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Can A Reasonable Accommodation Be Retaliatory Under The FMLA?
January 27, 2016
One of the challenging situations faced by HR professionals and the employers they work for is the differing standards under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Considering one of the laws without an analysis of the other and its effect on employment decisions can create problems for employers.
Inquiries under the laws are particularly fact-intensive. Read on to see how an employer carefully navigated the ADA and the FMLA and how the U.S. 4th Circuit Court of Appeals (which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia) viewed the actions of the employer.
Altercation leads to transfer
On January 19, 2010, Andrew Adams was involved in an incident with a student in a hallway at MacArthur Middle School in Fort Meade, Maryland, where he was an assistant principal. Although witness accounts differed significantly, the student initially claimed that Adams grabbed her by the arms, shook her, and pinned her against a wall.
As a result of the incident, Child Protective Services (CPS) launched a child abuse investigation, and the matter was referred to the school board employee case management committee. CPS acts to prevent and investigate child abuse under the auspices of the Maryland Department of Social Services (DSS). The school board employee case management committee focuses on conduct that is detrimental to the proper functioning of the school system. In the meantime, Adams was temporarily reassigned.
On February 24, Adams met with school board investigators. He contended that he was shown a document stating he was completely cleared of all charges at the meeting. The board denied he was shown any such document and claimed its independent investigation, which focused on school district policy violations, would continue.
The school board transferred Adams back to MacArthur on February 25. The same day, however, he took medical leave based on the recommendation of Dr. Kim Bondurant, an internal medicine specialist, for stress, anxiety, and high blood pressure presumably related to the January 19 incident and the child abuse allegation.
Adams returned to MacArthur on March 3, but he had a panic attack. He claimed that during the attack, he was berated by Principal Reginald Farrare. Adams took a second medical leave, and Bondurant referred him to Dr. Lawrence Adler, a psychiatrist. Adams claimed that when he returned to work on March 8, Farrare again berated him, this time in front of other staff members.
Two weeks later, Adams began his third and final medical leave after Adler diagnosed him with acute stress disorder. Adler informed the school board that after returning from leave, Adams would "require assignment to another school" because working at MacArthur could spur "panic attacks and other manifestations of his illness." Adler later updated the diagnosis to post-traumatic stress disorder, as reflected in the FMLA paperwork that Adams submitted on May 5.
The board investigation continued while Adams was on leave. On April 12, the board sent him a letter notifying him that a pre-disciplinary conference had been scheduled for May 6. The meeting was delayed for 4 days so his attorney could attend. Two weeks after the conference, Adams received a letter in which the board formally reprimanded him for engaging in physical contact with a student and using a technique that escalated a situation that could have been handled differently.
During the summer, the board required Adams to attend three sessions with a specialist of its choosing, psychologist Dr. Anthony Wolff. Wolff cleared Adams to return to work on July 28.
Adams began working at another school, J. Albert Adams Academy (JAAA), on August 4. The school board first informed him that it intended to transfer him to JAAA in early June. However, the transfer did not occur until August because Adams was on leave until late July.
Adler had recommended that Adams be transferred, and Wolff agreed that it would be best if Adams were assigned to a supportive, lower-stress environment. Wolff stated that Adams was "not averse to the possibility of being assigned to a specialized program such as [JAAA], which has been mentioned as a possibility."
The student population of JAAA, a specialized middle school for children with behavioral issues, used to reach 120, but the school had 80 students at the time of the transfer. By contrast, MacArthur had more than 1,000 students and a higher staff-to-student ratio.
In accordance with a union contract, his salary remained the same for 2 years before being reduced by less than one percent because of the smaller size of JAAA. JAAA employees were ineligible for certain discretionary bonuses available at other schools.
Adams excelled at JAAA. He received exceptional performance reviews, served as acting principal for a month, and was not subject to further discipline. After arriving at JAAA, he did not request a transfer to a different school.
Allegations land in court
Adams filed discrimination claims with the Equal Employment Opportunity Commission (EEOC), secured a right-to-sue letter, and filed a lawsuit, initially in Maryland state court. Because the lawsuit involved federal claims under the ADA, the FMLA, and Title VII of the Civil Rights Act of 1964, the school board asked to have the case moved to federal court.
Adams alleged violations of the FMLA, the ADA, Title VII, and Maryland law. After allowing him to amend his initial complaint, the district court dismissed most of his allegations because he failed to state a claim. The court allowed his FMLA interference and retaliation claims and his ADA retaliation and discrimination claims to proceed.
After discovery (the pretrial exchange of evidence), the trial court granted the board request for summary judgment (pretrial dismissal) on the remaining claims. Adams appealed to the 4th Circuit.
