One of the questions most frequently asked by employers is whether an employee’s failure to comply with company policies regarding a return-to-work release can support termination of the individual’s employment. While courts differ on that issue depending upon judicial circuit and the specific facts of the case, the 8th U.S. Circuit Court of Appeals recently answered that question with a definitive “Yes.” Withers v. Johnson, 8th Cir., No. 13-2646, August 15, 2014.
Calvin Withers was employed as an assistant probation officer for the County Circuit Court of Pulaski, Arkansas. Beginning in January 2011, he came under the supervision of Circuit Judge Leon Johnson. Wither’ duties included monitoring probationers, documenting their compliance with court-imposed instructions, and providing reports to Johnson on occasion.
On March 17, 2011, Withers suffered a work-related back injury. On that same day, Withers sought medical treatment and was cleared to return to work immediately with a 10 pound lifting restriction. Withers promptly provided that release directly to Johnson under a written policy that required that medical releases be provided to supervisors “immediately” upon receipt of such release. Johnson expressed no objection to the accommodation. During the following weeks, Withers received additional treatment and was further restricted. Withers again provided his medical releases directly and promptly to Johnson, who never objected to the restrictions.
On March 29, Withers was placed on “non-duty” status by his doctor, and was granted FMLA leave as of April 1, 2011. On May 10, Withers was cleared by his doctor to return to work. Withers called Johnson’s office that day and left a voice mail stating: “[T]his is Calvin Withers, give me a call back.” After no return call from Johnson, Withers left another message on May 11, asking Johnson to “holler back” at him, but again without further detail. On May 12, Withers left a phone message for Linda Liddell, a member of the County’s human resources department, asking for a return call.
On May 13, a Friday, Withers called a law clerk to say that he was trying to reach Johnson, and telling her “the situation . . . [and] what the doctor said.” The clerk informed him that Johnson was at a judicial conference and that she would send a text message to him. She did, in fact, text Johnson, letting him know that Withers was trying to reach him, but she provided no further detail. On that same day, Withers received a return call from Liddell, who said that if Withers faxed the return-to-work release to her, she would forward it to Johnson’s chambers. Withers faxed the release to Liddell on Monday, May 16.
However, in a letter dated May 16, Johnson terminated Withers’ employment, based on a personnel policy that requires every employee to “immediately” provide a return-to-work release to his or her supervisor upon medical clearance. An employee who fails to do so is considered to have resigned.
Withers filed suit against Johnson and the County. Ultimately, Withers voluntarily dismissed certain of his claims, and the others were dismissed by the court on summary judgment. Withers appealed only his claims against Johnson under the ADA/Rehabilitation Act and the FMLA. The Eighth Circuit upheld the dismissal of those claims.
Withers’ claimed that Johnson fired him because of his disability, pointing to Johnson’ failure to return his calls and his alleged failure to accommodate Withers’ medical impairment. In response, the Eighth Circuit held that Withers’ two “nondescript telephone messages” did not support an inference of discrimination based on disability, because the calls made no mention of any medical condition or need for accommodation. Further, the Court pointed out that Johnson had accommodated all of Withers’ prior work restrictions without objections, and that Withers offered no evidence of any retaliatory motive on Johnson’s part for the termination. The Court used the same rationale in addressing Withers’ FMLA claim, specifically stating that there was no evidence that Johnson interfered with Withers’ FMLA leave, or that Johnson took any action in violation of that Act.
In this case, Withers’ employment was terminated because he violated a policy that required him to provide a medical release to his supervisor “immediately” upon his release to return to his job duties. Although Withers was okayed by his doctor to return to work on May 10, it was undisputed that he did not fax the release until May 16 – and even then, he faxed it to the human resources representative, who ten relayed it to the supervisor – making this a clear case of policy violation.
Employers cannot rely on this decision to support a blanket denial of an employee’s return from a medical-related leave, because not every return-to-work situation is as uncomplicated as this one: instead of an immediate submission of his release, Withers waited 6 days; all of his prior requests for accommodation had been implemented; and his FMLA leave request had been granted without conditions. Without all of those elements, issues of fact may be present that would convince a court to allow the case to go forward.