Tuesday, May 23, 2017

Plaintiff's FMLA and Disability Discrimination Claims Based on Torn ACL and Meniscus Allowed to Proceed

A plaintiff, Amanda Dusik, filed claims under the Americans with Disabilities Act and the Family Medical Leave Act when she was fired after being on leave for several months after she tore her ACL and meniscus in her right knee.  The defendant employer, Lutheran Child & Family Services of Illinois ("LCFS") filed a Rule 12(b)(6) Motion to Dismiss in response to the lawsuit, which a district court in Northern Illinois denied.  Whether this case survives summary judgment is obviously unknown, but the Court's opinion and order was nevertheless interesting given the type of injury the plaintiff had.

Facts

In March 2015, Dusik learned she had a torn ACL and meniscus in her right knee that required surgery.  At the end of March 2015, Dusik told LCFS that her doctor advised her to take 3-6 moths of leave due to her injury and to recover from surgery.  Dusik requested to be updated by a manager about her hours and how much leave she had left, though this was never done, even though LCFS advised Dusik that her leave was being designated as FMLA leave beginning on March 31, 2015..

Dusik had surgery on April 6, 2015 and immediately after, she could not "walk, kneel, crouch, stoop, bend, and was virtually immobile."  Two months later, Dusik told her immediate supervisor that she was progressing, she was doing physical therapy 3 times per week, and that her doctor told her that she would need 3-6 months off of work.

On July 15, 2015, LCFS fired Dusik because she exhausted her FMLA leave.  Dusik alleged the termination was without notice or warning.  At the time she was fired, Dusik was still going to physical therapy, activity still agitated her knee, and she could not walk more than approximately ten feet.  However, Dusik believed that she could have performed the essential functions of her job with the help of a knee brace.  Dusik also alleged that "[h]ad [she] been notified that her FMLA leave was exhausted or had {LCFS} engaged her in an interactive process, she could have been provided with [a] reasonable ADA accommodation in the form of extended leave or that she return to work with a knee brace."

Dusik claimed she is a qualified individual with a disability under the ADA, and that she requested medical leave as her accommodation, but that LCFS denied her request without justification and that it failed to engage in an interactive process to determine if any alternative accommodation could be provided.  LCFS also had a handbook that stated, "[e]mployees, who are not eligible under the FMLAS, may be granted an unpaid leave of absence of up to 6 months to attend to personal matters," and since LCFS has provided six months of unpaid leave to other similarly situated employees in the past, providing six months of unpaid leave for Dusik would not have been unduly burdensome for LCFS.

Lastly, Dusik claimed that LCFS engaged in FMLA interference when they did not notify her of the amount of leave that would be counted against her and retaliated against her when they failed to provide her with writeen notice of the amount of leave remaining before it terminated her.

ADA Claim

The Court noted that the 2008 amendments to the ADA broadened the definition of "disability" to include "transitory and minor" impairments, which are defined as lasting six months or less, so long as they substantially limit a major life activity.  LCFS argued that intermittent and episodic impairments do not constitute a disability, pointing to the oft-cited principle that a broken leg is not a disability under the ADA.  LCFS argued that since Dusik's torn ACL and meniscus are not a chronic impairment, a manifestation of a disability, or part of an underlying disability, it does not amount to a disability under the ADA.  However, the Court held that a physical impairment may be "transitory or minor" because her doctor recommended a recovery period of 3-6 months,and that her physical impairment substantially limited her ability to perform major life activities (walking, kneeling, crouching, etc.), this was sufficient to allege a disability under the 2008 Amendments.

LCFS attempted to fault Dusik for not telling them she could work with a knee brace, but the Court acknowledged that once an employer becomes aware of an employee's disability, it was obligated to engage in an interactive process to determine the appropriate accommodation under the circumstances, which she alleged they did not do.  Thus, LCFS' motion to dismiss her ADA claim was denied.

FMLA Claims

Employers must notify an employee of the amount of leave counted against the employee's FMLA leave entitlement.  When the employer is designating the employee's leave as FMLA-qualifying and the amount of time the employee needs for leave is known, "the employer must notify the employee of the number of hours, days, weeks that will be counted against the employee's FMLA leave entitlement in the designation notice."  As you may recall from the facts recited above, LCFS did not allegedly do any of this.

When Dusik required 3-6 months off of work to recover from surgery, LCFS told her that her leave was being designated as FMLA leave beginning on March 31, 2015.  After that, LCFS never notified Dusik that she was close to exhausting or already had exhausted her FMLA leave entitlement.  These allegations, taken as true, the Court said, describe a violation of the FMLA notice requirement, which allowed her FMLA interference claim to survive.

On Dusik's FMLA retaliation claim, as you might have thought from reading the facts on how LCFS didn't bother keep Dusik informed that she was in danger of losing her job if she didn't return to work and just fired her the moment her FMLA leave expired, the Court likewise found this to show a "causal link between her protected activity of taking FMLA leave and the adverse action of her termination."  The Court also wrote, "Indeed, LCFS was suspiciously non-communicative."  Thus, Dusik's FMLA retaliation claim also survived.

The case is Dusik v. Lutheran Child Family Services of Illinois, Case No. 16CV10812 (N.D. Illinois)

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