FMLA interference claim failsAdams continued to contend that the board violated his rights under the FMLA and the ADA. On appeal, he alleged interference with his medical leave, retaliation for taking leave, discrimination and retaliation based on a disability, and failure to accommodate his condition.
Most readers know that the FMLA grants an employee the right to take "a total of 12 workweeks of leave during any 12-month period" if he has "a serious health condition that makes [him] unable to perform" his job.
When returning from FMLA leave, an employee is entitled to be restored to his previous position or an equivalent position so long as he would have retained his position or an equivalent one if not for taking leave. Also, the statute makes it unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise" FMLA rights.
To establish an interference claim under the FMLA, an employee must demonstrate that (1) he was entitled to FMLA leave, (2) his employer interfered with the leave, and (3) the interference caused him harm.
The 4th Circuit began its analysis by noting that Adams was not denied FMLA leave. In fact, he took medical leave three separate times, totaling well over 12 weeks. He did not suggest that the school board denied him FMLA leave to which he was entitled. Nevertheless, Adams argued that the board interfered with his FMLA leave in a variety of ways that stopped short of actually denying him leave. Specifically, he asserted that the board took adverse employment actions against him, which interfered with his FMLA rights by discouraging his use of leave.
First, Adams claimed the board required him to submit to three unnecessary examinations by a board-chosen specialist. However, the FMLA and the applicable regulation explicitly allow employers to seek a second opinion (and even a third opinion if the first two opinions conflict). Medical opinions allow an employer to verify an employee medical condition, assess how long the employee might be out of work, and provide the best environment for the employee upon his return to the workplace.
The regulation concerning the authenticity of an initial medical certification was not applicable to this case. Employers may require a second or third medical evaluation out of concern that the original certification of a serious medical condition is invalid, not out of concern that it is inauthentic.
Employers are entitled to seek a second opinion regardless of whether the certification notice offered by the employee is real. In requiring Adams to attend the sessions with Wolff, the school board simply exercised its statutory right to seek a second professional medical opinion.
Second, Adams argued that the pre-disciplinary conference interfered with his FMLA leave by forcing him to "work." In certain circumstances, required meetings may unlawfully interrupt employee leave. In this case, however, the one-time conference was a legitimate part of an ongoing investigation into the January 19 incident between Adams and the student.
Adams argued more broadly that the disciplinary investigation was contrary to the understanding reached at the February 24 meeting with school officials, during which the officials allegedly indicated the entire matter had been wrapped up.
Although CPS cleared Adams in the child abuse investigation by early February, there was little evidence that the board in some way closed and then reopened its investigation into whether Adams had violated school district policies, much less that the actions by the board had anything to do with his FMLA leave.
The court found that the evidence overwhelmingly pointed to the conclusion that the separate investigation by the board into whether Adams violated school district policy was continuous. The only document in the record that resembled what Adams claimed was a fully exculpatory resolution to the January 19 incident was the February 4 decision by a five-member DSS committee rejecting the child abuse allegation.
By contrast, the employee case management log showed that the investigation report was not completed on February 24, the date on which Adams claimed the investigation was closed. In fact, the school district interview of Adams about the incident was not even scheduled until that day because the DSS had just finalized its investigation into the child abuse allegation.
The draft report was not finished until March 23, and the report was not finalized until April 8. The board then notified Adams of the pre-disciplinary conference by letter. The conference was postponed for 4 days his counsel could attend.
The court observed that the investigative processes of all institutions are open to abuse, but the record pointed to a standard procedure during which Adams was provided due process every step along the way. He did not dispute that the board was entitled to conduct its own investigation into the January 19 incident.
The pre-disciplinary conference was part of the investigatory and disciplinary process, which he did not adequately link to his FMLA leave. The school board seeking the participation of Adams and his attorney in that process did not constitute impermissible interference with his FMLA leave. He never objected to or sought a continuance he did not get.
Third, Adams asserted that the alleged verbal "attacks" by Farrare and the formal reprimand constituted adverse employment actions. Adams did not demonstrate that the verbal attacks and written reprimand discouraged him from taking FMLA leave.
Indeed, he began his second medical leave the same day as the first alleged verbal attack. Also, the written reprimand did not inhibit his final medical leave—he did not return to work until more than two months after the reprimand was issued.
The 4th Circuit found that neither the written reprimand nor the verbal attacks qualified as adverse employment actions because they did not lead to further discipline. The written reprimand was the final step in the legitimate investigation by the board.
The reprimand and verbal attacks were what the board said they were —discipline, not signposts on a predetermined path to a true adverse employment action. In fact, Adams received excellent performance reviews after returning from his final FMLA leave.
