Whether and to what extent an employee (or prospective employee) may be entitled to a reasonable accommodation under the Americans with Disability Act (“ADA”) and Family and Medical Leave Act (“FMLA”) are daunting questions for employers. The decision-making process is filled with potential landmines that may only be apparent in hindsight – when it is too late for meaningful damage control. For this reason, employers must learn, wherever possible, from the experiences – good or bad – of others.
A new Eleventh Circuit Court of Appeals opinion is a cautionary tale for both employers and employees regarding requests for leave under the FMLA and requests for reasonable accommodation under the ADA. Such requests frequently present employers with challenges that require special consideration in making decisions which will insulate employers from potential liability. The takeaway from the Eleventh Circuit’s recent opinion is that not every manager is well-equipped to evaluate when a leave or accommodation request is reasonable. Employers must be vigilant to ensure their decision-making process is not vulnerable to attack in hindsight, something more easily said than done.
The Eleventh Circuit’s decision in Batson v. The Salvation Army, 2018 WL 3628184 (11th Cir. July 31, 2018), (http://media.ca11.uscourts.gov/opinions/pub/files/201611788.pdf) underscores the inherent risks employers face when making leave and accommodation decisions. The opening paragraph of the opinion makes clear, however, that the employer seemed determined to reject the employee’s requests from the outset. In order to win the appeal, the employer faced an uphill challenge from the very start:
Ebony Batson was an employee of The Salvation Army (“TSA”) for more than a decade. She received promotions and consistently positive performance reviews. After Batson was diagnosed with multiple sclerosis, she requested leave under the FMLA … and an accommodation under the ADA … . TSA then eliminated her position and required her to apply and interview for a position she previously held. During the interview, Batson was questioned repeatedly about her appointments with doctors and ability to travel. TSA decided against hiring Batson for her former position, citing her conduct in the interview and poor job performance.
Certainly, the red flags were apparent:
1. Ms. Batson had been employed by TSA for more than a decade;
2. Ms. Batson received multiple promotions;
3. Ms. Batson received consistently positive performance reviews.
Against the backdrop of these red flags, TSA’s ultimate decision not to hire Ms. Batson seemed strained: it was based upon conduct during the interview and, notwithstanding her ten plus-year tenure with TSA, poor job performance. Despite these obvious questionable justifications by TSA, the District Court granted summary judgment for TSA and Ms. Batson was forced to appeal.
The appellate Court expanded on what the record evidence revealed regarding Ms. Batson’s more than ten years with TSA:
Throughout her tenure with TSA, Batson received “excellent performance evaluations.” … In her 2009 performance review, [Ms. Batson’s direct supervisor] wrote that Batson was a “wonderful employee” who “always ha[d] a pleasant demeanor” and was “eager to learn new auditing techniques.” … In [Ms.] Batson’s 2011 performance review, [her supervisor] wrote that she was “a pleasure to work with” and that she had “grown nicely in her role as [A]udit [M]anager.” … According to [Ms.] Batson’s 2012 performance review, the last one before her termination, she “exceed[ed] expectations” in every category. … [her supervisor] commented that Batson was “eager to help anyone in need” and that “she strives for excellence and sets an example for the entire department.” …
Id. at *2.
When reviewing an order granting a summary judgment, the appellate court is obligated to view the facts below in the light most favorable to the non-moving party – here, Ms. Batson. And in that light, the facts before the trial court were quite compelling. Conversely, the record evidence supporting TSA’s decision to terminate Ms. Batson was – to be generous – sparse.
The ultimate decision-maker for the new position Ms. Batson applied for after her old position had been eliminated was Major Beatrice Boalt. Boalt and Ms. Batson’s supervisor, who wrote the glowing reviews above, interviewed Ms. Batson for the opening. After the interview, Bloat felt Ms. Batson had been combative, but her supervisor said Ms. Batson never raised her voice, answered questions completely and said he understood Ms. Batson may have been confused regarding why she had to complete the interview process. Ultimately, Boalt decided not to hire Ms. Batson, citing her performance during the interview itself and the fact that, on three occasions over her tenure with TSA, Ms. Batson had been late in submitting reports to her supervisor. Id. at *4.
The Eleventh Circuit reversed the trial court. While the Court did not reverse on the ADA accommodation claim – because Ms. Batson did not establish she ever requested and was refused an accommodation – it did find sufficient evidence to demonstrate that TSA’s stated reasons for terminating Ms. Batson were pretextual. Specifically, the Court noted that “[Ms.] Batson’s supervisors’ positive views of her performance and her historically ‘excellent’ reviews support that Boalt’s concerns about Batson’s performance were pretextual.” Id. at *9.
The takeaway from the employer’s perspective is that one or more people not involved in the decision-making process should act as a sounding board to give an objective perspective on the ultimate decision. Ideally, this should be someone with an understanding of the employer’s obligations under the ADA and FMLA. While it is possible the employer may be able to rely on someone in-house for this review, retaining an outside consultant may provide a more objective perspective and some degree of insulation against claims of bias.
From the employee’s perspective, the key takeaway is the need to develop the factual record before the trial court to uncover any facts shedding light on the employee’s past performance with the company, (i.e., personnel file), and potential biases held against the employee specifically, (emails and other electronically stored information), and against perceived resistance generally to fulfilling obligations imposed by the FMLA and ADA.
The entire process is filled with risks that should not be navigated without a clear idea of the objective and what the law allows. Have questions? We are here for you.
For ADA and FMLA questions, please call Jon Stage, Esq., at 561.810.1600.