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.
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.
Wagner Law Group
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Employee's ADA and
FMLA Claims Dismissed Due to Attendance Issues
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.
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.
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
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.
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.
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.
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.
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.
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.