A pregnancy-disability-FMLA triple whammy

By: Robin Shea

July 23, 2018

Pow! Pow! Pow!

The College of Wooster, in Wooster, Ohio (student body approx. 2,000), is going to have to go to trial on a triple whammy of pregnancy discrimination, failure to accommodate a disability, and violations of the Family and Medical Leave Act -- when the plaintiff wasn't even eligible for FMLA leave and got more leave than would have been required if she had been eligible!

This case -- involving what seemed to be a nice employer -- is so full of cautionary tales, one hardly knows where to begin.

In the summer of 2013, the College -- to its credit -- hired Heidi Hostettler as an HR Generalist, knowing that she was pregnant and due in early 2014. Ms. Hostettler did a fine job, and in February 2014, she went out on maternity leave. Even though she hadn't been employed long enough to be eligible for FMLA leave, the College granted her "FMLA leave" anyway, and she took the full 12-week "allotment."

Ms. Hostettler was due back at work in April 2014, but her doctor recommended that she take another four weeks because of severe postpartum depression and separation anxiety (she was anxious about being separated from the baby, I assume). 

So the College gave her another four weeks of "FMLA leave." That makes a total of 16 weeks.

At the end of Ms. Hostettler's 16 weeks of "FMLA leave," she was ready to come back, but only on a reduced schedule because of her depression and anxiety. Her doctor initially recommended that she work three full days a week. The College asked for her to work five half-days a week (until noon) instead. The doctor apparently thought this would be fine, and he re-wrote his authorization accordingly.

Ms. Hostettler returned to work on her part-time schedule. It is not addressed in the court's decision, but this would have been right around the time that campus cleared out for the summer, so the workload was probably lighter. In any event, Ms. Hostettler apparently got all, or most, of her work done with no decline in quality.

She got a performance appraisal in late June or early July that was glowing. Nary a harsh word.

But, apparently, concerns were brewing. As of July, Ms. Hostettler was still not ready to return full-time. Meanwhile, one co-worker in her six-employee HR department was on maternity leave herself, and two other HR employees were getting ready to develop an online benefits program for college employees. So, the supervisor was beginning to feel stressed and overloaded. She was also beginning to worry that she would not be able to handle the workload if Ms. Hostettler wasn't able to return full-time.

(Unaddressed in the court's opinion is the additional fact that the students would be returning for the fall semester, probably in August, which for a college employer means "all hell breaks loose" again.)

So, at some point in July, Ms. Hostettler's supervisor told her she needed to return full-time. Ms. Hostettler offered to work until 2 or 3 p.m. instead of noon. The supervisor allegedly did not respond to this suggestion. By mid-July, the supervisor told Ms. Hostettler that they needed someone full-time and fired her.

According to the court, the College quickly hired a clerical temp to do some things that weren't part of Ms. Hostettler's job anyway. But a replacement for Ms. Hostettler (male) was not hired until the following October.

Ms. Hostettler sued the college for pregnancy discrimination under Title VII, disability discrimination under the Americans with Disabilities Act, and FMLA interference and retaliation. (She also brought equivalent claims under Ohio state law.) A federal district court granted summary judgment to the college, but Ms. Hostettler appealed.

This week, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed summary judgment on all of the claims, including the FMLA claims. That means the case will be tried to a jury.

So, even though the College hired Ms. Hostettler knowing full well that she was pregnant, gave her tons of FMLA leave that she wasn't entitled to, and accommodated the heck out of her scheduling needs, it may not have been enough.

WHAT WENT WRONG?

Disability discrimination. I'll start with the ADA because the court did. First, the severe postpartum depression/separation anxiety is arguably a "disability" within the meaning of the ADA as the law was amended in 2009. The parties agreed that the only issue with Ms. Hostettler was her inability to work full-time. The quality of her work, and apparently her productivity, were fine. And there was conflicting evidence about whether Ms. Hostettler was able to perform her essential job duties while working a part-time schedule. Arguably, she was. 

I'm reading between the lines, but it sounded to me as if her supervisor was more concerned about the future than past or current work performance. I don't know what evidence the College put out there regarding the expected workload during the summer versus the workload during the fall and spring semesters. 

Pregnancy accommodation. Postpartum depression and separation anxiety (if related to a baby) are almost certainly "pregnancy-related conditions" within the meaning of Title VII. And since the Supreme Court decision in Young v. UPS, pregnancy-related limitations usually have to be accommodated to the extent that similar non-pregnancy-related limitations are. According to the Sixth Circuit panel, the College had granted two-year leaves to employees with non-pregnancy-related medical conditions. This, coupled with the dispute about whether Ms. Hostettler was getting her work done on the part-time schedule, was enough for the court to send the issue to a jury.

With respect to both the ADA and pregnancy issues, I am sure it hurt the College that it claimed to desperately need a full-time employee in Ms. Hostettler's position but didn't actually replace her until October. If the need was that dire, you'd think they'd prefer to limp along with Ms. Hostettler until she fully recovered or they found someone who was able to work on a full-time basis. (But they may not have realized how long it would take to find a replacement.)

