By Mitchel Wilson
The District Court in Crowell v. Denver Health, (2013) allowed a discharged Colorado paramedic dispatcher’s FMLA and ADA claims to go to trial on cross motions but dismissed her claim for retaliation when the employees’ absences place her in violation of the employer’s “Excessive Absenteeism” policy.
Prior to a car accident, Crowell already had a poor attendance record having been reprimanded twice for absenteeism. Months after her car accident, Crowell experienced what paramedics believed was a pulmonary embolism on the job; she then filed for 364 days of FMLA leave with a statement from her physician. She later filed an amended FMLA request for intermittent leave. Previously, her doctor had said Crowell was prone to episodic flare-ups her doctor cleared her to work until her shoulder surgery. However, Crowell’s employer believing that she was not disabled concluded that she violated the attendance policy a third time and fired her.
Because Crowell had been excessively absent and her employer had granted FMLA leave without any issue in the past, the court dismissed her claim of retaliation under the FMLA.
Lack of pretext is further demonstrated by, Crowell’s previous use of FMLA leave for a different condition; Defendant’s initial approval of continuous FMLA leave for Crowell; Defendant’s ongoing communications with Crowell and her Physician regarding Crowell’s condition; and Crowell’s admissions that she never heard any representative of Defendant comment negatively on her request for FMLA leave
Despite the employer’s reliance on Crowell’s physician statement on her ability to work until she received surgery, the court concluded Crowell’s claim should go to trial, and allow a jury to decide because of a potentially contradictory statement from the same physician. “[Her physician] also indicated that Crowell’s condition would cause “episodic flare-ups periodically preventing [Crowell from performing [her] job functions” that could occur up to seven times a week and last for up to an entire day.”
Regardless of the conflicting statements from her physician, the court stated that the employee’s shoulder injury might qualify as a disability under the ADA. The employer argued Crowell could perform the essential function of the job and was therefore not disabled or denied accommodation. However, the court noted that being able to perform the essential functions of the job does not have any bearing on whether an employee is disabled in the meaning of the ADA or whether the employee requires accommodation to perform those essential functions.
Defendant argues that Crowell’s ADA claim fails … because she was able to perform the essential functions of her job and therefore did not need any accommodation. This argument actually supports Plaintiff’s ability to [the ADA requirement that she could perform the essential functions of the job]. To the extent that Defendant is challenging Plaintiff’s ability to prove she is disabled within the meaning of the ADA, this determination is largely independent of Plaintiff’s ability to perform the essential functions of her job.
The court dismissed the employer’s argument that Crowell failed to request accommodation, as is required under the ADA, because her request for FMLA leave qualified as seeking accommodation.
