My thoughts go out to everyone in the Houston area and in Texas dealing with the aftermath of hurricane Beryl.

 

The blog entry of the day is about a case that came to me from Anne Cullen, a reporter with law 360. She wrote an excellent article on it, here (subscription required). The case is Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. July 1, 2024), here. It deals with several issues worth exploring, including: the honest belief rule; whether failure to accommodate claims require an adverse action; whether FMLA interference is the same as ADA interference in terms of the way we have discussed ADA interference in the blog; and whether FMLA retaliation and ADA retaliation are the same.

 

As usual, the blog entry is divided into categories and they are: facts; majority opinion that the honest belief rule is not unlimited; if failure to accommodate cases require an adverse action, it isn’t much of one; FMLA interference and ADA interference are the same but not as we have come to think of interference in the blog; FMLA retaliation and ADA retaliation are the same; the concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Westar foods operates a number of Hardee’s restaurants in the Midwest, employing more than 200 people. Soon after Huber started working at Westar, she was diagnosed with diabetes. In March 2019, Huber had to start taking insulin, including at work. Over the course of her employment, Huber’s insulin dosage increased. To manage her diabetes, Huber needed a room temperature location where she could store her insulin. The restaurant’s kitchen and office ran upwards of ninety degrees, and Huber struggled to find a room temperature place for insulin storage. As such, she asked her district manager at the time, Matt Thayer, for help finding suitable storage, but he responded, “That’s a [you] problem, not a [me] problem.” After Cindy Kelchen became Huber’s district manager in September 2019, Huber renewed her request for help finding a room temperature location for her insulin, and Kelchen advised storing it in the freezer. When Huber pointed out that the freezer was not room temperature, Kelchen responded, “Then I don’t know what to tell you.”

In addition to insulin storage, Huber also needed to find time during her shift to eat a meal so she could take her insulin. Huber was often too busy to take meal breaks during her shifts, so she sought help from Kelchen. Kelchen responded by telling Huber to get better at time management.

In December 2019, Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia.^[1] Indeed, because of her blood glucose level, Huber “felt out of it” and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Eventually, Huber was able to drive herself to a nearby doctor’s office where she was given an IV and medications that sedated her.

Throughout the day of her stay at the Dr.’s office, Huber called her son and her boyfriend on multiple occasions. Both reported that she was groggy and incoherent and that her communication was all over the place and difficult to comprehend.

On the day of the diabetic episode, Westar discovered that the plaintiff had not come in to work when a customer notified the district manager that the store was not open. The district manager tried calling the plaintiff who did not answer, so the district manager called plaintiff’s son, who is listed as her emergency contact. The son told the district manager that the plaintiff was at the Dr.’s office and that her levels were off and that the plaintiff would call back. The plaintiff did not end up calling the district manager on that day. To get a ride home, her boyfriend had to use an app to locate where the plaintiff was as she was unable to convey to her boyfriend the directions. When she arrived at her home, she was delirious, disoriented, and ill, so the boyfriend decided to stay overnight out of concern for her safety.

Westar’s attendance policy has a “call-in” requirement, which states that if a store manager is going to be late for work or if they are unable to work, they must call their district manager immediately and at least two hours prior to the start of their shift “when possible.” Additionally, the attendance policy states that “[t]exting, emailing or leaving a message is not” an acceptable way to notify management of an absence or tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she called Kelchen and emailed her a doctor’s note excusing her from work through December 26. On the call, Huber conveyed her experience and the nature of the diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that Huber was at the doctor’s office because “her levels of her diabetic [sic] was off.” During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber why she did not notify her in accordance with the call-in policy on either December 20 or 21, Huber explained how the diabetic episode made it extremely difficult to call, mentioning to Kelchen that she could do an internet search to understand the symptoms better. Kelchen did not understand or believe that Huber could not have called, especially when she was able to call her boyfriend and son and drive herself to the doctor’s office. During the conversation, Kelchen asked Huber five times why she did not make a “simple phone call” to inform Westar about her absence.

Immediately following her call with Huber, Kelchen called Frank Westermajer, Westar’s owner and president, to convey her conversation with Huber. It is undisputed that during the call, the decision was made to fire Huber when she returned from sick leave on December 26. The parties disagree as to whether Westermajer was the sole decision-maker, or whether Kelchen was also a decision-maker.

