Anxiety attacks kept employee from performing essential functions of customer service rep

By Joy Waltemath

By Ronald Miller, J.D.

Because an employee reacted to random customer calls with anxiety attacks that required that she log off of her workstation, she was not capable of performing the essential job functions of a customer service representative, ruled the Sixth Circuit, in affirming the judgment of a district court. The appeals court concluded that she failed to show how a modified break schedule was a reasonable accommodation for unpredictable anxiety attacks. Further, it concluded that it was not reasonable to grant her additional leave as an accommodation because she had a history of taking leave with no improvement in her disability (Williams v. AT&T Mobility Services LLC, January 27, 2017, Gilman, R.).

AT&T requires regular attendance by its customer service representatives (CSRs). During work shifts, CSRs are expected to remain at their workstations receiving calls, with the exception of breaks for lunch, two prescheduled 15-minute breaks per day, and unscheduled restroom breaks as needed. Although there is no requirement that a CSR field a certain number of calls per day, CSRs typically handle about 40 to 50 calls during each shift. Consequences of unscheduled absences include potential increases in customer wait times and decreases in the quality and speed of customer service. Unscheduled absences can also cause increased workplace tensions and decreased morale among the CSRs.

Attendance points. A CSR who accumulates eight or more attendance points is subject to being terminated. But leave under AT&T’s short-term disability (STD) policy, the FMLA, or an approved job accommodation under the ADA does not result in the accrual of attendance points.

The employee worked as a CSR for AT&T. She struggled with attendance throughout her employment. From 2007 to 2014, she received written warnings every year about her accumulation of attendance points. Moreover, she was absent from work for most of 2013 due to her depression and anxiety attacks. After she returned to work on January 20, 2014, she continued to have an absenteeism problem. Her supervisors discussed her poor attendance record with her in both January and February 2014, warning her that she had accumulated nearly enough points for termination. Unfortunately, the employee failed to heed these warnings and continued to miss work. After April 9, 2014, she ceased to work entirely and did not return at any point before her termination.

Accommodation requests. The employee argued that she could have performed her job if she had been given two accommodations: a flexible start time and additional breaks throughout the day. She first requested these accommodations in February 2014 during a conversation with one of her supervisors. Her next accommodation request went through AT&T’s Integrated Disability Service Center (IDSC) in March 2014 in which she requested accommodations in the form of STD coverage for several absences. The IDSC eventually closed the March accommodation request because the employee failed to timely submit medical information.

In July 2014, AT&T terminated her employment for job abandonment and for violating its attendance policy. She then filed a lawsuit under the ADA asserting claims against AT&T for failure to provide her with a reasonable accommodation, failure to engage in the interactive process, disparate treatment, and retaliation. AT&T moved for summary judgment, which the district court granted as to all of the employee’s claims.

Failure-to-accommodate claim. The employee argued that AT&T violated the ADA by failing to provide her with a reasonable accommodation that would allow her to continue working despite her depression and anxiety attacks. She sought accommodation in the form of leave from work for treatment, flexible scheduling, and additional breaks during her shifts. AT&T responded that her poor attendance record showed that she was not qualified because she could not perform the essential function of regularly attending her job.

Here, much of the evidence in the record supported the conclusion that regular attendance was an essential function of the CSR position. Under AT&T’s strict attendance guidelines, absences and tardiness of as little as five minutes result in attendance points. Moreover, the court found it persuasive that the guidelines stated that regular attendance was an essential function of the CSR position, and this statement predated the litigation. Additional declarations from AT&T managers supported the point that regular attendance was essential to the functioning of the call center because of the adverse impact on customer service and employee morale. Thus, the appeals court concluded that regular attendance was an essential function of the CSR position.

Modified break schedule as accommodation. The employee’s poor attendance record made clear that, unless some accommodation was possible, she could not perform the essential function of regularly attending her job. However, the appeals court found that her own deposition testimony revealed she could not have worked on a regular basis even with her requested accommodations. The employee explained that she needed the modified break schedule to allow her to calm down after stressful calls. When these calls provoked anxiety attacks, she needed to log off of her workstation and cease taking further calls. She admitted that she had no way of predicting when her anxiety attacks would occur or how many attacks she would have per day. Thus, breaks every two hours would be inadequate if she suffered an anxiety attack in between scheduled breaks.

Moreover, the medical evidence revealed that she could not work at all for significant periods of time. Finally, the employee stated in the appeal of the denial of STD leave that she “could not function at work in a call center environment” and “could not focus mentally due to her mental illness.” Accordingly, she failed to make a prima facie showing that she would have been otherwise qualified even with these accommodations.

Additional leave as accommodation. The employee also argued that her requests for STD-approved leave doubled as requests for reasonable accommodations under the ADA. While the Sixth Circuit previously held in Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., that medical leave can constitute a reasonable accommodation under the ADA, the employee’s request for additional leave was unreasonable. In Walsh v. United Parcel Serv., the Sixth Circuit held that additional leave is an objectively unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated “no clear prospects for recovery.”

Here, AT&T provided the employee with retroactively approved STD leave and allowed her to retain her position for many months before terminating her employment. Given that she had a history of taking leave, that her condition failed to improve during those leaves, and that she repeatedly failed to return to work by dates on which her treatment providers had previously estimated that she would be able to return, requiring AT&T to grant further leave as an accommodation would be unreasonable. Accordingly, the appeals court affirmed the judgment of the district court.

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