27 No. 1 Disability Law Compliance Report NL 2

Disability Law Compliance Report


January 2019

Volume 27, Issue 1

Disability Law Compliance Report


In Jones v. Metropolitan Water Reclamation District of Greater Chicago, 2018 WL 1508529 (N.D. Ill. 2018), the United States District Court for the Northern District of Illinois held that an employer did not violate the FMLA when it terminated a probationary employee after she notified it she needed time off for a workplace injury.

Key Facts

  • • Monica Jones was hired by the Metropolitan Water Reclamation District of Greater Chicago (MWRD) as a diversity officer beginning on September 8, 2015.

  • • Regina Berry, diversity administrator of MWRD, was Jones’ immediate supervisor.

  • • On Friday, July 15, 2015, Jones was in the office elevator when a coworker carrying an oversized display case struck her in the chest, causing Jones to suffer serious chest contusions.

  • • Over the ensuing weeks, Jones needed time off relating to this injury.

  • • Also during this time, Berry began to conclude that Jones’ work performance was unsatisfactory.

  • • On Thursday, July 28, Jones experienced sharp pain during work and scheduled an emergency doctor’s appointment. The doctor issued a “Patient Status Report” recommending she take off two weeks of work to recover from her injury.

  • • Jones emailed Berry a copy of the report that night. The email to Berry explained:

    My doctor is not allowing me to return to work for the next two weeks. I have a attached a soft copy for your review. Do I need to fill out FMLA paperwork for this time? Or is it notated that the Workers Comp claim is in process? Or is this marked as a medical necessity and for time used?…

  • • Jones then called Berry and left a voicemail about the doctor’s note, the need for time off, and initiating the FMLA process.

  • • Jones did not work from Friday, July 29 through Wednesday, August 3.

  • • On Thursday, August 4, Berry called Jones to inform her she was being fired for “unsatisfactory progress.”

  • • Jones also received a letter from MWRD dated August 4, explaining that Berry had recommended the termination based on Jones’ unsatisfactory services during her probationary period.

  • • September 8, 2016, would have marked 12 months’ employment at MWRD for Jones. Jones’ period of recovery for the work-related injury ultimately lasted until October 22, 2016.

Jones sued MWRD alleging interference and retaliation under the FMLA. MWRD moved to dismiss on the ground that Jones had not worked the requisite time for FMLA coverage.

District Court’s Analysis

The district court started its analysis by setting forth the following general rules under the FMLA:

  • • “Eligible employee” is defined in the statute as an employee who has been employed for at least 12 months by the employer and who has at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C.A. § 2611(2)(A).

  • • The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. 29 C.F.R. § 825.110(d).

In this case, there was no dispute that Jones had not worked for MWRD for 12 months—and therefore was not an “eligible employee”—on July 28, 2016, when she inquired about taking leave. Jones argued, however, that she was nonetheless protected under the FMLA because her request was for future leave, and the FMLA protects a pre-eligibility request for post-eligibility leave.

The district court first noted that while the Seventh Circuit had not directly addressed whether a pre-eligibility request for post-eligibility leave is protected under the FMLA, the United States District Court for the Northern District of Illinois had, in Reynolds v. Inter-Industry Conference on Auto Collision Repair, 594 F. Supp. 2d 925, 14 Wage & Hour Cas. 2d (BNA) 1430, 157 Lab. Cas. (CCH) P 35538 (N.D. Ill. 2009), as amended, (Jan. 22, 2009). In Reynolds, the plaintiff’s wife went into labor on August 8, 2006. The plaintiff took off eight days’ leave and returned to work on August 16, 2006, at which point he requested additional leave starting in November 2006 to help care for his newborn son. The plaintiff was fired the same day. He would have become eligible for FMLA leave on August 25, 2006. The district court held that “under the FMLA, an employer may not terminate an employee who has worked less than twelve months for requesting foreseeable future leave that the employee will be eligible for and entitled to at the time the leave is to begin.” Reynolds, 594 F. Supp. 2d at 930. In reaching its decision, the court looked to the FMLA notice provisions, which require that an employee notify an employer of foreseeable leave. The court reasoned that it would be “illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.” Reynolds, 594 F. Supp. 2d at 928.

The district court next noted that the Eleventh Circuit had reached a similar result in Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 18 Wage & Hour Cas. 2d (BNA) 1003, 95 Empl. Prac. Dec. (CCH) P 44415, 161 Lab. Cas. (CCH) P 35981 (11th Cir. 2012). In Pereda, the plaintiff-employee, Kathryn Pereda, advised the defendant-employer, Brookdale Senior Living Communities (Brookdale), that she was pregnant and would be requesting FMLA leave in the future. When Pereda notified Brookdale of her pregnancy, she had not been employed long enough to be FMLA-eligible, but she expected to be eligible by her due date. Citing performance-related reasons, Brookdale terminated Pereda in early September 2009, before she became eligible for FMLA leave; Pereda brought FMLA interference and retaliation claims against Brookdale. The district court dismissed Pereda’s complaint, reasoning that Brookdale could not have interfered with Pereda’s rights because Pereda was not entitled to FMLA leave at the time she notified Brookdale of her pregnancy. The district court further reasoned because Pereda was not eligible for FMLA leave at the time, she could not have been engaged in statutorily protected activity, as required to bring a retaliation claim. However, the Eleventh Circuit in Pereda reversed the district court’s judgment, holding “a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” Pereda, 666 F.3d at 1275. The Eleventh Circuit explained that narrowly interpreting which employees are protected under such circumstances would “permit an employer to evade the FMLA by blacklisting an employee that the employer suspects is likely to take advantage of the Act. ” Pereda, 666 F.3d at 1275. The Eleventh Circuit further reasoned that, “[u]nder the FMLA an employee need not be currently exercising her rights or currently eligible for FMLA leave in order to be protected from retaliation.” Pereda, 666 F.3d at 1276.


Other courts have held the same. See, for example, Wehrley v. American Family Mut. Ins. Co., 513 Fed. Appx. 733, 742, 28 A.D. Cas. (BNA) 620, 21 Wage & Hour Cas. 2d (BNA) 476 (10th Cir. 2013) (“[G]iving an employer notice of intent to take FMLA leave, at least where the employee qualifies for that leave, is protected activity for purposes of an FMLA retaliation.”); Potts v. Franklin Elec. Co., 153 Lab. Cas. (CCH) P 35186, 2006 WL 2474964, at *3 (E.D. Okla. 2006) (“[W]here the employee, before he or she becomes eligible for FMLA leave, is putting the employer on notice of his or her intent to take FMLA leave after they become eligible for FMLA coverage, logic requires that the FMLA be read to require that the employee be permitted to make a charge against the employer for an adverse-employment action.”); Beffert v. Pennsylvania Dept. of Public Welfare, 10 Wage & Hour Cas. 2d (BNA) 1755, 2005 WL 906362, at *3 (E.D. Pa. 2005) (“Since the FMLA contemplates notice of leave in advance of becoming an eligible employee, the statute necessarily must protect from retaliation those currently non-eligible employees who give such notice of leave to commence once they become eligible employees.”).

