ADA & Disabilities, Leave Management, Policy, and Compliance

Disability Discrimination: Terminated Cancer Survivor’s ADA Claim Fails, Part 1

By Steve Jones

The U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently affirmed a district court’s ruling that an employee failed to establish a case of disability discrimination and retaliation.Arkansas

Background

“Willow” was diagnosed in 1997 with Hodgkin’s lymphoma, for which she received chemotherapy and radiation treatment and a bone marrow transplant. The cancer has been in remission since 1999. Her treatment resulted in adverse, long-term health effects, including a suppressed immune system and cardiomyopathy.

Medtronic, a medical device maker, hired Willow as a credit representative in 2003. She informed Medtronic of her disability as a cancer survivor with long-term health effects. She excelled at her job, winning awards for customer satisfaction and cost efficiency. In 2005, she took the position of senior patient services specialist and again communicated her disability to her hiring supervisor.

Willow got along well with her supervisor, “Kristy,” and consistently received positive performance evaluations. Kristy allowed Willow to work from home on days when she was ill. Because of her suppressed immune system, she became sick easily and took longer than normal to recover. Medtronic’s policy limited teleworking to 2 days per week, but Kristy allowed Willow to do so more often if needed. From roughly 2005 to 2008, she often took medical leave for medical appointments.

In April 2008, Willow wanted to apply for a promotion to operations lead. Kristy talked her out of applying, however, explaining that she was already slated to be promoted to principal patient services specialist that July.

During their talks, Kristy stated that she perceived Willow as desiring power in the workplace and made a reference to Nazis or Hitler. Although the parties disputed the context of and intent behind that reference, Willow understood it was directed at her. Being of German heritage, she took exception to the statement, which apparently caused their working relationship to deteriorate.

Kristy eventually selected a less-qualified candidate (another cancer survivor) for the operations lead position. Several nondisabled members of Willow’s department also were promoted.

Medtronic management received three customer complaints referencing calls Willow handled between July and September 2008. Willow disputed the accuracy of the complaints. Two calls involved upset patients. Although it doesn’t appear that she necessarily caused their agitated state, a patient services specialist is supposed to use empathy to calm down upset customers. Another complaint referenced her failure to call the patient back.

About one of the calls, Willow had written down in her call notes that the customer was “rude.” This violated Medtronic’s policy of using purely objective language in call notes, which can be exchanged as evidence in potential lawsuits. Also, Kristy received complaints from other employees about Willow’s blunt communication style. In July 2008, Kristy told Willow she would not be promoted to principal patient services specialist, citing one of the patient complaints as a reason.

Willow met with Kristy and technical services and patient services department manager “Mary” in September 2008 to discuss why she wasn’t promoted. Kristy discussed the customer complaints and Willow’s use of the term “rude” in her call notes. She also informed Willow that she would begin enforcing the 2-days-a-week limit on teleworking until Willow showed she was consistently empathetic in dealing with patient phone calls.

Willow asked to continue teleworking as needed, and Kristy later granted the request on the condition that her calls handled from home be recorded. Willow agreed, although she considered it unfair treatment because other teleworkers weren’t recorded.

Later in September, Willow and Kristy met again with Mary present. Mary claimed that Willow leaned toward Kristy in a physically intimidating manner, causing Mary to be concerned that Willow might assault Kristy. Willow disputed this but admitted she understood that they felt physically intimidated by and fearful of her. An HR department employee was brought in at Willow’s request for the remainder of the meeting.

In October, Willow took a 3-week leave of absence for whooping cough, although it wasn’t corroborated by medical evidence. In November, she was rear-ended in a car crash, injuring her rotator cuff and a herniated disk.

In a January 2009 meeting with Kristy and HR employee “Allison,” Willow received a spreadsheet documenting what Kristy said was a high absenteeism rate of 6.3% of available time to work over the previous year.

Willow noted that the spreadsheet counted days missed for medical leave under the Family and Medical Leave Act (FMLA), which didn’t count as absences under Medtronic’s policy. Mary agreed in her deposition that the spreadsheet was inaccurate; Willow’s actual absenteeism rate was 4.75%. Under Medtronic’s policy, absenteeism in excess of 2% of available time to work over a 12-month period is considered “excessive,” and Mary’s department policy was to discuss with any employee absenteeism approaching 4%.

