher absenteeism than Thompson who were considered for layoff but retained, only [that employee] and one other employee . . . are white.  Six are black, and one is biracial. In light of this context, Fresh Products’ retention of [that employee] does not tend to indicate that Thompson was laid off because of her race.

The dissenting judge would have found a factual dispute as to pretext when a non-disabled employee who had requested to work part-time to accommodate her class scheduled was retained even though that employee had also – unlike the Plaintiff – initially agreed to work a 10-hour shift before resigning.

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 change or be 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.

What’s New with the FMLA

I was speaking at the Columbus Bar Association’s Labor & Employment Committee last week about complex medical leave issues (i.e., when the FMLA, ADA, Workers compensation and/or disability pay overlap).  In preparation, I learned that the DOL had issued two new Opinion Letters discussing the FMLA.  In addition, the DOL updated the FMLA medical certification forms, meaning that the current forms (which did not change at all, including keeping the last revised date as May 2015) will not expire until August 31, 2021.  To be sure that you are using the most current Medical Certification forms, download the forms from the DOL’s website and confirm that the August 31, 2021 date is in the upper right hand corner.

As for the Opinion Letters, the DOL WHD Acting Administrator confirmed that medical leave to have surgery to donate an organ is considered to be a serious health condition:

An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115.  Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital.  Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.”  Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.

In the other Opinion Letter,  the Acting Administrator agreed that an employer could suspend the no-fault attendance policy during an employee’s FMLA leave as long as it did not discriminate against the use of FMLA leave by permitting it to expire during other types of medical leaves.   In the employer’s question, the employer’s no fault attendance policy imposes points for non-FMLA absences and tardiness and automatically terminates employees who accrue 18 points within twelve months.  The points are frozen during FMLA leave and do not drop off while the employee is on FMLA leave.  The twelve month period is also extended by the duration of the FMLA leave.

The Acting Administrator noted that “‘[N]o-fault’ attendance policies [] do not necessarily violate the FMLA as long as points are not assessed for employees who are absent due to any FMLA qualifying reason.”  WHD Opinion Letter FMLA2003-4, 2003 WL 25739620, at *1.”  Moreover, FMLA leave does not entitle an employee to a superior position than employees who miss work for non-FMLA reasons.

An employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”  29 C.F.R. § 825.215(d)(2); see also WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999).  An employee is also not entitled to additional benefits or payments that are contingent on achieving a specified goal that the employee was unable to achieve because he or she took FMLA leave.  29 C.F.R. § 825.215(d)(5); see also Preamble to the Final Rule, 73 Fed. Reg. 67934, 67985 (Nov. 17, 2008).

The Opinion Letter interpreted the policy as rewarding employees for working by removing points, and therefore, missing work for FMLA leave meant that the employer was not required to reward the employee by removing non-protected attendance points.

Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA.  Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750-51 (7th Cir. 2010); WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999).  As you describe in your letter, the number of accrued points remains effectively frozen during FMLA leave under your employer’s attendance policy.  An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled.  WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.  WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999) (stating that the FMLA would permit an employer to “neither count the FMLA leave period towards an attendance control policy for potential termination, nor credit the unpaid FMLA leave towards the recordable time for dropping such points,” as long as the employer treated other equivalent types of leave in the same manner).

If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.  29 C.F.R. § 825.220(c) (requiring that employees who take FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave). 

Because the employer treated workers compensation leaves the same as FMLA leave – i.e., employees do not accrue points and the points are frozen while the employee is absent on leave – there was no evidence of unlawful retaliation.

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. 

Sixth Circuit Rejects FMLA and ADA Claims When Plaintiff Had Missed and Would Continue to Miss Months of Work Each Year

On Monday, the Sixth Circuit Court of Appeals affirmed the dismissal of the FMLA and ADA claims brought by a bank teller.  Boileau v. Capital Bank Financial Corp., No. 15-5820 (6^th Cir. 4-25-16).  The employer was permitted to terminate the plaintiff under the FMLA when her physician had certified that she would be unable to return to work at the conclusion of her FMLA entitlement.  Further, she could not prevail on her ADA claim on the grounds that a brief medical leave would constitute a reasonable accommodation because her job required regular attendance, she had already missed several months and her physician certified that she would regularly miss several months for the rest of her life.

