EDVA: Separation was due to absences, not disability

Although the plaintiff’s employment was terminated a matter of days after she disclosed her disability, her much-longer history of excessive absences — unrelated to her disability — constituted a legitimate, nondiscriminatory reason for separation.

Background

On April 22, 2013, Plaintiff Rachel Watson began work on a probationary basis as a mental health therapist for the Fairfax-Falls Church Community Service Board. She specifically worked for its Wraparound Program, which provides intensive support for high-risk youths.

Shortly after beginning work, Watson began taking annual leave, sick leave, and leave without pay for a variety of medical and non-medical reasons. In total, she took 132 hours of leave during the first 31 weeks of her employment with the Board. As a result, she failed to conduct some weekly meetings with clients, cancelled some scheduled meetings, and missed required documentation deadlines. She also frequently arrived at work late, claiming that traffic made it difficult for her to arrive at the scheduled start time. Her attendance issues were noted as a problem at her six-month review.

In November 2013, Watson began to experience symptoms that would eventually be diagnosed as diabetes. She suffered from fatigue, blurred vision, extreme headaches, impaired cognitive abilities, and digestive problems. As a result, she had difficulty driving, standing for long periods, and completing daily life activities.

In March 2014, in preparation for Watson’s year-end probationary evaluation, her supervisor, Jacqueline Sott, conducted a review of Watson’s documentation and database entries. She concluded that 32 percent of Watson’s documentation was submitted late and 25 percent was not submitted at all. Sott shared these results with the program manager, noting that Watson was not meeting the demands of her job and was not meeting with families as required. Accordingly, Sott said she could not recommend a transition for probationary status to merit-employee status.

Around the same time, Watson’s medical condition worsened. She was extremely tired, could barely get out of bed, and had difficulty driving. She was diagnosed with diabetes on March 25, 2014. The next day, Watson told Sott about her diagnosis and requested to discuss potential accommodations.

Separately, on April 1, 2014, Sott told Watson that her work was unsatisfactory and that her attendance was unacceptable. The Board’s human resources department determined that, during the past 11 months, Watson had been using leave faster than she was earning it. The Board’s leadership convened to discuss Watson’s employment status, and they agreed that separation was appropriate, given the extent of her excessive absences over the course of her probationary year. The Board terminated Watson’s employment on April 18, 2014.

Watson then filed this suit asserting three claims under the Americans with Disabilities Act: discriminatory discharge, failure to accommodate, and retaliation.

Discriminatory discharge

The undisputed facts show that Watson has not demonstrated that she was a “qualified individual” for her position who was fulfilling the legitimate expectations of her employer. Specifically, she was not meeting her job’s attendance requirements. Watson missed almost six weeks’ worth of work in her 12 months of employment, and the Board noted her attendance issues several times, including by rating her attendance as “unacceptable” in her six-month review. Watson’s separation memo cited attendance as well as documentation problems, another issue that had been raised previously.

As in the case of Tyndall v. Nat’l Educ. Ctrs., a year’s worth of efforts to accommodate Watson by permitting her to work late, leave early, and take leave did not improve her attendance. In addition, no accommodation of Watson’s disability could improve her attendance because the majority of her absences didn’t relate to her disability, but rather to her daughter’s illness or other personal reasons.

Watson also failed to adduce evidence showing that she was meeting the legitimate expectations of her employer. After Watson took 132 hours of leave in her first six months, Sott warned her that her attendance was unacceptable. After that, Watson took leave at an even higher rate. Because of three absences, Watson missed documentation deadlines, did not schedule required client meetings, and missed meetings that were scheduled — failing to satisfy the core responsibilities of her position.

Accordingly, although Watson’s employment termination closely followed the disclosure of her disability to her supervisors, she has not established a prima facie case for discriminatory discharge under the ADA.

Even if Watson had established a prima facie case, she has failed to rebut her employer’s legitimate, nondiscriminatory reason for separation. As already discussed, Watson was terminated for attendance problems and failure to comply with her employer’s documentation requirements. Both these issues were raised at her six-month review, prior to Watson’s disclosure of her diabetes diagnosis. Watson points out that her separation memo referenced “personal and medical issues,” but the Board’s human resources staff testified that the “medical issues” referred to Watson’s daughter’s health problems; Watson herself conceded that she understood the reference the same way.

Watson also notes that her termination followed closely in time from the disclosure of her diagnosis, but the Board’s explanation — that Watson’s probation period was about to end, and the Board was required to give her ten days’ separation notice — is entirely consistent with other evidence in the record. Because of this intervening event that explains the close proximity of Watson’s diagnosis and her termination, such proximity alone cannot establish that the Board’s legitimate reason for separation was a pretext for discrimination. For the same reason, Watson’s retaliation claim does not survive summary judgment.

Finally, Watson argues that, since this litigation began, the Board has offered two justifications for termination — poor performance and falsification of records — that it did not offer at the time of her termination; this, she says, suggests the reasons offered at the time were pretextual. But here, despite the Board’s reference to other performance issues, its explanation for the termination has never shifted from its focus on attendance.

In light of this record, the Board is entitled to summary judgment on Watson’s discriminatory discharge claim.

Accommodation

Watson’s failure-to-accommodate claim is similarly thwarted by her inability to satisfy her employer’s attendance requirements. Moreoever, an employer is not required to accommodate a disability by excusing past misconduct even when that misconduct might have been caused by the disability. The 4th Circuit has made clear that an employer is not required to give its employee a “second chance” as an accommodation when she has already engaged in a long period of misconduct. Here, the Board did not unlawfully fail to accommodate Watson by refusing to ignore her year-long pattern of excessive absences, even where some of these may have been the result of a disability.

In sum, the undisputed record evidence shows that, as a result of excessive leave taken during the 12 months she worked for the Board, Watson failed to hold required meetings with clients, regularly missed documentation deadlines, and was not satisfying the requirements of her job. Therefore, the Board decided to terminate her employment before her probationary period expired, based on her excessive absences. Because Watson has adduced no record evidence to suggest that this reasoning was a pretext for discrimination, the Board is entitled to summary judgment on all three of Watson’s ADA claims.

Watson v. Fairfax Cty., Va., Case No. 1:17cv694, Feb. 28, 2018. EDVA at Alexandria (Ellis). VLW No. 018-3-062, 25 pp.