|Title||When Dismissal, ADA, and FMLA Intersect!|
|Author/s||Thomas J. Cathey EdD|
|Preview||When Dismissal, ADA, and FMLA Intersect!|
When Dismissal, ADA, and FMLA Intersect!
Heather Bernard was a teacher at Bishop Nolan Episcopal Day School (EDS) for 14 years before being terminated from the school. Like all teachers at EDS, Ms. Bernard was employed with a contract each year. Ms. Bernard was the lead teacher in the three-year-old program at EDS. At the end of the school year, Ms. Bernard met with the principal, Reverend Frances Kay, to discuss her goals for the upcoming year. One of her major goals was a health goal that included seeing a doctor about her weight-loss issues related to an eating disorder.
In the summer before the upcoming school year, Ms. Bernard "e-mailed the vice principal of EDS to inquire about sick leave, so she could receive medical attention for her eating disorder." The vice principal informed Ms. Bernard that "she had 16.75 sick days to begin the year, followed by one month of full pay for September, then one month of one-half pay for October, and finally, one month of one-third pay for November." Nothing about Family and Medical Leave was mentioned in the e-mail discussing Ms. Bernard's leave availability. Ms. Bernard began her leave in mid-August and "sought treatment for her eating disorder."
"A few months later, Ms. Bernard received 'return to work' releases and returned to work" in early October. Ms. Bernard's nutritionist " 'cautiously agreed' to allow her to return to work and noted that the release came with 'strict guidelines.' " Similarly, Ms. Bernard's counselor provided her with "a release subject to three conditions: (1) continuing to receive regular treatment from all members of the team, (2) continuing to make progress with her eating disorder, and (3) continuing to have lab and blood work monitored. [Ms. Bernard] agreed to return to work under those conditions and also agreed to have her medical providers give [the school] updates on whether or not she was complying with the prerequisites for her return to work."
The day after Ms. Bernard returned to work, she had an appointment with her nutritionist, who told Ms. Bernard that she was " 'below expectation' in meeting the required goals for her release to work. [Ms. Bernard] voluntarily provided the principal with a note from her nutritionist indicating that she was not meeting expectations." Next, later in October during an appointment with her counselor, Ms. Bernard "was informed that her medical team was discontinuing her treatment because she still continued to lose weight. [Ms. Bernard] did not return to work after her appointment, which was on a Friday, or on the following Monday or Tuesday." The school then terminated her on Wednesday.
Ms. Bernard then filed a lawsuit against EDS and alleged that EDS "committed violations of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), and breached its employment contract with her." EDS then filed a motion for summary judgment on all claims. (A summary judgement asks the court to just dismiss the charges right away without a court hearing because of a lack of genuine evidence.) Did the school violate Ms. Bernard's ADA and FMLA rights in its dismissal of her? Did the school violate and breach her contract? You be the judge.
Bernard v. Bishop Noland Episcopal Day School, Civil Action No. 2:13-CV-3284
Ms. Bernard asserted that Bishop Nolan Episcopal Day School (EDS) violated the Americans with Disabilities Act (ADA) in three ways: "(1) for terminating [Ms.] Bernard because EDS regarded her as disabled; (2) for terminating [her] before discussing a reasonable accommodation; and (3) for terminating [her] without providing her with sufficient notice of her rights under the ADA." EDS argued that Ms. Bernard "failed to allege that she was disabled and ... failed to identify any reasonable accommodation that she was denied."
To prove "a prima facie case of disparate treatment under the ADA, the plaintiff must show that: (1) she had a disability within the definition of ADA; (2) she was qualified and able to perform the essential functions of the job; and (3) she suffered an adverse employment action because of her disability ... The ADA defines a 'disability' as 'a physical or mental impairment that substantially limits one or more major life activities of [an] individual; a record of such impairment; or being regarded as having such an impairment.' " To meet the requirement of "being regarded as having such an impairment," an individual must establish that "she has been 'subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.' "
Ms. Bernard presented evidence of a disability and an adverse employment action on the basis of that disability. Her termination letter explained that it was the view of Reverend Kay that Ms. Bernard was no longer able to "model good health" nor possessed the requisite "energy and strength." The termination letter also stated that Reverend Kay did not believe that Ms. Bernard was capable of performing "in accordance with the Characteristics of Professional Excellence expected of all EDS Faculty."
