Disability Doesn’t Protect Poor Performance or Erratic, Unexcused Absences
In a recent ruling, the 7th Circuit (whose rulings apply to all Illinois, Indiana, and Wisconsin employers) emphasized that a disability neither allows poor performance nor entitles an employee to erratic, unexcused absences. Recognizing regular attendance as a basic requirement of most jobs, the 7th Circuit upheld summary judgment (dismissal without a trial) in favor of the employer when the employee failed to show she was qualified to perform her essential job functions, due in part to unexcused absences.
Wisconsin Physicians Service Insurance Corporation (WPS) employed Mary Lou Stelter in a sales support role beginning in 2002. In 2010 and 2013, her manager noted in her performance review she was attending personal appointments during work hours. Her manager also noted she needed better familiarity with large group insurance products.
In early 2014, Stelter injured her back while at work and was later cleared to return with no restrictions. After her 2014 performance review indicated improvement was required, WPS placed her on an improvement plan, including changing office locations to enable her to gain more familiarity with insurance products. Beginning in September 2014, her manager began meeting with her weekly to discuss tasks and training needs. The manager’s notes from the meetings expressed frustration with her performance, including her continued scheduling of personal appointments during working hours. WPS terminated her in December 2014.
Stelter sued WPS, alleging discrimination and retaliation in violation of the Americans with Disabilities Act (ADA). She asserted she was disabled with back pain from her work injury, it failed to accommodate her disability, and its stated reasons for her termination were pretexts (cover-ups for discriminatory motives). The company prevailed before the district court on a request for summary judgment, and she appealed.
7th Circuit’s Ruling
The 7th Circuit recited the elements an employee must prove to succeed on an ADA claim: (1) She is disabled, (2) she is otherwise qualified to perform the essential job functions with or without a reasonable accommodation, and (3) the adverse job action was caused by her disability. Noting that the district court focused on the second element in granting WPS summary judgment, the appellate court stated, “If an individual is not qualified for her job, for reasons unrelated to her disability, the ADA does not shelter disabled individuals from adverse employment actions.”
The appellate court considered Stelter’s assertion that the reasons given for termination were a pretext for discrimination. To establish pretext, she needed to show through inconsistencies or contradictions by her manager that the true reason for termination was in fact discrimination based on her disability. The appellate court noted that her performance reviews demonstrated the reasons stated by WPS for terminating her existed before her injury, and therefore no reasonable jury could conclude she was terminated based on a disability.
The appellate court emphasized the ADA doesn’t protect persons who have erratic, unexplained absences, even when they result from a disability. It stated, “The fact is that in most cases, attendance is a basic requirement of most jobs.” It noted further that Stelter never requested an accommodation, and this is typically a prerequisite to a denial of accommodation claim under the ADA. Stelter v. Wisconsin Physicians Service Insurance Corporation, Case No. 18-3689 (7th Cir., February 20, 2020).
When a disability causes an employee to require special scheduling or take additional breaks, the distinction between reasonable accommodations (such as allowing an employee to attend scheduled medical appointments) and unreasonable ones (such as an employee erratically missing work without notice) can become blurred. Although both may be due to the disability, the latter may not be protected by the ADA. As the court stated here, attendance is often a basic requirement of most jobs.
The ruling emphasizes that regardless of disability, the employee must be capable of performing the essential job functions either with a reasonable accommodation or without, including regular attendance. The ruling also underscores the benefit of regular performance reviews. The employer’s establishment of a record of performance issues predating the employee’s disability helped it refute her assertion its proffered reason for termination was a pretext.
Finally, understand that this case involves federal law and that Wisconsin law can be more strict on disabilities and may allow clemency and forbearance for certain performance issues. Therefore, it’s important to seek counsel on tough disability questions.
This article, slightly modified to note recent updates, was featured in the June issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.