The district court then stated that it found these decisions to be persuasive as to their facts:

After all, the purpose of the notice requirements is to protect the employer and allow him to “minimize the disruptive effect of an unscheduled leave on his business.” Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951 (7th Cir. 2004). Denying protection to ineligible employees that give advance notice of FMLA-eligible leave would frustrate this purpose. An employer cannot reasonably expect an employee to provide such notice without protection from retaliation. Therefore, the Court agrees that the FMLA protects a pre-eligibility request for post-eligibility leave.

Nevertheless, the district court concluded that dismissal of Jones’ complaint was required based on the following reasoning:

  • • Jones had not alleged that she made a request for post-eligibility leave—that is, leave to occur during a time in which she would have been eligible for FMLA leave.

  • • When Jones’ doctor recommended that Jones take leave on July 28, 2016, Jones was still five weeks from becoming eligible for FMLA leave.

  • • The facts as alleged show only that Jones requested an immediate two weeks’ leave and mentioned the need for time off generally.

  • • Such requests are not protected. See Basden v. Professional Transp., Inc., 714 F.3d 1034, 1039, 27 A.D. Cas. (BNA) 1580, 20 Wage & Hour Cas. 2d (BNA) 1017 (7th Cir. 2013) (“There can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA.”).

  • • Jones’ failure to show she put MWRD on notice that she was requesting leave to be taken once she became eligible distinguishes her claim from those in the cases she cites in support of her claims. Compare Reynolds, 594 F. Supp. 2d at 926 (plaintiff who would become eligible in August requested time off starting November); Pereda, 666 F.2d at 1271 (plaintiff who would become eligible in October requested leave starting in November); Morkoetter v. Sonoco Products Co., 936 F. Supp. 2d 995, 997 (N.D. Ind. 2013) (plaintiff alleged his employer “knew that [he] had plans to take medical leave after becoming eligible for FMLA leave”) (emphasis in original); Sine v. Rockhill Mennonite Home, 275 F. Supp. 3d 538, 2017 Wage & Hour Cas. 2d (BNA) 258935 (E.D. Pa. 2017) (reasonable to conclude from the facts alleged that the plaintiff was putting the defendant on notice that she was scheduling surgery to take place after her one-year work anniversary).

Accordingly, the district court dismissed Jones’ FMLA interference claim without prejudice.


Jones also argued that the MWRD interfered with her FMLA rights not only by terminating her employment but also by failing to provide her an eligibility notice as required by the regulations promulgated pursuant to the FMLA. The district court concluded that while failure to follow the notice requirements may constitute an interference with employee’s FMLA rights, there can be no interference if Jones had no right to FMLA leave (which was the case here). Darst v. Interstate Brands Corp., 512 F.3d 903, 13 Wage & Hour Cas. 2d (BNA) 265, 155 Lab. Cas. (CCH) P 35385 (7th Cir. 2008). See also Brown v. Pitt Ohio Exp., LLC, 21 Wage & Hour Cas. 2d (BNA) 563, 2013 WL 5221483 (N.D. Ill. 2013) (interference claim based on failure to provide proper notice eligibility failed where employee was not an “eligible” or entitled to right under the FMLA).


As to Jones’ retaliation claim, the district court concluded that Jones failed to allege she was entitled to FMLA protection and, therefore, that she engaged in a statutorily protected activity. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 19 Wage & Hour Cas. 2d (BNA) 737, 162 Lab. Cas. (CCH) P 36053 (7th Cir. 2012) (retaliation claim failed where employee failed to show he engaged in FMLA-protected activity); Smith v. Hope School, 560 F.3d 694, 14 Wage & Hour Cas. 2d (BNA) 1185, 92 Empl. Prac. Dec. (CCH) P 43532, 157 Lab. Cas. (CCH) P 35562 (7th Cir. 2009) (employee could not have been fired for asserting rights under the FMLA where her request for leave was not protected); King v. Ford Motor Company, 2015 WL 5722606 (N.D. Ill. 2015), judgment aff’d, 872 F.3d 833, 130 Fair Empl. Prac. Cas. (BNA) 787, 27 Wage & Hour Cas. 2d (BNA) 813, 101 Empl. Prac. Dec. (CCH) P 45898 (7th Cir. 2017) (retaliation claim failed where employee was not eligible for FMLA protection when she requested leave); Brown, 2013 WL 5221483 at *3 (retaliation claim failed where employee was not “eligible” under FMLA either at time of the request or commencement of the requested leave).


Another relevant case in this context is Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 22 Wage & Hour Cas. 2d (BNA) 318 (11th Cir. 2014). In that case, the plaintiff-employee, Patrick Hurley, had been the CEO of the defendant-employer, Kent of Naples, Inc. Kent of Naples was a subsidiary of Kent Security Services, Inc. Hurley brought FMLA interference and retaliation claims against Kent of Naples, Kent Security Services, and Gil Neuman, the CEO of Kent Security Services, after Hurley was terminated following a dispute with Neuman. The dispute centered around Hurley’s proposed vacation schedule for the next two years, which included 11 weeks of leave. Hurley indicated to Neuman this proposed leave was medically necessary, but the parties had conflicting accounts of whether Hurley specifically mentioned he was suffering from depression and anxiety. At trial, a jury found Hurley was not terminated because he had requested leave, but nevertheless awarded him $200,000 in damages. The defendants moved for judgment as a matter of law, on the ground Hurley’s proposed leave did not qualify for protection under the FMLA, and moved for a new trial or remittitur based on the jury’s inconsistent verdict. The district court denied the motions and entered judgment in Hurley’s favor for a total award of over $1,000,000. Hurley, 746 F.3d at 1165-1166. On appeal, the Eleventh Circuit reversed the district court’s order on the defendants’ motion for judgment as a matter of law, vacated the district court’s judgment, and remanded with instructions to enter judgment in the defendants’ favor. In holding that the defendants were entitled to judgment as a matter of law, the Eleventh Circuit found Hurley had not met his burden of proving his medical conditions qualified for protection under the FMLA, and rejected Hurley’s argument that he could bring FMLA claims without actually qualifying for leave:

[W]e find unconvincing Hurley’s argument that he only needed to provide notice of potentially qualifying leave. We agree with Hurley that the evidence supported a finding that he provided sufficient notice. Under the FMLA, an employee is required to provide notice when the need for leave is foreseeable. 29 U.S.C. § 2612(e). That said, notice is only relevant to an FMLA claim if the noticed leave is protected by the FMLA. Giving an employer notice of unqualified leave does not trigger the FMLA’s protection. Otherwise, the FMLA would apply to every leave request.

Hurley, 746 F.3d at 1165-1166 (alteration added). See also Allen v. Progress Energy, Inc., 15 Wage & Hour Cas. 2d (BNA) 1199, 92 Empl. Prac. Dec. (CCH) P 43495, 2009 WL 425966. At *8 (M.D. Fla. 2009) (granting summary judgment in favor of employer on employee’s retaliation claim because “[e]mployees who are not entitled to FMLA leave may not bring a retaliation claim under the Act based on their attempt to take leave” (alteration added; citations omitted)); Johnson v. Baptist Health South Florida, Inc., 2017 Wage & Hour Cas. 2d (BNA) 204575, 2017 WL 2988275 (S.D. Fla. 2017).

Westlaw. © 2019 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.


