The Sixth Circuit recently affirmed that a plaintiff’s failure to return to work from a family medical leave on the due date established by her employer justified summary judgment in favor of the employer on the employee’s claim of associational discrimination under the ADA. The plaintiff’s dispute as to her return date was immaterial, and did not prevent summary judgment for the employer, because plaintiff admitted in deposition that she would not have returned by the date she asserted she was due back at work. Bimberg v. Elkton-Pigeon- Bay Port Laker Schools, 6th Cir. No. 12-1311, 2013 WL 174289 (Jan. 17, 2013).
Plaintiff Bimberg was a school bus driver who took a family medical leave to care for her terminally ill husband. Bimberg’s employer initially granted her the FMLA-mandated 12 weeks of unpaid leave. Therafter, Bimberg’s union representative was able to secure for her leave from the beginning of the approaching new school semester, January 5, 2009, until the end of the school year in early June 2009. However, Bimberg later determined that she needed to leave before the start of the new semester, and that she would be away for more than 12 weeks. Ultimately, her employer granted her unpaid leave of one year, from December 18, 2008, through December 18, 2009.
Bimberg’s employer and the union repeatedly notified her to report to work no later than December 18, 2009. Bimberg argued that her one-year leave ran from the start date originally set for her leave, January 5, 2009 — that she was not required to report for work until January 5, 2010. She did not report to work by December 18, 2009. As a result, her employer fired her. In response, Bimberg sued the employer for associational discrimination in violation of the ADA.
The employer moved for summary judgment on the ground that Bimberg was fired for failing to meet the attendance requirements of her job — she failed to report for work at the expiration of her leave. The district court granted summary judgment to the employer.
There Was No Direct Evidence of Discriminatory Intent Nor Circumstantial Evidence That Disability Was a Determining Factor For Bimberg’s Termination
On appeal, Bimberg made two arguments. First, Bimberg argued that the trial court erred in failing to find that she had presented direct evidence of associational discrimination — evidence that her employer had discriminatory intent — in response to the employer’s MSJ. The alleged direct evidence consisted of two statements made to Bimberg. The first was made by a fellow bus driver, who suggested that Bimberg had “purposely got [her husband] sick so [she] could have a vacation.” The other was a school administrator’s comment to Bimberg that it “must be great to be able to go down south for the winter.”
The Sixth Circuit upheld the district court’s conclusion that these statements did not constitute direct evidence of discriminatory intent; the plaintiff was merely suggesting that the court accept a proffered series of inferences:
[F]rom a suggestion that Plaintiff was treating her husband’s disability as a vacation, to an implied hostility to those who are not working (that is, those ‘on vacation’), to a latent hostility to anyone who is not capable of working (that is, disabled), to the conclusion that Defendant terminated Plaintiff’s employment because of discriminatory animus towards Plaintiff’s association with a person who [is disabled].
This “[p]iling [of] inference upon inference” is the “antithesis” of direct evidence of discrimination.
Thus, Bimberg was left to try to establish associational discrimination through circumstantial evidence, requiring that she meet the four-part test in Stansberry v. Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). Bimberg met the first three requirements: (1) proof that she was qualified for the position of driver, (2) an adverse employment action by the employer, and (3) her association, known to the employer, with a disabled person. But Bimberg did not present evidence establishing a genuine issue of material fact on the fourth, and most important, requirement — that the adverse employment act, her termination, “occurred under circumstances that raise a reasonable inference that the disability of [her husband] was a determining factor in the decision” to terminate. The undisputed evidence established that Bimberg’s employer fired her for failing to return to work by the date required.
Dispute Regarding Return Date Was Immaterial
Bimberg’s second argument on appeal was that the factual dispute as to her required return date — December 18, 2009, or January 4, 2010 — prevented the grant of summary judgment in favor of her employer. But the appellate court agreed with the district court that whether Bimberg’s return date was December 18 or January 5 was immaterial because Bimberg admitted in deposition that she would not have returned to work on January 5. On that date, she was out of state, tending to her husband in a hospital. The employer’s refusal to forgive Bimberg’s failure to timely return to work, on humanitarian grounds, did not constitute a violation of the ADA.
Lessons To Be Learned
It is critical for an employer to diligently and accurately “paper” employee FMLA leaves. Clear written notices must be given to the employee confirming, inter alia, (1) that the employee has requested and been granted an FMLA leave, (2) the date the leave commences, and (3) the date by which the employee must return to work from the leave. Generally, courts will recognize that an employee has to be able to promptly and consistently show up for work to be “otherwise qualified” for a job under the ADA, as long as the employer communicates to the employee that prompt and consistent attendance at the work site is a requirement of employment.
The Bimberg opinion can be found at:
Labor & Employment Developments 