Employment Discrimination – Employee’s depression led to absences and tardiness

Where a federal government employee’s depression resulted in repeated absences and tardiness from work, her employer’s refusal to offer her a permanent position did not constitute unlawful discrimination or retaliation.

Background

In March 2011, the Office of the Director of National Intelligence (ODNI) hired Hannah P. for a five-year term as an operations analyst. Hannah generally received exceptional performance reviews from her supervisors.

Several months after she was hired, Hannah was diagnosed with depression. She immediately informed two supervisors about her diagnosis but did not request any accommodations at that time. She treated her depression by seeking a counselor and a psychiatrist and taking a prescribed medication.

In November 2013, Hannah was assigned to coordinate responses to the unauthorized disclosures by Edward Snowden. The role was extremely high stress, involving long hours, tight deadlines, and a demanding client. Hannah was put on a flex schedule that required her to work 80 hours over a two-week period but did not dictate the number of hours she needed to work each day. Under this schedule, Hannah would start and end work later than a typical business schedule.

Hannah remained on the flex schedule after the Snowden assignment ended in January 2015. Within a couple months, Hannah had amassed a number of unplanned absences. Her coworkers perceived her schedule to be erratic and she often arrived well after normal business hours. In March 2015 Hannah met with a supervisor to address her attendance issues. They developed a plan wherein Hannah was to arrive by 10 a.m. and contact her supervisors in advance if she was going to be late or absent. If she had not arrived or contacted a supervisor by 11 a.m., the supervisor would call her.

After Hannah continued to arrive late or miss work without providing advanced notice, the plan was modified to remove the requirement that a supervisor contact her after 11 am, placing the onus to notify exclusively on Hannah.

In April 2015 Hannah’s supervisors informed her that they would be referring her to the Employee Assistance Program, a voluntary counseling service. Hannah told them that her psychiatrist had recommended she take four weeks of medical leave, but her supervisors insisted she meet with EAP first. Hannah’s supervisor told Hannah he was willing to authorize her medical leave, but she informed him that the request was on hold. Hannah’s attendance and tardiness problems continued, and Hannah renewed her for leave. Her request was approved, though she was required to use annual leave for the majority of the leave.

During this time, Hannah applied for three permanent positions within the ODNI. She interviewed for two positions in February 2015 and was not selected. She interviewed for a third position in June 2015 and was recommended by the panel. Her application was forward to the Chief Management Officer at ODNI, who recommended that Hannah not be selected due to her recent performance.

Hannah exhausted her administrative remedies and filed this lawsuit in 2016, alleging five violations of the Rehabilitation Act and two violations of the Family and Medical Leave Act. The district court granted summary judgment to the defendant on all claims and this appeal followed.

Analysis

Hannah failed to satisfy her burden on each of her claims under the Rehabilitation Act. Contrary to her contentions, ODNI provided Hannah with at least two reasonable accommodations and ODNI sufficiently collaborated with her in fashioning these accommodations. ODNI’s failure to immediately approve Hannah’s leave of absence request does not establish a violation of the Rehabilitation Act as there is no requirement that an employer provide the exact accommodation requested.

Although ODNI knew that Hannah was considering applying for permanent positions, the referral to EAP did not constitute a pre-employment medical examination because the referral was made in lieu of disciplining Hannah over her attendance issues. The EAP referral also did not constitute a prohibited mandatory medical examination of a current employee as EAP is voluntary and the EAP counselor repeatedly affirmed that she did not give Hannah a medical examination. In any event, the EAP referral was job-related and consistent with business necessity because ODNI had a reasonable belief that her ability to perform the essential functions of her job was impacted by her attendance issues.

As Hannah voluntarily disclosed her depression diagnosis to her employer, that information did not qualify for protection under the Rehabilitation Act. She initially disclosed this information without any prompting, and the fact that this information was again disclosed in response to an inquiry about her absences did not render the disclosure any less voluntary. An employer is entitled to inquire about blatant misconduct, even if the employer has reason to believe the conduct is connected to a medical condition, without violating the prohibition on medical inquiries.

Moreover, the EAP counselor only disclosed nonmedical information and, as such, the disclosure did not violate the Rehabilitation Act. In any event, the information disclosed was never relied on by ODNI. The decision not to hire Hannah for a permanent position was exclusively based on her attendance issues. For the same reason, Hannah is unable to demonstrate that the failure to hire her for a permanent position was unlawful discrimination. ODNI was permitted to take her attendance issues into account when declining to offer her a permanent position, even if those attendance issues were caused by her depression.

As ODNI had a valid reason for denying Hannah a permanent position, her claim of retaliation in violation of the FMLA similarly fails. She has, however, presented a valid claim that ODNI violated FMLA by failing to inform her of her rights under the law.

A reasonable jury could find that Hannah’s disclosure of her depression and her request for psychiatrist-recommended leave was sufficient to trigger ODNI’s responsibility to inquire further about whether Hannah was seeking FMLA leave. In addition, a jury could find that ODNI’s failure to provide notice of the availability of FMLA leave prejudiced Hannah because if she had known that FMLA protected her position, she would have used only sick leave for her leave of absence, leaving her with more annual leave to be paid out at the end of her tenure.

Affirmed in part, vacated in part and remanded.

Concurring/dissenting opinion

(Gregory, C.J.) While I concur in parts of the Court’s opinion, I cannot agree that no genuine issue of material fact exists with respect to Hannah’s claims that ODNI violated the Rehabilitation Act and Family and Medical Leave Act when it discriminated against her on the basis of her disability, failed to reasonably accommodate her depression, wrongfully required a medical examination of her as a current employee, and chose not to hire her for permanent employment in retaliation for her FMLA-qualifying leave. Therefore, I respectfully dissent with respect to those claims.

Hannah P. v. Daniel Coats (Lawyers Weekly No. 001-039-19, 61 pp.) (Stephanie Thacker, J.) Case No. 17-1943. Feb. 19, 2019. From E.D.Va. (Claude Hinton, J.) Timothy Bosson for Appellant; Caroline D. Lopez for Appellee.