Sixth Circuit: Plaintiff Cannot Avoid Termination for Violating Attendance Policy Simply by Engaging in Protected Conduct and Claiming Retaliation.

The Sixth Circuit recently affirmed summary judgment in favor of an employer who terminated the plaintiff for excessive tardiness in accordance with its detailed policy even though the plaintiff had recently taken FMLA leave and requested a reasonable accommodation under the ADA. Gembus v. MetroHealth System, 07-3542 (8/27/08). The court assumed, without deciding, that the plaintiff had proved her prima facie case of showing that she had been terminated because of her protected conduct (i.e., taking FMLA leave and requesting an accommodation). However, it concluded that she failed to show that the employer’s non-discriminatory explanation – that she fired for violating its attendance policy – was false or pretextual (i.e., a disguise for unlawful retaliation).

The employer’s attendance policy provided that an employee receives a demerit for every tardiness. Within a twelve month period, the employee is counseled for receiving three demerits, receives a verbal warning for five demerits, a written warning for ten demerits, a final written warning after 15 demerits and is subject to termination after 20 demerits. Demerits drop off following the passage of twelve months since the underlying tardiness.

In this case, the plaintiff had a record of chronic poor attendance. By July 2001, she had accumulated 23 demerits (3 more than permitted under the policy) and was suspended without pay for one day instead of being terminated. However, she reached the final written warning stage of disciplinary action for attendance violations in each of the following years in 2002, 2003 and 2004. In March 2005, she took a two-month FMLA leave because of fibromyalgia and chronic fatigue syndrome. Upon returning to work, she requested to be relieved of her rotating schedule and to, instead, receive steady day shifts. She apparently encountered hostility for making the request, which was temporarily honored while the employer determined whether she was entitled to such an accommodation under the ADA. In the meantime, she continued to be late to work and received another final written warning on May 2, 2005.

On June 13, 2005, despite working stead day shifts, the plaintiff accumulated a total of 21 demerits for tardies within the last twelve months and was terminated for poor attendance on the same day. She alleged that she had been terminated for exercising her statutory rights (to take FMLA leave and request a reasonable accommodation) and not because of her chronic tardiness because she had only been suspended in 2001 when she had 23 tardies (i.e., 2 more tardies than she had accumulated in 2005 when she was fired). She never alleged that her tardiness was caused by her physical impairments or alleged disability.

The court concluded that that the hostility the plaintiff encountered after requesting steady day shift assignments was insufficient to prove pretext because it did not address the admitted fact that she violated the attendance policy. “[I]t does not refute the evidence that [the plaintiff] had twenty-one tardiness points in violation of [the employer’s] policy, which allowed for her termination, or show that tardiness was not the reason fro her termination.”

The court also noted that her request for an accommodation was protected conduct even if it was ultimately determined that she did not have a disability covered by the ADA. “A plaintiff may prevail on a disability-retaliation claim even if the underlying claim of disability fails.” Nonetheless, the plaintiff’s evidence of hostility and the suspicious timing of her termination (within two months of returning from FMLA leave and making her shift request) did not prove that the employer’s explanation was false or pretextual. “Her evidence of temporal proximity alone is insufficient to meet this burden because it does not address [the employer’s] explanation for her termination, tardiness. Furthermore, her evidence of the hostility she encountered when she requested an accommodation to work the day shift does not address [the employer’s] reason for her discharge because it does not rebut the uncontradicted evidence that [she] accumulated twenty-one tardiness points in violation of [the employer’s] policy, which allowed for termination.”

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0528n-06.pdf.

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.