What Not to Do in ADA Cases

Malone worked her way up through the company to the position of Terminal Manager at the Scarborough Terminal, but after a brief period of time overseeing the terminal operations, she was replaced in that position. When the manager who replaced her resigned in the Fall of 1998, Malone was appointed Acting Terminal Manager. In the early Spring of 1999, Malone was promoted from Acting Terminal Manager to Terminal Manager of that facility again, but after only a few weeks, she was abruptly demoted, without any real explanation for the change. According to Land Air, Malone had difficulties disciplining her subordinates, and was seen as too harsh and rigid. Unfortunately for Land Air, however, none of these charges was documented in any way, nor was Malone spoken to about these problems either before or after her demotion.

Malone had suffered from post-traumatic stress disorder, major depression and eating disorders for approximately 30 years as a result of childhood abuse, and she had been in treatment for these conditions throughout her life. While she had been hospitalized in the past to stabilize her mental health symptoms, as of April of 1999, she had been successful in avoiding the need for hospitalization to stabilize her symptoms for nearly 10 years. She had been successful in remaining in work, as well, throughout her career, often working extremely long hours. She took great pride in her reputation as a hard worker, and was generally praised for her work ethic by members of Land Air management. Prior to April 1999, Malone had confided to at least one member of management that she was in supportive therapy, but she did not generally let it be known that she had a lengthy history of mental health symptoms; nor did she generally let it be known that she was in treatment for her symptoms.

In early 1999, a number of factors, both personal and professional, came together that caused Malone to have difficulty managing her mental health symptoms. Following the sudden demotion in the early Spring of 1999, Malone found that she needed the added support of an in-patient hospitalization program to assist her in regaining control of her mental health symptoms. With the advice and encouragement of her health care providers, Malone entered a specialized program in late April 1999.

Upon the advice of her treating therapist, Malone was hospitalized for 3 weeks between late April 1999 and early May 1999, and then returned to work for Land Air. The company permitted her to miss this time from work, but never gave Malone notice of her rights under the Family and Medical Leave Act or its companion law in Maine. Instead, Land Air treated the time as simply time out of work on a general leave, and paid Malone her regular salary while she was out rather as well as having her use some of her accumulated vacation and sick time.

As part of the demotion from Terminal Manager, and ostensibly to get Malone away from some of the personal problems that were plaguing her, the management at Land Air decided during her hospitalization to transfer Malone to the facility in Pittsfield, ME, more than 100 miles from her prior position in Scarborough. No one in management told Malone why she was being transferred, nor did anyone ask whether such a transfer might, in fact, help alleviate some of her mental health symptoms. No “interactive process” was engaged in at all, and, in fact, Malone never requested any accommodation other than to be allowed time to receive the treatment recommended by her therapist. Malone was simply reassigned to the position of Operations Manager, to report to the Terminal Manager of the Pittsfield facility upon her discharge from the in-hospital treatment program.

Despite the change in location and supervision, as well as the lack of any explanation from Land Air for that change, Malone did well in this position, and she enjoyed working with the Terminal Manager of the Pittsfield facility. In July of 1999, however, she experienced a second series of emotional setbacks that led to her re-entering the hospital that month to again stabilize her mental health condition. Prior to going into the hospital this time, she spoke directly with her Terminal Manager, and received his assurance that her job would be safe and that she should do all she needed to take care of herself. Fatal to Land Air, however, her Terminal Manager, a compassionate person, failed to clear this position with management at Land Air before assuring Malone of the security of her job.

Just 3 days into this hospitalization, Malone was terminated, ostensibly for excessive absenteeism. She was understandably distraught, having secured assurances that her job would be secure prior to entering the hospital, and she tried to convince the senior-level manager who terminated her to rescind his decision. Unfortunately for Land Air, this manager refused to rescind his decision to terminate Malone based on his “gut” feeling that she “might go postal.” Malone had no history of violence toward anyone, nor had any of her treating physicians suggested that she posed any risk to anyone. In fact, she had been cleared to return to work without limitations by her treating physicians by the time the decision to terminate her was finally made and she provided the physician's note releasing her to return to work to her employer. Most critical for Land Air, the termination violated the company's own internal medical leave policy, as set forth in its company handbook.

Malone filed a claim with the EEOC, which investigated and found grounds to believe that discrimination had occurred. Attempts at conciliation failed, and the Commission eventually brought suit on behalf of Malone in U.S. District Court for the District of Maine. Malone intervened in the suit, raising charges of violations of the Americans with Disabilities Act of 1990 (ADA), the Maine Human Rights Act, the Family and Medical Leave Act (FMLA) and its Maine counterpart, as well as various other state and federal employment laws.

