On December 19, 2018, in Lipp v. Cargill Meat Solutions Corp., the Eighth Circuit affirmed summary judgment against Sheena Lipp, concluding that the she could not make a prima facie case that she was a “qualified individual” and, thus, dismissing her disability discrimination and failure-to-accommodate claims under the Americans with Disabilities Act (“ADA”).
From 1995 until 2014, Ms. Lipp worked for Cargill Meat Solutions Corp. (“Cargill”), a meat processing facility, where she stacked and supplied empty boxes to the production line, labeled boxes, manually moved pallets, and packed boxes. In 2000, she was diagnosed with lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically, especially during “flare-ups,” thereby rendering her “disabled” under the ADA. Beginning in October 2012, she required several work accommodations, including taking days off during flare-ups, which Cargill permitted.
In January 2014, Ms. Lipp began a nine-month unplanned leave to care for her mother, who had significant health issues. When she returned in October, she was suddenly issued a series of written notices and warnings for multiple attendance violations. She was informed that, as of October 15, she was on “Last Chance for attendance,” and any further call-ins or leaving early without authorization would result in termination. Ms. Lipp asked a Human Resources representative what would happen if she took time off for her lung disease and was told it could be allowed. Within a week of returning to work, Ms. Lipp was absent due to a flare up, provided a doctor’s note and did not receive a warning or demerit. On October 30, Ms. Lipp used Cargill’s automated call-in system to report an absence. When she returned, she did not provide medical verification. On November 4, Cargill terminated her employments.
The termination paperwork stated that Cargill was firing Ms. Lipp for violating the “last chance” notice by having an additional absence without sufficient documentation. Ms. Lipp explained she had been absent because of a breathing flare-up, and Cargill gave her a chance to submit verification, but she did not submit a doctor’s notes until February 3, 2015–well after her termination. Ms. Lipp brought suit under the ADA, claiming that Cargill terminated her based on her disability (lung cancer) and refused to grant her a reasonable accommodation (additional unverified absences).
The ADA prohibits covered employers from discriminating against a “qualified individual,” a person “who, with or without reasonable accommodation, can perform the essential functions” of his or her job, on the basis of disability. Regular and reliable attendance, however, is a necessary element of most jobs. Ms. Lipp argued that her absences were not excessive, she reported her absences daily, provided notes from her mother’s doctor, and was never told (until she returned to work) that her absences were unauthorized.
The court was not persuaded. Persistent absences from work can be excessive even when the absences are with the employer’s permission. Cargill’s written attendance policy provided for terminable action after nine occurrences of unplanned leave, and Ms. Lipp took nine months leave that was unrelated to her own disability. Within two weeks of returning to work, she missed another day without providing medical verification in violation of the “last chance” notice. The court concluded that Ms. Lipp’s non-disability related absences amounted to an inability to perform her job, deeming her “unqualified” and unable to make a prima facie case of discrimination.
The court also affirmed summary judgment against Ms. Lipp’s failure-to-accommodate claim, concluding that her desired accommodation at the time of her termination—additional unverified absences—was not one that would enable her to perform the essential function of “regular and reliable attendance.” The court noted that, instead of terminating Ms. Lipp, as it could have done, Cargill gave Ms. Lipp a “Last Chance for attendance” and continued to permit “authorized” disability-related absences despite her excessive absenteeism. This did not, however, make additional unverified absences a reasonable accommodation, no matter how many absences Cargill had permitted to that point or was willing to permit in the future.
This case is an important reminder that employers are generally entitled to medical documentation supporting any absence. It behooves employees with disabilities to timely provide verification regarding a disability-related absence, and, where that is not possible, to immediately explain to the employer why not and what the employee is doing to obtain it. If Ms. Lipp—a 20-year employee—could lose her employment for failing to provide a note for a documented disability, it can happen to anyone. If you believe your employer has discriminated against you because of an actual or perceived disability, contact The Harman Firm, LLP.