Full-time presence may not be essential function, so fired HR rep whose postpartum depression delayed return to full time may take claims to jury

Emphasizing the harsh reality that “people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged … economically,” and that in passing the ADAAA, Congress reasserted its goal to provide “clear, strong, consistent, enforceable standards” to implement “a comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” the Sixth Circuit reversed summary judgment against the ADA claims of an HR generalist who was fired when severe postpartum depression and separation anxiety delayed her return to full-time employment. The crux of the case was whether she was otherwise qualified for her position. Although the district court concluded as a matter of law that she was not, the appeals court, noting that full-time presence at work is not an essential function of a job simply because an employer says it is, found fact disputes precluding summary judgment. The employee’s Title VII and FMLA claims were also revived.

At the time she was hired, the HR generalist was four-months pregnant. She had been open about her pregnancy while interviewing and was assured her pregnancy would be accommodated and the employer allowed new employees 12 weeks unpaid leave under the FMLA—even if they did not otherwise qualify for such leave.

Depression and anxiety. During the months before her leave, the employee worked more than 40 hours per week. She claimed, however, that the job probably required only 30-35 hours per week and she sought out more work so she could have something to do. After the birth of her child, she took her full 12 weeks of leave, but as the time to return to work approached, she experienced postpartum depression and what her OB/GYN called “one of worst cases of separation anxiety” he had ever seen. Although she was scheduled to return to work full-time at the end of April, she instead returned late the following month on a part-time basis, working five half-time days a week.

Fired. The employee continued to experience depression and anxiety, and if she had to work later than noon, she had panic attacks. Nonetheless, she claimed that with her modified schedule she was able to do everything required of her job. Although her employer agreed to accommodate her schedule through the end of June, the employee continued her part-time schedule into July, submitting an updated medical certification in which her doctor stated she should continue to work half days until September. Although she purportedly offered to extend her hours until 2 p.m., she was fired the next day because she was unable to return to her HR generalist position in a full-time capacity.

She then sued, asserting claims under the ADA, Title VII, and the FMLA; the district court granted summary judgment to her employer.

ADA claims. Applying the direct method of proof to the employee’s ADA claims, the appeals court first found no shortage of record evidence supporting her claim she was an individual with a disability under the ADA. Her doctor stated it was one of the worst cases of separation anxiety he had ever seen, she cried almost every time she was in his office, she required prescription antidepressants, and she suffered from severe panic attacks.

Otherwise qualified. As to the district court’s determination that the employee was not as a matter of law otherwise qualified for her position because she could not meet an essential function of her job—full-time work—the appeals court noted her testimony that she completed all her work on time, including training, employee relations, and recruiting, and a coworker stated that she was “unaware of any human resources issue, program, or assignment of any kind that the Department failed to complete professionally and timely during the same period.” In addition, she received a performance review while working part-time that was very positive; her supervisor stated that the employee never failed to timely complete a task or meet a responsibility.

Full-time presence required? But her supervisor also stated that she was overwhelmed as the only one in the office to handle employees who showed up unexpectedly to talk about an issue, that some planning responsibilities dropped through the cracks, and that the employee’s absence was putting a strain on the department. Given this competing evidence, summary judgment was improper, the court stated, noting that on its own, full-time presence at work is not an essential function and that an employer must tie time-and-presence requirements to some other job requirement.

While the employer may have preferred that the employee be in the office 40 hours a week, and it may have been more efficient and easier on the department if she were, “those are not the concerns of the ADA,” said the court, explaining that “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.”

Interactive process. Turning to the district court’s ruling that the employer satisfied its duty to engage in the interactive process because the employee’s supervisor met with her four times shortly before she was fired, the appeals court found it was unclear what was discussed during those meetings. Noting evidence that the supervisor told the employee she needed to return to full-time work during only one of those meetings, plus the employee claimed her supervisor ignored her suggestion she extend her working hours past noon as a way of moving back to full-time work, the court found summary judgment improper on this claim as well.

Title VII claims. Summary judgment against the employee’s Title VII sex/pregnancy claim was also improper. While the lower court, relying on its determination that the employee could not satisfy an essential function of her job, found the employer had a legitimate, nondiscriminatory reason to fire her, and she failed to show pretext, it wrongly concluded that full-time presence was an essential function of her position. Because fact disputes remained on that question, a jury could find the employer’s proffered reason for firing the employee had no basis in fact or did not actually motivate the action. Further, the employee pointed to two coworkers who received longer periods of medical leave for non-pregnancy conditions who were not fired.

FMLA claims. As to the employee’s FMLA claims, although the district court assumed she was eligible under the Act, it concluded that she had been on leave longer than the FMLA allowed and was not entitled to additional leave. It failed, however, to analyze whether equitable estoppel should foreclose that conclusion, said the appeals court, because equitable estoppel can prevent a defendant from challenging not only FMLA eligibility, but also entitlement to an FMLA benefit.

Here, there was evidence that throughout their communications, the employer treated all of the employee’s leave—even that beyond what was required by the statute—as FMLA-eligible. There was also evidence the employee relied to her detriment on her employer’s misrepresentation that she was FMLA-eligible. While the employer argued that she could not have believed her leave was protected by the FMLA, this issue was fact-specific and was not addressed by the district court. Thus, the appeals court remanded this claim to the court below.

SOURCE: Hostettler v. The College of Wooster, (CA-6) No. 17-3406, July 17, 2018.
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