Retaliation

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Crosstown Traffic! Facts Surrounding Employee’s ADA/FMLA Request to Avoid Bad Traffic Not Enough Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers are starting to see some more creative requests around the margins. In Trautman v. Time Warner Cable Texas, LLC, the Fifth Circuit recently dealt with an employee’s requests under both the ADA and FMLA to address her “anxiety/panic attacks” related to driving in bad traffic. Buckle up, while we try to unpack this situation!

Road Anxiety—ADA Path

Heather Trautman worked at Time Warner from October 2012 until April 2015 in a position that required her to be in the office to interact with other members of her team at certain times. After she became pregnant in 2013, she suffered several panic attacks while driving to or from work. Her obstetrician suggested that she leave work earlier to avoid driving in heavy traffic. Although Ms. Trautman did not submit an ADA accommodation request for her driving issues, her supervisor agreed to let her temporarily modify her work schedule.

After Ms. Trautman gave birth, she took FMLA leave, returning to work in March 2014. She told her supervisor that she was struggling to transition her baby to bottle feeding and asked if she could temporarily work from home. Her supervisor requested a doctor’s note but agreed to the temporary change—and Ms. Trautman worked from home for the remainder of 2014.

In December 2014, Ms. Trautman’s new supervisor told her she needed to resume working from the office starting in mid-January. The new supervisor was concerned Ms. Trautman was not performing necessary job duties that required her presence in the office. Ms. Trautman asked that she be allowed to work from home, and her supervisor said not unless she had a doctor’s note and a formal accommodation request approved by HR.

At that point, Ms. Trautman submitted a formal ADA accommodation request asking to work from 7 a.m. to 2 p.m. in the office and the remaining hours at home. The reason given was that her family physician said she had functional limitations of “anxiety/panic attacks related to traffic/driving.” The 2 p.m. departure was to allow her to avoid the heavy traffic. Time Warner denied the request because her job required her to work from the office during normal business hours. However, it did offer to adjust her schedule to 7 a.m. to 4 p.m. so she could leave the office earlier. Significantly, Ms. Trautman never tried the 4 p.m. departure time. Instead, she submitted another letter from her physician, and this time said she would be willing to leave the office at 11:00 a.m., so she could accommodate any busy afternoon work from her home. Time Warner again tried to get her to consider the 4 p.m. departure time, or even public transportation or ride sharing, to avoid her anxiety. Ms. Trautman again refused to try the 4 p.m. exit and also refused any other accommodations.

Trautman Takes Another Route—Intermittent FMLA Leave

With her ADA accommodation request at a standstill, Ms. Trautman began another plan—she started submitting intermittent FMLA leave requests that would let her depart the office early. She made those requests through Time Warner’s third-party administrator for leave requests—Sedgwick Claims Management Services. Ms. Trautman submitted paperwork from her physician saying that she needed to leave the office no later than 2 p.m. when her high-traffic anxiety flared up. Sedgwick approved her for one hour of FMLA leave per week for six months, but denied her request for any FMLA leave that would exceed that amount.

Ms. Trautman was missing work for numerous reasons at this time and received a written warning for her attendance. Her supervisor checked with Sedgwick to make sure that they were not counting FMLA leave against Ms. Trautman. Ms. Trautman continued to miss work. She was issued another warning pointing out that she had been absent for 22 days in the first three months of the year. She was warned that another write-up would result in termination. On the same day she received the write-up, she submitted a new doctor’s note to Sedgwick seeking an increase in her FMLA leave. Sedgwick agreed to increase the leave, but only as of the date they received the new paperwork — it did not retroactively approve any of her past absences as FMLA-covered. Ms. Trautman then began to take her increased leave. However, her unapproved absences continued, and Time Warner ultimately terminated her for excessive absenteeism.

Ms. Trautman filed suit claiming she was terminated in retaliation for her FMLA requests and that Time Warner failed to reasonably accommodate her ADA request relating to her anxiety about driving in heavy traffic. The lower court granted summary judgment on all of Ms. Trautman’s claims, and she appealed.

Fifth Circuit Drives it Home

The Fifth Circuit found that in examining whether Ms. Trautman’s absences were excessive, Time Warner had checked with Sedgwick to see if the time she missed was covered by the approved FMLA leave. It also noted that Time Warner’s reason for terminating her, excessive absenteeism, was not a pretext for FMLA retaliation. An employee’s failure to show up for work is a legitimate reason for firing her. The Fifth Circuit also stated that even if you subtracted the FMLA leave that eventually was approved, Ms. Trautman’s overall absences far exceeded the limits in Time Warner’s attendance policy. As such, there could be no claim for retaliation under the FMLA.