According to the Court’s opinion, the plaintiff suffered from lupus and took a lot of FMLA leave in blocks and through intermittent leave.  In 2011, she took 3 weeks of leave following surgery and then intermittent leave for the remainder of the leave year.  In 2012, she then took another 2 weeks in January and then repeatedly delayed returning until April 2, by which time her physician had reported that she could expect to be incapacitated for 8-12 weeks every 1-2 months for the rest of her life.  By mid-March, she had exhausted her FMLA leave entitlement, her branch was short-staffed and, so, her employer terminated her employment.  When she applied for unemployment, her physician certified that she was unable to work until April 18, 2012. 

The Court easily rejected her FMLA claim because she had only speculative assertions of retaliation.  When the employer is given medical information that the employee will be unable to return to work following the exhaustion of the FMLA entitlement, it is not required to wait before terminating her employment.  Further, the plaintiff could not prove that its reason for her termination – her inability to return to work at the conclusion of the FMLA leave – was pretext for retaliation.

The Court found that she could not prevail on her ADA claim because she was not qualified in that she could not maintain regular attendance, which was an essential function of a bank teller’s job.  The Court rejected the plaintiff’s argument that she only required an additional short medical leave of absence (i.e., two weeks) because her physician had already certified that she would regularly miss work for prolonged periods for the rest of her life.  Individuals who miss work for months at a time are not qualified under the ADA when regular attendance is an essential function of the job.

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.

En Banc Sixth Circuit Upholds Regular Attendance and Physical Presence Requirement and Rejects EEOC’s Telecommuting Accommodation Under ADA

On Friday, a divided en banc Sixth Circuit affirmed an employer’s summary judgment in an ADA case where the employee sought permission to work from home on an as needed basis as a reasonable accommodation under the ADA.  EEOC v. Ford Motor Co., No. 12-2484 (6^th Cir. 4-10-15).  In doing so, the Court rejected an earlier 2014 decision by a divided Sixth Circuit panel (which was reported here) that had granted summary judgment to the EEOC and found that physical attendance at a job site was no longer generally an essential job function.  The Court found that while the ADA requires employers to provide reasonable accommodations, “it does not endow all disabled persons with a job—or job schedule—of their choosing.”  Relying on prior case law, ADA regulations, EEOC informal guidance, and common sense, the Court concluded that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.”  Moreover, the Court found that an employer need not engage in the interactive ADA accommodation process when the employee is unqualified for the job.  The Court also rejected the Plaintiff’s retaliation claim in very strong language.  Five judges dissented. 

Background.  According to the Court’s opinion, the plaintiff’s job required her to regularly meet face-to-face with other company employees, although she could communicate on some issues by telephone and email.  However, her position required her to work in the same building as certain other jobs so that they could meet “on a moment’s notice” when needed, which the employer found to be the most effective form of communication for that position.  Hired six years earlier, the plaintiff performed very well her first few years, but her performance evaluations steadily declined beginning in the fourth year until in 2009, she was not meeting the basic functions of her position.  She was informed that she” lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.”  In 2008, she missed 1.5 days/week and in 2009, she was absent more than she was present. “And when she didn’t miss work, she would often come in late and leave early.”  As is typical in these situations, everyone around her was frustrated: 

When she missed work, her teammates had to pick up the slack, including by taking on the functions that [the Plaintiff] could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,”  . . .  further compounded [her] mistakes, and frustrated suppliers.

The Plaintiff’s chronic irritable bowel syndrome contributed to this situation since she could suffer an uncontrollable episode at work or while driving (an hour each way) to and from work.  The employer attempted to help her on several occasions.   Her first supervisor adjusted her work schedule to 4 ten-hour days and allowed her to telecommute on a trial basis as needed for two months.   However, the Plaintiff was unable to establish regular and predictable attendance and perform the core functions of her job.  A new supervisor also attempted another trial telecommuting experiment, which also failed.   Nonetheless, the Plaintiff sought to telecommute four days/week, which had been permitted for other positions at the Company.  However, the Company only permitted her co-workers to telecommute one day each week, not four as requested by the Plaintiff.  When reviewing her core job responsibilities with her while considering her telecommuting request, the Plaintiff

admitted that she could not perform four of the [ten tasks] from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. [She] added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.”

Her request was rejected on the grounds that four of the ten tasks could not be performed at all from home, four other tasks could not be performed effectively from home and the remaining two tasks were not significant enough to support telecommuting.  Although the employer rejected that specific accommodation request, it offered other accommodations, including placing her office closer to a restroom or transferring her into a job which would allow her to telecommute.   She rejected those offered accommodations, failed to identify any other potential solutions, and filed a Charge of Discrimination with the EEOC.

