Regular Attendance at the worksite can be an essential job function, the U.S. 8th Circuit Court of Appeals (whose rulings apply to all Minnesota employers) recently reminded employers, upholding the termination of an employee who had violated the employer’s attendance policy. As a result, the former employee can no longer pursue her Americans with Disabilities Act (ADA) or Family and Medical Leave Act (FMLA) claims.
Cooperative Response Center (CRC) services electric utilities and monitors security and medical alarms throughout the country. In 2004, it hired Tori Evans, and she became the sole office assistant at the firm’s Austin, Minnesota, office in 2012. In March 2017, she was fired for violating the company’s “no-fault” attendance policy.
Under CRC’s policy, regular attendance is deemed an “essential job function” for all employees. Unauthorized and unexcused absences that aren’t eligible for Family and Medical Leave Act (FMLA) leave generate “points,” which progressively lead from verbal warnings up to termination (if an employee receives 10 points in a rolling 12-month period).
In April 2016, Evans was diagnosed with reactive arthritis, an autoimmune disease with symptoms including gastrointestinal illness, oral lesions, and joint pains. Her doctor advised CRC she would need a half day off once or twice per month to attend medical appointments and a full day off once or twice per month to deal with recurring arthritic flare-ups.
CRC approved Evans for up to two full days and two half days of intermittent FMLA leave per month. The company advised, however, “absences above and beyond the FMLA approved frequency” would be eligible for points.
Evans took intermittent FMLA leave over the succeeding months. On 11 days, however, she received a point after being denied the leave. The points led to her termination in March 2017 for “excessive absences in violation of the company’s attendance, employee conduct, and work rules policies.”
In February 2018, Evans filed suit alleging the termination violated her rights under the ADA and the FMLA. The U.S. District Court for the District of Minneapolis granted summary judgment to CRC, dismissing all of the claims without a trial. She then appealed to the 8th Circuit.
8th Circuit’s decision
ADA claim. The 8th Circuit addressed Evans’s ADA claim under the familiar McDonnell Douglas burden-shifting framework. That is, she had to establish a prima face (or minimally sufficient) case by showing (1) she was disabled within the meaning of the Act, (2) she was qualified to perform the essential job functions with or without a reasonable accommodation, and (3) a causal connection existed between the disability and the adverse employment action.
The 8th Circuit found Evans couldn’t satisfy the second element. That is, she couldn’t perform the essential functions because she couldn’t come to work on a regular and reliable basis. The appeals court has consistently held:
- “Regular and reliable attendance is a necessary element of most jobs”; and
- “An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones.”
CRC’s policy stated regular attendance is an “essential job function.” In addition, Evans’ job description listed tasks such as answering phones and greeting visitors, which she could perform only when physically present at the office. For years before her termination, the company had warned her unexcused absences were “unacceptable” and placed additional burdens on coworkers who had to cover for her.
CRC wasn’t obligated to reassign existing workers to assist Evans with her essential duties. Accordingly, summary judgment was proper to dismiss the ADA claim. After all, the evidence showed she was “unable to perform the essential functions.”
FMLA claims. Evans argued CRC interfered with her FMLA leave benefits by assessing unexcused-absence points when she was entitled to take the leave (her “entitlement claim”). She also alleged the company discriminated and retaliated against her for seeking and taking the FMLA benefits (the “discrimination claim”).
The 8th Circuit found the entitlement claim failed because on the dates when Evans was assessed points, she failed to provide the required notice she wanted to use FMLA leave to cover the absences. For example, on multiple occasions, she failed to call her supervisor or HR to notify them she was seeking FMLA leave. On another day, she never mentioned the illness that caused her to be absent was related to her FMLA leave or her reactive arthritis.
In addition, Evans consistently requested FMLA leave beyond the days certified by her doctor, yet never attempted to increase the amount of intermittent FMLA leave CRC had approved. In fact, after assessing Evans points on several days for exhausting her monthly leave allowance, the company faxed her doctor a new FMLA form, asking him to recertify the frequency and duration of her condition so it could determine whether she needed additional leave.
Evans’ doctor returned the form a couple weeks later, directing CRC to “refer to prior FMLA form” for the times she would need to be absent because of the flare-ups. As a result, the court stated the employer wasn’t obligated to grant the additional leave.
Evans also argued CRC inappropriately gave her points when she missed a week of work because of her “knee giving out.” The court disagreed, finding no evidence to support her claim that her knee “giving out” was related to her reactive arthritis, the condition for which she was FMLA-certified. Because the employer didn’t unlawfully deny FMLA leave for any of the point-bearing absences she challenged, the court affirmed summary judgment dismissing the entitlement claim.
Lastly, the court turned to Evans’ FMLA discrimination claim. To prevail, Evans had to produce either direct evidence of CRC’s discriminatory animus or indirect evidence using the McDonnell Douglas framework:
- Evans claimed CRC’s assessment of points for absences covered by her FMLA leave was sufficient direct evidence of discrimination. The court disagreed, stating “assessing unexcused absence points consistent with CRC’s Attendance and FMLA policies isn’t, without more, sufficient to support a finding that discriminatory animus motivated Evans’s decision.”
- Under the indirect evidence paradigm, the court held Evans failed to show a causal connection between her FMLA leave requests and the termination because too much time (eight months) elapsed between her first request and the discharge. Also, she had successfully used FMLA leave on many occasions between the time her reactive arthritis was first diagnosed and the termination.
In sum, Evans failed to meet her burden to show CRC’s legitimate nondiscriminatory reasons for firing her (i.e., accumulating 10 points of unexcused absences) was pretextual, or a cover-up for discrimination. Accordingly, her FMLA discrimination claim failed, too. Evans v. Cooperative Response Center, Inc., No. 19-2483 (8th Cir., May 4, 2021).
Evans’ case is a good reminder that regular attendance at the physical worksite can be an essential job function. The point may be especially important as you begin bringing employees back to the office who have been working remotely during the COVID-19 pandemic. Another important lesson is you can require employees to follow reasonable absence-reporting procedures for time off to be protected under the FMLA.
David Richie is an attorney with Felhaber Larson in Minneapolis, Minnesota. You can reach him at [email protected]ber.com.
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