Leave, Leave and More Leave, Quirky Question # 147
Quirky Question # 147:
We have an employee who has been with us for the past 10 years. During the past five years of her employment, she has been absent the equivalent of five (5) years due to a variety of reasons. She has taken leave to address issues with her family (including dissolution of her marriage), depression, surgeries, stress and anxiety, and caring for her son. She has taken leave in lengthy contiguous periods, and intermittently. She has exhausted every form of allowable leave, using up all her vacation days, all of her sick days, and all of the leave available to her under the Family and Medical Leave Act. During this time, we have allowed her to take additional leave, contrary to our own leave policies.
Recently, this employee fainted while at work. When the paramedics arrived to take her to the hospital, she told them that she lupus. One of her co-workers was in the room when the employee disclosed this information, as was the employee’s manager. When the employee returned to work two days later, she allegedly told her manager that she had “lupus and fibromyalgia,” although her manager does not recall her saying any such thing.
Both before and after this fainting incident, we have given this employee multiple disciplinary notices for her excessive absenteeism. In the weeks following the fainting incident, the employee has continued to be excessively absent, and has not provided us with any evidence that her absences are related to lupus or another disability.
Yesterday, the employee met with her manager and presented a note from her physician. This note stated that the employee had been under his care since just before the fainting incident, for neck, arm and back pain, which he believed was related to an on-the-job injury two years prior. The physician also alluded to “a new diagnosis of a serious nature which may have been precipitated by the work related accident,” but provided no further information. The physician went on to state that the employee would need “time off for Dr. visits and blood draws periodically,” and that she would “require special consideration for unpredictable fatigue and joint pain.” The letter makes no mention of lupus or any other specific condition.
The employee’s manager wants to terminate her employment. What should we do?
By: Sarah Evans
As you may have perceived, the facts set forth in Quirky Question # 147 arise from a recent case, Leanne Ferrante v. Costco Wholesale Corp., 2010 WL 724032 (W.D.Wash., February 25, 2010) decided in Federal Court in Washington.
In Ferrante, the employer ultimately did terminate the employee. The employee then sued for disability discrimination and failure to accommodate. On the employer’s motion for summary judgment, the Court denied the motion, finding that the plaintiff had, by the slimmest margin, met her burden to prove a dispute of material fact on her to claims: (1) that Costco fired her at least in part because of her disability, and (2) that Costco failed to reasonably accommodate her disability. In short, the Court opined that all of the plaintiff’s claims would be heard by a jury.
A plaintiff alleging disability discrimination in Washington must establish a prima facie case of discrimination, Dean v. Mun. of Metro. Seattle, 708 P.2d 393, 399 (Wash. 1985). This requires the plaintiff to show that she was: (1) disabled; (2) subject to an adverse employment action; (3) doing satisfactory work; and (4) discharged under circumstances that raise a reasonable inference of unlawful discrimination. If the plaintiff meets this burden, then the employer must produce evidence of a non-discriminatory reason for the allegedly discriminatory action. Finally, the burden shifts to the employee to show that the employer’s reason is pretext for unlawful discrimination.
On the first prong of the plaintiff’s prima facie case, the Court noted that the evidence that Costco knew Ms. Ferrante was disabled was extremely weak. It was based solely upon Ms. Ferrante’s and her co-worker’s statements that she revealed her lupus to the paramedics in the presence of her manager, and Ms. Ferrante’s statement that she told her manager of her lupus and fibromyalgia two days later – both of which her manager denied. And in the following six weeks of her employment before termination, Ms. Ferrante did not at any time again reference lupus or fibromyalgia, nor did her physician in any of his documentation. Despite the weaknesses in Ms. Ferrante’s evidence, the Court held that these two facts raised “a triable issue over whether Costco regarded Ms. Ferrante as having a disability.”
On the second and third prongs, while it was undisputed that Ms. Ferrante’s termination was an adverse employment action, the Court found the evidence that she was satisfactorily performing her job “dubious.” However, it ultimately held that although Ms. Ferrante was disciplined (in addition to her absenteeism) for “grazing” food from Costco that she had not paid for, and an incident in which her cash register was $30 short at the end of her shift, because Costco never alleged that it terminated her for any reason other than her absenteeism, “a jury could conclude that her job performance was satisfactory despite her absences.”
Indeed, the Court found that “it [was] Costco’s enduring tolerance of Ms. Ferrante’s absences that raises a triable issue as to the final element of Ms. Ferrante’s prima facie case: whether a jury could infer that she was terminated because of her disability. Before Ms. Ferrante allegedly revealed that she believed she had lupus, Costco had seemingly infinite patience for her absences. After she allegedly revealed she had lupus, Costco no longer permitted such absences, and terminated her about six weeks later.”
It was precisely Costco’s “long history of tolerating Ms. Ferrante’s absences, coupled with a termination for absenteeism just six weeks after Ms. Ferrante allegedly disclosed her disability” which provided evidence sufficient to support Ms. Ferrante’s claim that Costco’s legitimate non-discriminatory reason of terminating her for absenteeism was untrue, and was pretext for unlawful disability discrimination.
Analyzing the facts and legal arguments, the Court held that Costco could not be granted summary judgment on Ms. Ferrante’s disability discrimination claim, and that the claim would proceed to be heard by a jury.
Costco faced the same fate as to Ms. Ferrante’s failure to accommodate claim. A failure to accommodate claim arises where an employer knows of an employee’s disability and has an affirmative obligation to work with the individual to place her in a position in which reasonable accommodations would allow her to perform satisfactorily, so long as they did not impose an undue burden upon the company. Here, as the Court already had analyzed, there was a jury question as to whether Ms. Ferrante had disclosed her belief she had lupus to Costco. Admittedly, the only accommodation Ms. Ferrante appeared to have requested is permission to miss more work. Although it is well established that ordinarily, attendance is an essential job function and an accommodation permitting excessive absenteeism of the type Ms. Ferrante sought here would be an undue burden on the employer, the Court observed that Costco’s “long history of accommodating Ms. Ferrante’s absences suggests that perhaps attendance was not essential in her case.” On this basis, the Court held that there was also a jury question as to whether Costco had failed to reasonably accommodate Ms. Ferrante’s disability.
What are the lessons from this case?
First, avoid violating your own attendance policies when responding to employee leave requests.
Second, recognize that every accommodation you as the employer make in such situations is setting a precedent for the next accommodation, and act accordingly. Recognize that tolerating excessive absenteeism may weaken, if not eliminate, your argument that continued absenteeism would constitute an undue hardship for your company.
Third, if at all possible when dealing with employee disability leave issues which impact performance, separate the performance issues which do not arise from the absenteeism and impose discipline for those problems. For example, if the employer can demonstrate that the performance issues for which the employee was terminated were completely unrelated to her absenteeism, but were based upon failure to meet objective, achievable milestones, then there is less likelihood that a disability claim will survive to trial.