A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination. Hrdlicka v. General Motors LLC, No. 22-1328 (6th Cir. 2/7/23), reissued (6th Cir. 3-23-23). The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further. Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict. The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression. It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.
According to the Court’s opinion, the plaintiff had worked
for GM for over 30 years when she was terminated for excessive
absenteeism. She had previously taken a
few medical and other leaves of absence, showing that she knew how to request
such leaves. She was transferred to
a new department in May 2018, but did not like a co-worker, her new supervisor
or the work environment. She requested by
August to be returned to her former department, but her position had been
eliminated, she was not qualified for any other positions and someone would
have to backfill her current position.
Within a year, she began frequently missing, and being hours late for, work. She gave a variety of reasons for
her attendance, when she explained it at all, including child care issues,
traffic, not feeling well, headache, bad cough, family situations, being tired,
etc. The only time she mentioned going
to see a doctor was a fabrication. Her
attendance was criticized in her June 2019 performance evaluation and, finally,
she was given a final written warning on August 14, 2019 after she had missed the
summer intern presentations over which she had primary responsibility. She was encouraged to utilize a medical leave
of absence or seek a reasonable accommodation if necessary and provided with
information to contact the EAP. She was
late the next two days and then on August 19 requested against to transfer back to her
former department. To support this request, she mentioned that
she was unhappy with her work environment and supervisor and it was disputed whether
she also mentioned that she had been suffering from [self-diagnosed]
depression. She was late again the next
day and her employment was terminated.
She immediately appealed her termination and claimed that
she had informed HR before her termination that she suffered from depression
caused by her supervisor. In October,
she was diagnosed with persistent depressive disorder. A brain tumor was discovered in November and
removed. The employer was so informed. Her appeal – which was limited to facts which
existed at the time the August termination decision was made – was denied because
there was no evidence submitted prior to her termination to substantiate her
depression. She then filed suit,
alleging violations of the ADA, FMLA, state law, ERISA, and Title VII. The employer was granted summary judgment on
all claims and the Court of Appeals affirmed.
The Court agreed that she could not prevail on a disability
discrimination or failure to accommodate claim based on an impairment which was
not even diagnosed until after her termination, particularly when she never
sought medical help until after she had been fired. The Court was not influenced by her self-diagnoses:
Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.” . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”
[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.
The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .
In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed, . . . [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .
The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.
The Court also concluded that even if she suffered from a
disability, the employer had a legitimate reason to terminate her for her repeated
poor attendance and prior warnings: “The chronic tardiness and repeated
absences, coupled with [her] immediate failure to abide by her Attendance
Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”
The Court also rejected her failure to accommodate claim
based on her request to transfer back to her former department days after her
Final Written Warning and two days before she was terminated (after she had
again been late to work without a valid medical excuse). She had never linked this request with any purported disability. Unlike the
Sixth Circuit panel just days earlier, it found her request to transfer to
avoid her supervisor was unreasonable:
Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.
[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”
These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .
Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .
Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.
The Court also rejected her argument that her employer
failed to engage in the interactive process:
General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.
The Court also rejected her FMLA claim on the ground that
she failed to provide sufficient notice of the need for such leave. Her “general references to her head “really
hurting,” feeling “sick,” or having a “fever and other symptoms” are simply
generalized descriptions of ailments that do not rise to the level of “serious
health conditions” within the meaning of the FMLA.”
The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].
. . .
. . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).
The remaining claims were denied based on the employer’s
legitimate and non-discriminatory reason to terminate her on account of her
poor attendance, after several warnings, based on the information that the
employer had at the time of the decision.
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.
