Charlene Wisbey brought suit against her employer of twenty-seven years, claiming that her rights under the Americans with Disabilities Act (ADA and the Family Medical Leave Act (FMLA), were violated when she was terminated based on the results of a “fitness for duty exam.” The court of appeals ruled that it was reasonable for the City of Lincoln, Nebraska (the City), to perform a fitness for duty exam to ascertain the cause of behavior which was interfering with Wisbey’s ability to perform her job functions, as well as rely on the results of the exam when it came to making their decision to continue or terminate her employment with them.
The case is Charlene K. Wisbey vs. City of Lincoln, Nebraska
Beginning in 1979, Wisbey began working as an emergency dispatcher for the City. Her position required that she receive emergency calls and dispatch units for emergency services. Because of the potentially life-saving aspect of her position, it was required, as an essential part of her job, that she possess the “ability to obtain accurate and complete information from callers who may be frantic and incoherent due to emergency conditions” and to “act quickly and calmly in emergency situations.”
In 2007, Wisbey received a written warning regarding excessive absenteeism, and it was recommended that she apply for intermittent leave under the FMLA. In February, 2007, Wisby applied for intermittent FMLA leave on the basis of depression and anxiety, claiming on the application that she had a “serious health condition that rendered her unable to perform the essential functions of her job.” Wisbey also submitted a medical certification from her physician, Dr. Pothuloori, stating that she “suffered from recurring cycle depression, anxiety which interferes with her sleep, energy level, motivation, and concentration.” The certification also indicated that, Wisbey would need to take time off work intermittently over the “next 6 months or longer,” and that Wisbey’s concentration and motivation could be affected.
Concerned that Wisbey was still able to adequately perform her job as an emergency dispatcher, the City scheduled an appointment for Wisbey with Dr. Chesen, a psychiatrist, and requested that he perform a fitness-for-duty exam to determine, in his “professional medical opinion,” if Wisbey was “qualified to continue her work” as an emergency dispatcher. To aid in the assessment, the City provided Dr. Chesen with information regarding the duties and job description of Wisbey’s emergency dispatcher position.
During the appointment with Dr. Chesen, Wisbey described her lengthy battle with depression and insomnia and stated that the emergency nature of her job exacerbated those conditions. Wisbey described how she often “witnessed” deadly events over the radio. Within his report to the City, Dr. Chesen stated that Wisbey suffered from “chronic relapsing depression (unipolar depression) which intermittently interferes with her ability to function at full capacity at work vis-á-vis tiredness” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.” On March 28, 2007, the City put Wisbey on administrative leave with pay, basing their actions on the reported findings. On the afternoon of May 30, 2007, the City received an undated letter, authored by Dr. Pothuloori, which disagreed with Dr. Chesen’s conclusion that Wisbey was unfit for duty.
On May 31, 2007, Wisbey testified at a hearing before the City’s Personnel Board that she stayed home from work when she felt tired, stating, “at times my depression arises, and it makes me very tired where I can sleep 20 straight hours. And that’s where it interferes. Being tired at work was not ever a problem. But going on a string of six, seven straight days, I can get very tired due to the medication I’m on or due to the fact that I just get tired. She further stated that she would “never endanger anybody on the street by going to work tired or unprepared mentally.”
On April 3, 2007, the City terminated Wisbey’s employment based on Dr. Chesen’s determination that she was unfit for duty. The letter provided to Wisbey stated, “For your own safety it is important that you not continue in your present position.” The letter also encouraged Wisbey to “avail herself of the City’s long term disability benefits.” Wisbey then filed suit in Nebraska state court, claiming that the City violated her rights under the ADA and the FMLA. The City removed the case to federal court. Wisbey and the City filed cross motions for summary judgment.
The district court granted the City’s motion for summary judgment and denied summary judgment to Wisbey, dismissing the case. As to Wisbey’s ADA claim, the district court found that: (1) Wisbey failed to show that the City “perceived her as disabled as that term is defined under the ADA;” (2) no discriminatory evidence existed as to the City’s decision to terminate Wisbey;” (3) Wisbey could not show that the City failed to reasonably accommodate her because her claim was premised on “a right to recovery solely on the basis of perceived disability;” and (4) even if the City was required to provide a reasonable accommodation, Wisbey failed to present any evidence of a feasible accommodation. As for Wisbey’s FMLA claim, the district court found that: (1) “in requesting indefinite, intermittent, self-determined leave,” Wisbey did not show a right to leave protected by the FMLA; (2) Wisbey “failed to show that her employment termination was caused by the fact that she requested leave;” and (3) Wisbey was acceptably terminated based on medical information that she was unable to perform her job adequately and “not because she requested family medical leave.” Wisbey appealed.
On appeal, Wisbey argued that the fitness-for-duty exam did not constitute a business necessity because it required her to submit to an exam that is not permitted under the ADA. She further argued that the district court had erred in granting summary judgment to the City, because the requirement that she submit to a fitness-for-duty exam “was a violation of the ADA and the FMLA.
The ADA does prohibit an employer from requiring a medical examination or inquiring into the disability status of an employee “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Past cases have permitted employers “to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims,” and it has been established that fitness-for-duty exams are considered a reasonable means of making this determination. In this case, just the nature of Wisbey’s job supported the fitness-for-duty exam as a business necessity, as well as, the appeals court conclusion that the City had not violated the ADA (or the FMLA) by requiring Wisbey to obtain the exam.
