by Lana L. Rupprecht, Esq. - AVP Product Compliance
February 14, 2024
Happy Valentine's Day!
The 10th Circuit recently showed its love for employers on February 7, 2024, in an employer-friendly decision, Freman v. City of Cheyenne.
The Case
In this case, the employee, Denise Freeman, was the human resources director for the City of Cheyenne. According to Freeman, once the new mayor (Mayor Orr) was elected and became Freeman's direct supervisor, she suffered from burn-out, exhaustion and related symptoms. She took continuous leave under the Family and Medical Leave Act (FMLA) for 6 weeks and then extended this leave for another 6 weeks per her doctor's recommendation.
One day before her FMLA was scheduled to end, Freeman sent an email to Orr stating: "I am unable to return to work when my FMLA ends tomorrow. I have vacation time on the books that will take me to approximately July 27th. Once that expires, I would like to be considered for 160 hours from the sick bank." Freeman did not indicate when she might be able to return to work.
Orr denied Freeman's request for sick bank leave because she did not include a physician's approval and then, Orr terminated her employment. According to Orr, physical attendance of at least 40 hours per week and the ability to interact with co-workers were essential job functions for Freeman.
Freeman brought a lawsuit against the City claiming denial of reasonable accommodation and discriminatory discharge under the ADA. According to Freeman, Orr should have agreed to additional leave as a reasonable accommodation or alternatively, considered reassignment, remote or part time work.
With respect to Freeman taking additional leave as a reasonable accommodation, the court found Freeman's request for additional leave as unreasonable. The court held it amounted to indefinite leave as Freeman and her health care provider failed to indicate the expected duration of her impairment.
The court rejected the reassignment accommodation because Freeman failed to identify a vacant position. Working remotely or part-time was also unreasonable because Freeman, as a human resources director, could not perform all the essential functions of her job. Freeman did not dispute that physical attendance at work for at least 40 hours a week were essential job functions, making both possible accommodations unreasonable.
What Does this Mean for Employers?
Although employers may LOVE this opinion, be careful! While the 10th Circuit may generally be an employer friendly circuit, courts in other circuits or states may have let this case go to a jury.
- In this case, Orr, as a best practice, should have further engaged with Freeman and explored additional accommodations. This is especially true given the fact they were dealing with the human resources director.
- A genuine interactive process is one of the best ways for an employer to defend itself in a disability accommodation case. Failure to do so may be an independent violation of the law such as under California's Fair Employment and Housing Act.
- Another court could have interpreted the employee's request for vacation time (up to July 27) and the 160 additional hours of sick bank time as the amount of additional leave she was requesting rather than interpreting this as an indefinite leave request.
- It also helped here that Freeman did not dispute that working in person at least 40 hours a week was an essential job function. Had she disputed this or shown evidence to the contrary, it is more likely that this case would have gone to the jury.
- Finally, remember, even though the City prevailed, it still had to pay for its attorneys to get involved in this costly lawsuit and defend an appeal. At that point, no one wins.
Reliance Matrix Can Help!
Reliance Matrix offers employers leave administration and accommodation services under the ADA and other accommodation laws. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].