When considering a position’s requirements and responsibilities, most people would assume that attendance is a given. Before any other job duties can be fulfilled, an employee must actually come to work. However, since individuals increasingly perform their job duties away from their employer (think technology, work-at-home policies, virtual positions, etc.), attendance has slowly but surely become a regularly contested issue in disability discrimination cases. In Lipp v. Cargill Meat Solutions Corporation, the Eighth Circuit reiterates how critical attendance is in evaluating whether an individual with a disability is a qualified individual under the Americans with Disabilities Act.

Background

Be There or Be Square – Eighth Circuit Affirms Summary Judgment in Favor of Employer Based on Attendance PolicySheena Lipp worked in Cargill’s meat and processing facility for almost twenty years. During that time, Lipp was diagnosed with an incurable lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically. To ensure Lipp could maintain her position, Cargill accommodated all of her needs, including allowing time off for out-of-town appointments and during “flare ups” multiple times per year; ensuring Lipp only worked eight hours per day, five days per week, in an environment without dust or dirt; and providing Lipp with lifting assistance when she was required to move pallets.

In January 2014, Lipp began a nine-month, unplanned leave of absence to take care of her mother, who had her own significant health issues. This leave of absence violated Cargill’s attendance policy, which explicitly provided for progressive disciplinary action for unplanned absences. Unless they were on approved extended leave, employees were required to report their absences daily using Cargill’s automated call-in system. An employee would be charged one “occurrence” point for each unplanned absence and could accrue up to six occurrence points in a calendar year without disciplinary action. An employee’s seventh and eighth points would result in written warnings, and the ninth point would result in termination. Additionally, employees could be required to verify any absences from work. All verification had to be presented upon the first day the employee returned to work.

Rather than immediately terminating Lipp when she returned to work in October 2014, Cargill informed her that she had accumulated 194 occurrence points and placed her on “Last Chance” for attendance. Consequently, any call-ins, tardies, or early dismissals without authorization would result in termination. Two weeks after returning to work, Lipp called in to report she would be absent. When she returned to work without providing medical verification for her absence, Cargill terminated Lipp under the attendance policy.

Lipp filed an action alleging intentional discrimination and failure to accommodate under the Iowa Civil Rights Act and the ADA. Analyzing both statutes in the same manner, the district court ultimately granted summary to Cargill on all claims. Lipp appealed.

Eighth Circuit Affirms Summary Judgment Ruling

On appeal, the Eighth Circuit held that Lipp had no direct evidence of disability discrimination and could not establish a prima facie case of disability discrimination because she was not a qualified individual with a disability. Specifically, “Lipp ha[d] not demonstrated that at the time of her termination she could regularly and reliably attend work, an essential function of her employment.” In explaining that attendance was an essential function of Lipp’s job, the Eighth Circuit emphasized the language of Cargill’s written attendance policy, which stated that “punctuality and regular attendance [was] crucial for efficient plant operations, safety, and morale.” The Eighth Circuit also noted that all of Lipp’s listed activities in Cargill’s written job description required being present on Cargill’s premises.

When Lipp surprisingly argued that her 194 absences were not excessive, the Eighth Circuit ruled that her 194 unauthorized absences “far exceeded” what qualified for termination under Cargill’s policy. Even more importantly, the Court added that “persistent absences from work can be excessive even when the absences are with the employer’s permission.”

Regarding Lipp’s failure to accommodate claim, the Eighth Circuit held that the ADA did not require Cargill to provide an unlimited absentee policy or eliminate the essential functions of Lipp’s job to accommodate her. Lipp’s desired accommodation—additional absences without timely medical verification and almost immediately following 194 days of unplanned absences—was not one that would enable her to perform the essential function of regular and reliable attendance. On the contrary, it would relieve her of that function. The Eighth Circuit highlighted how generous Cargill had been despite Lipp’s excessive absenteeism and explained that a denial of summary judgment would punish Cargill for giving Lipp another chance instead of promptly terminating her before she returned to work in October.

Learning from Cargill

This case demonstrates the necessity of engaging in the interactive process, working diligently with disabled employees to maintain their employment, and communicating job requirements clearly and continuously. When confronting issues regarding absenteeism, keep these points in mind:

  • Make sure employees understand both your attendance policy and progressive discipline policy. Explain them verbally and give them a written copy. When absenteeism is adversely impacting the work environment, reiterate the policies (and maybe give the employee another copy).
  • Review the employee’s essential job functions, and be able to explain why attendance is essential for his or her position. Discuss the impact on other employees, customers and/or the organization as a whole. It is helpful if written job descriptions make clear that attendance is necessary.
  • Carefully assess when absences should be deemed authorized or unauthorized. Require medical verification as soon as possible after the employee returns to work from an absence.
  • Be flexible when you can be. Consider the employee’s disability and specific circumstances when determining what reasonable accommodations are feasible.

