Posted on April 20, 2009 by Maria Danaher

Internal investigation supports company's legitimate business reason for termination.

Sharon Sybrandt was fired from her position as an Operations Assistant Manager at one of Home Depot’s Nashville stores after she allowed a co-worker to use her password-protected user ID to modify a special order transaction for Sybrandt. In addition, Sybrandt herself subsequently entered computerized “notes” on the transaction, indicating that she wanted to cancel part of the order and receive a refund. Both actions were in violation of the company’s “no-self-serve” policy. After Sybrandt was replaced by a male employee, she sued Home Depot, alleging gender discrimination under both federal and state laws. The lower court granted the company’s motion for summary judgment in April 2008, and the 6th U.S. Circuit Court of Appeal recently upheld that decision. Sybrandt v. Home Depot, USA, Inc., 6th Cir., No. 08-5598, March 26, 2009.

Sybrandt began working at Home Depot in 1991. In 2006, her employment was terminated for an alleged violation of a company policy that prohibits employees from working on their own purchases and transactions. Sybrandt testified that she was aware of the policy, and understood that its purposes were to deter theft and dishonesty, and to avoid even the appearance of impropriety. However, she argued that the decision to fire her was “unfair and extreme,” and asserted that the termination was simply a pretext for discrimination.

Under the now-familiar McDonnell Douglas shifting burden analysis, an individual has the initial burden to come forward with a prima facie case of discrimination; the employer is then obligated to show a legitimate business reason for its actions; the ultimate burden is on the employee to show that the proffered reason is a pretext for discriminatory motive. In this case, the parties agreed, for purposes of summary judgment, that Sybrandt was able to set forth a prima facie case, and that Home Depot had set forth a legitimate business reason for its action. The argument, then, was whether the proffered reason was based in fact, or whether it simply was a pretext to mask discriminatory treatment.

While Sybrandt argued that the company’s reason was overly technical and not based in fact, Home Depot was able to set forth evidence of an internal investigation, taken after it was made aware of Sybrandt’s actions. That evidence showed that the investigator – one of Home Depot’s Employment Practices Managers (EPMs) – believed that Sybrandt had breached the company’s policy, and that he had recommended discharging 18 Home Depot employees for the same reason over a previous three year period. In spite of Sybrandt’s disagreement with Home Depot regarding whether her actions technically violated the policy, it was the company’s thorough investigation that supported Home Depot’s assertion that it had an honest belief in its proffered nondiscriminatory reason for the termination.

An employee cannot establish that the reason for an adverse employment action is discriminatory simply by showing that the action may have been technically incorrect. The key inquiry in assessing whether an employer holds an honest belief that its action was appropriate is whether that employer made a “reasonably informed and considered decision” before taking the complained-of adverse action. In this case, Home Depot’s thorough, complete, and reasonable investigation (in which it interviewed Sybrandt and her co-workers, reviewed security camera footage of the incidents, and obtained written statements from various witnesses) supported its assertion that it took the action necessary to enforce its policy, and helped it to avoid legal liability in the matter. The decision to fire Sybrandt reflected a “considered” judgment, which Sybrandt was unable to contradict with any evidence other than her own testimony.

 

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Posted on April 13, 2009 by Maria Danaher

Request for an indefinite leave of absence is not a reasonable accommodation under the ADA.

The 8th U.S. Circuit court of Appeals has upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would have allowed the individual to perform the essential functions of her job during the period in which she was absent for treatment, there was no violation of the ADA.

An employer discriminates against an employee, in violation of the Americans with Disabilities Act, if the employer fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” However, ADA protection extends only to individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

Floyce Peyton, an experienced retail store manager, was hired by Fred’s Stores of Arkansas as the manager of its Heber Springs store. After successfully completing three weeks of management training, Peyton began work on January 6, 2006. On January 9, Peyton was diagnosed with ovarian cancer and immediately was hospitalized. On that same day, Peyton’s fiancée delivered a note, signed by Peyton’s physician, to the store’s assistant manager, which stated that “Floyce Peyton needs to be off work at least 1/9/06. Return date unknown.”

Peyton underwent surgery on January 12. In the following days, the area manager for Fred’s Stores attempted to discuss with Peyton what type of accommodation Peyton might need. At that time, Peyton responded that she did not know how long she would be out. The area manager then contacted the regional vice-president to inform him of the situation and to advise him that the store was without a manager. On January 14, the area manager again called Peyton to let her know that the company had to “let [her] go.” The assistant manager was then made the store manager at Heber Springs.

