An employee who didn’t know she had a disability sued for disability discrimination. It didn’t go well.


There’s a reason that they don’t teach “clairvoyance” in HR certification courses.

(Although, it would be nice to have it to avoid some hires, amirite?)

Attendance issues lead to termination of employment.

The plaintiff in the Sixth Circuit decision I read last night had attendance issues.

Bad ones.

Beginning in May 2019, the plaintiff began regularly missing work or arriving late. From May-August, she used a combination of sick, vacation, and remote working days to cover about 20 absences and lateness, many of which had nothing to do with her health.

But, unbeknownst to both the plaintiff and defendant, the plaintiff was suffering from a brain tumor and a condition known as Persistent Depressive Disorder, neither of which were diagnosed until well after she was discharged.

Disability discrimination?

After the defendant discharged the plaintiff for attendance issues (following written warnings stating the consequences of continued attendance issues), the plaintiff appealed her termination to a third party, a procedure the defendant made available to her. During the pendency of the appeal, the plaintiff learned of her medical condition and had a brain tumor removed. She informed the third party handling the appeal of her medical condition. However, the third party still concluded that the defendant properly terminated her employment.

So, the plaintiff sued the defendant for disability discrimination.

To establish disability discrimination, a plaintiff must show that she has a disability and that her employer knew or had reason to know about it. Here, the parties agreed that no one diagnosed the plaintiff with any medical condition until after her termination. She never even sought medical help for any symptoms or conditions she suffered while employed.

The ADA requires more than general awareness of a health issue.

The plaintiff noted that many of her text messages to her supervisor to explain her attendance issues referenced health issues, such as the plaintiff’s “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” But the court also concluded that “such symptoms are consistent with many short-term, nondisabling ailments, including a common cold.” Therefore, they did not inform the defendant that the plaintiff may have a disability.

The court did acknowledge that the plaintiff had told her supervisor that she felt “depressed” in her job. But, she related it to a lack of leadership, direction, trust within the group, favoritism, etc. And personality conflicts, workplace stress, and being unable to work with a particular person or persons do not rise to the level of a ‘disability’ or inability to work for purposes of the ADA.

Employer takeaways.

In a situation like this, it’s ok to offer help to an employee — even suggest contacting HR for an accommodation. The defendant did that, and the plaintiff never asked for help.

The defendant also enforced its attendance rules, documented violations, and warned about future consequences before terminating employment.

And you know what? Case dismissed.

“Doing What’s Right – Not Just What’s Legal”
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