While there are several valuable lessons to be learned from this case, the following sets forth the top tips for in-house counsel and others providing counsel to corporate clients, to incorporate into their successful management plans:

• Familiarize yourself, and therefore your company management, with the requirements of the ADA, including the need for reasonable accommodation and the “interactive process” used to develop reasonable accommodations without undue hardship;
• Include in this training any supervisor who has the authority to make decisions affecting an employee's tenure and position within the company;
• Educate your company management as to what the “interactive process” entails – including the fact that one or two accommodations may not relieve the company of it's obligation to continue efforts to return the affected employee to the workforce;
• Draft and utilize cogent, and reasonable, company policies and review those policies whenever dealing with an employee who might, even remotely, fall within the definition of “a qualified individual with a disability”;
• Encourage an open and on-going dialogue with the employee seeking accommodation or leave, to better enable that employee to communicate his or her needs to you, and to better communicate the company's business-based limitations in the accommodation process to the employee;
• Maintain documentation of efforts to accommodate the employee, and include the employee's health care providers in that effort whenever reasonable and possible;
• Never make decisions based on unfounded assumptions about a condition or disability, no matter how sure you might be that your “gut” instinct is correct. That type of decision-making will always come back to haunt you and usually cost lots of money to boot;
• Maintain documentation of any performance-related issues, and keep organized and confidential personnel files so that when you are called upon to provide documentation to support management decisions, you are able to do so; and
• Finally, consult an expert whenever you have questions as to the best and most lawful course of action. Call the local office of the EEOC or other body charged with enforcing labor laws and ask the hypothetical question you have to see what guidance you can find outside of the regulations and the statute. A little bit of time spent early on guidance may save thousands of hours and dollars spent later to defend a misguided decision.

For more information on the employer's obligations under the ADA in particular, look to the EEOC Web site (www.eeoc.gov), where there is a useful Q&A page with helpful hints on ways to avoid running afoul of anti-discrimination laws. Also, contact your state body charged with preventing discrimination. For guidance on applying the FMLA to the workplace, check the Department of Labor Web site (www.dol.gov), where you will find useful information on the FMLA, Affirmative Action, Wage and Hour law and other laws regulated by the Department of Labor.

A recent case in the Federal District Court for the District of Maine offers in-house counsel and others providing employment law advice to corporate clients with a lesson in what not to do when faced with an employee suffering from a mental health disability and seeking leave for hospitalization as an accommodation.

Land Air Express of New England, Inc., an air freight and delivery company with terminals in Maine, New Hampshire, Vermont, and Massachusetts, recently settled claims raised by a former employee who was terminated while in the hospital seeking medical care for longstanding mental health diagnoses. Land Air paid in excess of $350,000 to settle the employee's claims, and further was obligated to enter into a Consent Decree with the Equal Employment Opportunity Commission (EEOC) designed to prevent discrimination on the basis of disability by Land Air in the future. The case marks the first time the EEOC has taken a case involving mental illness in New England. The case also provides a “Monday-morning quarterback” view of just how things can go wrong when a company fails to follow the requirements of the law.

The suit arose when the employee, Donna Malone, began to experience increased mental health symptoms in the Spring and Summer of 1999. Malone had been employed with the company for a number of years and had no negative performance evaluations. In fact, she had no personnel file at all. At least, Land Air was unable to locate any personnel file when faced with a suit. Here arose problem number one for Land Air: It was unable to support any allegations of performance issues with any documentation, making its claims that much weaker on that front.

Malone worked her way up through the company to the position of Terminal Manager at the Scarborough Terminal, but after a brief period of time overseeing the terminal operations, she was replaced in that position. When the manager who replaced her resigned in the Fall of 1998, Malone was appointed Acting Terminal Manager. In the early Spring of 1999, Malone was promoted from Acting Terminal Manager to Terminal Manager of that facility again, but after only a few weeks, she was abruptly demoted, without any real explanation for the change. According to Land Air, Malone had difficulties disciplining her subordinates, and was seen as too harsh and rigid. Unfortunately for Land Air, however, none of these charges was documented in any way, nor was Malone spoken to about these problems either before or after her demotion.

Malone had suffered from post-traumatic stress disorder, major depression and eating disorders for approximately 30 years as a result of childhood abuse, and she had been in treatment for these conditions throughout her life. While she had been hospitalized in the past to stabilize her mental health symptoms, as of April of 1999, she had been successful in avoiding the need for hospitalization to stabilize her symptoms for nearly 10 years. She had been successful in remaining in work, as well, throughout her career, often working extremely long hours. She took great pride in her reputation as a hard worker, and was generally praised for her work ethic by members of Land Air management. Prior to April 1999, Malone had confided to at least one member of management that she was in supportive therapy, but she did not generally let it be known that she had a lengthy history of mental health symptoms; nor did she generally let it be known that she was in treatment for her symptoms.

In early 1999, a number of factors, both personal and professional, came together that caused Malone to have difficulty managing her mental health symptoms. Following the sudden demotion in the early Spring of 1999, Malone found that she needed the added support of an in-patient hospitalization program to assist her in regaining control of her mental health symptoms. With the advice and encouragement of her health care providers, Malone entered a specialized program in late April 1999.

