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Fifth Circuit Upholds Dismissal Of Retaliation Claims Based On Plaintiff’s Excessive Absenteeism

Published by and on February 21, 2019

The plaintiff in Trautman v. Time Warner Cable attempted to argue retaliation under the Family Leave and Medical Act (FMLA) and Americans with Disabilities Act (ADA) after she was terminated for having 22 non-FMLA approved absences in almost four months.

The plaintiff in Trautman v. Time Warner Cable attempted to argue retaliation under the Family Leave and Medical Act (FMLA) and Americans with Disabilities Act (ADA) after she was terminated for having 22 non-FMLA approved absences in almost four months.

After experiencing panic attacks and stress while in traffic during her pregnancy, Plaintiff requested and received a modification to her work schedule to leave early to avoid traffic. Once Plaintiff gave birth and exhausted her leave under the Family and Medical Leave Act (FMLA), she requested to work from home, which she did for almost 9 months. Plaintiff’s new supervisor then required that she work eight hours a day in the office. Plaintiff requested to work from home in the afternoons, which her supervisor said she would not allow unless she had a doctor’s note and approval for a formal accommodation request from the Human Resources department.

Plaintiff then submitted such a request to work in the mornings from the office and at home in the afternoons, as well as a doctor’s note saying that she be allowed to leave the office at 2:00 p.m. to avoid heavy traffic due to her panic attacks, which limited her ability to drive. While Time Warner Cable denied her request to leave at 2:00 p.m., it did offer to allow Plaintiff to change her schedule to work until 4:00 p.m. (as Plaintiff’s busy period was usually 2:00 p.m. to 3:00 p.m.). Plaintiff refused to try this accommodation, responding instead that it would not be sufficient. She also refused to consider public transportation or ride-sharing options as suggested alternatives to driving in traffic.

Plaintiff then resorted to requesting intermittent FMLA leave that would end her work day early. Some of these requests were granted, but Plaintiff began missing additional time unrelated to her FMLA requests. Plaintiff was then issued several warnings for her attendance violations, as she had missed about 22 days in four months. (Her supervisor even checked to make sure she was not counting FMLA leave against Plaintiff before issuing the warnings.) Plaintiff was ultimately terminated due to her attendance issues and sued for retaliation under the FMLA and ADA. The district court granted a motion for summary judgment in favor of Time Warner Cable, which Plaintiff appealed.

On appeal, the Fifth Circuit easily found Time Warner Cable had a legitimate reason for terminating Plaintiff—her excessive absenteeism. This defeated her claims for retaliation under the FMLA and ADA. Plaintiff’s failure-to-accommodate claim also failed because she could not show that Time Warner Cable refused to provide a reasonable accommodation. Rather, Plaintiff was the one to refuse to consider any type of accommodation other than leaving work early.

Welter Insight

The Fifth Circuit’s ruling is a helpful reminder that employers are not required to grant any accommodation an employee asks for and the importance of good faith participation in the interactive process. Additionally, employers may still discipline employees who take intermittent FMLA leave for excessive absenteeism, provided the absenteeism is unrelated to FMLA leave.

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