From there, things went from bad to worse. Plaintiff requested FMLA paperwork but never received any. At a follow-up Dr.’s appointment, the doctor wrote another note saying she should be out of work through January 2 due to her diabetes. Once again, plaintiff requested paperwork but never received anything or even a response. Instead, the HR manager requested a meeting that afternoon despite her awareness of plaintiff’s medical leave. The HR manager planned to fire the plaintiff at the meeting. Plaintiff declined the meeting because she was not stable, provided a new Dr.’s note, and once again asked for FMLA paperwork. Since plaintiff’s sick leave was extended, the meeting did not occur, and the HR manager sent plaintiff a termination letter. The termination letter, in addition to terminating her, also said that they would decline FMLA leave.

Plaintiff sued alleging that Westar interfered with her rights under FMLA, retaliated against her in violation of the FMLA, and also violated the ADA by discriminating against her on the basis of her disability. The District Court granted summary judgment and plaintiff appealed.

II

Majority Opinion That the Honest Belief Rule Is Not Unlimited

 

1. Where an employer seeks to assert a good faith argument (the honest belief rule), the underlying reason for firing must be sufficiently independent from the protected status or activity. If the reason for an employer’s adverse employment action is so inextricably related to the disability, those reasons cannot be considered independently of one another. Finally, where a disability caused missed work and the missed work caused the termination, it is not much of a stretch to conclude that the disability caused the termination.
2. In a footnote, the court noted that: 1) accommodation and termination claims are two sides of the same coin where the disability may have caused the conduct and the conduct caused the termination; 2) for purposes of the ADA, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination; 3) the link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to the discharge for performance inadequacies resulting from that disability; 4) employers have a duty under the ADA to reasonably accommodate an employee’s known disability; and 5) an employer may violate the ADA where fails to make a good-faith effort to assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the employer’s lack of good faith.
3. A reasonable jury could conclude that plaintiff’s diabetic episode was not independent from her firing. Although Westar argued that its termination was underscored by plaintiff’s failure to follow the call-in policy on two prior occasions, that worked against Westar because they did not terminate her on those occasions, neither of which were related to her disability.
4. Whether an employee’s disability caused the conduct that violated company policy and whether the employer acted in good faith are both questions of fact.
5. Plenty of evidence exists to show that Westar’s arguments that pretext was not involved in the termination do not hold up. For example, plaintiff was yelled at when she tried to explain what was going on. There was also a close proximity between the notification of what was going on and the termination decision.

 

III

If Failure To Accommodate Cases Require An Adverse Action, It Isn’t Much Of One

 

1. Failing to provide an employee with reasonable accommodations can tend to prove that the employer also acted adversely against the employee because of the individual’s disability.
2. Plaintiff presented evidence that the district managers (there were two different ones during the time of these occurrences), were ambivalent toward plaintiff’s insulin storage and meal break requests. She also provided evidence of the district manager and the HR manager share contempt toward accommodating her sick leave after the diabetic episode. The district manager not only yelled at plaintiff over the phone on December 21, she also equivocated on whether she expected plaintiff to find others for her shifts despite her sick leave. The district manager’s expectation that plaintiff work while sick is backed up by other evidence as well. Finally, the HR manager and the district manager requested a meeting with the plaintiff even though they were aware of plaintiff’s Dr.’s note using her from work through December 26.
3. Westar’s own records indicate that they knew about plaintiff’s diabetes well before they terminated her employment. The fact that Westar was aware of plaintiff’s disability yet continues to deny awareness of her disability is strong evidence of pretext.

 

IV

FMLA Interference and ADA Interference Are The Same But Not As We Have Come To Think Of Interference In The Blog

 

1. An employer’s action that deters an employee from participating in protected activity constitutes an interference or restraint of the employee’s exercise of his rights.
2. Interference includes manipulation by a covered employer to avoid responsibilities under FMLA.
3. To establish an FMLA interference claim, an employee must show: 1) they were eligible for FMLA leave; 2) the employer was on notice of the need for FMLA leave; and 3) the employer denied the employee an FMLA benefit.
4. Magic words are not required to seek FMLA leave.
5. An employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.
6. For an employer to be on notice of the need for FMLA leave, they have to be aware of a “serious health condition.”
7. An employee has to notify the employer of their request for FMLA leave as soon as practicable.
8. Whether an employer is on notice prior to its termination decision of a request for FMLA leave, is a question of fact for the jury.
9. An FMLA interference claim merely requires proof that the employer denied the employee’s entitlement under the FMLA.

