Benefits and Compensation, HR Management & Compliance

One Strike and You’re ‘Out’

Citing the employer’s zero-tolerance “no-call, no-show” policy, an Ohio federal district court recently upheld the termination of an employee who had just returned from a leave of absence under the Family and Medical Leave Act (FMLA).

Facts

University Manor staffs and runs a nursing facility in Cleveland, Ohio. It provides respite, short-term, long-term, and hospice care for its residents. Amber Van Leer worked for the company from 2014 until October 2019. From August 2016 until her termination, she held the position of licensed nurse practitioner.

University Manor published work schedules for nurses a month in advance. For example, the October 2019 schedule was published around mid-September. The schedules were printed and put in a folder, where they were available for the nurses on each floor.

As for Van Leer’s specific schedule, she worked a two-week rotation, which required her to work alternating weekends. A “W” on the schedule meant she was supposed to work, a “slash” indicated she was off, and a “V” meant she wasn’t scheduled to work because she requested the day off.

Van Leer suffers from severe eczema, particularly on her hands. During a flare-up, her joints swell, and her skin becomes cracked and inflamed, sometimes becoming visibly bloody. The pain was at times so severe that she described it as 10 on a scale from zero to 10, with 10 being the most painful. When flare-ups occurred, it was difficult for Van Leer to complete at least some of her job duties.

In late September 2019, Van Leer’s eczema flared up to the point she sought care from both her primary care physician and a dermatologist. She requested and was granted leave under the FMLA, which began on September 28. At the time she went on leave, she was scheduled to work every Thursday, just as she had in each previous month that year.

The FMLA paperwork Van Leer submitted to University Manor stated she would be medically able to return to work on October 17. The employer was aware her physician had cleared her to work that day. According to the October 2019 schedule, she was scheduled to work that day, which was signified by a “W” appearing next to her name.

Van Leer didn’t come to work on October 17 or call in to let University Manor know she wouldn’t be there.

University Manor has a “no-call, no-show” termination policy, meaning if employees fail to report for work and don’t call in before the start of their shift, their employment is summarily terminated. During the three-year period leading up to October 17, 2019, University Manor discharged 58 employees besides Van Leer under the policy.

Van Leer acknowledged she was aware of University Manor’s no-call, no-show policy. She claimed, however, she wasn’t aware she was supposed to work on October 17:

  • Van Leer questioned the schedule’s accuracy because it also had a “W” by her name on many days when she was on FMLA leave and didn’t work; and
  • She claimed a handwritten note at the top of the schedule stating “SUBJECT TO CHANGE” added to her confusion.

University Manor was unconvinced by Van Leer’s explanations and terminated her for the single policy infraction.

Court’s Decision

Van Leer filed a lawsuit against University Manor in Ohio state court, which the employer had moved to the U.S. District Court for the Northern District of Ohio. The complaint alleged claims of (1) unlawful retaliation under the FMLA, (2) disability discrimination under the Americans with Disabilities Act (ADA) and Ohio law, and (3) negligent training, retention, and supervision under state law.

At the close of discovery (pretrial fact-finding), University Manor filed a request for summary judgment (the dismissal of all of Van Leer’s claims without a trial). The essence of the employer’s request was it had an honest belief Van Leer was scheduled to work on October 17, and it was undisputed she neither worked nor called in that day.

Van Leer opposed summary judgment but didn’t claim to have any “smoking-gun” evidence to support her disability discrimination or FMLA retaliation claims. Rather, she argued her own confusion about whether she was scheduled to work on October 17, coupled with the temporal proximity between her return-to-work date from FMLA leave and her termination, was enough to at least raise issues for a jury to decide.

The judge ruled in University Manor’s favor on all counts. Regarding Van Leer’s temporal proximity argument, the judge noted the U.S. 6th Circuit Court of Appeals (which covers Ohio) has long held temporal proximity between the end of leave and termination alone doesn’t demonstrate pretext (or a cover-up for a discriminatory motive).

The federal district court also concluded the FMLA regulation requiring an employer to notify employees of their rights during FMLA leave, their obligations, and the consequences of failing to meet them doesn’t impose an affirmative duty on the employer “to communicate a return-to-work date” to an individual returning from leave. Van Leer v. University Contracting Company, LLC, d/b/a University Manor, N.D. Ohio No. 1:20-cv-387 (July 9, 2021).

Takeaway

The employer’s evidence of consistent enforcement of its zero-tolerance no-call, no-show policy undoubtedly was a significant factor in the case. While it helped University Manor avoid a trial, not many employers in this day and age can afford to have such a stringent policy because the resulting employee turnover rate would be too high.

Franck G. Wobst is a labor and employment attorney with the Columbus, Ohio office of Porter Wright. He can be reached at fwobst@porterwright.comor.