When addressing Wisbey’s FMLA claims, the appeals court came to the same conclusion as the lower court, finding that Wisbey did not have the right to FMLA leave. Contrary to Wisbey’s requested “intermittent leave” for “six months or longer,” the FMLA was established to provide leave with “an expectation an employee will return to work after the leave ends,” and was not established to offer an open-ended amount of leave time. Without the right to FMLA leave, the court could not find that the City had interfered with Wisbey’s rights under the FMLA. In addressing her retaliation claim, the court concluded that “a casual connection” had not been established between Wisbey’s application for FMLA leave and her termination, because the City relied on the fitness-for duty exam, not Wisbey’s FMLA application, in their determination to terminate her employment.
With that, the Court of Appeals for Eighth Circuit, affirmed the district court’s judgment.
Why wasn’t Wisbey covered under the ADA?
Couldn’t she have requested an extension of her leave under the ADA?
The purpose of the ADA is to eliminate discrimination against qualified employees with disabilities (42 U.S.C. § 12101). As the employee, Wisbey had the initial burden of establishing a prima facie case of discrimination under the ADA. To do so, Wisbey would have had to demonstrate that she: (1) “was disabled within the meaning of the ADA;” (2) “was qualified to perform the essential functions of her job;” and (3) “suffered an adverse employment action because of her disability.”
The ADA defines a disability, with respect to an individual, as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” (42 U.S.C. § 12102(2)).
A “major life activity” means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(I). In her complaint, Wisbey conceded that she didn’t “have a disability or a substantially limiting impairment.” Instead, Wisbey brought her ADA claim under the “regarded as” provision, arguing that she was “perceived by the City as having an impairment which substantially” limited “one or more major life activities” and that “this perception caused the City to discharge her.”
“In order to be regarded as disabled with respect to the major life activity of working, the employer must mistakenly believe that an actual impairment substantially limits the employee’s ability to work.” (Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 989 (8th Cir.2007)) A substantial limitation on the major life activity of working means that an individual must be: “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”
Under the ADA, the “regarded as” provision was established to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled. Courts prior to this case have established that, “If a restriction is based upon the recommendations of physicians, then it is not based upon myths or stereotypes about the disabled, and” (therefore) “does not establish a perception of disability.”
The record established that Wisbey was terminated because she was not “fit for duty,” as reported by a physician, and not based on any myths or stereotypes about being disabled. Wisbey even admitted in her FMLA application that she was suffering a “serious health condition that rendered her unable to perform the essential functions of her job,” and she testified at the hearing before the City’s Personnel Board that she did not go to work when she felt tired due to her depression. It was Wisbey and her own doctor who determined that she would have to take leave on sporadic occasions based on her condition, providing support that the City did not mistakenly regard Wisbey as having an impairment that substantially limited her ability to work, but that Wisbey was, in fact, unable to work due to her condition.
To be covered under the ADA (or to request an extension of leave under the ADA), Wisbey would have had to establish that she was a disabled person within the meaning of the ADA. She did not.
If the intermittent FMLA had been specifically for
6 months…..would the outcome have been different?
Did the FMLA not address frequency and duration? Would that have made a differenc?
Two types of claims exist under the FMLA: (1) “interference” claims, in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) “retaliation” claims, in which the employee alleges that the employer discriminated against him for exercising his FMLA rights.
The difference between the two claims is that the interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation claim requires proof of retaliatory intent.”
The court in this case found the summary judgment to be proper on both types of claims.
1. Interference
The court stated: “FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation an employee will return to work after the leave ends.” Because Wisbey requested “intermittent leave” for “six months or longer” this court ruled that she did not have a right to FMLA leave. (Personally, I’m not sure this was a correct ruling.) Without the right to FMLA leave, the City could not be found to have interfered with Wisbey’s rights under the FMLA in this case.
2. Retaliation
An FMLA retaliation claim alleges that an employer discriminated against an employee for asserting his rights under the act. To establish a retaliation claim, Wisbey would have had to show: (1) “that she exercised rights afforded by the Act;” (2) “that she suffered an adverse employment action;” and (3) “that there was a causal connection between her exercise of rights and the adverse employment action.”
Wisbey did not establish a causal connection between her application for FMLA leave and her termination because the City relied on the fitness-for-duty exam, and not Wisbey’s FMLA application, in its determination to terminate Wisbey’s employment. The kind of causal connection required for a prima facie case is not “but for” causation, but rather a showing that an employer’s “ retaliatory motive played a part in the adverse employment action.” The appeals court found that the City lacked such retaliatory motive. Wisbey did not present any evidence of retaliation besides the fact that her termination occurred approximately one month after she submitted the FMLA application. “Generally, more than a temporal connection is required to present a genuine factual issue on retaliation,” and “mere coincidence of timing can rarely be sufficient to establish a submissible case of retaliatory discharge.” Therefore, the court concluded that the City did not retaliate against Wisbey in violation of the FMLA.
If Wisbey had requested leave for a shorter period of time, arguments presented by both sides would be different than what has been described here and any attempt to speculate on the outcome would only be conjecture since there are so many different nuances to each case being brought before a court. As I mentioned above, I am not sure the court came to the correct conclusion and a different request could well have resulted in a different outcome.
dress…
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