The Plaintiff’s job performance did not improve and she again ranked in the bottom 10% of her peers for the second year in a row. Although she claimed the evaluation was retaliatory, she did not elaborate and was placed on a performance improvement plan.  After she still failed to complete tasks completely or on time during the plan period, she was terminated.  She filed a retaliation Charge and this litigation ensued two years later.

ADA Reasonable Accommodation Claim.  In affirming the employer’s summary judgment, the Court reviewed some basic ADA requirements.  Although an employer is required to provide a reasonable accommodation (which can include job restructuring or modified work schedules), an employer is not required to remove essential job functions.  “[T]hat is per se unreasonable.”  In addition, “the essential-job-function inquiry does not require employers to lower their standards by altering a job’s essential functions.”  Moreover, “[t]he employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job.”  

In this case, the Court agreed that “regular and predictable on-site job attendance [is] an essential function.”  The Court observed that most courts have “establish[ed] a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise. . . . And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”  The Court also cited and analyzed the EEOC’s ADA regulations governing essential job functions and found that they supported this conclusion.  

To guide the essential-function inquiry, the regulations speak in factors—seven of them.  . . . In many jobs, especially the interactive ones, all seven point toward finding regular and predictable on-site attendance essential. Take the amount of time performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many interactive functions simply cannot be performed off site. Or take the consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be severe.  . . . Ditto for the terms of the collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t typically exempt regular attendance. Other employees’ work practices are no different, § 1630.2(n)(3)(vi)–(vii): Other employees usually attend work at the worksite. And  so on, such that most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.

The Court also rejected the EEOC’s argument that permitting any telecommuting by a co-worker meant that the employer had to grant unlimited and unpredictable telecommuting to the Plaintiff:

In addition to being legally and factually unsupported, the EEOC’s view here would cause practical harm to private employers. The ADA encourages—indeed, requires—employers to make reasonable accommodations for its employees, including allowing telecommuting under the proper circumstances. 42 U.S.C. § 12111(9)(B). But if the EEOC’s position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week (or else face trial). That’s 180-degrees backward. It encourages—indeed, requires—employers to shut down predictable and limited telecommuting  as an accommodation for any employee. A “good deed would effectively ratchet up liability,” which “would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.”  . . . The practical effect? Companies would  tighten telecommuting policies to avoid liability, and countless employees who benefit from currently generous telecommuting policies would suffer. A protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.

The Court also rejected the EEOC’s “charm[ing]” argument that it was “self-evident” that technological advances had removed the requirement of physical presence at the workplace.  While this may be true of some jobs, the evidence in this case did not show that.

But technology changing in the abstract is not technology changing on this record.  . . .And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home.

The technologies used by the employer were the same technologies available when other courts still found physical presence to typically be an essential job function for most jobs.  “These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs.” 

ADA Interactive Process.  The Court made some surprising observations about the interactive process.   

Our conclusion that [the Plaintiff] was unqualified for her position makes it unnecessary to consider whether [the employer] showed bad faith in the discussions to work out a reasonable accommodation while [she] was still employed. Even if [the employer] did not put sufficient effort into the “interactive process” of finding an accommodation, 29 C.F.R. § 1630.2(o)(3), “that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . .Courts thus need not consider this form of nonindependent liability “if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”  . . . It suffices here to hold that any failure by [the employer] does not create liability because, as we just concluded, the EEOC did not produce such evidence.

In any event, the employer did engage in the interactive process by suggesting and experimenting with multiple possible accommodations.

Summary Judgment Issues.  The Court also made some notable conclusions about burdens of proof at the summary judgment stage.   For starters, the Court made the employee’s opinion testimony about her own essential job functions practically irrelevant.

An employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact. Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because we do not “allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d at 1122. And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.

In any event, the Plaintiff’s testimony did not save her case because she still admitted that she could not perform four of her essential job functions from home, did not testify that she could “the vast majority of” job functions as effectively from home as from the work site.  Because the employer is not required to lower its production standards as an accommodation and the past telecommuting experiences with the Plaintiff had shown that this accommodation would not work, the Plaintiff’s testimony was rejected by the Court.  

The Court also rejected the Plaintiff’s testimony about her subjective impression of regular meetings with her supervisor about her poor attendance.  

We “look at the facts as they appear to the person making the decision to terminate [the employee],” not at “the employee’s subjective [beliefs].”  . . .Harris’s unexpressed “subjective skepticism regarding the truth of” whether [her supervisor] was actually trying to help her does not alone “raise a triable issue as to pretext.”  . . .Plus, these kinds of meetings do “not constitute harassment simply because they cause the employee distress.”