Upon the advice of her treating therapist, Malone was hospitalized for 3 weeks between late April 1999 and early May 1999, and then returned to work for Land Air. The company permitted her to miss this time from work, but never gave Malone notice of her rights under the Family and Medical Leave Act or its companion law in Maine. Instead, Land Air treated the time as simply time out of work on a general leave, and paid Malone her regular salary while she was out rather as well as having her use some of her accumulated vacation and sick time.

As part of the demotion from Terminal Manager, and ostensibly to get Malone away from some of the personal problems that were plaguing her, the management at Land Air decided during her hospitalization to transfer Malone to the facility in Pittsfield, ME, more than 100 miles from her prior position in Scarborough. No one in management told Malone why she was being transferred, nor did anyone ask whether such a transfer might, in fact, help alleviate some of her mental health symptoms. No “interactive process” was engaged in at all, and, in fact, Malone never requested any accommodation other than to be allowed time to receive the treatment recommended by her therapist. Malone was simply reassigned to the position of Operations Manager, to report to the Terminal Manager of the Pittsfield facility upon her discharge from the in-hospital treatment program.

Despite the change in location and supervision, as well as the lack of any explanation from Land Air for that change, Malone did well in this position, and she enjoyed working with the Terminal Manager of the Pittsfield facility. In July of 1999, however, she experienced a second series of emotional setbacks that led to her re-entering the hospital that month to again stabilize her mental health condition. Prior to going into the hospital this time, she spoke directly with her Terminal Manager, and received his assurance that her job would be safe and that she should do all she needed to take care of herself. Fatal to Land Air, however, her Terminal Manager, a compassionate person, failed to clear this position with management at Land Air before assuring Malone of the security of her job.

Just 3 days into this hospitalization, Malone was terminated, ostensibly for excessive absenteeism. She was understandably distraught, having secured assurances that her job would be secure prior to entering the hospital, and she tried to convince the senior-level manager who terminated her to rescind his decision. Unfortunately for Land Air, this manager refused to rescind his decision to terminate Malone based on his “gut” feeling that she “might go postal.” Malone had no history of violence toward anyone, nor had any of her treating physicians suggested that she posed any risk to anyone. In fact, she had been cleared to return to work without limitations by her treating physicians by the time the decision to terminate her was finally made and she provided the physician's note releasing her to return to work to her employer. Most critical for Land Air, the termination violated the company's own internal medical leave policy, as set forth in its company handbook.

Malone filed a claim with the EEOC, which investigated and found grounds to believe that discrimination had occurred. Attempts at conciliation failed, and the Commission eventually brought suit on behalf of Malone in U.S. District Court for the District of Maine. Malone intervened in the suit, raising charges of violations of the Americans with Disabilities Act of 1990 (ADA), the Maine Human Rights Act, the Family and Medical Leave Act (FMLA) and its Maine counterpart, as well as various other state and federal employment laws.

While there are several valuable lessons to be learned from this case, the following sets forth the top tips for in-house counsel and others providing counsel to corporate clients, to incorporate into their successful management plans:

• Familiarize yourself, and therefore your company management, with the requirements of the ADA, including the need for reasonable accommodation and the “interactive process” used to develop reasonable accommodations without undue hardship;
• Include in this training any supervisor who has the authority to make decisions affecting an employee's tenure and position within the company;
• Educate your company management as to what the “interactive process” entails – including the fact that one or two accommodations may not relieve the company of it's obligation to continue efforts to return the affected employee to the workforce;
• Draft and utilize cogent, and reasonable, company policies and review those policies whenever dealing with an employee who might, even remotely, fall within the definition of “a qualified individual with a disability”;
• Encourage an open and on-going dialogue with the employee seeking accommodation or leave, to better enable that employee to communicate his or her needs to you, and to better communicate the company's business-based limitations in the accommodation process to the employee;
• Maintain documentation of efforts to accommodate the employee, and include the employee's health care providers in that effort whenever reasonable and possible;
• Never make decisions based on unfounded assumptions about a condition or disability, no matter how sure you might be that your “gut” instinct is correct. That type of decision-making will always come back to haunt you and usually cost lots of money to boot;
• Maintain documentation of any performance-related issues, and keep organized and confidential personnel files so that when you are called upon to provide documentation to support management decisions, you are able to do so; and
• Finally, consult an expert whenever you have questions as to the best and most lawful course of action. Call the local office of the EEOC or other body charged with enforcing labor laws and ask the hypothetical question you have to see what guidance you can find outside of the regulations and the statute. A little bit of time spent early on guidance may save thousands of hours and dollars spent later to defend a misguided decision.

For more information on the employer's obligations under the ADA in particular, look to the EEOC Web site (www.eeoc.gov), where there is a useful Q&A page with helpful hints on ways to avoid running afoul of anti-discrimination laws. Also, contact your state body charged with preventing discrimination. For guidance on applying the FMLA to the workplace, check the Department of Labor Web site (www.dol.gov), where you will find useful information on the FMLA, Affirmative Action, Wage and Hour law and other laws regulated by the Department of Labor.