FMLA retaliation claim reviewed
Adams also contended that the board retaliated against him for exercising his FMLA rights. An employee must prove three things to establish a prima facie (minimally sufficient) case of retaliation:
- He engaged in protected activity.
- His employer took an adverse employment action against him.
- There was a causal link between the two events.
The 4th Circuit observed that many of the board actions were simply not retaliatory. For instance, it could not have reopened its investigation in order to retaliate against Adams because the investigation had never been closed.
The board review, including the pre-disciplinary conference and the written reprimand, met due-process requirements. The eventual result of the investigation —the reprimand letter —did not adversely affect employment of Adams or his pay and benefits.
Similarly, the verbal reprimands by Farrare did not adversely affect the employment of Adams. Although the board required additional medical exams for his request for FMLA leave, second medical opinions are expressly allowed under the applicable statutory and regulatory provisions.
In addition, the transfer of Adams from MacArthur to JAAA was not retaliation for exercising his FMLA rights. Crucially, both Adler and Wolff recommended that Adams be transferred to a less stressful school, and Adams reportedly had no objection to the transfer. The board made the transfer promptly—his first day at JAAA came merely a week after Wolff cleared him to return to work.
The salary of Adams remained the same for 2 years before being reduced by less than one percent. The salary reduction was mandated by the union contract because JAAA has a much smaller student population than MacArthur. Finally, because Adams was a JAAA employee, he was no longer eligible for some discretionary bonuses.
The court found that there simply was no retaliatory animus in transferring Adams to JAAA in a timely manner based on the recommendations of Adler and Wolff. The board essentially fashioned an accommodation for his disability. Reasonable accommodations provided under the ADA are unlikely to be retaliatory under the FMLA, and the court found that the accommodations in this case were plainly not retaliatory.
ADA claims fail to connect
Adams also claimed that the board discriminated and retaliated against him based on his disability and failed to accommodate his condition. In his view, the ADA violations included verbal attacks by Farrare, the investigation of the January 19 incident, the written reprimand, and the mandated medical exams. In addition, Adams argued that the written reprimand, the medical exams, and the reduction in pay were retaliation for requesting an accommodation.
The 4th Circuit noted that there was a common element in the discrimination and retaliation claims—his allegation that he suffered some kind of adverse employment action. The court noted that the discrimination provision of the ADA seeks to prevent injury to individuals based on who they are (i.e., their status). The anti-retaliation provision of the ADA seeks to prevent harm to individuals based on what they do (i.e., their conduct).
The court viewed the anti-retaliation provision as covering only employer actions that would be considered materially adverse by a reasonable employee. The court pointed out that Farrare and the board did things that Adams did not like. But dislike of or disagreement with an employer decisions does not necessarily make the decisions adverse employment actions.
In addressing the reprimand, Adams failed to link the upbraiding by Farrare, the board investigation of the January 19 incident, and the statutorily permitted medical exams to a material change in the conditions of his employment.
The transfer from MacArthur to JAAA required a separate analysis. He claimed that the school board failed to provide a reasonable accommodation for his disability. Specifically, he contended that the board "made no effort" to reassign him "to a less stressful school where he would not suffer a reduction in pay" and did not transfer him until four months after he had initially requested an accommodation.
Adams acknowledged that the board did not deny his requests to accommodate his disability outright. Rather, he questioned the adequacy of its efforts. The court found that the accommodations offered by the board were plainly reasonable because of the following:
- The transfer to JAAA was consistent with the recommendations of the doctors who had examined him. In other words, the professional advice of the doctors supported the reasonableness of the reassignment decision.
- The board acted on the request by Adams in a timely manner. It sensibly sought a "less stressful environment" for him in light of his disability.
- Adams did not object to his reassignment to JAAA at the time, and he did not request a transfer from JAAA.
- The eventual decrease in his salary stemmed from a system-wide collective bargaining agreement. The resulting $1,031 decrease constituted less than one percent of his salary.
The court could find nothing to indicate that the efforts by the board to accommodate Adams were anything but reasonable. Therefore, it determined that the board did not violate the law.
Lessons for employers
Claims involving the FMLA, the ADA, and medical issues can be very complex. Employers must understand that complexity when a situation presents itself and ask many questions. What are the doctors saying? Is there a need for a specialist or a second opinion? What was the performance of the employee like before the situation? Is there an issue that should be investigated? If so, employers should conduct a reasonable and thorough investigation.
Continue to engage in dialogue with the employee during the course of the medical treatment and any investigation that is underway. Do notprejudge any situation. Rather, wait until all the relevant information is in. When you reach that point, make a decision based on the facts and medical evidence available.
In this case, the employer asked those questions and followed those steps. It was vindicated by the 4th Circuit because it met the necessary legal requirements. Sometimes employers must believe in what they have done and let the system work.
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