In March, Peyton was given a limited release for work by her physician. After six months of chemotherapy, she was deemed physically able to perform the duties that would have been required of her as manager of the Heber Springs store. Peyton subsequently filed a law suit against Fred’s Stores, alleging that the company failed to accommodate her disability. The lower court granted summary judgment on behalf of the company; that decision was upheld by the Eighth Circuit on appeal.

The parties agreed that Peyton was disabled because of her illness and treatment, and that there was no information to indicate when, if ever, she would be able top return to work. They also agreed that, at the time of her hospitalization and initial treatment, Peyton was unable to perform the essential functions of her store manager job, with or without accommodation. Therefore, Payton was not a “qualified individual with a disability” for purposes of the ADA at the time of her firing. Further, the Court found that Peyton’s inability to assert a return to work date would require the company to allow her an indefinite leave of absence which, it held, was per se unreasonable as an accommodation, as it would “burden [the employer] with the duty to see into the future,” which was not the intent of the ADA.

However, employers should not use this case as the basis for overlooking the interactive process required by the ADA when determining whether a reasonable accommodation exists. Because cancer treatment is specifically referenced in the ADA Amendments Act, employers should carefully review situations in which employees ask for accommodation for such treatment, and should assure that a sincere attempt is made to reasonably accommodate such individuals. Employers should pause before considering employment termination to assure that, in fact, the individual is unable to perform the essential functions of the job, and that there is no alternative to an indefinite absence.
 

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Posted on April 6, 2009 by Maria Danaher

Employee's alteration of healthcare provider's form may invalidate FMLA application.

The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.” An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.

Recently, the 7th U.S. Circuit Court of Appeals addressed a situation in which an employee altered her health care provider’s certification to add an impairment that had not been diagnosed by that provider. In that case, the Court upheld the lower court’s summary judgment in favor of the employer, finding that the employee’s alteration invalidated the entire application. Smith v. The Hope School, 7th Cir., No. 08-2176, March 30, 2009.

Tanum Smith worked for The Hope School from May 2005 until September 2006. In her position, Smith worked with developmentally challenged children as a one-on-one instructional aide. During 2006, Smith was injured on two separate occasions: first in April, when she was pushed to the ground by a student who then struck and kicked her, and then in June, when she was hit in the mouth, after which Smith suffered neck pain. During the following months, Hope School attempted to work with Smith to place her in a position without student contact, consistent with restrictions instituted by Smith’s doctor.

On August 22 or 23, however, Smith went the school‘s HR department to complain that her job assignment was “unsafe,” and that she was leaving until a safe assignment could be found for her. At that point, Smith was informed that if she failed to appear for work on August 25 as scheduled, her absence would be considered as “unexcused,” putting her job in jeopardy. However, on August 24, Smith left a phone message, asking for FMLA leave.

Smith then was provided with FMLA paperwork, and was told to complete it as soon as possible. Smith took the paperwork to her physician, who completed it that same day, although Smith did not pick up the forms until September 6. At that point, Smith added to her doctor’s description of her condition the words “plus previous depression,” in spite of the fact that no doctor had ever diagnosed or treated Smith for that condition. In addition, she submitted a second form that her doctor had not filled out or signed, adding more information about her “depression.” She then faxed the altered paperwork to the school. Because the school suspected that the certification had been altered, the school’s HR department called the physician’s office to ask about the form. Upon receiving confirmation that the form had been changed, the school contacted the Department of Labor, who advised them that they could deny Smith’s request for leave, which they did. Smith was then disciplined for her absences from work, and ultimately was fired.

Smith then filed a lawsuit against Hope School, alleging that the school had interfered with her FMLA rights and had retaliated against her for requesting the leave. The lower court granted summary judgment in favor of the school, finding that Smith’s alteration of the provider’s certification invalidated the FMLA application, and that the school’s decision to terminate Smith’s employment for unexcused absences was appropriate in that circumstance. That decision was upheld on appeal by the Seventh Circuit.

FMLA leave may be denied to an employee who attempts to receive such leave fraudulently. The Smith decision is of note, however, because Smith actually had a valid basis for FMLA leave without the “plus previous depression” language. Therefore, the question reviewed and decided by the Seventh Circuit was whether an employer can deny FMLA leave to which an employee might otherwise be entitled because that person submitted false paperwork. According to the court, it can.

While this decision is one of which employers should be aware, employers also should be advised that the court emphasized the limited nature of the ruling, pointing out the “especially strong inference” that Smith had intentionally submitted false paperwork. The court specifically stated that it did not reach the question of whether more insignificant alterations, such as “correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician,” would result in a similar ruling. This comment by the court adds a level of difficulty for employers, who now will have to review such circumstances on a case-by-case basis to determine whether each circumstance includes the “especially strong inference” of falsity evident in Smith’s case.

 

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