27 No. 1 Disability Law Compliance Report NL 2

28 No. 9 Disability Law Compliance Report NL 3

Disability Law Compliance Report


September 2020

Volume 28, Issue 9

Disability Law Compliance Report


In Sample v. Board of Commissioners of Starke County, Indiana, 2020 A.D. Cas. (BNA) 271221, 2020 WL 4194142 (N.D. Ind. 2020), the United States District Court for the Northern District of Indiana held that an employer was not entitled to summary judgment on an employee’s ADA claim where the employee contended that all he needed as a reasonable accommodation was either a short-term light-duty position or a short period of time following the exhaustion of his leave provided under the employer’s policies. The district court did, however, grant the employer summary judgement on the employee’s FMLA claim on the ground that the employee was not harmed by the employer’s alleged misconduct.

Key Facts

  • • Bill Sample worked as a truck driver for the Starke County Highway Department.

  • • On March 15, 2017, Sample sustained a severe arm injury at work, which required surgery and more than six months of follow-up care from an orthopedic surgeon.

  • • Sample’s doctor ordered him off work from March 20, 2017 to May 21, 2017.

  • • After that, the doctor authorized Sample to return to work in a supervisory position only. Highway Department Superintendent Stephen Ritzler identified a possible part-time work crew that Sample could supervise, but the work crew never materialized.

  • • Sample’s employment was terminated six months after the onset of his disability, pursuant to the county’s disability leave policy.

  • • Sample’s doctor released him to return to work without restrictions on October 6, 2017, six and a half months after the onset of his disability.

  • • Sample filed a charge with the EEOC in November 2017.

  • • In March 2018, the highway department advertised positions for truck drivers, and Sample applied. Sample was interviewed, but not hired.

Sample sued the county under the FMLA and the ADA. Both parties moved for summary judgment.

FMLA Interference

Sample argued that his FMLA rights were interfered with because the county counted 12 weeks of the time he was off under workers’ compensation as leave under the FMLA without informing him of that designation. The county argued that it should be granted summary judgment on Sample’s FMLA interference claim because he suffered no harm.

The county relied upon Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S. Ct. 1155, 152 L. Ed. 2d 167, 27 Employee Benefits Cas. (BNA) 1865, 7 Wage & Hour Cas. 2d (BNA) 1153, 82 Empl. Prac. Dec. (CCH) P 40921, 145 Lab. Cas. (CCH) P 34457 (2002). In Ragsdale, the employee took 30 weeks of leave, the maximum allowed under the employer’s unpaid leave policy. After the employee exhausted her leave and was terminated, the employee sued, arguing that she was entitled to 12 weeks of leave under the FMLA because her employer had failed to notify her that 12 of the 30 weeks would count against her FMLA entitlement. The employee relied on a “penalty provision” in the FMLA regulations, which provided that, if an employee takes medical leave “and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” The U.S. Supreme Court invalidated the “penalty provision,” reasoning that it was beyond the power of the Secretary of Labor and inconsistent with the remedial nature of the FMLA. The Court further concluded that the penalty was “unconnected to any prejudice the employee might have suffered from the employer’s lapse” in designating the leave as FMLA leave. In addition, the Court reasoned that the regulation “amends the FMLA’s most fundamental substantive guarantee—the employee’s entitlement to ‘a total of 12 workweeks of leave during any 12-month period.’ ” According to the Supreme Court, the effect of the regulation was to give “certain employees a right to more than 12 weeks of FMLA-compliant leave in a given 1-year period.” For these reasons, the Court invalidated the regulation and denied the employee’s claim that the employer had violated her FMLA rights by failing to notify her that 12 weeks of her leave taken pursuant to the employer’s unpaid leave policy would count toward her FMLA leave. See also Lafata v. Church of Christ Home for Aged, 325 Fed. Appx. 416, 21 A.D. Cas. (BNA) 1756 (6th Cir. 2009).

Sample relied on Schober v. SMC Pneumatics, Inc., 2000 WL 1911684 (S.D. Ind. 2000), a decision generally cited for the proposition that misleading or giving incorrect information to an employee by an employer about the employee’s FMLA rights or obligations constitutes interference if the incorrect information causes the employee to forfeit FMLA protection.


See also Kanios v. UST, Inc., 2005 WL 3579161, at *10-11 (D. Conn. 2005) (denying a motion for summary judgment on an interference claim on the basis that plaintiff “may be able to prove that [the defendant] interfered with her FMLA rights by intentionally overstating the amount of leave available to her,” thereby misinforming her of when she needed to return to work in order to secure the benefit of the right to reinstatement); Edwards v. Dialysis Clinic, Inc., 423 F. Supp. 2d 789, 795-796 (S.D. Ohio 2006) (“An employer can be held liable for interference with FMLA entitlements if it incorrectly advises an employee regarding her leave rights” and if the error prejudiced the employee); Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1228-1229, 5 Wage & Hour Cas. 2d (BNA) 475, 138 Lab. Cas. (CCH) P 33882 (S.D. Cal. 1998) (“This Court holds that a Plaintiff can be discouraged from taking absences whether or not s/he knows that such absences could be covered by the FMLA as opposed to other arrangements an employer might make. The bottom line is a Plaintiff is discouraged from doing something that he or she would like to do, but does not do because of a lack of or misinformation.”); Spagnoli v. Brown & Brown Metro, Inc., 2007 WL 2362602, at *12-13 (D.N.J. 2007) (holding there were triable issues of fact on an FMLA interference claim “as to whether Plaintiff was given reason to believe that her absence was deemed covered under FMLA” where plaintiff was never given notice that she had exceeded allowable FMLA leave and employer ensured her that her absence would “have no impact on her job”).

In rejecting Sample’s reliance on Schober, the district court first noted that the decision was written a year before the U.S. Supreme Court decided Ragsdale. More importantly, according to the district court, the Schober opinion dealt with motions in imine rather than with substantive law.

The district court then held that Sample could not show harm because he would have been terminated even if 12 weeks of his workers’ compensation disability leave had been designated as FMLA leave.

As stated by the district court:

Workers’ compensation leave and FMLA leave may run concurrently if the employer provides proper notice and designates the leave. 29 C.F.R. § 825.702(d)(2). Failure to designate leave as FMLA leave doesn’t subject an employer to liability unless the employee can show that the failure to designate prejudiced him. Ridings v. Riverside Med. Ctr., 537 F.3d 755, 762 (7th Cir. 2008) (citing Ragsdale, 535 U.S. at 94, 122 S.Ct. 1155). An employee may be unable to show harm if his serious health condition prevented him from returning to work by the end of the period he would’ve been entitled to FMLA leave. 29 CFR 825.301(e).

According to the district court, Sample was restricted to either no work or only supervisory work for 14 weeks and one day. He presented no evidence that there was a supervisory-only position available for him to fill or that the highway department had a practice of creating supervisory positions, as distinct from light-duty positions, for workers.

Sample contended that he was, in fact, prejudiced because had 12 weeks of the leave not been designated as FMLA leave, he would not have been terminated in September: he still would have 12 weeks of FMLA leave available when his six months of workers’ compensation leave expired.