Moving Up the Naughty List: Level of Progressive Discipline Can Be Non-Discriminatory Reason, Says Eighth CircuitMany employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates that being able to point to the use of a progressive discipline policy can help dispose of an ADEA/ADA case.

The Facts

Todd Lindeman worked in St. Luke’s Hospital of Kansas City where the progressive discipline policy had varying penalties for each infraction: verbal warning for the first; written warning for the second; suspension or second written warning for the third; and termination for any subsequent infraction. After a change in his supervisors, Mr. Lindeman quickly moved through the discipline system, incurring three infractions in a four-month period. Finally, Mr. Lindeman violated the patient confidentiality policy and was terminated as a result of this fourth infraction.

Mr. Lindeman, who was over age 40 and suffers from obsessive compulsive disorder, attention deficit disorder, and bipolar disorder, filed suit under the ADA and the ADEA. St. Luke’s moved for summary judgment stating that the reason for his termination—disclosure of confidential information in violation of hospital policies—was a legitimate, nondiscriminatory reason. The burden then shifted back to Mr. Lindeman to show that the reason was pretextual. Mr. Lindeman claimed that two other employees also revealed the confidential information but were not terminated. The district court granted summary judgment, noting that Mr. Lindeman had not shown that the other two employees were at the last stage of the progressive disciplinary policy, as he was. Mr. Lindeman appealed, and the Eighth Circuit affirmed.

Moral of the Story: Follow Your Policy

This may seem like a minor case on a minor issue, but it again points to the gospel that we preach over and over: If you have a policy—enforce it and enforce it consistently. You may find a disciplinary system beneficial, as the hospital did here, to show a non-discriminatory reason for treating employees differently. But it only works if you use it properly.

A Political Entity Can Be Liable, No Matter How Small: Supreme Court Holds ADEA Still Applies to Small County EmployerCan small municipalities make decisions based on age? Not according to the United States Supreme Court, which recently resolved a circuit split on the question of whether the Age Discrimination in Employment Act (ADEA) applied to state and federal political entities with fewer than 20 employees. In Mount Lemmon Fire District v. Guido, a unanimous court found that the ADEA applies to all federal and state entities, regardless of the size of those entities’ workforce.

Mount Lemmon Facts and the Supreme Court’s Rationale

To resolve a budget shortfall, Mount Lemmon terminated its two oldest firefighters, both of whom were over age 40. Those firefighters filed suit in federal court, alleging their termination violated the ADEA. Mount Lemmon moved to dismiss the lawsuit, arguing the ADEA did not apply to it because it had fewer than 20 employees. The district court agreed. The Ninth Circuit Court of Appeals reversed the district court, finding that the ADEA applied. Because the Sixth, Seventh, Eighth, and Tenth Circuits previously found otherwise, the Supreme Court granted review of the case, siding with the Ninth Circuit’s interpretation of the ADEA.

By way of background, the ADEA initially applied to private sector employers with 20 or more employees. In 1974, Congress amended the ADEA to cover state and local governments. The amended ADEA defined a covered “employer” as:

[A] person engaged in an industry affecting commerce who has twenty or more employees . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.

Prior to the Mount Lemmon ruling, smaller political entities were able to argue that the numerical threshold of 20 employees for ADEA claim exposure applied to them as it did private employers. The Supreme Court rejected that argument, finding that the ADEA’s:

“two-sentence delineation, and the expression ‘also means’ at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and State or political subdivisions with no attendant numerosity limitation.”

The Supreme Court also found that the ADEA’s 20-employee threshold did not apply to federal employers either. Therefore, all political entities, regardless of size, are subject to potential ADEA claims.

Seven justices joined the opinion, which was authored by Justice Ruth Bader Ginsburg, with Justice Brett Kavanaugh not participating.

Takeaways

Although this case applies to small political subdivisions, it is a good reminder for everyone to be careful about potential age or other discrimination claims related to reductions in force. We don’t have any information on what criteria Mount Lemmon used to pick these two firefighters to lay off, but it probably was not their age. The fact that the terminated employees were the oldest in the department was likely a coincidence. So, when looking to save some money and balance the budget, employers need to keep an eye on whether the decisions look like discrimination (age or otherwise) and be sure they can defend the decisions. Your employment counsel can help.