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Employer Could Change Attendance Policy

An employer wins summary judgment in plaintiff’s suit alleging age and disability discrimination; the Newport News U.S. District Court says employer proved plaintiff was terminated after she failed to return to work following expiration of her extended leave under the Family Medical Leave Act.

Plaintiff admits she used 12 weeks of FMLA leave within a 12-month period as permitted by 29 § U.S.C. 2612(a)(1)(D) and that she did not return to work after the 12 weeks expired. Plaintiff was not entitled to any more leave under the FMLA, so her termination was a legitimate and legal decision. Plaintiff failed to rebut the employer’s proffered legitimate, non-discriminatory reason for the adverse employment action.

Plaintiff complains she was treated unfairly or harshly by employer, but most of the tension relates to plaintiff “making up” scheduled work hours. Plaintiff frequently was absent during her scheduled work hours without any formal arrangement or approval for doing so. Apparently, this practice was tolerated historically (at least to some extent), but then attendance policies began to be more strictly enforced. Plaintiff chafed at this change, but an employer may permissibly both set and alter attendance standards without violating any law. Plaintiff does not dispute that she was disciplined for violations of the attendance policy after she was told it would be strictly enforced. She does not dispute that other employees were also disciplined during the relevant time period for violations of the policy. Defendant’s even-handed enforcement of reasonable policies about attendance do not give rise to any inference of discrimination in this case.

Plaintiff presented no evidence whatsoever of any qualifying disability under the Americans with Disabilities Act or the Rehabilitation Act. The amended complaint contends plaintiff suffered from fibromyalgia and chronic fatigue syndrome, but she has presented no corroborating medical documentation in the course of this litigation and she has not established any substantial limitation or perception thereof, of a major life activity. Her own treating physician concluded she “does not really have any findings of fibromyalgia.”

Likewise, evidence of age discrimination is wholly lacking. When she was hired, she was within the age-protected class, making age-related discrimination less likely.

Summary judgment for employer.

Tetreault v. Advanced Federal Services Corp. (Smith) No. 4:11cv159, Sept. 28, 2012; USDC at Newport News, Va. VLW 012-3-479, 12 pp.



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