In rejecting this argument, the district court set for the following reasoning:

  • • FMLA leave may run concurrently with other leave, and the employee handbook’s disability policy starts the clock for both at the onset of disability.

  • • The law generally allows an employer to run FMLA leave concurrently with other types of leave as long as the employer provides notice and designates the leave. 29 C.F.R. § 825.702(d)(2).

  • • The county’s handbook provides that any paid time taken during FMLA leave will be considered part of the leave.

  • • Sample had notice that any FMLA leave would run concurrently with his workers’ compensation disability leave.

  • • Therefore, Sample was not prejudiced by the county’s failure to designate the leave as FMLA leave because the FMLA leave would elapse while he still had workers’ compensation leave.

Accordingly, because Sample could not show harm resulting from the county’s alleged interference with his rights under the FMLA, the court granted the county’s motion for summary judgment on the FMLA interference claim.

ADA Failure to Accommodate—Was Sample a Qualified Individual?

The district court next turned to Sample’s ADA failure to accommodate claim. After first determining that there was a dispute of fact as to whether Sample could have performed the essential functions of his position, the district court turned to the county’s argument that it did not fail to accommodate Sample because it was not required to create a light-duty position (which Sample would have required during the period before he was fully released to return to work without restrictions).

In responding to this argument, the district court first set forth the following legal points:

  • • The county is correct that ADA does not require an employer to create a light-duty position for an injured employee. See Watson v. Lithonia Lighting, 304 F.3d 749, 13 A.D. Cas. (BNA) 969 (7th Cir. 2002).

  • • A plaintiff must show that a vacant position existed for which he was qualified. Ozlowski v. Henderson, 237 F.3d 837, 11 A.D. Cas. (BNA) 671 (7th Cir. 2001).

  • • But an employer with a policy of creating light-duty positions for employees must do so for all employees. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 33 A.D. Cas. (BNA) 1113, 101 Empl. Prac. Dec. (CCH) P 45882, 168 Lab. Cas. (CCH) P 36561 (7th Cir. 2017), cert. denied, 138 S. Ct. 1441, 200 L. Ed. 2d 717 (2018) (citing Gratzl v. Office of Chief Judges of 12th, 18th, 19th, and 22nd Judicial Circuits, 601 F.3d 674, 22 A.D. Cas. (BNA) 1865 (7th Cir. 2010)).

The district court then noted that while the county’s handbook suggested otherwise, a number of Sample’s coworkers testified that that it was the highway department’s routine practice to find light-duty work for an injured driver. Based on this evidence, the court concluded that there was a genuine issue of fact as to whether the highway department had an unwritten policy of creating light-duty jobs, or if the temporary jobs given to the other workers were simply “acts of grace” for which the county should not be punished. Severson, 872 F.3d at 483.

ADA Failure to Accommodate—Unable to Return to Work

The county next argued that since Sample did not have a date on which he would be cleared to return to his full duties, it was not required to provide Sample with light-duty work for an indefinite period of time. The county relied on Malabarba v. Chicago Tribune Co., 149 F.3d 690, 8 A.D. Cas. (BNA) 1505 (7th Cir. 1998).


In Malabarba, the Seventh Circuit held that the qualifications of an injured worker should be measured against his original position, rather than a temporary position assigned as a result of his injury. It concluded that, to hold otherwise would be to depart from a long-standing recognition that the ADA does not require that employers transform temporary work assignments into permanent positions. The employer in Malabarba had attempted to find permanent work for an employee, who had injured his back and leg, in approximately four separate positions, before terminating him. It was uncontested that the employee in Malabarba could not perform all the functions or was not otherwise qualified for all of the positions that the defendant employer attempted to find for him.

In rejecting the county’s reliance on Malabarba, the district court held:

Malabarba and its progeny relate to whether an individual is a qualified individual rather than whether a person’s limitations have a definite end. Those cases don’t show that the County wasn’t required to make reasonable accommodations simply because it was unclear when Mr. Sample would be able to return to working without accommodation.

ADA Failure to Accommodate—Interactive Process

The district court next turned to the county argument that Sample was responsible for the breakdown of the interactive process.

The court set forth the following general principles of this issue:

  • • Once an employee discloses that he is qualified individual with a disability, the ADA requires that the employer “engage with the employee in an ‘interactive process’ to determine the appropriate accommodation under the circumstances.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 805, 16 A.D. Cas. (BNA) 1761 (7th Cir. 2005).

  • • The interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought. Rehling v. City of Chicago, 207 F.3d 1009, 10 A.D. Cas. (BNA) 589, 54 Fed. R. Evid. Serv. 52 (7th Cir. 2000), amended, (Apr. 4, 2000).

  • • Failure to engage in interactive process is only actionable if it prevents identification of an appropriate accommodation for a qualified individual. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 29 A.D. Cas. (BNA) 17, 21 Wage & Hour Cas. 2d (BNA) 1315 (7th Cir. 2014).

The county argued that its identification of a position for Sample supervising a part-time crew precludes a finding that the county violated the ADA. In rejecting this contention, the district court reasoned that while its identification of a potential job for Sample is an indication that it was engaging in the interactive process, it did not relieve the county of responsibility for continuing the process when that job was not forthcoming.

The county also argued that Sample failed to request a specific accommodation, so the county had no duty to engage in the interactive process. The county relied on Jackson v. City of Chicago, 414 F.3d 806, 16 A.D. Cas. (BNA) 1601 (7th Cir. 2005) (the breakdown of the interactive process was caused by Jackson’s failure to identify her physical limitations or provide any medical record when the city repeatedly reached out).

The district court distinguished Jackson and similar cases on the ground that the plaintiff in those cases failed in many ways beyond not requesting a specific accommodation. In contrast, Sample provided medical records sufficient to allow the county to determine what accommodations might be required.

As stated by the court:

It is failure to help the employer identify a specific accommodation, not failing to request a specific accommodation, that causes a breakdown. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (citing Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)).

ADA Failure to Accommodate—Additional Short-term Leave

The district court further noted that Sample had asked for a reasonable accommodation—an additional period of short term leave in order to obtain a full release to return to work.

The court stated as follows on this issue:

An employer isn’t required to give an employee unlimited time off as an accommodation. Severson, 872 F.3d at 481. But since the work status reports submitted to the County by Mr. Sample’s doctor included consistent improvements, a reasonable jury could find that Mr. Sample only required “a short leave of absence … [which is] analogous to a part-time or modified work schedule, two of the examples listed in § 12111(9).” Severson, 872 F.3d at 481.


See also Robert v. Board of County Com’rs of Brown County, Kans., 691 F.3d 1211, 26 A.D. Cas. (BNA) 1300, 19 Wage & Hour Cas. 2d (BNA) 1024 (10th Cir. 2012); Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581 (3d Cir. 2004); Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 11 A.D. Cas. (BNA) 765 (9th Cir. 2001); Criado v. IBM Corp., 145 F.3d 437, 8 A.D. Cas. (BNA) 336 (1st Cir. 1998).

100% Healed Policy

Sample argued that the highway department has a 100% healed policy that violates the ADA.

According to the district court:

Such a policy “constitutes a per se violation of the ADA because it ‘prevents individual assessment … [and] necessarily operates to exclude disabled people that are qualified to work.’ ” Mazzacone v. Tyson Fresh Meats, Inc., 195 F. Supp. 3d 1022, 1029 (N.D. Ind. 2016) (quoting Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012)).

