Employers sometimes face difficult decisions after learning of an employee’s disability. What if you learn of a disability after ongoing repeated employment deficiencies or even after a disciplinary or discharge decision already has been made? Do you stay on course for the discharge? Add more time (give them another chance)? Reverse course completely? As with most legal answers, it all depends. The recent Hrdlicka v. General Motors decision offers some guidance.
An Employee with an Attendance Problem
In this recent Sixth Circuit Court of Appeals decision, Haley Hrdlicka had ongoing attendance problems. She texted her supervisor on a weekly or more often basis stating that she would be late, taking the day off, or working remotely. Her excuses were all over the board, from childcare issues to flat tires to “struggling with a mental thing.” She never produced a medical excuse and apparently never went to a doctor for any of the absences purportedly related to her medical issues. General Motors put her on a performance improvement plan with a letter warning her that continued absenteeism without compliance with the plan could lead to discharge. Hrdlicka was late three days in a row the next week, and General Motors decided to terminate her employment and communicated that to her.
Hrdlicka Appeals Her Termination
Pursuant to the company’s “Open Door Policy,” Hrdlicka appealed the discharge decision, a process handled through an outside human resources consulting company. Here is when it gets interesting. During the appeal process, Hrdlicka learned that she had a brain tumor, and she was diagnosed with persistent depressive disorder. She actually had surgery for the tumor during the appeal process. Importantly, neither the company nor Hrdlicka knew of these medical conditions at the time of the termination decision. Ultimately the appeal was denied, based solely on the facts known to the company at the time of discharge. The discharge was found to be consistent with company policies and not to be based upon impermissible factors because those factors were not known at the time.
The ADA Lawsuit
Hrdlicka filed an ADA lawsuit claiming (among other things) disability discrimination and a failure to accommodate. The trial court granted summary judgment for General Motors, and the Sixth Circuit affirmed the dismissal of the case. Although the case involved some other more complicated factual allegations, a key component of the Sixth Circuit’s decision was that the employee could not establish a prima facie case of disability discrimination “because her purported disability was unknown to either herself or [the company] until well after her employment was terminated.” The court also denied the failure to accommodate claim, in part due to the alleged accommodation request being brought up by the employee for the first time after an adverse action was implemented. The court quoted established case law that this was “too little, too late.”
So, what are some of the takeaways from a decision like this one?
First, have company policies that can be applied to specific situations – such as repeated unexcused absenteeism – when the need arises. Of course, such policies must be applied consistently.
The second point is related. When a policy is implicated, apply it without delay. In this case, had General Motors not stuck to its attendance warning letter, the termination decision likely would have occurred after the brain tumor diagnosis occurred. At that point, the disability discrimination and failure to accommodate claims would have been much more difficult to defend.
Finally, a word of caution. In cases where a discharge decision has been made, but the decision is not “final” because of an appeal process, be careful how new information learned during the appeal is handled and considered. While in some instances such evidence can be disregarded (like perhaps when an outside company is handling the appeal process), in other instances the new evidence may need to be considered, especially if it relates back to an already known disabling condition that just was not diagnosed fully or correctly. Often, situations involving new post-termination factual developments warrant a call with counsel.