Terminating diabetic employee for abandoning call center post was not discriminatory

A hospital employee suffering from diabetes and migraines, but with a history of performance and disciplinary issues, did not present genuine issues of material fact to support her contention that her termination for abandoning her call center post was pretextual, a federal court in Pennsylvania held. The court granted summary judgment to Temple University Health System against the employee’s ADA, FMLA, and state-law claims.
The employee worked the night shift in the hospital’s 24-hour call center. She was required to send and receive calls within the hospital system, including calls paging doctors, checking on patient status, and fielding general inquiries. She also was responsible for handling “STAT” or emergency calls for urgent patient care or for security issues. Her job was “extremely significant,” the court noted, because patients’ lives could depend on call-center specialists being at their posts and fulfilling their duties.

Medical conditions.

The employee suffers from migraines, making her sensitive to lights and computers and causing throbbing and dizziness. She also has diabetes and, in March 2015, was diagnosed with a life-threatening form of the disease. Her supervisors were aware of her medical conditions and, throughout her time working for the hospital, she requested and received FMLA leave. After being hospitalized between March 20 and April 6, the employee was granted intermittent FMLA leave from April 7 through October 7. There was no policy requiring her to find other employees to cover her shift when taking intermittent leave, and she knew there was no such policy, but she attempted to do so, saying she felt pressured to do so by her supervisors, who would ask if there was coverage when she requested leave. She admitted that none of her supervisors directed her to find coverage, and that she took leave even when she had not found another employee to cover for her.

Performance problems.

There was no dispute the employee had a history of poor performance and disciplinary issues throughout her employment, based on failing to follow protocols when handling calls (including STAT calls), providing incorrect information to patients, committing numerous scheduling and registration errors, and excessive lateness. At the time of her termination, she had received written warnings, including a “final written warning” due to errors on calls. In a review of time logs in July 2015, one of her supervisors noted a pattern of the employee not returning from breaks on time and not logging into the phone. Three days later, she failed to return from break on time and was discovered in a conference room, slumped in a chair, under a blanket with the lights off. The parties dispute whether she was asleep.
She was terminated for job abandonment and unauthorized sleeping on duty-misconduct that subjected her to termination under hospital policy. She sued the hospital for ADA, FMLA, and state-law violations, alleging that it failed to provide her a reasonable accommodation, discriminated and retaliated against her, and interfered with her rights under the FMLA.

Failure to accommodate.

The court granted summary judgment in the hospital’s favor on the employee’s ADA claims for failure to engage in the interactive process and failure to accommodate. She admitted she did not expressly request accommodations or assistance with her disability but she argued that she provided the hospital with sufficient information to put the hospital on notice that she required accommodation, thus triggering a duty to engage in the interactive process. The court rejected the argument.
The employee first argued that an incident when one of her supervisors helped her obtain a shortened wait time while she was at the emergency room put the hospital on notice of her desire for an accommodation. But “kind acts” undertaken out of a genuine personal desire to help the employee do not equate with “[m]odifications or adjustments to the work environment” enabling the employee “to perform the essential functions of [her] position” under 29 C.F.R. §1630.2(o)(1)(ii), the court held. These acts, therefore, were irrelevant to her claim.
Further, the fact that the hospital granted her requests for FMLA leave throughout her employment cannot be used to create a genuine dispute of material fact regarding whether it failed to provide reasonable accommodations or otherwise engage in the interactive process. While she contended that “extra time in the bathroom” or allowing her to nap at work could have been reasonable accommodations, the employee admitted that she never asked for such accommodations. Quoting EEOC Enforcement Guidelines to the effect that reasonable accommodation is always prospective, and an employer need not excuse past misconduct even if it results from a disability, the court held that the hospital was not required to excuse the employee’s unauthorized breaks because she now asserts that this conduct was necessitated by her disability and could have been a reasonable accommodation.

ADA discrimination.

The court also granted summary judgment to the hospital on the employee’s ADA discrimination claim, finding that the hospital terminated her for a legitimate, nondiscriminatory reason: sleeping on duty, which is job abandonment. The court noted that the call center job was an “extremely important and responsible position” since failing to be at one’s post can place a patient’s life at risk. And while the employee argued there was a material dispute whether she was in fact asleep in the break room, the issue was “beside the point” since she had abandoned her post, the court held.

FMLA retaliation.

The employee indisputably invoked her right to FMLA leave and the court assumed that her request for leave constituted a reasonable accommodation request, which is ADA-protected activity. Even though there was no dispute that she suffered an adverse employment action, she failed to raise a genuine issue of material fact that her termination was caused by protected activity. Rather, her termination was for performance issues, in particular abandoning her post, and there was no evidence this reason was pretextual. Therefore, the court granted summary judgment to the hospital on her retaliation claim.

FMLA interference.

The employee argued that her supervisors interfered with her FMLA leave by asking whether someone was covering the call center when she called in absent from work for intermittent FMLA leave. The court held otherwise, noting that hospital policy did not require her to find coverage and, to the extent she did so, it was voluntary. In addition, she admitted to staying home even when she did not find another employee to cover her shift. She also claimed that a now-deceased supervisor once denied a request for leave because there was no coverage for her shift. Because there was no documentation of that denial-only the employee’s self-serving testimony about the conversation-there was insufficient evidence to raise a triable issue of fact.

SOURCE: Arana v. Temple University Health System, (E.D. Pa.), No. 2:17-cv-00525-HB, May 3, 2018.
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