Employer that gave full FMLA leave, engaged in interactive process, can fire for repeated tardiness

By Joy P. Waltemath, J.D.

Finding no evidence that an employee fired for repeated tardiness had been treated unfairly because of her earlier FMLA leave or her disability, a federal district court in Pennsylvania granted summary judgment to her employer because her physician said she could get to work on time if she would get up earlier to use her eye medication. After exhausting intermittent leave granted for an eye condition that made it difficult for her to see to drive soon after wakening, the employee sought a late start time as an accommodation. But the evidence showed that after repeated iterations of the interactive process, the employee did not actually require a late start as an accommodation to begin work on time. In addition, she had been afforded all FMLA leave to which she had been entitled, she had not been disciplined for tardiness immediately following her FMLA leave while she attempted to adjust her schedule nor during the interactive process, and the company had offered her numerous potential accommodations other than a late start, all of which she rejected (Colonna v. UPMC Hamot, September 25, 2017, Rothstein, B.).

Eye condition. The office assistant worked an outpatient family practice within UPMC Hamot. She was scheduled to begin work at 8:30 a.m. each day, and she lived 10-15 minutes from work. After 10 years with her employer, she developed an eye condition that interfered with her ability to function in the morning, for which she was eventually granted intermittent FMLA leave for up to four hours, five days a week. Her coworkers complained about her not working in the mornings, but after HR trained the staff on the FMLA and how it worked, the complaints ceased. When the assistant was about to exhaust her FMLA intermittent leave allotment, HR directed her to UPMC WorkPartners to request an ADA accommodation.

Late start accommodation. Over the space of several months, UPMC WorkPartners worked with the assistant and her physicians; twice UPMC found her request for an accommodation not medically supported, but a third time, after the assistant was officially diagnosed with Sjogren’s Syndrome, the employer reopened her claim and asked for additional clarification. It learned the assistant had difficulty seeing upon waking and it was dangerous for her to drive soon after awakening. Because the assistant needed 60 to 90 minutes between waking and driving to be safe, her physician reported that if she awakened at 6:00 a.m., applied ocular moisturizers at 6:30, allowed one hour for her eyes to clear to 7:30, and drove to work between 7:30 and 8:20, she could begin work at 8:30 a.m, as her schedule required. Accordingly, the employer denied her request for a later start time as an accommodation.

Other accommodations. Even before the assistant requested a late start as an accommodation, she was allowed to wear sunglasses at the practice, lights in the office were turned off, the front office blinds were closed, and she was given two different types of anti-glare screens. After she requested accommodation, her employer suggested the following accommodations: changing her start time to 9:00 a.m. provided she would work until 7:30 p.m. either Monday or Thursday; permitting her to go on short-term disability; working part-time; and arranging for her to ride to work with a coworker. But the assistant declined all these options “because she did not have childcare available Monday evenings; she desired to maintain fulltime work status; and alternative transportation options would still have required her to function early in the morning when her vision was obscured.”

Absence and tardiness policy enforced. Managers sought HR’s help in strictly enforcing the company’s absence and tardiness policy while the assistant was still out on intermittent leave (it had not been strictly enforced). Following an announcement that the policy now would be strictly enforced, there were no employees who were late three or more times who were not disciplined. After the assistant had exhausted her FMLA intermittent leave, HR did not enforce the time and attendance policy against her for four weeks as an adjustment period so the assistant could figure out how to get to work on time. Once it began enforcing the policy, for consecutive weeks the assistant was late to work: four times the first week, three times the second week, and twice the third week, when she received a final warning. During the next two weeks she was late 10 times, but because the employer had reopened the ADA accommodation interactive process based on the new diagnosis from her physician, no action was taken. Once her accommodation request for a late start had been denied for the third time, she was terminated for tardiness.

Retaliation. In her resulting lawsuit, the assistant argued that her employer interfered with her ability to take FMLA leave in the future by terminating her employment, but the court pointed out that was really a retaliation claim. In any event, it found the employer entitled to summary judgment as there was insufficient record evidence to create a genuine factual dispute about causation. The assistant acknowledged that her discharge was the result of her late arrivals. Recounting her employer’s response to her initial request for FMLA leave—which her employer had recommended, the court noted that she requested FMLA leave on July 9, 2014 and exhausted it March 9, 2015, but she was not terminated until more than two months later on May 21, 2015. Thus, she received all leave to which she was entitled and there was no temporal proximity between her FMLA leave and her termination.

Nor was there evidence that she was treated differently than similarly situated coworkers after enforcement of the attendance and tardiness policy was announced—no one who was late three or more times was not disciplined. Instead, only the assistant was excused from discipline for tardiness during both her readjustment phase and while her ADA accommodation request was re-opened following her diagnosis. The assistant had not produced evidence to establish a prima facie case of retaliation under either the FMLA or the ADA, the court found, as she lacked evidence suggesting her termination was caused by anything other than her late arrivals, so it granted summary judgment against both her FMLA and ADA retaliation claims.

ADA discrimination. Assuming the assistant’s eye condition was a disability, the court noted that punctuality was an essential function because her presence in the office was vital to process patients who arrived in the morning. In addition, record evidence showed that she actually did not require an accommodation in order to arrive on time to work, although she sought one because her extremely dry eyes made it difficult for her to see first thing in the morning, and an hour’s leeway would have been more convenient. But her physician confirmed she could safely drive to work by waking up earlier in the morning, so that she was not required to awaken at “a prohibitively early hour” to arrive on time. Yet she had been cited for late arrivals of 13, 9, 19, 28, 24, 15, 18, 37, and 13 minutes. The record also showed that the assistant was able to perform her work once she arrived, and because she could manage and overcome her limitations with minor effort, she did not require an accommodation for purposes of the ADA.

No failure to accommodate. Because the assistant did not have a viable accommodation claim, her interactive process claim necessarily failed as well. But even if she did, her employer had acted conscientiously and in good faith throughout the process, advising her to request an ADA accommodation before her FMLA leave expired, reviewing her accommodation request three times, reopening it when new medical information became available, and not disciplining her for late arrivals while she was engaged in the interactive process with UPMC WorkPartners. HR even offered to arrange for the employee to ride to work with a coworker in order to be at work on time. All of the employer’s good faith efforts entitled it to summary judgment.

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