Michael R. Lied

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Employee Lacks ADA Claim Because of Absenteeism (Tuesday, May 21, 2013)

Professional Transportation, Inc. ("PTI") moves railroad train crews from one route to another. Terri Basden worked for PTI as a dispatcher. PTI had an attendance policy that defined an incident of absenteeism as a period away from a scheduled shift for a minimum of four hours.

After an employee's fifth absence incident within a year, a verbal warning would be given; after a sixth incident, a written warning, after a seventh, a three-day suspension, and after an eighth, the employee could be terminated. The policy did not differentiate between absences for medical reasons and other absences.

In January 2008, Basden became dizzy and fell at her home. Her physician referred her to a neurologist after a CT scan showed abnormalities that suggested that she might have multiple sclerosis.

Basden provided PTI a note from her physician after each of her absences, and made an appointment to see an MS specialist at the first available date. She had been assigned "closer" duties, which required more typing than the pure dispatcher role. When Basden began to feel numbness in her hands, she asked to be relieved of closer assignments.

Due to her absences, Basden was suspended for three days. PTI's policy permitted an employee with a year's service to request an unpaid 30-day leave of absence. Basden submitted a leave request form, even though she had not yet worked for PTI for a year.

Basden indicated that the leave was necessary because of "complications due to medical illness (MS)." Her leave request was denied, and when Basden failed to return to work following her suspension, her employment was terminated.

Basden sued, alleging that her termination violated both the Americans with Disabilities Act ("ADA") and the FMLA. The district court entered summary judgment in favor of PTI. Basden filed an appeal.

Basden claimed that PTI violated the ADA when it denied her request for a 30-day leave and instead terminated her.

However, Basden failed to present sufficient evidence that she was qualified to perform the essential functions of her job even with a reasonable accommodation.

Regular attendance is usually an essential job requirement and an employer need not accommodate erratic or unreliable attendance. The ability to regularly come to work is examined as of the time of the adverse employment decision at issue.

A plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.

Basden had responded to PTI's summary judgment motion with evidence that medication improved her condition; that she had hoped to be able to work regularly after the requested leave, and that she subsequently had brief employment that was interrupted by a two-week absence caused by her condition. This evidence was insufficient to support a factual finding that Basden was able to come to work regularly at the time of her termination.

Basden also argued that PTI failed to engage in the interactive accommodation discussion required by the ADA.

In this regard, Basden sought a 30-day leave that she would have been eligible for with just two more weeks' of work. The appeals court did not feel PTI's response to Basden's request was appropriate under the ADA.

However, the failure to engage in the interactive process is not an independent basis for liability under the ADA. That failure is unlawful only if it prevents identification of an accommodation for a qualified individual.

Because there was no evidence permitting a conclusion that Basden was a qualified individual for ADA purposes, the district court correctly entered summary judgment for PTI on her ADA claim.

Basden also sought relief from PTI for interference with her FMLA rights. As mentioned, though, Basden was terminated before she had been employed by PTI for 12 months.

Basden sought leave that would have begun before she was actually eligible for FMLA leave. A request made by an ineligible employee for leave that would begin when she was still ineligible is not protected by the FMLA.

The judgment of the district court was affirmed.

Basden v. Professional Transportation, Inc., ___ F.3d ___, 2013 WL 1891292 (7th Cir. 2013).

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com