An employee with a disability who was fired before she could provide a return-to-work date can go to trial on her Americans with Disabilities Act (ADA) claims, the 10th U.S. Circuit Court of Appeals ruled.
The plaintiff was hired by Weld County Clerk and Recorder’s Office for an Office Tech II position in June 2012. She was quickly promoted to Office Tech III, then selected for a position in the recordings department. There she examined and analyzed legal documents for land record recordings, assessed and collected fees, issued marriage licenses and civil union certificates, and assisted the public over the telephone and in writing.
The plaintiff became unable to work in December 2014 because of posterior reversible encephalopathy syndrome (PRES). She suffered tremors, seizures and temporarily fell into a coma. She applied for leave under the Family and Medical Leave Act (FMLA) and was hospitalized for two weeks beginning in January 2015. She was transferred to a long-term rehabilitation hospital, where she stayed until mid-February 2015. Her FMLA leave expired on Feb. 22, 2015.
On Feb. 17, 2015, the plaintiff contacted a county HR professional and told him that she had been released from the rehabilitation hospital the previous week. The HR professional did not ask her to update her work status but told the HR director that it would be months before the plaintiff could return to work, as she was having memory and vision problems.
Eventually, the plaintiff’s PRES resolved, and she began to recover. She underwent speech and occupational therapy and continued to see several doctors, who indicated that she could not return to work until July 31 or Aug. 1, 2015. But as the spring progressed, the plaintiff recovered faster than expected.
On April 15, 2015, the county notified the plaintiff that she had to attend a pre-termination hearing the next morning at 10:30 a.m., because the county could not accommodate the restrictions from her medical condition. The letter provided less than 24 hours’ notice for the plaintiff to obtain medical information from her doctors to show she could perform the essential functions of her position.
At the meeting, the county asked the plaintiff to explain why it should not end her employment, and if she could return to work in the next couple of weeks. The plaintiff stated that she would have to be retrained, but could return in a week to a less stressful division. The plaintiff asked for a demotion to an Office Tech II position in the elections division. She also asked for more time to gather medical information and provide a return-to-work certification.
The HR director stated that if another job opened, the clerk would likely consider the plaintiff for the position. Ordinarily, the county gives employees seeking a disability accommodation a form for the employee’s doctor to complete and return in 15 days. Yet, the clerk instead terminated the plaintiff’s employment after the meeting, effective April 20. The plaintiff then obtained long-term disability insurance benefits but was denied Social Security disability benefits.
The plaintiff sued the Weld County Clerk and Recorder and the Board of County Commissioners under the ADA and state law, alleging failure to accommodate, disability discrimination and retaliation for asking for an accommodation for her disability. The defendants moved for summary judgment on all three claims, which the district court granted.
On appeal, the 10th Circuit noted the quickness with which the defendants dealt with the plaintiff’s condition, and how the defendants had forced the plaintiff to provide medical documentation and a return-to-work date much sooner than her doctors’ initial estimates of July 31 and Aug. 1. The court stated that the April 15 hearing more resembled a pre-termination due process hearing than the adjudication of an accommodation request.
Moreover, the county did not seek to reinstate the plaintiff to an Office Tech II position and did not consider the plaintiff’s request for retraining or assistance in performing her position. Thus, the 10th Circuit reversed the dismissal of the plaintiff’s failure-to-accommodate and discrimination claims and instructed the district court to send them to trial.
Aubrey v. Koppes, 10th Cir., No. 19-1153 (Sept. 18, 2020).
Professional Pointer: An employer cannot rely on the seriousness of an employee’s disability or perceived limitations to reject her return-to-work request. Rather, the ADA requires employers to consider many potential accommodations, including extended leave, retraining and transfer to a different position.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.