In concluding that there were material facts in dispute on this issue, the district court stated as follows:

Mr. Ritzler did say that Mr. Sample was terminated because he couldn’t return to 100% work, but he also testified that he looked for other work Mr. Sample could perform. And the handbook specifically states that, when possible and appropriate, the County would cooperate with a doctor’s written order to place an employee on light-duty work. There is a genuine question of whether the County applied a 100% healed policy against Mr. Sample.

ADA Retaliation

Sample contended that the county retaliated by failing to accommodate. The district court rejected that argument on the ground that most courts addressing the issue have found that failure to accommodate cannot serve as an adverse action for an ADA retaliation. See, for example, Avet v. Dart, 2016 A.D. Cas. (BNA) 57060, 2016 WL 757961 (N.D. Ill. 2016); Moore-Fotso v. Board of Education of the City of Chicago, 211 F. Supp. 3d 1012, 341 Ed. Law Rep. 848 (N.D. Ill. 2016), appeal dismissed, 755 Fed. Appx. 587 (7th Cir. 2019); Pack v. Illinois Department of Healthcare and Family Services, 30 A.D. Cas. (BNA) 1105, 2014 WL 3704917 (N.D. Ill. 2014); Sheahan v. Dart, 2015 A.D. Cas. (BNA) 182139, 2015 WL 1915246 (N.D. Ill. 2015); Pagliaroni v. Daimler Chrysler Corp., 33 Nat’l Disability Law Rep. P 142, 2006 WL 2668157 (E.D. Wis. 2006); Imbody v. C & R Plating Corp., 21 A.D. Cas. (BNA) 1336, 2009 WL 196251 (N.D. Ind. 2009).

Sample also alleged retaliation in the county’s failure to rehire him. After concluding that the temporal connection between the filing of his EEOC charge and his failure to be hired was insufficient by itself to raise an issue of triable fact, the district court noted that Sample offered his sworn statement that Ritzler said the county’s attorney instructed him to not hire Sample because Sample had filed the charge with the EEOC. Ritzler denied that statement, but according to the district court, the evidence raised a question of fact as to whether there was a causal connection between Sample’s charge and the county’s decision to not rehire him.


The district court also rejected the county’s reliance on Guzman v. Brown County, 884 F.3d 633, 33 A.D. Cas. (BNA) 1613, 27 Wage & Hour Cas. 2d (BNA) 1097, 168 Lab. Cas. (CCH) P 36606 (7th Cir. 2018), for the proposition that Sample could not bring a retaliation claim based on the county’s post-termination conduct. The district court relied on Baines v. Walgreen Co., 863 F.3d 656, 130 Fair Empl. Prac. Cas. (BNA) 462, 101 Empl. Prac. Dec. (CCH) P 45837, 103 Fed. R. Evid. Serv. 1145 (7th Cir. 2017), in which the Seventh Circuit had called a refusal to rehire an adverse action in the context of a Title VII retaliation claim.

Accordingly, the district court granted summary judgment to the county on Sample’s FMLA claim but allowed the ADA claim to proceed to trial.

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28 No. 9 Disability Law Compliance Report NL 3

26 No. 4 Disability Law Compliance Report NL 2
Disability Law Compliance Report
| April 2018
Volume 26, Issue 4
Disability Law Compliance Report