"Under the 2008 amendments to the ADA, [Ms.] Bernard only [needed] to allege that she was subjected to a prohibited action because of an actual or perceived mental or physical impairment." Ms. Bernard had been told "she was terminated based on Reverend Kay's perceptions about [her] abilities to physically perform and to model good health." Viewed in the most favorable light to Ms. Bernard, the court stated that this established that Reverend Kay believed that Ms. Bernard "had a physiological impairment that prevented Ms. Bernard from performing her job and terminated her on that basis." The court determined that this was "sufficient to establish a prima facie case of discrimination on the basis of perceived disability."
However, Ms. Bernard also needed to establish that she was a qualified individual under the ADA. "A 'qualified individual' is 'an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position such individual holds or desires.' " For Ms. Bernard to avoid summary judgment, she had to show "that (1) she could perform the essential functions of the job or ... (2) that reasonable accommodation would have enabled her to perform the essential functions of her job."
Ms. Bernard did not show "that she could perform the essential functions of her job at the time of her termination." Ms. Bernard's return to work was subject to three conditions previously mentioned. She had also acknowledged that her medical team had dismissed her in October "and that it was her understanding that she was no longer allowed to go back to work. She agreed that, prior to receiving her termination letter; she did not know when she was going to be permitted to return to work."
However, Ms. Bernard also stated that when she did return to work that "she did not consider herself to be disabled and that there were no functions of her job that she felt she could not complete." She had "explained that she felt that she fulfilled all of her duties in the classroom effectively and without limitation or difficulty." While she asserted that she felt well enough to work, it is clear "that she was not meeting the conditions placed on her return to work, namely that she continue to receive treatment from her medical team." Because she did not have the ability to appear for work on the basis of "the revocation of her return-to-work release," Ms. Bernard was not able to "show that she could perform all the essential functions of her job." She was also unable to show that she could perform the essential functions of her job with reasonable accommodations. Therefore, the court concluded that Ms. Bernard "was not a 'qualified individual' at the time of her discharge." The court stated that FMLA is not a reasonable accommodation under the law. At the time of discharge, Ms. Bernard had no idea of when she would be permitted to return to work. The court also stated that "an employer is not required to grant indefinite leave as a reasonable accommodation." Therefore, the court granted summary judgment on the ADA claim.
The second charge by Ms. Bernard was that EDS terminated her with making a reasonable accommodation for her. "Discrimination also includes the failure to make 'reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability... unless such covered [employer] can demonstrate that the accommodation would impose an undue hardship.' To prevail on a failure-to-accommodate claim, the plaintiff must prove: '(1) the plaintiff is a "qualified individual with a disability"; (2) the disability with its consequential limitations was "known" by the covered employer; and (3) the employer failed to make "reasonable accommodations" for such known limitations.' " A "failure of the plaintiff to request accommodation will preclude the plaintiff from establishing a prima facie case of failure to accommodate under ADA."
Ms. Bernard admitted that she did not consider herself disabled, so she was unable to establish that she was a qualified individual with a disability. Further, it was clear that Ms. Bernard "never asked for an accommodation." Because of those two things, there was no case of failure to provide an accommodation under ADA. Therefore, the court again granted the motion for summary judgment on the charge of failure to offer an accommodation.
A third charge in the case was that EDS failed to provide notice of rights under ADA. Federal law requires every employer to post notices describing the provisions of ADA, and these notices must be placed in "conspicuous places." However, there is "no private cause of action to enforce the posting requirements." Therefore, the motion for summary judgment as to Ms. Bernard's notice claim under the ADA was granted.
The next set of charges brought against EDS by Ms. Bernard had to do with the Family and Medical Leave Act (FMLA). "The FMLA entitles an eligible employee to take up to 12 work weeks of [unpaid] leave in a 12-month period when the employee has a serious health condition that makes her unable to perform the duties of her position ... After a qualifying absence, the employer must restore the employee to the same position previously held by the employee before taking leave under the FMLA." Under the law, it is unlawful for an employer "to interfere with, restrain, or deny the existence of or the attempt to exercise any right provided" by FMLA.
Ms. Bernard brought "four factual bases for claims arising from the FMLA: (1) failure to inform [Ms]. Bernard of the availability of unpaid leave; (2) failure to inform [her] of the amount of leave that [she] had available; (3) failure to inform [her] of the procedure to apply for available leave; and (4) termination of [her] employment contract while she had leave available." Ms. Bernard asserted that the first three charges showed that the conduct of the school interfered with her exercise of FMLA rights and that the fourth charge explained "how EDS illegally denied the leave."