With regard to her ADA claim, the Fifth Circuit again found that there was no pretext in her termination. On the failure to accommodate claim, the Fifth Circuit noted Ms. Trautman did not engage in a flexible, interactive discussion about her accommodation request. She requested that she be allowed to leave at 2 p.m. When Time Warner denied that request, Ms. Trautman instead asked to leave at 11:00 a.m. The court stated “that’s not the stuff of flexible, interactive discussions.” It also bothered the court that Ms. Trautman never looked into other options, such as additional breaks or ride sharing. In the end, the court stated “neither the ADA nor the 2008 amendments to the ADA permits an employee to leave work early and then sue her employer for being unreasonable.”

How Does This Affect the Rules of the Road on FMLA and ADA?

This decision didn’t really alter the landscape, but it is a good example of an employer that did a decent job of trying to accommodate an employee who was asking for more than the company could grant. The Fifth Circuit noted several times in the opinion that Time Warner had allowed her to alter her work schedule, even though they weren’t absolutely required to do so. Time Warner apparently did a good job of communicating with Ms. Trautman, even if it was denying what she wanted. In addition, the court also found it significant that every time Ms. Trautman’s supervisor was looking to discipline her for being absent, she first looked to make sure those absences weren’t covered by the FMLA.

One of the lessons to be learned here is that when it comes to mental health, especially anxiety, employers need to be very careful to follow their usual procedures on ADA accommodation requests. In addition, even though Ms. Trautman had been working from home for the better part of a year, Time Warner had appropriate evidence to show that actual presence in the office was an essential function of the job. That evidence enabled the Fifth Circuit to state that failing to show up for work when required can be a basis for termination.

Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.

Employee Handbook Leads to Dismissal of FMLA Claims against Tennessee EmployerMost, if not all, employers provide their employees with handbooks that explain the policies and procedures that govern the employment relationship. Because this practice is standard, many employers likely forget how critical it is to have clear, well-known policies that are consistently followed. The recent decision in Everson v. SCI Tennessee Funeral Services, LLC reminds employers of the significance of employee handbooks and how they can prevent extensive litigation.

Background

Ommer Everson worked as a funeral director for SCI Tennessee Funeral Services (SCI). Although Everson was diagnosed with Meniere’s disease during his employment, it did not affect his work until he needed some time off for outpatient ear procedures. Before his procedure in 2010, Everson requested a week to 10 days off, which his supervisor granted. In 2014, Everson requested an afternoon off for another procedure and his supervisor again granted the request. On January 9, 2015, he requested a week off for a third procedure and his supervisor responded that it was fine—“whatever time you need.”

However, Everson never took that week off because he was terminated two days later for violating SCI’s refrigeration policy. Specifically, SCI determined that Everson left an unembalmed body overnight without refrigeration.

Everson sued SCI alleging violations of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Regarding the FMLA, Everson specifically alleged that SCI had retaliated against him for requesting FMLA leave and interfered with the exercise of his rights.

Middle District of Tennessee Grants Summary Judgment to SCI on FMLA Claims

SCI moved for summary judgment, arguing that it did not interfere with Everson’s FMLA rights because Everson failed to follow SCI’s notice requirements in requesting leave. SCI’s employee handbook outlined the procedure—employees needing leave were to contact the SCI Leave and Disability Center. In response, Everson asserted that the FMLA did not require him to invoke the FMLA by name. Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection.

Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave. He also did not identify any unusual circumstances that would have prevented him from complying with SCI’s notice requirement. Because Everson failed to comply with SCI’s policy for requesting FMLA leave, the court ruled that he could not establish a prima facie case for FMLA interference. Additionally, the court ruled that Everson’s claim of FMLA retaliation failed because his anticipated leave was not a protected activity under the FMLA. Since SCI did not have proper notice of Everson’s intent to take FMLA leave, Everson never actually engaged in an activity protected by the FMLA.

The court went on to deny summary judgment to SCI regarding Everson’s ADA claim, but that is a much longer story for a different post.

Takeaways

Never forget the power of the employee handbook and other well-crafted policies. In this case, the employer set out a clear path to request FMLA leave, and the court determined that the plaintiff did not use it. To get the most from those policies, you need to be sure that you can prove that your employees know about them. Here are some ideas:

  • Make sure that every employee receives a copy of your employee handbook and acknowledges in writing that they have both read the handbook and addressed any questions or concerns that they may have.
  • For policies regarding employment laws that may be more complex (g., requesting FMLA leave, requesting reasonable accommodations, requesting or reporting overtime, etc.), consider having employees read, acknowledge, and sign a separate document in addition to the handbook acknowledgement to ensure that they understand their responsibilities, as well as your responsibilities as their employer.
  • Send periodic messages or post reminders about more complicated policies—such as requesting FMLA leave or reporting harassment. This will give you another way to prove that employees understand how the policies work.