Because of Willow’s injuries from her car crash and an unrelated and unspecified medical issue not related to her disability, she took a leave of absence from late February 2009 to mid-June 2009. While she was on leave, Kristy retired and was replaced by “Tiffany.”

When Willow returned, she made an informal request for accommodations based on her doctor’s recommendation. She was told she needed to put in a formal request. In the past, she had always been granted accommodations without going through the formal process. Also, Tiffany changed Willow’s old 7:00 a.m. to 4:00 p.m. schedule to 8:00 a.m. to 5:00 p.m. Willow claimed that other employees who returned from leave were allowed to keep their old schedules.

In August, Willow received a negative performance evaluation. Mary performed the review because of Kristy’s retirement. As department manager, Mary didn’t directly supervise Willow, so she didn’t have the same degree of familiarity with Willow’s work performance as Kristy. Willow disputed the evaluation’s accuracy, and Allison, in the presence of Willow and Mary, stated that the evaluation was too hard on Willow.

Mary revised the evaluation—removing some positive comments and winding up more negative than the first. The evaluation cited a greater than 8% absenteeism rate, but the spreadsheet on which that figure was based showed only a 6.3% rate.

The evaluation stated Willow violated the sick-leave call-in policy when she had whooping cough, but she stated she had covered her shifts by communicating via e-mail, which was consistent with past practice.

Finally, the evaluation stated Willow had violated the telework policy, but she claimed this was only because of the rescission of the past accommodation of her need to telework often. When questioned about the evaluation in a deposition, Willow admitted she “sometimes” attempted to undermine leadership in her workplace.

In September, Willow gave incorrect information to a patient’s wife about the minimum safe distance between a forklift and a pacemaker. The correct distance is 2 feet. She admitted giving incorrect information (6 inches). While on vacation in Ireland later that month, she contracted an unidentified lung illness and took medical leave from late September to early November, exhausting her FMLA leave.

As a result, on October 22, Mary notified Willow that her position was no longer being held, but if a same or similar position was available when she was ready to return, it would be offered to her. Medtronic cited the business need to fill the position promptly because of a high volume of customer calls.

On October 23, Mary began conducting interviews for the job. On October 28, Willow notified Mary that she would return on November 2. Two days later, on October 30, Mary hired a replacement for Willow’s position, who took more than 2 weeks to train and wasn’t ready to begin work until November 18.

Willow claimed it was inconsistent for Medtronic to, in one breath, claim a need to fill a job quickly because of high call volume and, in the next, hire someone who couldn’t be ready to take calls until more than 2 weeks after Willow’s return.

Administrative assistant “Sarah” testified that she overheard Tiffany and Mary creating with relish a new position for Willow that they intentionally made miserable and difficult, hoping she would quit or that they could use her inability to fulfill the responsibilities as a reason to fire her. Sarah also testified that Mary’s and Tiffany’s treatment of Willow “was unethical and was possibly harassment.” Further, Mary and Tiffany told Sarah directly that they wanted Willow gone.

Mary also gave deposition testimony from which it could be inferred that she doubted whether Willow ever had cancer and that she believed Willow might have been lying about it. Mary also told Willow that she wasn’t disabled.

When Willow returned in November 2009, she accepted the “CareLink specialist” job Mary and Tiffany had created. She received the same pay as before, was in the same department, and reported to the same supervisors. The exact responsibilities, however, were, as Willow put it, a “demotion.”

CareLink is a system that remotely monitors patients’ heart devices and transmits information. Willow was assigned to handle incoming and outgoing patient telephone calls about the system and attend to “Logcasters,” which logged errors in transmissions.

Additionally, she was tasked with answering all e-mails that came in to Medtronic.com and patient services. She wasn’t permitted to leave at the end of the day until all these tasks were completed. Furthermore, she was the only department employee required to stay in the queue of incoming telephone calls while working on other assignments.

According to Sarah, the Logcasters duty was an impossibly large amount of work for a single employee. One entry could take anywhere from 5 to 30 minutes to process, and Sarah—who was assigned to Logcasters at one point—reported getting roughly 20 to 80 a day. Tiffany, however, testified that there were 10 or fewer Logcasters reports a day. Soon after Willow took the position, she notified Tiffany that she was unable to respond to certain e-mails, and she failed to keep up with her assignments.

