The Fourth Circuit, while mostly affirming summary judgment, holds that the plaintiff – a former employee of the Office of the Director of National Intelligence – presented a genuine dispute of material fact on a claim of interference with Family and Medical Leave Act rights. The plaintiff complained that the agency failed to notify her of the right to medical leave when she presented as depressed in the workplace, complained about depression, and requested leave.
Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019): Hannah P. (the name is shielded by a protective order) worked as an Operations Analyst for the Office of the Director of National Intelligence. In this position, among other things, Hannah ran point for the agency on one of the most sensitive intelligence crises of the century: the Edward Snowden NSA leaks in 2013. “This role was ‘high stress’ and required ‘frequent long hours and weekend work coupled with meeting tight deadlines and dealing with a demanding [National Security Council] customer.'” She drew stellar reviews for her performance in this role.
“A few months after she was hired, Hannah was diagnosed with depression,” which she immediately disclosed to her superiors. For a while, she treated this with therapy and medication, but “[b]y March 2015, Hannah’s co-workers perceived her [attendance] schedule to be ‘erratic.'” She came in late or went missing without explanation for hours. “When Hannah’s supervisors were able to reach her, they noted that she seemed ‘either lethargic or almost unconcerned’ about her lateness and absences. Id. They also noted that her demeanor was ‘sad, very flat, and almost trance like.’ Id. Around that time, Hannah informed her supervisors that she ‘had a recent change in medication.’ Id.“
The agency first attempted to accommodate Hannah by reducing her workload and setting revised expectations about attendance, but that workplan reportedly did not remedy the attendance problem. The agency complained that her attendance issues resulted in wasted time and reassignment of her duties. Hannah’s supervisors referred her to Employee Assistance Program (“EAP”), an in-house counseling service, yet “[d]espite Hannah’s participation in EAP, her attendance problems persisted.” In a curious turn, the EAP psychologist allegedly “shared with [Hannah’s supervisor] details of what Hannah had revealed in confidence at the EAP sessions.”
On April 9, 2015, Hannah requested four weeks of medical leave on advice of her psychiatrist. “On the next business day following Hannah’s EAP session, Hannah’s supervisor told Hannah he was willing to authorize her to take medical leave. However, at that point, Hannah informed her supervisor that her leave request was ‘on hold,’ without further explanation.” Hannah renewed her request for leave on April 21, and leave was finally approved on May 5.
“During this time, Hannah applied for three permanent positions within the Office of the Director of National Intelligence. In February 2015, Hannah interviewed for two permanent positions for which she was not selected. Shortly before taking her leave of absence in May 2015, Hannah applied for a third full-time position, the Program Mission Manager Cyber Position (‘Cyber position’),” which she was also denied.
Hannah sued the agency, alleging various violations of the Rehabilitation Act and the FMLA. The district court granted summary judgment on all counts. The Fourth Circuit substantially affirms, though it partially reverses on FMLA interference.
1. Reasonable accommodation (Rehabilitation Act): The panel majority holds that the modified schedule and EAP referral constituted a reasonable accommodation. Although Hannah argued that the accommodations were inadequate, different than what she requested, or delayed, the employer “has the ultimate discretion to choose between effective accommodations” and that the “Rehabilitation Act does not require an employer to provide the exact accommodation that an employee requests.”
2. Required medical examination (Rehabilitation Act): The panel majority holds that the EAP referral was not a medical examination under 42 U.S.C. § 12112(d)(4)(A). “EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination” and “Hannah’s EAP counselor repeatedly stated that she did not conduct a medical examination.” Alternatively, the panel majority holds that Hannah’s referral to EAP was permissible because it was “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The agency “had a reasonable belief that Hannah’s ability to perform the essential functions of her job was impaired by her repeated issues with attendance and timely reporting.”
