Absence Does Not Make the Heart Grow Fonder: Texas Court Holds Attendance Issues Can Preclude Disability Claims
Author: Mark A. McNitzky (San Antonio)
Published Date: April 3, 2018
In Wolf v. Lowe’s Companies, Inc., No. 4:16-CV-01560 (March 13, 2018), United States District Judge Alfred H. Bennett of the Southern District of Texas granted Lowe’s motion for summary judgment on a former sales employee’s claims under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate, as well as her claim under the Family and Medical Leave Act (FMLA) for retaliation. The court held that the plaintiff had failed to establish a prima face case under the ADA because her excessive absenteeism and tardiness prevented her from being qualified to perform her job. Additionally, temporal proximity between the plaintiff’s use of FMLA leave and her discharge was insufficient to establish a prima facie case of retaliation.
Beginning in March of 2005, Tamara Wolf worked as a sales specialist for Lowe’s for approximately nine years. From November of 2005 through December of 2013, Wolf received written warnings and negative remarks on her performance evaluations on several occasions for excessive absences and tardiness, and for her inability to complete assignments on time, among other performance issues. On December 7, 2013, Lowe’s administered a “final notice” to Wolf due to her continued “excessive attendance problems.”
In the spring of 2014, Wolf informed her supervisors and Lowe’s human resources department that she suffered from major depressive disorder, attention deficit disorder, cerebral palsy, polyarthritis, and fibromyalgia. She submitted two notes from her psychiatrist confirming these diagnoses. Wolf also alleged that these conditions affected her work attendance. Wolf then applied for and received intermittent FMLA leave.
While allowing for protected intermittent leave, Lowe’s tracked Wolf’s non-protected absences and tardiness and continued to hold Wolfe accountable for her other, preexisting performance deficiencies. In an effort to remedy these issues, Lowe’s administered multiple performance improvement plans. Lowe’s ultimately terminated Wolf’s employment on August 22, 2014. Thereafter, Wolf filed suit alleging that prior to her illnesses, she received positive performance reviews and that Lowe’s terminated her employment because of her illnesses and in retaliation for requesting intermittent leave for symptoms related to her illnesses in violation of the ADA and the FMLA.
The Court’s Analysis
In considering Lowe’s motion for summary judgment on Wolf’s ADA claims, Judge Bennett observed that Wolf was excessively tardy and absent from work during the entirety of her employment with Lowe’s, that Wolf was written up for attendance issues on numerous occasions, and that Wolf admitted that her attendance was an issue throughout her employment. Citing long-standing Fifth Circuit Court of Appeals precedent Hypes v. First Commerce Corporation, the district court judge reaffirmed the principle that regular attendance is an essential function of a job such that someone who is excessively tardy and absent from work is not qualified to perform the job. Accordingly, the court granted Lowe’s motion for summary judgment because Wolf could not establish a prima facie case of disability discrimination or failure to accommodate. Specifically, Wolf’s inability to appear for work and to complete assigned tasks within a reasonable period of time meant that she was not qualified to perform her job.
As to Wolf’s remaining claim of FMLA retaliation, the court determined that the only evidence of retaliation presented by Wolf was that of temporal proximity. In particular, Lowe’s placed Wolf on multiple performance improvement plans and then terminated her employment four months after she requested and obtained intermittent FMLA leave. Again relying on established Fifth Circuit authority, the court reaffirmed the principle that “temporal proximity between protected activity and the alleged adverse employment action, by itself, is insufficient to create a genuine issue of material fact” on the prima facie element of causation. The court noted that there must be a combination of temporal proximity along with other “significant evidence of pretext” in order to avoid summary judgment.
The Wolf decision is an important reminder that employers can prioritize consistently holding employees accountable for violations of work rules—even when the employees have invoked their rights under the ADA, FMLA, or another law. It was undoubtedly significant to the court’s decision that Lowe’s had been regularly holding Wolf accountable for her absenteeism, tardiness, and other performance issues for several years before Wolf ever disclosed her disabilities. Lowe’s successfully continued the performance management process after Wolf notified Lowe’s of her disabilities and of her need for FMLA leave by tracking her non-protected absences and tardiness as well as addressing her performance deficiencies.
Mr. McNitzky currently focuses his practice on the defense of various employment law litigation matters at trial and in private arbitration proceedings, including cases alleging violations of Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act (Chapter 21 of the Texas Labor Code), the Americans With Disabilities Act, the Americans With Disabilities Act, As Amended, the Age Discrimination in Employment Act, Chapter 451 of the Texas Labor Code (workers’...