Willow had submitted a physician’s letter requesting certain accommodations when she returned from her medical leave. Medtronic granted all except her request for a 7:00 a.m. to 4:00 p.m. schedule. Instead, she received a 9:00 a.m. to 6:00 p.m. schedule so she could attend medical appointments in the morning before work.

After receiving another physician letter, Medtronic put Willow on a 7:00 a.m. to 4:00 p.m. schedule for one month to attend already scheduled appointments, but then returned her to a 9:00 a.m. to 6:00 p.m. schedule afterward, with afternoons off for appointments if a morning appointment wasn’t available.

Willow voiced her discontent to both Allison and Tiffany. She claimed that the later schedule caused her to miss more work than she would on a 7:00 a.m. to 4:00 p.m. schedule because her appointments were often lengthy and morning appointments would extend beyond her 9:00 a.m. start time. Had she been able to work 7:00 a.m. to 4:00 p.m. and schedule her appointments in the late afternoon, she would have been able to complete more work.

Medtronic stated that it needed her to work the later schedule because call volumes are higher in the afternoon and, in light of her need for frequent absences, it was difficult to find coverage for the 7:00 a.m. shift.

On January 8, 2010, Tiffany placed Willow on a performance improvement plan (PIP), which referenced numerous violations of Medtronic’s patient-call policies dating back to August 2009—providing incorrect information, giving medical advice, making unnecessary comments to patients, and failing to be empathetic—as well as failing to meet the responsibilities of the CareLink specialist position.

Willow refused to sign the PIP. Also in January, Mary provided Willow with calculations showing she had a 6% absenteeism rate, and Tiffany criticized Willow for taking medical leave too often. The 6% figure, like the 6.3% figure described earlier, was inaccurately calculated because it included days taken for FMLA leave. The figure should have been 3.7%.

On January 21, Mary barred Willow from all meetings until her work was caught up. Around the same time, Medtronic’s legal team notified Tiffany and Mary that they should grant Willow’s request for a 7:00 a.m. start time.

On January 22, Tiffany met with Willow in Allison’s presence. Tiffany discussed Willow’s continuing performance issues, including her failure to stick to scripted statements for telephone calls. Tiffany informed Willow that she could have the 7:00 a.m. start time but would no longer be allowed to telework. Also, Willow wasn’t permitted to discuss her workload with coworkers because Tiffany had heard complaints about such interruptions.

Tiffany testified that Willow taunted her and laughed at everything she said. Allison said Willow asked lots of questions and never stated agreement with or understanding of Tiffany’s statements. Allison testified that Willow’s laugh could be perceived as “sarcastic” and “belligerent.” According to Mary, Tiffany told her that Willow had said she was “totally protected” by her disability.

Willow disputed Tiffany’s and Allison’s accounts of her conduct at the meeting. Later that day, Tiffany and Mary approached Willow with a security guard and told her she was suspended and escorted her off the premises. Allison stated she was surprised to learn that Tiffany and Mary had suspended Willow without going through HR.

Willow and her attorney met with Medtronic’s in-house counsel, “Bruce,” on February 24. She explained her desire to work in a different Medtronic department so she could avoid the toxic relationship with Mary and Tiffany. Willow left with the understanding that Bruce was going to set up an informational interview between her and a Medtronic employee about a clinical specialist position. She testified that at no point during the meeting did the parties discuss her leaving Medtronic.

On March 2, Willow received a letter from Bruce with a proposed separation agreement and release. On March 22, she wrote an e-mail to Bruce in which she turned down the settlement terms. She received a letter from Allison stating: “Since you have rejected Medtronic’s settlement offer, Medtronic will terminate your employment effective today March 26, 2010.”

Willow filed an Americans with Disabilities Act (ADA) suit against Medtronic claiming her status as a cancer survivor as a disability. The district court ruled for Medtronic, concluding she hadn’t proven that her firing was related to her disability or that her protected activity resulted in her termination. Willow appealed to the 8th circuit. Read the complete ruling in part two of this article.

Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com .