Wagner Logo

Follow us on Twitter View our profile on LinkedIn Like us on Facebook 




The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and investment management.


Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has seven offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 32 attorneys, senior benefits consultant and five paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process.




Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800


Fax: (202) 969-2568

 800 Connecticut Avenue, N.W.

Suite 810

Washington, D.C. 20006



Tel: (847) 990-9034

Fax: (847) 557-1312

190 South LaSalle Street

Suite 2100

Chicago, IL 60603



Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119 



Tel: (617) 532-8080

Fax: (617) 532-9090

55 Old Bedford Road

Lincoln, MA 01773







  Employee's ADA and FMLA Claims Dismissed Due to Attendance Issues


April 12, 2018




In Wolf v. Lowe's Companies, Inc., a federal district court in Texas dismissed a former employee's Americans with Disabilities Act ("ADA") Family and Medical Leave Act ("FMLA") discrimination claims due to the employee's chronic, excessive attendance issues and poor performance.


Law. The ADA prohibits employers from discriminating against an "otherwise qualified" employee on the basis of a disability. To establish a prima facie case of ADA discrimination, an employee may either: (i) present direct evidence of the discrimination; or (ii) proceed under the burden-shifting analysis provided by the Supreme Court in McDonnell Douglas v. Green.


NOTE: Under McDonnell Douglas, the employee must show that: (i) she had a disability; (ii) she was qualified for the job; and (iii) there was a causal connection between the adverse employment action and her disability.


FMLA protects employees from retaliation or discrimination for exercising their leave rights under the law. To establish a prima facie case of FMLA retaliation, the employee must show: (i) she engaged in protected activity; (ii) the employer took an adverse action; and (iii) a causal link between the protected activity and the adverse employment action.


Facts. The employee worked as a salesperson for the employer from 2005 until her termination in August 2014. Near the end of her time with the employer, the employee alleged that she became ill and was diagnosed with a litany of ailments (e.g., major depressive disorder, attention deficit disorder, cerebral palsy, polyarthritis and fibromyalgia) that affected her work attendance. In early 2014, the employee disclosed her illnesses to her supervisor and requested intermittent FMLA leave to manage her ailments. To support her request for FMLA leave, the employee provided two doctor's notes to the employer's human resources department. The employer, in turn, granted the employee's request for FMLA leave.


Before informing the employer of her illness, the employee had received a disciplinary "final notice" at the end of 2013, because of her excessive attendance problems. Moreover, the employee was warned through several past performance evaluations and notifications about her excessive absenteeism dating back to 2005. In addition to her attendance problems, the employee failed to update her accounts and worked outside of scheduled hours without permission.


After being terminated from employment in August 2014, the employee sued the employer claiming that she was terminated due to her illness and that the employer had engaged in disability discrimination under the ADA and FMLA.


District Court. In reviewing the case, the court found that the evidence presented confirmed that the employee was excessively tardy and absent from work during the entire duration of her employment. The court noted that the Fifth Circuit Court of Appeals had previously held that because regular attendance is an essential job function, a plaintiff who is excessively tardy and absent from work is not qualified to perform her job and, therefore, cannot prevail on an ADA claim. In the instant case, the court observed that the evidence revealed that the plaintiff was also deficient in completing her assigned work and that an essential element of any job is the ability to appear for work and to complete assigned tasks. Accordingly, the court ruled that the employee was not qualified to perform her job and, therefore, could not prevail on her ADA discrimination claim.


The court next reviewed the employee's FMLA claim, finding that the only evidence of retaliation presented by the employee was the temporal proximity between the her use of FMLA leave and her termination. The court noted that the employer had placed the employee on multiple performance improvement plans and then terminated her employment four months after she had requested and received intermittent FMLA leave. The court concluded that temporal proximity between protected activity and the alleged adverse employment action, by itself, was insufficient to establish causation.


Employer Takeaway. Wolf serves as a reminder that employers can hold employees responsible for violations of work rules, even when employees have exercised their rights under the ADA and FMLA.




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.