Lest any employer need reminding that workplace disability issues (and the ADA/FMLA interplay) are nearly always tricky, a recent decision by Judge Russell proves the point well. In Williams v. Balt. City Cmty. College, 2014 U.S. Dist. LEXIS 133144 (D. Md. Sept. 23, 2014), the court denied the College’s motion for summary judgment on the plaintiff’s “regarded as” disabled and retaliation claims, while granting the motion on plaintiff’s failure to accommodate claim.
Diane Williams was the BCCC’s Assistant Director of Housekeeping. Since high school, Williams had a degenerative eye disease called Keratoconus, which causes a distortion in the shape of the eye. Symptoms include blurry vision, increased light sensitivity, halos around light, eye strain, headaches, eye pain, and eye irritation. In Ms. Williams’s case it required corneal transplant surgery in both eyes.
She requested FMLA leave and it was granted. Williams had the surgeries in June and in August. In late August, BCCC notified Williams that her 12 weeks of FMLA leave would be up on September 3. The letter stated that if Williams could not return to work on September 4, she needed to provide a doctor’s note to that effect and have a “Workability Examination” by the State Medical Director. So good so far.
Williams provided a note from her ophthalmologist recommending a return-to-work date of December 10. She also showed up for her Workability Examination. The State Medical Doctor opined that Williams was unable to return to work, and that her symptoms were “unlikely to improve enough in the foreseeable future that would enable her to safely and reliably perform the full duties of [her] position.”
This is when things got challenging. First, a Human Resources Associate told Williams that the State Medical Director “to the determination that based on [her] condition; [her] return to work date should remain as Wednesday December 10, 2008.” Three days later, however, the same HR Associate sent a second letter, telling Williams that because the doctor’s opinion was that her symptoms were not likely to “improve enough in the foreseeable future that would enable her to safely and reliably perform the full duties of [her] position,” it was determined that she was no longer physically capable of performing her duties.
Williams responded that she intended to return to work by December 10. The College sought clarification from the State Medical Doctor who said, despite the opinion of Williams treating ophthalmologist that she would be able to come back by December 10, he didn’t think that was likely. So, the College told Williams to return to work by October 31 or be fired. She did not return on October 31 and was fired. Particularly troubling here was the fact that the letter to Williams was post-marked October 30 and received by her on November 3.
The court found that these facts created a dispute of fact as to whether the College at least regarded Williams as disabled and fired her because of that belief. The court also let Williams’s retaliation claim go forward, because a question of fact existed as to whether the decision to end her employment was because she had asked for additional leave through December 10 due to her disabling condition. The court granted the College’s motion on Williams’s reasonable accommodation claim, because the EEOC’s regulations make clear that an employer is not required to make reasonable accommodations when an employee is only “regarded as” disabled.
The take away here? Certainly in hindsight (if not with foresight) it would have been far more beneficial (and cost effective) for the College to rely upon the treating ophthalmologist’s view that Williams would return to work on December 10. First, it was not entirely clear – at least in October – that Williams was not actually disabled. She had a degenerative eye disease for which surgery was needed. Under the ADA, that might be good enough to qualify (both before and after the ADAAA).
Second, if that was the case, just because she exhausted her FMLA allotment, it might be a reasonable accommodation under both Federal and Maryland law to provide additional leave for the employee who intends to return to work.
Finally, the timing of the letter notifying Williams that she needed to return to work on October 31 (when the College’s doctor indicated that he didn’t think she could even return by December 10), which Williams did not even receive until November 3, gave Williams the ammunition she needed to assert a viable argument that the College’s articulated reasons were pretextual. And, that, my friends, will indeed get a plaintiff past summary judgment and to a jury.