In contrast with the Plaintiff’s biased testimony, evidence about the telecommuting schedules of plaintiff’s co-workers was relevant under the ADA regulations and as evidence of the employer’s judgment.  However, it was not helpful to the Plaintiff because telecommuting had only been permitted by strong performers one set day each week with the understanding that those co-workers still had to come to work when needed.  

None of this is to say that whatever the employer says is essential necessarily becomes essential.  . . . Suppose, for instance, that a fire department regularly allows certain firefighters to refrain from driving fire trucks. But then the department denies the same accommodation to a firefighter with a known disability that prevents her from driving the trucks. A genuine fact issue might exist as to whether driving a fire truck is actually essential—it is contradicted by materially similar job practices.  . . .Our ruling does not, in other words, require blind deference to the employer’s stated judgment. But it does require granting summary judgment where an employer’s judgment as to essential job functions—evidenced by the employer’s words,  policies, and practices and taking into account all relevant factors—is “job-related, uniformly-enforced, and consistent with business necessity.”

Retaliation Claim.  The Court also rejected the EEOC’s retaliation claim. "Discrimination here means retaliation—that “but for” an employee’s statutorily protected activity the employer would not have taken the “adverse employment action.”  In this case, the EEOC could not show that the employer’s explanation for terminating the Plaintiff’s employment – her back-to-back poor performance evaluations and failure to satisfy her performance improvement plan – was pretextual. 

No reasonable jury could find that Ford terminated Harris for a reason other than poor performance. Harris’s performance and interpersonal issues have been well documented. The EEOC indeed admits they existed. Suffice it here to say that, among other problems, Harris failed to update spreadsheets, complete her paperwork, schedule her training sessions, price items correctly, and finish her work on time. Her performance issues  are why she ranked in the bottom 10% of her peer group before she made her charge.

Granted, the Court agreed with the EEOC that the timing of the Plaintiff’s termination seemed suspicious – coming a mere four months after she filed her Charge.  “But while this ‘gives us pause,’ ‘temporal proximity cannot be the sole basis for finding pretext.’”    

The Court rejected the argument that the Plaintiff’s supervisor harassed her about her attendance because her subjective distress about the meetings was not reasonable and, more importantly, her supervisor played no role in the decision to terminate her employment.  He was on vacation when she was terminated and was never consulted on the matter.  

The Court also agreed that it seemed suspicious that the first time the Plaintiff received a “lower achiever” performance rating was only a few months  after she filed her Charge when, in the past, she had always received at least an “excellent plus” rating.   However, this was adequately explained as a mere change in terminology that took place in all performance evaluations in 2009 and that her percentile ranking – bottom 10% -- had not changed in two years.  

At first glance, this looks bad for Ford. Harris received her first “lower achiever” rating post-charge, and she received only “excellent plus” ratings before her charge. The EEOC stops there. But digging deeper—and looking at the whole record—reveals two reasons why no reasonable jury could find this low rating proof of pretext. For one, 2009 was the only year that Harris could have received the lower-achiever rating. Ford overhauled its ratings system that year for all employees, ditching the default “excellent plus” category (which 80% of workers received) in favor of a more accurate description of a worker’s performance. In Harris’s case, that meant “lower achiever”—the first and only time she could receive that rating. For two, the change in name did not change Harris’s low numerical ranking. In her only performance review after the charge, she ranked in the same percentile range as she did immediately before the charge: the bottom 10%. That’s not evidence of retaliation; that’s just poor performance—both before and after the charge.

Finally, the Court rejected the Plaintiff’s speculative testimony that she was set up to fail in her performance improvement plan.   

The record shows that Harris failed two prior plans to improve her performance and attendance, similar to this one—and both before she filed her charge. The record also shows that Harris failed to achieve any of the objectives identified in post-charge plan, . . .—not just the objective the EEOC says is evidence of retaliation (eliminating her backlog of paperwork, see Dissent Op. at 38–39.). And the record shows that Ford used similar performance-enhancing plans for other employees who, like Harris, performed poorly.  . . . Harris’s testimony thus fails to create a genuine dispute of fact because it is “so utterly discredited by the record that no reasonable jury” could believe it.

In any event, the Court also concluded that the EEOC failed to prove ‘but-for” causation as part of the prima facie burden of proof – i.e., that the Plaintiff would not have been fired but for filing her Charge of Discrimination.