3. Confidential medical information (Rehabilitation Act): Plaintiff alleged that “Hannah’s supervisors wrongfully sought and disclosed confidential medical information elicited from Hannah, and second, that the EAP psychologist wrongfully disclosed confidential medical information gathered from the EAP session to Hannah’s supervisors,” in violation of 42 U.S.C. § 12112(d)(3)(B) and (4)(B). Yet the panel holds that “Hannah voluntarily disclosed her depression diagnosis to her supervisors” and the “Rehabilitation Act does not protect information shared voluntarily.” Moreover, there was supposedly no evidence that “the inquiring supervisor knew she was depressed and knew her attendance issues were linked to her depression …. [T]he ADA does not require an employer to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition.”
Although “the EAP psychologist shared some information with Hannah’s supervisors and maybe it was unique information,” the panel majority also holds that it was not protected “medical information.” And “even if either Hannah’s supervisors or the EAP psychologist disclosed Hannah’s medical information, Appellee still did not violate the Rehabilitation Act because Appellee did not rely on Hannah’s depression diagnosis or any other medical information in deciding not to hire Hannah for the Cyber position.”
4. Discrimination (Rehabilitation Act) and Retaliation (FMLA): The panel majority holds that Hannah did not present a genuine dispute of material fact about pretext for denial of the Cyber position. “Hannah’s perpetual issues with attendance, timeliness, and reporting absences to her superiors were the bases of its decision not to hire her for the permanent position.” The principal decisionmaker focused entirely on performance-related issues in his communications and there was no evidence that he knew about Hannah’s disability status. “The record evidences no less than 13 attendance issues that occurred in the 46 days between Appellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised plan made on May 4, 2015.” The agency was “permitted to take Hannah’s attendance issues into account in its decision whether to hire her for the Cyber position.
5. Interference (FMLA): Here, the panel agrees that Hannah presented a genuine dispute of material fact whether the employer was on notice of Hannah’s request and failed to inquire further about whether she was seeking FMLA leave or notify her of her FMLA rights. Despite a lack of perfect clarity, “[a] reasonable jury could find that Hannah’s disclosure of her depression and her April 9, 2015 request for psychiatrist-recommended leave was sufficient to trigger Appellee’s responsibility to inquire further about whether Hannah was seeking FMLA leave.” Further, the absence of notice prejudiced the plaintiff: “the record contains evidence that if Hannah had known that the FMLA protected her position, she would have used only sick leave for her leave of absence” instead of a mix of sick and annual leave.
In partial dissent, while agreeing as to reversal of the FMLA interference claim, Judge Gregory would also reverse on several other claims. On the discrimination and retaliation claims, while the panel majority credited the agency’s complaints about attendance, the dissent would hold that a jury “could reasonably conclude that Hannah’s late arrivals to work continued only because her depression was not effectively accommodated.” Moreover, the dissent would hold that the “proffered reason for not hiring her-her attendance problems-may be pretext for disability discrimination,” because (1) “questions of fact exist as to whether her attendance was a serious problem, or whether her attendance even violated any work-hours policy,” and (2) the decisionmaker’s allegedly “inconsistent statements regarding his knowledge of Hannah’s disability.”
The dissent would also hold that there was a genuine dispute about reasonable accommodation. “[T]he question of whether the first accommodation [the work schedule] and the decision to require EAP counseling before granting medically recommended leave were made in good faith and were effective to address Hannah’s disability should be submitted to the jury, as reasonable minds could conclude that they were not.” A jury could also find that “Hannah’s attendance-and the manifestation of her depression-was negatively impacted during the delay period” in granting leave.
Finally, the dissent would have sent the medical examination claim to the jury. Hannah, in contrast to the EAP counselor, testified that “she was asked for a family medical history, questioned about her medication and dosage, and even administered a diagnostic tool used to assess depression.” Thus, “a reasonable jury could conclude that the EAP sessions were in fact required and that the diagnostic tool constituted a ‘procedure or test that seeks information about an individual’s physical or mental impairments or health.'” Indeed, “[a]fter meeting with Hannah, the EAP counselor even suggested that Hannah could have bipolar disorder,” certainly suggestive of a medical examination.