Though supervisor was reticent to accommodate cancer survivor, no link between disability and discharge

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By Joy Waltemath

By Lorene D. Park, J.D.

Despite evidence that a manager believed an employee was lying about having had cancer and ongoing health issues, and that the manager was reticent to grant her requests for an earlier schedule and to telework, her employer did grant nearly every accommodation request, and it had a myriad of non-discriminatory reasons to fire the employee, including excessive absenteeism (which she did not prove was all disability related) and poor performance. Consequently, the Eighth Circuit affirmed summary judgment against her ADA and state law discrimination and retaliation claims (Oehmke v. Medtronic, Inc., December 22, 2016, Beam, C.).

The employee was treated for Hodgkin’s lymphoma and had been in remission since 1999. As a result of her cancer treatment, she had a suppressed immune system. In 2003, she was hired by Medtronic, a medical device manufacturer. She performed well and received awards. In 2005, she became a senior patient services specialist, answering patient questions and again receiving positive reviews. She got sick easily and was allowed to work from home as needed, though the employer’s policy was to limit telework to two days per week.

Denied promotions. In 2008, the employee applied to be operations lead, but her supervisor talked her out of it because she was to be promoted to principal patient services specialist in July. In this conversation, the supervisor made a reference to Nazis and said the employee desired power. The employee took exception to this and their relationship soured. In the end, she received neither job and was told this was due to customer complaints. As to one, she put in her call notes that the customer was “rude,” which violated a policy requiring objective language.

Poor evaluation. In September 2008, the employee was told she had to comply with the two-day max telework policy. She asked to continue the existing arrangement and the supervisor agreed, so long as patient calls to her home were recorded. According to the department manager, in a second meeting that month, the employee behaved threateningly and the manager was concerned she would assault the supervisor. After the supervisor retired, the manager gave the employee a negative performance evaluation, stating that she violated the sick-leave call-in policy, the telework policy, and the policy requiring objective language in notes. The manager also wrote that on occasion she undermined leadership, which the employee admitted in deposition.

FMLA leave. Meanwhile, the employee took periods of FMLA leave for whooping cough, an injury from a car accident, and other illnesses. She was criticized for excessive absenteeism. and she objected that FMLA leave had been included; even excluding FMLA leave, though, her absenteeism rate was 4.75% and the company regarded over 2% to be excessive. When her FMLA leave was exhausted, the employer hired a replacement, and the employee was put in a new job that she claimed was too demanding. Another employee testified that she overheard the department manager and the supervisor creating, with relish, a job that would cause the employee to quit.

Put on PIP. Due to the heavy number of calls the employee received in her new job, she was unable to keep up with her assignments. In January 2010 she was put on a performance improvement plan (PIP) for numerous patient-call issues and told she could no longer telework. Meanwhile, though the manager denied her request for an earlier schedule (ostensibly because they received more calls in the afternoon), the employer’s legal team instructed the manager to honor the request, stating that the team did not understand why it was a “big deal.”

Terminated. In a January 2010 meeting with the manager and HR, the employee’s performance issues were discussed. Her demeanor was described as “belligerent,” and the manager later suspended her and had security escort her off the premises. In February, the employee and her attorney met with the employer’s in-house counsel. She asked to be put in a different department and left the meeting thinking a new position would be offered. However, she received a letter proposing a separation agreement. She rejected the offer and was terminated.

No causal link between disability and discharge. Though the employee’s cancer, even while in remission, was a covered disability under the ADA and state law, the appeals court affirmed summary judgment against her discrimination claims because she failed to show her cancer-related absences, health problems, and need for accommodations motivated the termination decision. To the contrary, the record showed the decision was made because of her rejection of the employer’s settlement offer, which in turn was caused by her suspension for failing to meet the requirements of her post-FMLA leave position and her PIP.

Even assuming the new position carried difficult responsibilities and was given to her in the hopes of having a reason to terminate her, it was clear that there were a myriad of unrelated concerns with the employee’s performance that provided a permissible motive for her termination, concluded the appeals court. For one thing, she gave incorrect and life-threatening advice on a patient’s pacemaker. She was also perceived as insolent and threatening, and she admitted to trying to undermine authority, such as by failing to use objective language in call notes. In addition, she was repeatedly the subject of customer complaints.

While there was also evidence suggesting the employee’s absenteeism, in part, motivated the negative view of her performance, and her absenteeism rate had been overestimated more than once, she still failed to provide a causal link between her absences and her disability. For one thing, she did not show her many absences were caused by her disability-related medical issues. Also, while the manager did suggest that the employee was lying about her cancer and was reticent to accommodate her, the evidence showed that the employer did in fact grant nearly every accommodation request made by the employee, and it had a legitimate business need for scheduling her later in the day. For these reasons, summary judgment was warranted.

Retaliation claim fails too. Summary judgment was also affirmed against the retaliation claim because the employer had cause to terminate the employee for performance problems and she provided no evidence that any statements she made at the meeting with in-house counsel motivated the decision. Furthermore, her rejection of the employer’s settlement offer was not a protected activity under the ADA.

Source:: Employment Law Daily Newsfeed


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