Judge rules against former employer on ADA claim

• Date: 01 September 2020
• DOI: http://doi.org/10.1002/nba.30843
• Published date: 01 September 2020

NONPROFIT BUSINESS ADVISOR SEPTEMBER 2020

10 © 2020 Wiley Periodicals LLC • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Disability

Judge rules against former employer

on ADA claim

The plaintiff worked for years in an unspecied

capacity for Berks County despite her chronic anxiety,

depression, chronic sinusitis and bronchitis.

Because of her various medical problems, the

county occasionally granted her time off pursuant

to the Family Medical Leave Act during her last few

years on the job.

In June 2018, the plaintiff called in one morning

shortly before the start of a shift to say she needed

some more medical leave because she wasn’t able to

come in that day. The plaintiff then followed up by

submitting a formal request for FMLA leave when

she returned to work the next day.

The county denied that request and red her a little

over a week later.

The plaintiff then led a suit that made several

claims.

One was that the refusal to honor her FMLA leave

request constituted failure to (1) provide a reasona-

ble accommodation in violation of the Americans

with Disabilities Act and (2) engage in the requisite

interactive process.

Another was that her termination was in retaliation

for requesting medical leave.

The county led a motion to dismiss.

With respect to the issue of accommodations, the

county argued: (1) calling out sick couldn’t reasonably

be construed as a request for an accommodation,

(2) it had engaged in the interactive process over the

years by being lenient about granting her medical

leave and (3) the plaintiff was red simply because

she had exceeded the number of authorized expected

absences that had been certied by her own doctor.

The district court judge said a plaintiff claiming

a failure to accommodate must allege: (1) her em-

ployer knew she was disabled within the meaning of

the ADA, (2) she had requested an accommodation,

(3) her employer didn’t make a good faith effort to

assist her and (4) she could have been reasonably

accommodated.

The judge also said that a medical leave request

could sometimes amount to an accommodation

request under the ADA if it would enable the em-

ployee to perform her essential job functions in the

near future.

EMPLOYEE WINS ➔ The judge ruled the

county’s references to the plaintiff’s doctor and the

maximum allotted absences suggested the case should

continue because there were important issues to be

explored during the course of the litigation.

The judge also ruled that the plaintiff had ade-

quately stated a retaliation claim because: (1) it was

unlawful for an employer to retaliate against an em-

ployee based upon her opposition to anything made

unlawful by the ADA, (2) the plaintiff’s June 2018

leave request amounted to an action protected by

the act and (3) she had adequately alleged a causal

connection between her request and being red. He

explained that because the gap between the protected

activity and the termination had only been eight days,

the timing was sufciently suspicious to plausibly

suggest that the former motivated the latter.

[Dreibelbis v. County of Berks, U.S. District Court

for the Eastern District of Pennsylvania, No. 5:19-

cv-4946, 2/7/2020].

Disability accommodations

Court rules against employee asking

for policy change

The plaintiff was a long-time City of Quincy

employee.

A co-worker allegedly began sexually harassing

her in April 2014. That harassment purportedly es-

calated in July when the co-worker allegedly entered

the plaintiff’s ofce, sat down beside her and exposed

his erect penis. The plaintiff (1) took several days

off, (2) then notied the city about the incident and

(3)provided a medical note indicating she wouldn’t

be able to return to work for 30 days.

The city emailed the plaintiff’s attorney in Oc-

tober that it expected her to return to work within

a week.

The lawyer responded in writing that his client

was “neither physically nor mentally able to return

to work.” He attached a copy of a therapist’s report

that stated the plaintiff’s “symptoms are triggered and

worsen when she is faced with the idea of returning