Some of the most frustrating and expensive lawsuits are where employees run up medical related absences without seeming end. When the employer terminates them, they sue. Last week EPTW reported on the Sixth Circuit upholding an employer’s discharge of an employee that failed to properly give notice under the Family and Medical Leave Act (FMLA). The Court deferred to the employer’s proper execution of its attendance notification policy and upheld the discharge. This week the Sixth Circuit again ruled that an attendance driven termination was not discriminatory – but this time under the Americans With Disabilities Act (ADA).

In Williams v. AT&T Mobility Services LLC the Sixth Circuit reviewed a decision by the lower federal court granting summary disposition in favor of Defendant – AT&T. AT&T was sued by Plaintiff Kirsten Williams because AT&T fired her for excessive absenteeism due to ongoing mental health issues that went on for years.

Ms. Williams was a call center employee whose job was to respond to customer complaint calls. In her approximately 8 years of employment she always had an attendance problem that was documented, and  in turn, discussed with her during performance reviews. The Plaintiff employee suffered from anxiety and panic attacks that caused her to require time off of the job. AT&T had a no fault attendance system in place and Ms. Williams annually met or exceeded the points indicating excessive absenteeism. Further Ms. Williams used FMLA and Short Term Disability leaves very successfully during this time.

In her 6^th year, her absenteeism considerably worsened and she was heading toward termination. In 2014 Plaintiff requested a combination of FMLA and STD leave as well as job accommodations in the form of leave (covering all her legal bases) to cover a new set of absences.  AT&T at this point drew the line and denied her FMLA leave because she failed to meet the FMLA qualification threshold of having worked 1250 hours in the preceding year (because she was excessively absent in the previous year) Subsequently the Plaintiff’s short term disability leave was  denied because she failed to provide insufficient supporting medical documentation. AT&T then gave Plaintiff notice to return to work or consider herself terminated by a specified date. Further communications regarding time off notice and medical information ensued but in the end the Plaintiff’s employment was terminated.

The Plaintiff argued that if she was given an accommodation of time off in the form of “flexible scheduling and additional breaks” she could successfully do the job. More communications ensued regarding time off accommodations until the Plaintiff failed to provide timely medical information and AT&T terminated her for good.

The Plaintiff sued starting with an EEOC complaint and getting a right-to-sue letter. The Plaintiff filed a violation of the ADA claiming that AT&T failed to provide her with a reasonable accommodation, failed to engage in the interactive process, and terminated the Plaintiff based on unlawful disability discrimination and retaliation. The lower federal court granted summary disposition against the Plaintiff.  She then appealed.

The Sixth Circuit Court of Appeals reviewed the Plaintiff’s failure to accommodate claim under the same rationale the lower court reviewed it from.  The Plaintiff was not qualified for her job as a customer service representative because she could not perform the essential function of the job – that of attending work regularly and punctually. Therefore, the Plaintiff’s proposed accommodation of flexible work scheduling sought to eliminate the essential job function of attendance and was therefore unreasonable. The Appeals Court found regular attendance to be an essential function as with most jobs, especially ones that involve interaction with others.

The Plaintiff aided the Court in their determination by stating she “could not function at work in a call center environment” and “could not focus mentally due to mental illness.” The Court concluded from this that the Plaintiff failed to show she would have been otherwise qualified – even with the accommodation.

But what about the Plaintiff’s claim that AT&T was required to engage in the interactive process to determine if an accommodation could be found? The Court agreed the employer should do this, but this claim is actionable only if the Plaintiff could have demonstrated that she was qualified for the position. The Court stated, “In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim.”

And the disparate-treatment claim? Again, the Court points to the Plaintiff failing to prove that she was qualified for the position without an accommodation (being able to not come to work) therefore as a matter of law she was not discriminated against per the ADA requirements for reasonable accommodation.

And lastly the retaliation claim. AT&T asserts that the termination was because of excessive absenteeism not because of the accommodation request. Again, the Plaintiff could not refute AT&T even though the termination was in approximate time to the request for additional leave (accommodation). The Court stated temporal proximity of a wrongful employment action to an accommodation request can demonstrate a causal connection to retaliation, but AT&T provided enough evidence that they were prepared to terminate her due to poor attendance (as well as a lot of  counseling, internal meetings, attendance system documentation, etc. ) that the Court believed no reasonable juror would find AT&T’s reasons for employment termination pretextual.

One has to be amazed and concerned at the amount of effort the employer had to go to, to support the decision to terminate and defend itself against a lawsuit.  In the end the Court comes to a very simple conclusion that all employers hope most employees can appreciate:

“In the end, this case reflects the reality that there are some jobs that a person with disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR.”   

Though laborious, this decision and the Court’s decision in Alexander v. Kellog USA,, Inc. reported last week, gives promise that a well stated policy that is followed and absenteeism that is thoroughly documented will be respected by the Court in the face of a discrimination or FMLA complaint.