by Dara Wanzer
Complicated legal and moral issues may occur when an employee who has taken medical leave under the Family and Medical Leave Act (FMLA) for alcohol-related health issues returns to employment. The Tenth U.S. Circuit Court of Appeals recently considered some of those issues and found that under certain circumstances, alcoholism can be a disability under the Americans with Disabilities Act (ADA). However, even if an individual’s alcoholism isn’t deemed a disability, an employer may still be held liable for retaliation against an employee who returns to work after taking FMLA leave to receive treatment for alcoholism.
Michael Burris worked as a sales manager for Novartis Animal Health U.S., selling animal medications to veterinarians. As a matter of policy and practice, Novartis evaluates its employees’ performance twice a year. Each worker is rated with a two-part score. The first part rates his achievement of sales goals. The second part is more subjective, rating the employee on his “shared values and related behaviors” (i.e., behavior goals), including leadership, communication, commitment, and self-discipline, among other traits.
Burris’ reviews from his first three years of employment, 1999 through 2002, showed that he was generally a “strong and steady” performer who was probably stronger in meeting his sales goals than his behavior goals. Although his sales were his worst during his fourth year (2003), his fifth year (2004) turned out to be his best, and his reviews that year reflected that he had exceeded expectations on his sales goals and had fully met expectations on his behavior goals.
Burris’ employment with Novartis was largely without issue until April 2005. It was then that he notified his district manager, Casey Berely, that he was an alcoholic. Burris entered an inpatient treatment program for approximately one month while on FMLA leave. After his release from treatment, he attended an outpatient program for several weeks. He returned to work at the beginning of June 2005. On June 15, he was presented with a document titled “Discussion Points and 30 Day Objectives for Mike Burris,” which assigned him a number of requirements to meet over the next month.
Soon after, Burris received his 2005 midyear performance review. He received the lowest possible ranking, indicating that he had merely “partially met” his performance expectations. On August 11, Berely and a Novartis HR representative presented Burris with a performance improvement plan (PIP), which also served as a final written warning. Notably, the PIP contained a number of fairly onerous sales and administrative requirements. Burris sent Berely an e-mail a few weeks later acknowledging that he had fallen short of the goals and expectations defined in the PIP. Only a week and a half later, Burris was terminated from his employment with Novartis.
Burris filed a lawsuit in federal district court claiming that Novartis had violated the ADA and the FMLA when it disciplined and ultimately fired him. The court found that his claims were insufficient and threw the case out in its entirety. The court noted that Novartis had a reasonable explanation (i.e., his poor performance) for the actions it had taken against Burris. Further, it found no evidence that the explanation was a pretext for unlawful discrimination. Burris disagreed and appealed to the Tenth Circuit.
Unrealistic performance expectations may have been unlawful retaliation
First, the Tenth Circuit considered Burris’ argument that Novartis retaliated against him for taking FMLA leave. Because the district court had found that Burris satisfied the basic elements of an FMLA retaliation claim, the circuit court’s analysis primarily focused on whether Novartis’ explanation for disciplining and terminating him was pretextual (i.e., unworthy of belief).
The Tenth Circuit found that the district court had erred in finding that a reasonable jury could not have found Novartis’ “poor performance” explanation unworthy of belief. The court considered Burris’ performance record at length and concluded that a reasonable jury could determine that the 30-day objectives, combined with Burris’ lackluster midyear performance review and the “fairly onerous” PIP requirements, may all have been part of a retaliatory course of action designed to drive him from the company following his return from FMLA leave.
The court reasoned that before taking leave, Burris had generally performed very well in meeting his sales goals. While his behavior goals scores tended to “lag behind” his sales goals scores, especially regarding his commitment to the administrative portion of the job, he had consistently received marks indicating that he met the company’s expectations.
However, two weeks after Burris returned from FMLA leave, his reviews became decidedly more critical, and Berely presented him with the 30-day objectives almost immediately. The objectives concentrated not on behavior goals, but on sales goals. That’s important because Berely admitted he made no adjustment to Burris’ targeted sales despite his being on medical leave for more than a month.
The court found the timing of the midyear review, the 30-day objectives, and the PIP suspicious and rejected Novartis’ argument that Burris was already behind on his sales goals before taking leave. It noted that the only evidence the company presented to support its claim was the testimony of a competing sales rep who also made calls in Burris’ territory.
The court further noted that just before Burris took FMLA leave, he was ranked second in terms of meeting his yearly goals. Novartis argued that he received credit for sales made by other reps who were directed to pay special attention to Burris’ territory while he was absent. However, they didn’t work in his area full-time, and Novartis offered no specifics regarding the number of sales made by other agents working in his territory.
Ultimately, the court found that a reasonable jury could conclude that the PIP’s performance requirements were onerous and “designed to ensure failure.” The breadth and scope of its requirements were undeniably stringent. For example, Burris was to “immediately improve his communications with Berely and his teammates in all areas,” and “[e-]mail [to Berely] by 9:00 P.M., each night, a re-cap of daily activities, progress towards each goal listed above, the clinics [he] saw, the representative name from each clinic that [he] talked with, the phone number of the clinic and the approximate time that [he] visited them.”
The court also found that a reasonable jury could conclude that Burris was treated differently than his similarly situated coworkers for the following reasons:
- his performance was comparable to or better than a number of his teammates’ until he took FMLA leave;
- his leave adversely affected his sales numbers; and
- the adversely affected sales numbers (i.e., “weak numbers”) were used in conjunction with his administrative weaknesses to subject him to increasingly unrealistic job requirements, eventually leading to his termination.
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Alcoholism may be considered a disability
The court found that Burris’ ADA claim contained sufficient evidence to infer pretext. However, the claim was dismissed because he was unable to show that he was suffering from a disability. The court explained that drug addiction, including alcoholism, is not a disability per se. It can be considered a disability if the addiction substantially limits one or more major life activities.
Novartis argued that alcoholism did not substantially limit one or more of Burris’ major life activities. It based its argument on Burris’ testimony that:
- his alcoholism didn’t necessarily have anything to do with an increase or decrease in his sales figures;
- it didn’t impair his ability to go to work or complete administrative paperwork; and
- he could perform his job functions and was successful as a salesman before seeking treatment.
Burris did testify that his alcoholism limited his ability to care for himself on a daily basis. Unfortunately, he presented few specifics about the adverse effects his drinking had on his life before treatment and how his disease and treatment actually affected his ability to function. He merely stated that as an alcoholic, he could not drink, had to attend Alcoholics Anonymous meetings, and had to be careful not to put himself in situations that might trigger a relapse.
The court concluded that Burris’ testimony was insufficient to demonstrate a disability. Thus, it affirmed the dismissal of his ADA claim — despite allowing his FMLA claim to proceed to trial.
This case provides no clear-cut rules on how an employee must be handled following a return to work after taking FMLA leave for the treatment of alcoholism. In sum, an employer may take an adverse action against an employee on FMLA leave only if it can show that it had independent grounds for the action that aren’t based, even in part, on the employee’s exercise of his FMLA rights. The grounds for action generally defy precise definition. They are usually determined by the facts and circumstances of each situation. This case does show that employers must be cautious when taking any disciplinary action based on new, stringent performance requirements or policies soon after an employee’s return from FMLA leave.