Ninth Circuit Reinstates FMLA, Disability Discrimination Claim

Going up against a large employer when you’ve been discriminated against can be daunting, especially when your condition arises from a work-related injury. An experienced Los Angeles employment lawyer can help guide you through the process of seeking justice and fair compensation.disability discrimination

Recently, the U.S. Court of Appeals for the Ninth Circuit (which has jurisdiction over California) reinstated an FMLA  and disability discrimination lawsuit filed by a Nevada woman against a large box chain retailer employer.

The case of Hazelett v. Wal-Mart Stores, Inc. began with a work injury. Plaintiff worked as an order-filler at one of the store’s distribution centers near her home when she injured her foot on-the-job. She filed for workers’ compensation and later, a leave of absence. During her work-related disability, the store offered her a temporary alternate duty assignment. The form for that assignment indicated that if she refused that assignment, her disability benefits could be suspended or denied due to noncompliance. However, the reassignment they offered was a far distance from her home and required her to work into the wee hours of the morning. Meanwhile, her work injury was such that she could not drive. No public transportation would be available to take her home after her shift, unless she paid for a taxi, which she couldn’t afford. She called out sick each day she was absent, thinking they were excused, as they were all related to her workers’ compensation injury. Yet on the day she filed for leave under the U.S. Family and Medical Leave Act, she was fired for excessive absences.

(FMLA is a federal law allowing up to 12 weeks of protected, unpaid leave in a 12-month period for the birth of a child/placement of adoption, care of a spouse/child/parent who has a serious health condition or a serious health condition rendering employee unable to perform the essential functions of his/her job.)

In court, it was revealed the retailer used an outside administrator to manage its workers’ compensation cases as well as leaves of absence – but in separate departments. Plaintiff said she had no idea she was supposed to be communicating with two different departments of a separate company.

After receiving a right to sue letter from the Equal Employment Opportunity Commission (EEOC), she filed an employment lawsuit alleging FMLA interference and retaliation and disability discrimination under the Americans with Disabilities Act. However, the district court sided with the employer, finding insufficient evidence that its reasons for firing plaintiff were pretextual. Further, the court ruled the employer offered her leave and she failed to comply with the leave request and that employer wasn’t required to provide her with transportation.

The Ninth Circuit reversed, at least with regard to two of her claims, finding there were significant material facts with regard to both her ADA and FMLA claims – meaning the case was not ripe for summary judgment.

As our employment attorneys in L.A. can explain, it’s a violation for employers to interfere with, restrain or deny the exercise of any ride provided in FMLA. In order to prove this, plaintiff would need to show:

  • She was eligible for FMLA protection;
  • Her employer was covered by FMLA (only covers workplaces of a certain size);
  • She was entitled to leave under FMLA;
  • She provided sufficient notice of her intent to take leave;
  • Her employer denied her FMLA benefits to which she was entitled.

If the healthcare provider treating an employee for a workers’ compensation injury approves him/her to return to light-duty work but there is no same or equivalent job, the worker can decline.  However in so doing, he/she may lose their workers’ compensation payments, but they can remain on unpaid FMLA leave. In this case, employee called into work every single day to report her leave, provided a doctor’s note for more than 1/3 of her leave and there was understandable confusion about the fact that she had to notify two separate departments at a different company to process her workers’ compensation claim and her leave request. As to the employer’s assertion that employee’s medical leave certification was deficient, the evidence shows the employer didn’t give her written notification of this so she had a chance to fix it. On top of all this, the company told her if she didn’t accept the far-away light duty assignment, she could lose both her job and benefits. The court found reasonable jurors could conclude the plaintiff thought she had to sign that form to keep her job. There was also evidence the company’s leave policies were ambiguous.

As to the disability discrimination claim under ADA, plaintiff would need to show:

  • She was disabled;
  • She was qualified;
  • She suffered an adverse employment action because of her disability.

If plaintiff establishes this, the burden of proof shifts to the employer to give a non-discriminatory, business reason for firing the worker. If this reason is articulated, plaintiff needs to show that this reason is pretextual (an excuse) for what is actually discrimination and failure to make reasonable accommodations. This includes leaves of absences and reassignments. Failure to provide reasonable accommodation is an act of discrimination.

Here, the employer argued she didn’t meet the initial proof burden because she couldn’t do the physical requirements of her job – with or without accommodations. Further, the fact that she could not get herself to work meant she wasn’t qualified. The appellate court disagreed: She is disabled, she is qualified and she was fired by an employer that failed to engage in an interactive process necessary to identify/implement appropriate, reasonable accommodations. Beyond that, the company failed to provide the worker with two requested accommodations: Leave until a few months later, when she’d be cleared to drive, or an assignment to which she could commute via public transportation. (She also could have been approved to start her new transfer job, for which she’d been approved a week prior to her accident.) Even though her injury occurred at work, none of these alternatives were even discussed with plaintiff, much less offered. So were the alternatives truly reasonable? The appellate court found there were questions of material fact, and reversed on the ADA and FMLA claims, and ordered the defense to pay plaintiff the cost of her appeal.

If you have suffered a workplace injury and have been discriminated against by your employer as a result, we can help.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.

Additional Resources:

HAZELETT V. WAL-MART STORES, INC., Oct. 6, 2020, U.S. Court of Appeals for the Ninth Circuit

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