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Dollar General employee who quit may pursue claim she was denied accommodation under ADA

By Ronald Miller, J.D.

Once the employee made the request for a leave of absence, the retailer had an obligation to “take some initiative” and identify a reasonable accommodation.

A Dollar General employee who quit her job after the employer refused her request to take time off to deal with her medical problems may pursue a failure to accommodate claim, ruled the Eighth Circuit, reviving her ADA suit in a case in which the EEOC weighed in as amicus on the employee’s behalf. On this record, the appeals court concluded, a reasonable jury could conclude that the employer was aware of the employee’s disability; that she requested an accommodation; and that the employer, had it engaged in the interactive process, could have reasonably accommodated her. Accordingly, the employee’s ADA claim survived the employer’s summary judgment motion. However, her claims for interference under the FMLA and retaliation failed (Garrison v. Dolgencorp, LLC, October 3, 2019, Stras, D.).

The employee, who suffers from anxiety, migraines, and depression, was a lead sales associate at a Dollar General store and had a key to open and close the store. The four “key holders” had to coordinate their schedules so that at least one of them could be there when the store opened and closed each day.

“There is no leave of absence.” The employee wished to take a leave of absence due to her worsening medical condition. She texted her store manager inquiring about how to request a leave of absence. One week later, she followed up with a text about a rumor that she intended to quit, which was allegedly spread among coworkers by the manager. In three messages, the manager responded that: “there was no leave of absence,” she could remain with Dollar General as long as she could “do the job and not be sick all the time,” and she should “read the employee handbook.”

During an in-person meeting, the employee made clear that she was seeking a leave of absence due to anxiety and depression. The manager reiterated that she did not believe that any form of leave was available and warned the employee that she could not remain a full-time employee or continue as a key holder if she kept missing shifts. The following week, the employee missed a shift due to an emergency room visit for gastritis and anxiety. She requested vacation for the remainder of the week, but was refused because two of the four key holders were scheduled to be gone. The employee then informed the manager that she was quitting. Dollar General replaced the employee with an individual who had been hired a week earlier, after the subject of leave had come up.

The employee sued Dollar General and her manager alleging that they discriminated against her under both the ADA and the Missouri Human Rights Act (MHRA), interfered with her ability to seek leave under the FMLA, and retaliated against her for attempting to exercise her rights. A district court dismissed the lawsuit in its entirety on summary judgment.

Failure to accommodate. The appeals court concluded there was sufficient evidence from which a reasonable jury could conclude that the employee satisfied the requirements of a failure-to-accommodate claim. To start, there was considerable evidence the store manager knew about the employee’s disability. She discussed her health problems with the manager, including medications, and informed her whenever she had doctor’s appointments.

A closer question was whether the employee did enough to put Dollar General on notice that she was seeking an accommodation. She repeatedly told her manager that she wanted to take a leave of absence, even if she never referenced the ADA. Although the employee did not use the word accommodation or ask about anything other than leave, the analysis is not limited to the precise words spoken by the employee at the time of the request. The manager knew that the employee suffered various medical conditions, that those conditions had been worsening and had required regular doctor visits. Under these circumstances, a reasonable jury could conclude that the employee requested an accommodation because she made Dollar General “aware of the need for” one.

The court reached the same conclusion about the adequacy of Dollar General’s engagement in what was supposed to be the “interactive process.” Once the employee made the request for a leave of absence, the employer had an obligation to “take some initiative” and identify a reasonable accommodation. A factual dispute also existed about whether Dollar General, if it had engaged in the interactive process, could have reasonably accommodated the employee’s disability. After all, the employer was only obligated to provide a reasonable accommodation, not the particular one that the employee requested. Moreover, the store manager had testified that she would have protected the employee’s job and made it work if the employee had been entitled to FMLA leave. Thus, it stands to reason that Dollar General could have found a way to make leave (or some other reasonable accommodation) work under the ADA, too, had the manager considered it.

Retaliation claims. However, the employee failed to establish unlawful retaliation as neither Dollar General’s nor the store manager’s actions amounted to unlawful reprisal. The employee would have needed to prove that Dollar General took an adverse employment action against her that was causally connected to her leave request and was serious enough to “dissuade a reasonable worker” from engaging in protected conduct.

The employee pointed to the fact that the store manager told coworkers that she intended to quit and warned her that she could no longer be a key holder or a full-time employee if she did not work her assigned shifts. However, the appeals court explained that rumors cannot serve as the basis of a retaliation claim because they would not dissuade a reasonable worker from pursuing his or her rights. Nor did the potential loss of key-holder or full-time status rise to the level of an adverse employment action, since the store manager only stated that the employee’s role would change if she did not qualify for leave and continued to miss work. This was not a threat to demote the employee for attempting to exercise her statutory rights.

FMLA interference claim. Finally, the employee failed to follow the steps Dollar General had established in its employee handbook for requesting FMLA leave, so she lost any right she had to FMLA leave, the appeals court concluded, affirming summary judgment in Dollar General’s favor on the employee’s FMLA cause of action.