No-fault attendance policies may simplify the administration of attendance issues, but employers should be careful not to count absences protected by the Family and Medical Leave Act and the Americans with Disabilities Act. Otherwise, as a recent court case demonstrates, employers with such point-based progressive discipline policies risk being on the wrong side of an employment termination claim for alleged FMLA and/or ADA violations.
In Green v. Wal-Mart Stores, East, L.P., WL 3223629 (S.D. Ohio, June 25, 2013), the U.S. District Court for the Southern District of Ohio found that FMLA-qualifying absences may have been a negative factor in a supervisor’s decision to discipline, and eventually dismiss, a department manager. Consequently, the court denied Walmart’s motion for summary judgment against the former employee’s FMLA interference and retaliation claims. The case remains open for jury trial.
Facts of the Case
Joyce Green worked at Walmart for 14 years, starting as a cashier in 1997 and rising to department manager of sporting goods in 2005 before being fired in October 2011. Walmart said it fired Green for misconduct with “coachings” and noted that her fourth and final coaching occurred because she worked more than six consecutive hours without taking a meal break, a purported violation of Walmart’s meal policy.
The court denied Walmart’s motion for summary judgment, in part, because Walmart displayed “a tremendous amount of latitude with [Green's] absences before 2011.” Aside from the timing of the termination, the court determined “Walmart’s failure to uniformly apply its progressive-discipline policy” to be an issue of material fact sufficient enough for the case to advance to a jury trial.
Evidence demonstrated that Walmart did not strictly enforce the coaching policy as it relates to its attendance policy. In fact, a Walmart assistant manager during Green’s employment testified that “there is some leniency” regarding coaching for attendance occurrences.
The district court found it notable that a 2010 performance evaluation showed Green to have 14 outstanding attendance occurrences without any discipline or coaching as a result.
Interestingly, the court granted Walmart’s motion for summary judgment on Green’s claim of associational disability discrimination because she sought the claim under state law and not federal law, and unlike ADA, Ohio state law contains no comparable prohibition against associational discrimination.
Courts typically favor employers in FMLA claims when their actions are consistent with the enforcement of written rules. Employee handbook policies — whether they are no-fault attendance policies or an excessive absence, point-based system — are only effective when practiced consistently and equitably.
In Green, the court noticed a discrepancy in management’s behavior when a long-time employee with no record of performance issues began receiving demerits after a series of FMLA leave requests.
It may appear that Walmart employed its progressive disciplinary plan in a manner that befit the situation, but the Green court seemed to question management’s motives because it went from being lax to overly strict with an employee in trying circumstances.
Under FMLA, employers must not penalize an employee for increasingly requesting or taking FMLA-qualifying leave.