In Gardenhire v. Manville, 2018 A.D. Cas. (BNA) 40927, 2018 Wage & Hour Cas. 2d (BNA) 40927, 2018 WL 739379 (10th Cir. 2018), the United States Court of Appeals for the Tenth Circuit held that an employer was not obligated to grant further leave after an employee had been absent from work for approximately nine months.
Key Facts
• Jimmy Gardenhire worked for Johns Manville (JM) as an inspector-packer.
• His position required that he prepare, remove, pack, scrap or otherwise dispose of all insulation material coming from the production line.
• In December 2012, Gardenhire broke his left elbow while ice skating. An orthopedic surgeon imposed work restrictions of one-handed jobs only and no left-handed lifting for four weeks.
• Consequently, Gardenhire began taking FMLA leave and short-term disability leave.
• After Gardenhire’s FMLA leave expired, his doctor, Dr. James Bogener, provided a medical note dated April 17, 2013, extending the restrictions for six more weeks.
• On June 5, Dr. Bogener again extended Gardenhire’s restrictions for six weeks.
• On July 29, JM’s regional human resources manager, Shirley Vawter, sent Gardenhire a letter, seeking information about his expected return to work on August 8. She instructed Gardenhire to discuss with his physician his day-to-day job responsibilities and she attached a “Request for Medical Information for Reasonable Accommodation” form.
• On August 9, Dr. Bogener completed the reasonable accommodation form, stating that Gardenhire could perform one-handed jobs only, with no lifting using the left hand for at least six additional weeks.
• Vawter considered whether JM could reasonably accommodate Gardenhire’s restrictions, but ultimately concluded no reasonable accommodation was available. She then decided to terminate Gardenhire, effective August 30, 2013.
• Nearly eight months later, in April 2014, Gardenhire contacted Dr. Bogener and requested a full work release, retroactive to September 1, 2013. Based on the information Gardenhire provided, Dr. Bogener signed a return to work form indicating Gardenhire felt he was ready to return to work on September 1, 2013.
Gardenhire brought suit under the ADA and FMLA. The district court granted JM summary judgment and Gardenhire appealed to the Tenth Circuit.
Tenth Circuit’s Analysis
The Tenth Circuit started its analysis by setting forth the following general principles relating to the burden of proof under the ADA.
• When a claim alleging a violation of the ADA is based on circumstantial evidence, courts apply the familiar McDonnell Douglas burden-shifting framework. Williams v. FedEx Corporate Services, 849 F.3d 889, 33 A.D. Cas. (BNA) 481 (10th Cir. 2017).
• Under that framework, a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she is disabled (or perceived as disabled) as defined by the ADA, (2) he or she is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he or she suffered discrimination as a result of his or her disability.
• The failure to provide reasonable accommodations constitutes disability discrimination under the ADA. Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 9 A.D. Cas. (BNA) 738 (10th Cir. 1999).
Gardenhire argued that his medical restriction on lifting with his left arm did not prevent the performance of his job’s essential functions. In rejecting this contention, the Tenth Circuit reasoned as follows:
The written job description for the inspector-packer position states that the employee must “remove … all material coming from the machine” and “[s]et aside defective material.” … Gardenhire testified that the removal of materials, which typically weigh between “25 to 55 pounds,” … was accomplished by “grab[bing] them” and “lift[ing] them” with his “arms,” … Although he could sometimes use just one arm, the job at other times “required [him] to use two hands … to be able to lift some material from one area to the next” and to “throw it to another location.” … We conclude that no reasonable jury could find that Gardenhire was able to perform the essential functions of his job using just one arm.
Reasonable Accommodations
Gardenhire next argued that he could perform the essential functions of his position with a reasonable accommodation. On this issue the Tenth Circuit set forth the following general legal principles:
• The determination of whether a requested accommodation is reasonable must be made on the facts of each case taking into consideration the particular individual’s disability and employment position. Punt v. Kelly Services, 862 F.3d 1040, 33 A.D. Cas. (BNA) 919 (10th Cir. 2017).
• An employee’s request to be relieved from an essential function of his position is not, as a matter of law, a reasonable or even plausible accommodation.
Gardenhire argued that JM should have accommodated his injury by providing him additional leave beyond August 30, 2013—his termination date. He stressed that Dr. Bogener released him to work without any restrictions just two days later.
In rejecting this contention, the Tenth Circuit reasoned:
Although “a reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation,” an employer “[i]s not required to wait indefinitely for [the employee’s] recovery.” Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). JM allowed Gardenhire eight months of continuous leave before finally terminating him. Gardenhire does not cite any evidence that he notified JM contemporaneously to his termination that Dr. Bogener had removed his work restrictions. Indeed, Dr. Bogener did not execute the medical-release form until April 2014—nearly eight months after JM terminated Gardenhire.3 No reasonably jury could find that JM failed to reasonably accommodate Gardenhire’s injury.
100% Healed Policy
Gardenhire next argued that he need not establish a prima facie case under the McDonnel Douglas test because he had direct evidence of discrimination—that JM requires employees to be 100% healed before allowing them to resume work.
In addressing this issue, the Tenth Circuit recognized that a 100% healed policy is discriminatory because such a practice permits employers to substitute a determination of whether a qualified individual is 100% healed for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation. McGregor v. National R.R. Passenger Corp., 187 F.3d 1113, 9 A.D. Cas. (BNA) 1207 (9th Cir. 1999); see also Martin v. Kansas, 190 F.3d 1120, 9 A.D. Cas. (BNA) 1075 (10th Cir. 1999).
Nevertheless, the Tenth Circuit reasoned that this legal principle did not help Gardenhire under the facts of this case.
• First, according to the Tenth Circuit, Gardenhire did not raise a triable issue as to whether JM had such a policy. To show the existence of 100% healed policy, Gardenhire cited the deposition testimony of a human resources associate which both the district court and the Tenth Circuit found to be wholly speculative.
• Second, a 100% healed policy cannot give rise to a finding of liability and relief under the ADA without the statutorily required inquiry into whether those affected by the policy are disabled and able to perform the essential functions of the jobs they seek or desire with or without reasonable accommodation. Hohider v. United Parcel Service, Inc., 574 F.3d 169, 22 A.D. Cas. (BNA) 133 (3d Cir. 2009). Here, Gardenhire did not create a triable issue as to whether he could perform the essential functions of his job with or without a reasonable accommodation. Thus, whether or not JM had a 100% healed policy had no bearing on Gardenhire’s ADA claim. See, for example, Moore v. Jackson County Bd. of Educ., 979 F. Supp. 2d 1251, 304 Ed. Law Rep. 356 (N.D. Ala. 2013).
FMLA Claims
Turning to Gardenhire’s FMLA claim, the Tenth Circuit set forth the following general rules:
• It is unlawful for an employer to retaliate against an employee for taking FMLA leave.
• Without direct evidence of retaliation, a plaintiff must establish a prima facie case of retaliation by proving that: (1) he or she engaged in a protected activity; (2) the employer took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.
The Tenth Circuit agreed with the district court that Gardenhire had failed to show causation. Specifically, Gardenhire’s FMLA leave expired by April 2013, but JM did not take any adverse action against him until August 30, 2013, when it fired him. According to the Tenth Circuit, a nearly five-month gulf between the expiration of FMLA leave and an adverse employment action is insufficient to establish causation. Richmond v. ONEOK, Inc., 120 F.3d 205, 3 Wage & Hour Cas. 2d (BNA) 1825 (10th Cir. 1997) (holding that a three-month period, standing alone, is too long to infer causation from temporal proximity). With no other causal evidence, summary judgment was appropriate. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179, 9 A.D. Cas. (BNA) 835 (10th Cir. 1999) (“[U]nless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.”).
Gardenhire next asserted that JM’s “100% healed practice … interfered with [his] right to be restored to his position during the initial 12 weeks of his leave.”
The Tenth Circuit agreed with the district court’s conclusion that when JM fired Gardenhire, he had no right to reinstatement because his FMLA leave had expired almost five months earlier. The Tenth Circuit also concluded that summary judgment was appropriate on this claim because: (1) Gardenhire had not shown a triable issue as to whether JM even had a 100% healed policy; and (2) even if such a policy existed, the FMLA allows an employer to have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.
Accordingly, the Tenth Circuit affirmed the district court’s judgment.
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26 No. 4 Disability Law Compliance Report NL 2