 

V

FMLA retaliation and ADA retaliation are the same

 

1. FMLA retaliations claims require proof of retaliatory intent.
2. To prove a FMLA retaliation claim, a plaintiff have to show: 1) they engaged in protected conduct; 2) they suffered a materially adverse employment action; and 3) the materially adverse action was causally linked to the protected conduct.
3. A materially adverse action is one that deters a reasonable employee from making a charge of employment discrimination. Termination from employment is one such adverse action.

 

VI

Concurring and Dissenting Opinion by Judge Stras

 

1. Judge Stras concurs with the majority except for how the majority opinion narrows the honest belief rule. In particular, the narrowing of the honest belief rule will require an employer to show that the asserted justification is sufficiently independent of the employee’s disability even where an employee has repeatedly violated the workplace rule or engaged in misconduct.
2. Nothing in the majority opinion should be construed that employers can not discipline employees for misconduct.
3. Narrowing the honest belief rule contradicts ADA causation principles per McDonnell Douglas, which requires the disability to be a motivating factor.
4. Termination must be based on disability and not just independent of it with respect to the ADA.
5. Misconduct related to a disability is not itself a disability and may be grounds for dismissal. That is, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the conduct is related to a disability.
6. An employer who fires a worker because of a disability violates the ADA, but if the employer fires the worker because the worker is unable to do the job, then there is no violation of the ADA.

 

VII

Thoughts/Takeaways

 

1. The majority opinion goes cutting edge here by narrowing the focus of the honest belief rule where the conduct is caused by a disability. That is not to say that misconduct cannot be the basis for terminating an employee. Rather, it says that the honest belief rule won’t fly if the conduct is disability related. That doesn’t necessarily mean that the defendant loses when the honest belief rule does not apply.
2. Whether the employee’s disability caused the conduct of violated company policy and whether the employer acted in good faith as a result, are questions of fact.
3. A failure to accommodate is quite probably, if not always, an adverse action. The Supreme Court decision in Muldrow (see also §VII(5) of this blog entry), certainly seems to suggest as much.
4. The court says that FMLA interference and ADA interference are the same. Keep in mind, that we have talked about cases, such as here, stating that ADA interference borrows from the Fair Housing Act and not from the FMLA. So, interference under the ADA may be different than interference under the FMLA. It will be interesting to see how the U.S. Courts of Appeals deal with the question of whether interference gets taken from the FMLA or whether it gets taken from the Fair Housing Act.
5. Retaliation cases typically use the phrase materially adverse action. You have to wonder about that phrase in light of the Supreme Court opinion in Muldrow, which we discussed here. Nevertheless, in retaliation cases, the phrase has its own meaning as being something that deters a reasonable employee from making a charge of employment discrimination.
6. Judge Stras’s concurring and dissenting opinion makes the argument that the narrowing of the honest belief rule by the majority may not hold up upon closer analysis. So, this sets up a situation where plaintiffs faced with the honest belief rule will be citing the majority opinion and defendants will be citing the concurring and dissenting opinion. It will be very interesting to see how the Eighth Circuit’s narrowing of the honest belief rule when disability related conduct is involved will play out around the country.
7. Failure to engage in the interactive process violates the ADA.
8. If an employer clearly knows of a disability but in litigation claims that it didn’t, that dichotomy strongly suggests pretext. In short, positions taken in litigation when compared to the actual facts, matter.
9. Both the FMLA and the ADA takes similar approaches to magic words not being required.
10. “Serious health condition,” is a term of art with respect to the FMLA.
11. The decision does not seem to be published.
12. One wonders whether a rehearing en banc will be sought with respect to the majority’s narrowing of the honest belief rule. One also have to think that if this particular issue is appealed to the Supreme Court, a majority of the court would be very receptive to Judge Stras arguments made in his concurring and dissenting opinion.