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Could Habitually Tardy Employee Prove ADA, FMLA Discrimination?
February 26, 2015
The importance of detailed and accurate records of job performance was recently illustrated in a 7th Circuitówhich covers Illinois, Indiana and Wisconsinódecision affirming the dismissal of employee claims under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) . The court of appeals found that punctuality and regular attendance were essential functions of the job of the employee and she could not perform those functions given her consistent tardiness.
History of tardiness
Kiersten Taylor-Novotny began working as a contract specialist for Health Alliance Medical Plans, Inc., in 2005. She was responsible for negotiating and reviewing contract terms with medical providers and proactively planning for contract renewals. Almost immediately, she encountered difficulties with punctuality and attendance.
In her January 2007 performance review, her job performance was rated as average, but her attendance and punctuality were rated as marginal. The review noted that she "routinely" arrived late and had an "unusual" number of appointments during the workday, including at least 30 during the review period.
In March 2007, Health Alliance adjusted her schedule and pushed her start time back to 8:30 a.m. to make it easier for her to arrive on time. Shortly after the adjustment, she was diagnosed with multiple sclerosis (MS).
The adjustments to her schedule did not have the desired effect, however, and she was tardy 28 times between April and September 10, 2007. In October, her supervisor implemented a "Corrective Action Plan" that required her to check in with the supervisor every day. The corrective action did not improve her tardiness, and her December 2007 employment review again detailed her problems with tardiness despite the adjustment to her work hours.
After submitting an FMLA certification form from her physician, Taylor- Novotny was allowed to work from home 2 days a week. She was required to let her manager know each time an absence from work was necessary and whether it should be charged as FMLA time. Despite repeated warnings, she did not follow those requirements. She continued to routinely fail to report to work on time and did not let her supervisor know in advance of her absences.
In March 2010, Taylor-Novotny requested ADA accommodations for her MS and provided supporting documentation from her doctor, who stated that she was suffering from "extreme MS fatigue." Health Alliance complied with her request, reducing the number of files she had to transport to and from work and having her mail delivered to her home.
However, the company refused her request to be allowed to check in using badge scans rather than informing her supervisor because the badge scans did not provide it with notice of or a reason for her late arrival.
Health Alliance continued to document the repeated tardiness in her performance reviews and issued her a final written warning. She was terminated after she continued to arrive late for work and did not inform her supervisor of the reason for her tardiness.
Former employee files lawsuit
Taylor-Novotny filed a lawsuit in federal court claiming that Health Alliance failed to reasonably accommodate her MS, retaliated against her for seeking an accommodation in violation of the ADA, interfered with her rights under the FMLA, and terminated her because of her disability.
The district court granted summary judgment to her employer, dismissing her case, and Taylor-Novotny appealed to the 7th Circuit. The court of appeals affirmed the dismissal of the lawsuit.
With regard to the ADA discrimination claim, the court found that Taylor- Novotny was not a "qualified individual" because she was habitually tardy and could not regularly attend to her job duties. The court rejected her argument that regular attendance and punctuality were not essential functions of her job because she was allowed to work from home a couple days a week.
The court relied on written Health Alliance policies that required employees to adhere to an agreed-upon schedule and be accessible by phone, e-mail, voice mail, pager, or modem during a scheduled workday, regardless of whether they worked from home.
Even assuming Taylor-Novotny was a qualified individual under the ADA, the court of appeals found that her lawsuit still could not survive because she was not meeting Health Alliance "legitimate expectations."
According to the court, the record was "replete with evidence" of the expectations of the employer for regular attendance and her failure to meet those expectations. In particular, her failure to arrive at work on time and alert her supervisor in advance of late arrivals was a concern articulated on every one of her performance reviews and the subject of several disciplinary meetings.
Turning to her reasonable accommodation claim, the court of appeals found that Health Alliance made a good-faith effort to accommodate her MS. For example, the company sought information from her doctor, engaged in the interactive process, and made several adjustments to her schedule and workload.
Although she claimed that Health Alliance failed to allow her to use badge scans to report her arrival times, she did not identify a limitation related to her MS that the badge scan accommodation would alleviate. In other words, no physical exertion was needed to call the supervisor and alert her of anticipated late arrivals.
The court of appeals rejected the retaliation claim because there was no causal link between her termination and her disability. Finally, the court nixed her FMLA interference claim because Health Alliance never refused to allow her to use FMLA leave. Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 13-3652 (7th Cir., Nov. 26, 2014).
This decision is yet another example of the importance of regularly and accurately documenting an employee job performance and any disciplinary issues. The case could have turned out very differently if the employer had not regularly addressed employee attendance and punctuality problems in writing. The case is also significant because it holds that employers have a legitimate expectation that employees appear at work on time and inform their supervisors of any late arrivals, even if they are allowed to work from home.
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