For a claim of interference under FMLA, the employee must "prove" her rights were interfered with by establishing that "(1) she was an eligible employee," (2) that EDS was a covered employer under FMLA, (3) "that she was entitled to leave, (4) that she gave proper notice of her intention to take FMLA leave," and (5) that EDS "denied her benefits to which she was entitled to under the FMLA." Three of these were not in contention in this case.
"There are no magic words required of an employee to take leave under FMLA." The FMLA does not require an employee to use any special language from the law to gain its protection when notifying the employer of a need for leave for a serious health condition. The employee only needs to provide the employer "with enough information that would reasonably apprise the employer of the employee's request to take time off for a serious health condition." Also the "employer may have a duty to inquire further if statements made by the employee warrant it."
After Ms. Bernard's doctors terminated her care, she e-mailed several people at EDS, "and the e-mail was subsequently forwarded to Reverend Kay." In the e-mail, Ms. Bernard stated that her "team was not allowing her to go back to work" and that she had been "dismissed from the medical team's care." One of Ms. Bernard's coworkers even replied asking if the team's care was discontinued because of her need to go into the hospital. Additionally, Ms. Bernard "e-mailed the business manager at EDS to inquire about her pay options to decide what she needed to do next." That e-mail was also forwarded to Reverend Kay. The school was familiar with her medical condition and "was also aware that discharge from treatment" would prevent her from working. Because of this, the court found the communications "sufficient to create a genuine dispute" that Ms. Bernard provided enough information and notice to EDS that she was planning to take qualifying leave under FMLA. The school in most cases should have somewhere along the line asked her if she wanted to use her FMLA leave for this time.
The court found that Ms. Bernard was denied benefits under FMLA. "The FMLA not only provides for 12 weeks of unpaid leave in a 12-month period" but it also requires the employer to restore her back to her former position or a similar position with the same pay and benefits at the end of the leave. Ms. Bernard did receive the money and benefits she was entitled to, but she also had the right to be reinstated at the end of the FMLA leave. Even though the school terminated her, it did not dispute that Ms. Bernard had available FMLA leave time. Ms. Bernard "was not offered her old position when she attempted to return to work; she was offered a position as a substitute teacher." Therefore, the court concluded that Ms. Bernard had a genuine dispute that EDS interfered with her rights under FMLA. The court denied the school's motion for summary judgment in this claim.
Lastly, an employer must have posted notice regarding the employee's rights to FMLA. The school admitted that it did not have FMLA rights posted and also admitted that Ms. Bernard was never given notice of her rights under FMLA. So the school's motion for summary judgment on the claim for failure to notify Ms. Bernard was denied.
Bernard v. Bishop Noland Episcopal Day School, No. 2:2013cv03284 - Document 37 (W.D. La. 2015)
This case was allowed to go forward for trial on the failure of the school to notify Ms. Bernard regarding her FMLA rights and interference with her FMLA rights by not restoring her to her original position.
This case is an example of why Christian schools must understand the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). In many cases, these two laws intersect, and the school must be careful not to discriminate on ADA while making sure the employee understands his or her rights under FMLA. In this type of case, the school should always seek legal counsel before terminating an employee.
When an employee claims a disability under ADA, the first thing the school should do is enter into an interactive discussion with the employee. The school should seek to determine if it can provide a reasonable accommodation to allow the employee to do the essential functions of the job description. ACSI recommends that the school use an ADA interactive questionnaire.
Then when an employee wants time off for a serious health condition, if the school has over 50 employees, the first thing the employer should think of is the Family and Medical Leave Act. The employee does not have to mention FMLA; it is the burden of the employer to recognize the issue and bring up the discussion on FMLA benefits.
Because of space, this article cannot go into more details about ADA or FMLA. However, ACSI has extensive articles on both these laws, and those can be obtained by contacting the Legal/Legislative Department at firstname.lastname@example.org.
[Editor's Note: This case did eventually go to trial, and the results were published after this article was written. Other factors came out in the trial to show that the school would have dismissed Ms. Bernard regardless of her request for leave. The school was able to show that Ms. Bernard had failed to meet the "characteristics of professional excellence." The school's handbook stated that all its teachers were to exemplify these characteristics, and Ms. Bernard failed in several areas. The school was also able to show that it had the information in about FMLA leave in the handbook, and Ms. Bernard was aware of what was in the handbook. The court ruled in favor of the school. Again, Christian schools should be sure to have a list of essential functions in the job description that employees are expected to be able to accomplish to remain employed, and schools should ensure that things such as FMLA are in the employee handbook and that the employees are aware of their rights under the law.]
Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.
Association of Christian Schools International
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