Tenth Circuit Holds Suggesting an Employee Take an FMLA Leave Does Not Mean the Employer Regards That Employee as Disabled


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

Barbara Berry worked for T-Mobile as a Customer Care Team Manager in Colorado.  In 2003, she had been identified as a “key employee,” however, later that year, her performance was criticized.  Specifically, T-Mobile told Berry that she was not utilizing proper coaching methods, holding her team members accountable, nor did she interact well with other managers.  However, she made some improvements, as her manager said things were fine, and suggested that her job was not in jeopardy.  Unfortunately, just two weeks later, T-Mobile felt her performance had deteriorated, and she was reminded of a need for improvement.

In October or November of 2003, Berry spoke with her manager about needing a rest due to extreme fatigue caused by multiple sclerosis.  She had been diagnosed with MS twelve years earlier, and her manager was aware she had been receiving treatment for her condition.  After she indicated that she needed some rest, her manager suggested that she apply for leave under the Family and Medical Leave Act.  She filed her application, which was granted just one day before T-Mobile terminated her employment.  Although initially listing the reason for termination as a reduction in force, T-Mobile admitted the stated reason was a clerical error, and that the real reason was poor job performance.  Berry subsequently filed a Charge of Discrimination and a federal court lawsuit alleging, in part, that her termination violated the Americans with Disabilities Act (ADA).  In her lawsuit, Barry contended that her MS was an impairment which substantially affected her major life activities or, in the alternative, that if she was not so severely restricted, T-Mobile regarded her as disabled, as evidenced by its approval of her FMLA request.

In analyzing her ADA claims, the court noted that simply having a medical impairment is insufficient to establish a claim.  Rather, the employee must demonstrate they have a “substantial” impairment which prevents or severely restricts the employee from one or more major life activities.  Berry contended she was substantially limited in the major life activities of caring for herself, walking, and performing manual tasks, because she had to rest before showering, cannot do household chores that are handled by others in the family, and has to plan when things can be accomplished due to fatigue caused by her condition.

In rejecting her claim, the court noted that the medical records submitted by her physician demonstrated her activities were not so substantially limited and that many of her symptoms were addressed through medication.  Indeed, the court found that Berry did not dispute she could perform all daily life activities given sufficient rest; walk with the aid of a cane; treat her symptoms with medication; and her cognitive difficulty does not prevent her from learning and working.  The fact that she needed assistance from family members to perform household chores, was determined to be a part of daily living of most families.

With respect to her claim that T-Mobile regarded her as disabled, the court first noted that an individual wishing to establish a regarded as claim may do so in one of three ways.  First, they may show that they have an impairment that is not substantially limiting but is perceived as such by their employer.  Secondly, the employee may have an impairment that is substantially limiting only because of the attitudes of others towards that impairment.  Third, the employee may show that they have no impairment at all, but they are regarded as having a substantially limiting impairment by their employer.  In this case, Barry contended that her manager’s suggestion she apply for FMLA leave was evidence that T-Mobile considered her to be disabled.

In rejecting that claim, the court first noted that an employer’s knowledge of an impairment alone is insufficient to establish the employer regarded the employee as disabled.  Furthermore, the leave provisions of the FMLA are wholly distinct from the statutory definition of disability.  Although there may be some parallels between the two statutes, the ADA’s “disability” and the FMLA’s “serious health condition” are different concepts which must be analyzed separately.  Even though the FMLA grants an eligible employee the right to take up to 12 work weeks of unpaid leave every 12 months for one or more of several reasons, including the existence of a serious health condition which makes the employee unable to perform the functions of their position, the court held the granting of such a leave does not by itself demonstrate the employee was considered disabled by her employer under the ADA.

Since Barry’s only evidence supporting her claim of discrimination was her application for FMLA leave, the court found she had failed to carry that burden of proof and dismissed her claim.

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