In a break from the decisions by most courts, the United States Court of Appeals for the Sixth Circuit held in Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), that an employee was entitled to the reasonable accommodation of being allowed to work at home for a period of time.
Key Facts
• Andrea Mosby-Meachem is an in-house attorney for Memphis Light, Gas & Water Division (MLG&W).
• On March 14, 2011, MLG&W’s general counsel, Cheryl Patterson, sent the following email to all lawyers in the legal department:
Please be reminded that office hours for the Legal Department are 8:30 a.m.-5:00 p.m. Monday through Friday. All employees, including the lawyers, are expected to be at work and devoting their time and attention to Division business during those hours. As professionals, you are expected to set a good example for the support staff by being in the office on time and staying at work until the end of the day.
• Despite the foregoing policy, employees often telecommuted.
◦ Indeed, on one occasion in 2012, Mosby-Meachem herself was permitted to work from home for two weeks while she was recovering from neck surgery, during which time she adequately performed her duties.
• On January 2, 2013, during her 23rd week of pregnancy, Mosby-Meachem’s doctors discovered a problem requiring her hospitalization. Following surgery, Mosby-Meachem’s doctors placed her on “modified bed rest” for approximately 10 weeks, during which time she was restricted from engaging in prolonged standing or sitting and from lifting heavy objects.
• On January 7, Mosby-Meachem requested that she be permitted to work from a bed either within the hospital or within her home for 10 weeks. Two days later, on January 9, she submitted documentation supporting her request, including a letter from her treating physician.
• On January 15, MLG&W assembled an ADA Committee and conducted a telephonic process meeting with Mosby-Meachem. During the meeting, Mosby-Meachem stated she could perform each of the essential functions of her job remotely. Despite Mosby-Meachem’s assurances, the ADA Committee denied her accommodation request on January 18.
• In a letter dated January 30, MLG&W explained that the denial was based on the determination that physical presence in the office was an essential function of Mosby-Meachem’s job, and teleworking created concerns about maintaining confidentiality.
◦ From the time of her request on January 7 until she received the denial letter on January 30, Mosby-Meachem had continued to perform her work remotely, and no one from MLG&W ever told her to stop working during this time.
• Following her 10 weeks of restriction, Mosby-Meachem returned to work on April 1, and she continued to work up until her baby was born on April 14, 2013.
• During the time between January 3 and her return to work on April 1, Mosby-Meachem initially received sick leave under the FMLA for four weeks and then subsequently received short-term disability for the remainder of the period.
• From February 26, until the end of the accommodation period, Mosby-Meachem’s license to practice law was suspended for failure to pay the annual registration fee. Mosby-Meachem, however, claims that she was unaware of the suspension until receiving a June 28 letter from Patterson about the issue, and she paid the fee the next day.
Mosby-Meachem filed suit under the ADA. A jury returned a verdict for Mosby-Meachem and awarded her $92,000 in compensatory damages. The district court granted Mosby-Meachem equitable relief based on lost pay and her forced use of sick leave time. MLG&W appealed to the Sixth Circuit.
Sixth Circuit’s Analysis
MLG&W’s primary argument on appeal was that it was entitled to judgment as a matter of law because the jury did not have a legally sufficient basis to find that Mosby-Meachem could have effectively performed all the essential functions of her job with her requested 10-week teleworking accommodation.
MLG&W contended that Mosby-Meachem’s requested accommodation to telework was “per se unreasonable” as it removed several essential functions of her job that could only be performed in person; therefore, she failed to establish a prima facie case of discrimination. MLG&W based this argument on the following evidence: (i) Mosby-Meachem’s own testimony, (ii) the written description of her position, and (iii) testimony from former MLG&W employees that physical presence was an essential function of a MLG&W attorney’s job.
MLG&W further relied on the Sixth Circuit’s decision in E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 31 A.D. Cas. (BNA) 749 (6th Cir. 2015), which stated that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” According to MLG&W, this decision precluded a reasonable jury from finding that Mosby-Meachem was “otherwise qualified” from performing her job while she was on bedrest.
The Sixth Circuit reasoned that, while there was evidence produced at trial to support MLG&W’s argument, Mosby-Meachem had presented sufficient evidence supporting a finding that she could perform all the essential functions of her job remotely for 10 weeks. For example, several MLG&W employees, as well as outside counsel who worked with Mosby-Meachem, testified that they felt she could perform all essential functions during the 10-week period working from home. The court also noted that there was uncontested evidence that Mosby-Meachem had never tried cases in court or taken depositions of witnesses—two functions listed in her job description. According to the court, “[g]iven all the evidence presented by Mosby-Meachem that both undermined MLG&W’s evidence and independently supported a finding that she could perform the essential functions of her job remotely for 10 weeks, a rational jury could find that she was a qualified employee and that working remotely for 10 weeks was a reasonable accommodation.”
Sixth Circuit Precedent
The Sixth Circuit next discussed the Ford decision and the recent case of Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 33 A.D. Cas. (BNA) 385 (6th Cir. 2017). In Ford, the Sixth Circuit upheld summary judgment for an employer, reasoning that “regular and predictable attendance” at work on-site was an essential function of the plaintiff’s employment. The plaintiff in Ford, however, had an extensive history of poor performance and high absenteeism, some of which stemmed from her irritable bowel syndrome, requiring other employees to cover for her. Ford attempted to accommodate the plaintiff, but her poor performance and absenteeism eventually led to her termination.
The Sixth Circuit distinguished Ford on the ground that Mosby-Meachem had performed her duties remotely in the past without any attendance issues or decline in work product. Further, Mosby-Meachem’s requested accommodation—teleworking for a limited 10-week period—was significantly different from that of the plaintiff in Ford, who sought to work off-site up to four days a week indefinitely and on an indeterminate schedule.
In Williams, the Sixth Circuit held that attendance was an essential job function for a call center employee. In that case, the plaintiff had to be physically present at her work station and logged into the computer to receive customer service calls; otherwise those calls would automatically be routed to another employee. Additionally, as noted by the Sixth Circuit, “a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR.” Williams, 847 F.3d at 398.
The Sixth Circuit distinguished Williams on the ground that Mosby-Meachem’s job was not tied to her office desk, and she had already demonstrated her ability to work remotely without issue. Further, her disability—and corresponding accommodation—was for a limited time rather than an indefinite period. Therefore, according to the Sixth Circuit, the finding that the plaintiff in Williams was not qualified to do her job was premised on facts that were dramatically different from that of Mosby-Meachem.
Alternative Accommodations
MLG&W also contended that even if Mosby-Meachem’s requested accommodation was reasonable, it should nevertheless be granted judgment as a matter of law because it offered Mosby-Meachem an alternative reasonable accommodation in the form of sick leave and short-term disability.
In addition to concluding that MLG&W waived this argument, the Sixth Circuit reasoned as follows:
• Once the employee requests an accommodation, the employer has a duty to engage in an “interactive process” to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
• At trial, Mosby-Meachem presented evidence that MLG&W did not in fact engage in an interactive process, but rather had already determined what accommodation it was willing to offer before ever speaking with Mosby-Meachem.
• Given this evidence, the jury could have reasonably concluded that MLG&W did not actually engage in an interactive process and that its proposed accommodation was not reasonable.
Equitable Relief
The district court granted Mosby-Meachem’s request for equitable relief and awarded her $18,184.32 in back pay and the reinstatement of her leave benefits. MLG&W’s challenged this award on the ground that it would have been the unauthorized practice of law for Mosby-Meachem to have performed her job while her license was suspended and therefore she was not “qualified” for her job.
In holding that this argument was without merit, the Sixth Circuit reasoned:
• The ADA incorporates the procedures and remedies available under Title VII, including back pay.
• In the absence of exceptional circumstances, back pay should always be awarded when a Title VII violation is found.
• Sick leave, vacation pay, pension benefits, and other fringe benefits the claimant would have received but for discrimination should also be awarded.
• It is undisputed that neither party was aware that Mosby-Meachem’s law license was suspended during the relevant time frame and that—had MLG&W not denied her requested accommodation—Mosby-Meachem would have received her full pay for work performed during this time.
• Moreover, the possible unlicensed practice of law is an issue for the Tennessee Bar and that the appropriate remedy would be discipline imposed by that body, not disgorgement of Mosby-Meachem’s salary to her employer.
• Accordingly, the district court did not abuse its discretion in awarding Mosby-Meachem back pay for the time during which her law license was administratively suspended.
Accordingly, the Sixth Circuit affirmed the orders of the district court denying MLG&W’s motion for judgment as a matter of law or a new trial and awarding Mosby-Meachem equitable relief.
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26 No. 4 Disability Law Compliance Report NL 1


22 No. 6 Disability Law Compliance Report NL 2

Disability Law Compliance Report

June 2014

Volume 22, Issue 6

Disability Law Compliance Report

By Gary S. Marx


In Paylor v. Hartford Fire Ins. Co., 22 Wage & Hour Cas. 2d (BNA) 625, 2014 WL 1363544 (11th Cir. 2014), the Eleventh Circuit addressed the issue of the waiver of FMLA claims in a severance agreement.

Key Facts


    • Blanche Paylor was employed by Hartford Fire Insurance Company (Hartford).


    • While working at Hartford between January 2008 and September 2009, Paylor requested (and received) 390 hours of FMLA leave.


    • Sometime in late August or early September 2009, Paylor submitted a request for additional FMLA leave.


    • On September 11, 2009, Paylor received a performance review which included a performance warning, criticized the quality of her work, and explained what she would have to do to keep her job.


    • On September 16, Paylor’s supervisors initiated a meeting and gave her a choice: she could accept a one-time offer of 13 weeks of severance benefits in exchange for signing a severance agreement, under which Paylor waived any claims she might have had under the FMLA, or she could agree to a performance improvement plan requiring her to meet various performance benchmarks or face termination.