FMLA. This is the one that really bothers me. The court ruled that the College was "estopped" (legally prevented) from arguing that Ms. Hostettler wasn't eligible for FMLA leave because its policy was to grant "FMLA leave" to employees whether they were eligible or not. The court did not address the U.S. Supreme Court's 2002 decision in Ragsdale v. Wolverine World Wide. That case involved an employer who granted an employee a great deal of leave but failed to "designate" it as FMLA leave, as required by the regulations. The Supreme Court said that the failure to designate did not entitle the employee to more leave unless the failure actually prejudiced the employee in some way.

Here's an example of "prejudice" based on the employer's mistake. Let's say Melvin has exhausted his FMLA entitlement for the calendar year. But he doesn't know it because the employer never designated the time off as FMLA leave. It's October, and his doctor wants him to have elective surgery that will require him to be out of work for another six weeks. Not realizing that he has already exhausted his FMLA leave for the year, Melvin has the surgery in November.

While he's out of work, the company replaces him because he's out of job-protected FMLA leave. But if Melvin had known that he had no more FMLA leave, he could have postponed his surgery until January. Then his leave would have been FMLA-qualifying and job-protected. 

Melvin has been "prejudiced" by the employer's failure to properly designate his first period of leave.

In this situation, Melvin might be entitled to start his FMLA leave in November and the employer might have to "eat" six weeks of the previous period of leave -- in other words, the employer wouldn't be able to charge it against Melvin's FMLA entitlement, and the employer wouldn't be able to penalize Melvin for attendance.

OK. Back to our case. There was no prejudice to Ms. Hostettler based on the College's communications about her faux "FMLA leave." The College told her that she would be "eligible" even though she wasn't eligible. The College then kept its word and gave her 12 weeks of maternity leave -- precisely what the FMLA would have required. When she couldn't come back after 12 weeks, the College gave her four more weeks. When she could only work part-time after 16 weeks of leave, the College let her do that for two more months. Even if she had been legally eligible for FMLA leave, which she was not, she had more than exhausted her "leave allotment" by the time her employment was terminated. There is no FMLA issue in this case, and the court was wrong to rule that there was.

With all due respect.

TIPS FOR EMPLOYERS

I hope that the College will petition for rehearing en banc (rehearing by all of the Sixth Circuit judges rather than just a three-judge panel). But while we wait, here are some suggestions for employers:

*DON'T think you can automatically win a failure-to-accommodate case by classifying a job as "full-time." If you go to court, you will have to prove why you can't accommodate a part-time schedule. It won't be enough to point to your full-time classification and rest your case.

*DON'T think you can win a failure-to-accommodate case by mechanically applying your attendance policy. Yes, regular attendance is considered an essential function of any job. But some job duties can be performed from home. Flexible schedules and job-sharing are possibilities. (Job-sharing was a possibility that jumped out at me while reading this decision, since Ms. Hostettler was apparently a really good employee.) And arguably, if an employee misses some work because of a disability or pregnancy, you may be expected to simply excuse those absences for a while.

*If you are allowing an employee to work on a reduced schedule as a reasonable accommodation (disability or pregnancy), DO think ahead. Especially if you are an educational institution, you will have summers, which are relatively laid-back, followed by fall and spring, which can be crazy. Even if you aren't a school, you probably have ups and downs of some sort. If the part-time arrangement is working but you expect it to become a problem in the future, think that through in advance with the help of your employment counsel.

*If you have thought it through and determine that you cannot accommodate a part-time schedule, DO articulate and document the reasons. This will come in handy later.

*Once you have your thoughts together, DO engage in the interactive process with the employee. "Engage in the interactive process" means "sit down with the employee and brainstorm about what, if any, accommodations can be made." Explain to her why accommodation of the part-time schedule is not going to work. Ask her to suggest alternatives. Take her suggestions seriously and consider them in good faith, even if you end up having to say no. Suggest your own alternatives, if you have any. Thoroughly document these discussions. If the employee made suggestions that you are going to reject, document the reasons for the rejection twice as thoroughly. (And those reasons had better be good.)

*DON'T call non-FMLA leave "FMLA leave." If you are going to offer leave to employees who aren't FMLA-eligible (which is a nice thing to do if you can), then never call it "FMLA leave." You can call it "personal leave," or "medical leave," or even "non-FMLA leave." Whatever you call it, make it clear to employees that the leave is not what is legally mandated by the federal government. This should protect you from an FMLA "estoppel" claim in court. It will also give you a lot more flexibility. For example, you won't have to "designate," and you won't have to bother with all of those bazillion Department of Labor forms. (And much more!)

*DON'T EVEN THINK that the College would have been better off if it had refused to hire Ms. Hostettler in the first place, or if the supervisor had made negative comments about her approved leave in the performance evaluation. The College would have been in deep trouble for that, too. As an employer, sometimes you're damned if you do and damned if you don't.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.