In addition to Harris’s past failings, she admitted that she would not be able to attend work on-site in a regular and predictable manner in the future. And this attendance was an essential element of her job. No reasonable jury could find that Ford—a for-profit corporation— would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the  future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her, which means that Ford was entitled to summary judgment for that reason as well.

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.

EEOC Issues New Guidance For Employers Under the ADA on Holding Employees Accountable for Performance and Conduct Standards.

Yesterday, the EEOC issued a question-and-answer guide for employers on how to address performance and conduct issues with employees with disabilities. “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards. . . . Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.”

For instance, the EEOC guide provides that “[a]n employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.”

By way of example, the EEOC described the following situation: “Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.”

Even if the employee raises the issue of her disability upon receiving notice of the lower performance evaluation rating, the employer is not required to raise the performance evaluation rating because of the employee’s late notice or belated request for an accommodation. Nonetheless, once a request for a reasonable accommodation is made, the employer should explore the accommodation before issuing future corrective action or performance evaluations. For instance, if the employee requests an accommodation after the employer verbally warns the employee that a written warning will be issued if her performance does not improve within a month, the employer is not required to withdraw the one-month evaluation warning period, but should engage in the accommodation process (i.e., request medical documentation and explore the proposed accommodation) before instituting the one-month evaluation period. Importantly, if the employee waited until being informed of his/her termination from employment to inform the employer of a disability and request a reasonable accommodation, the employer is generally not required to postpone the employee’s termination. “The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them.”

“When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer (1) tolerate or excuse the poor performance; (2) withhold disciplinary action (including termination) warranted by the poor performance; (3) raise a performance rating; or (4) give an evaluation that does not reflect the employee’s actual performance.”

The EEOC also explained that “[i]f an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.” By way of example, the EEOC described “[a] blind employee has frequent disputes with her supervisor. She makes personal phone calls on company time, despite being told to stop. She routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks. She taunts the supervisor and disobeys his instructions regarding safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.”

“The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may (1) prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work); (2) prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work; (3) require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and (4) prohibit drinking or illegal use of drugs in the workplace. . . . Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.”

By way of example, the EEOC provided the following hypotheticals to illustrate these principles:
Example 17: A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

The EEOC also recognized that “[a]n employer may enforce conduct rules that are not found in workplace policies, employee handbooks, or similar documents so long as they are: (1) job-related and consistent with business necessity, and (2) applied consistently to all employees and not just to a person with a disability. Many times, the proscribed conduct is well understood by both the employer and employees as being unacceptable without being formally written, such as a prohibition on insubordination.” By way of example, “Mary’s disability has caused her to yell at and insult her supervisor and coworkers. There is no formal policy addressing such conduct, nor need there be. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job-related and consistent with business necessity, and thus Mary’s supervisor may discipline her as long as the same discipline would be imposed on a non-disabled employee for the same conduct.”

With respect to attendance expectations, ”[e]mployees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employer’s regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advance leave). Similarly, employers must provide employees with disabilities with equal access to programs granting flexible work schedules and modified schedules. . . . Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. 73 The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as . . . (1) an inability to ensure a sufficient number of employees to accomplish the work required; (2) a failure to meet work goals or to serve customers/clients adequately; (3)a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; (4) incurring significant additional costs when other employees work overtime or when temporary workers must be hired. Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.”

By way of example, “[a]n employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m. Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one- or two-day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future. Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.”

As an another example, “an employee works as an event coordinator. She has exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. The employee can never predict when the leave will be needed or exactly how much leave she will need on each occasion, but she always needs from one to three days of leave at a time. The employer initially agrees to her request and the employee takes 14 days of leave over the next two months. Documentation from the employee’s doctor shows that the employee will continue to need similar amounts of intermittent leave for at least the next six months. Event planning requires staff to meet strict deadlines and the employee’s sudden absences create significant problems. Given the employee’s prognosis of requiring unpredictable intermittent leave, the employer cannot plan work around these absences. The employer has already had to move coworkers around to cover the employee’s absences and delay certain work. The on-going, frequent, and unpredictable nature of the absences makes additional leave an undue hardship, and thus the employer is not required to provide it as a reasonable accommodation. If the employer cannot reassign the employee to a vacant position that can accommodate her need for intermittent leave, it is not required to retain her.”

“Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”

Insomniacs can read the full guidance at http://www.eeoc.gov/facts/performance-conduct.html#conduct.

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 change or be 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.