    • Paylor signed the severance agreement on September 17. She claimed, however, that she only signed the agreement because her stress level had become unmanageable: she had requested FMLA leave in the first place to care for her ailing mother, and between her mother’s deteriorating health and the pressures she experienced at work, she “just wanted out.”


    • Sometime after executing the agreement, Paylor brought suit against Hartford alleging that it interfered with her exercise of her FMLA rights and retaliated against her for exercising her rights.

Hartford moved for summary judgment on the basis of Paylor’s severance agreement. The district court granted the motion, reasoning that “[a]lthough the Eleventh Circuit Court of Appeals has not directly addressed the legality of a release of FMLA claims based on past employer conduct, the [District] Court is confident that such a release would be held enforceable.” Paylor appealed to the Eleventh Circuit.

Eleventh Circuit’s Analysis

The Eleventh Circuit started its analysis by noting that there was:

no dispute in this case that the FMLA applies to Hartford, that Paylor was an “eligible employee” as defined by the statute, or that Paylor was entitled to FMLA leave at the time she requested it. Nor is the question whether Hartford in fact interfered with or retaliated against Paylor’s assertion of her FMLA rights. The question before us concerns only the validity of the Severance Agreement that Paylor signed on September 17, 2009. If the agreement is valid, then the District Court was correct in concluding that Paylor waived her FMLA claims and that Hartford was entitled to judgment as a matter of law.

Paylor’s first argument was that the severance agreement was invalid under Department of Labor (DOL) regulations insofar as it purported to release Paylor’s “prospective” FMLA rights. According to Paylor, the waiver could not be enforced against her because the FMLA does not permit employees to waive “prospective rights” without DOL or court approval. Paylor contended that her rights in this case were “prospective” in the sense that she had—at the time she signed the agreement—an outstanding request for FMLA leave. Therefore, according to Paylor, the district court should have found the waiver invalid and allowed her to proceed on her FMLA claim.

In addressing this issue, the Eleventh Circuit first noted that before 2009, 29 C.F.R. § 825.220(d) did not include the word “prospective” in its discussion of an employee’s FMLA rights. The regulation said, simply, “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” This led at least one Circuit Court to conclude that the regulation’s plain language prohibited both the retrospective and prospective waiver or release of an employee’s FMLA rights. The DOL expressly disagreed with this interpretation of the regulation and in January 2009, it amended the regulation to include the word “prospective.”

The current version of 29 C.F.R. § 825.220(d) reads:

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representative) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the [DOL] or a court. (emphasis added)

Accordingly, the Eleventh Circuit held:

It is now, therefore, well-settled that an employee may not waive “prospective” rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior. The only remaining issue is the meaning of the word “prospective” as it concerns FMLA rights, which is a question of first impression in our circuit.

Was Paylor’s Claim “Prospective”?

Paylor argued that the term “prospective rights” under the FMLA means “the unexercised rights of a current eligible employee to take FMLA leave and to be restored to the same or an equivalent position after the leave.”

In rejecting this contention, the Eleventh Circuit held:

The problem with this interpretation is obvious: it proves too much. All eligible employees possess an “unexercised” right, in the abstract, to FMLA leave. If by “prospective” rights the DOL regulation really meant “unexercised” rights, the FMLA would make it unlawful to fire any eligible employee, or at least any eligible employee with an outstanding request for FMLA leave. That is not the law: substantive FMLA rights are not absolute. … Paylor’s interpretation of “prospective rights” is thus too expansive.


The Eleventh Circuit supported its view by noting that an employer is not liable for interference if the employer can show that it refused to restore an employee to his position of employment for a reason unrelated to his FMLA leave. See Spakes v. Broward County Sheriff’s Office, 631 F.3d 1307, 17 Wage & Hour Cas. 2d (BNA) 225, 94 Empl. Prac. Dec. (CCH) P 44101, 160 Lab. Cas. (CCH) P 35869 (11th Cir. 2011); Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 25 Employee Benefits Cas. (BNA) 2050, 6 Wage & Hour Cas. 2d (BNA) 1185, 79 Empl. Prac. Dec. (CCH) P 40375, 142 Lab. Cas. (CCH) P 34196, 190 A.L.R. Fed. 787 (11th Cir. 2001) (“An employer can deny the right to reinstatement … if it can demonstrate that it would have discharged the employee had he not been on FMLA leave.”).

According to the Eleventh Circuit, the better interpretation of “prospective rights,” is that “prospective rights” are those allowing an employee to invoke FMLA protections at some unspecified time in the future. An employer could not, for example, offer all new employees a one-time cash payment in exchange for a waiver of any future FMLA claims. That waiver would be “prospective” in the Eleventh Circuit’s view and therefore invalid under the FMLA, because it would allow employers to negotiate a freestanding exception to the law with individual employees.


As noted by the Eleventh Circuit, Black’s Law Dictionary states that a “prospective waiver” is a waiver of something that has not yet occurred, such as a contractual waiver of future claims for discrimination upon settlement of a lawsuit.

In this case, the severance agreement did not ask Paylor to assent to a general exception to the FMLA, but rather to a release of the specific claims she might have based on past interference or retaliation. According to the Eleventh Circuit:

Section 825.220(d) makes clear that the FMLA’s private right of action attaches to the employer’s conduct—i.e., to the alleged act of interference or retaliation—and not to some free-floating set of “unexercised” FMLA rights. And the text of the regulation explicitly contemplates the possibility that an employee can settle claims “based on past employer conduct.” § 825.220(d). We therefore reject Paylor’s interpretation of “prospective” FMLA rights; § 825.220(d)’s prohibition of “prospective” waiver means only that an employee may not waive FMLA rights, in advance, for violations of the statute that have yet to occur.

Having answered the interpretation question, the Eleventh Circuit reasoned that all that remained was for it to apply § 825.220(d) to the facts of Paylor’s case. Here, the conduct Paylor complained of happened before she signed the severance agreement. Therefore, according to the court, her execution of the agreement wiped out any backward-looking claims she might have had against Hartford.

Accordingly, the court held:

In signing the agreement and accepting her severance benefits, Paylor settled claims “based on past employer conduct,” § 825.220(d), and so the District Court did not err in concluding that the agreement was valid and that it entitled Hartford to judgment as a matter of law.

Was execution of the Agreement Knowing and Voluntary?

Paylor alternatively argued that she did not sign the severance agreement knowingly and voluntarily, and therefore it was invalid. The Eleventh Circuit set forth the following test for determining when an employee’s waiver is voluntary and knowing based on the totality of the circumstances:

we consider (1) the education and business experience of the employee; (2) the time the employee spent considering the agreement before signing it; (3) the clarity of the language in the agreement; (4) the employee’s opportunity to consult with an attorney; (5) whether the employer encouraged or discouraged consultation with an attorney; and (6) the consideration given in exchange for the release compared to the benefits the employee was already entitled to receive.

Applying the foregoing factors here, the Eleventh Circuit concluded that the district court did not err in concluding that Paylor executed the severance agreement knowingly and voluntarily.

Westlaw. © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.


22 No. 6 Disability Law Compliance Report NL 2


Application of OSHA to Multiemployer Worksites.