TABLE OF CONTENTS
TABLE
OF AUTHORITIES..................................................................... ii
STATEMENT
OF INTEREST.................................................................. 1
STATEMENT
OF THE ISSUES.............................................................. 2
STATEMENT
OF THE CASE................................................................. 2
A. Statement of the Facts............................................................ 2
B. The District Court Decision................................................... 5
SUMMARY
OF ARGUMENT................................................................. 6
ARGUMENT............................................................................................ 8
A. There is Nothing Inherently Inconsistent in
Simultaneously Seeking Relief Under the FMLA and the ADA.............................................. 8
B. A Single Request for Medical Leave Triggers an
Employee’s Rights Under Both the FMLA and
the ADA...... 15
CONCLUSION......................................................................................... 20
CERTIFICATE
OF COMPLIANCE......................................................... 23
CERTIFICATE
OF SERVICE.................................................................. 24
Table of
Authorities
Page(s)
Cases
Byrne v. Avon Products,
Inc.,
328 F.3d 379 (7th Cir. 2003)..................................................................... 12
Cehrs v. Northeast Ohio
Alzheimer’s Research Center,
155 F.3d 775 (6th Cir. 1998)......................................................... 11, 12, 14
Conoshenti v. Public
Service Electric & Gas Co.,
364 F.3d 135 (3d Cir. 2004)................................................................ 13, 14
Criado v. IBM Corp.,
145 F.3d 437 (1st Cir. 1998)...................................................................... 13
Fogleman v. Greater
Hazleton Health Alliance,
122 F. App’x 581 (3d Cir. 2004)............................................................... 13
Garcia-Ayala v. Lederle
Parenterals, Inc.,
212 F.3d 638 (1st Cir. 2000)...................................................................... 15
Humphrey v. Memorial
Hospitals Ass’n,
239 F.3d 1128 (9th Cir. 2001)................................................................... 13
Jelsma v. City of Sioux
Falls,
744 F. Supp. 2d 997 (D.S.D. 2010)........................................................... 15
McCall v. City of
Philadelphia,
--- F. App’x ---, 2015 WL 7274068 (3d Cir. Nov. 18, 2015)..................... 18
Navarro v. Pfizer Corp.,
261 F.3d 90 (1st Cir. 2001)........................................................................ 19
Nowak v. St. Rita High
School,
142 F.3d 999 (7th Cir. 1998)..................................................................... 14
Oatman v. Fuji Photo Film
USA, Inc.,
54 F. App’x 413 (5th Cir. 2002)................................................................ 17
Rascon v. US West Communications,
Inc.,
143 F.3d 1324 (10th Cir. 1998)........................................................... 12, 14
Rodgers v. Helman,
869 F.2d 253 (4th Cir. 1989)..................................................................... 13
Rutt v. City of Reading,
2014 WL 5390428 (E.D. Pa. Oct. 22, 2014).................................. 15, 18, 20
Smith v. Diffee
Ford-Lincoln-Mercury, Inc.,
298 F.3d 955 (10th Cir. 2002)................................................................... 17
Trevino v. United Parcel
Services,
2009 WL 3423039 (N.D. Tex. Oct. 23, 2009)................................ 18, 19, 20
U.S. Airways, Inc. v.
Barnett,
535 U.S. 391 (2002)................................................................................... 14
Vice v. Blue Cross &
Blue Shield of Oklahoma,
113 F. App’x 854 (10th Cir. 2004)............................................................ 20
Walton v. Mental Health
Ass’n of Southeastern Pennsylvania,
168 F.3d 661 (3d Cir. 1999)...................................................................... 13
Statutes
Americans with Disabilities
Act of 1990, as amended, 42 U.S.C. §§ 12101-12117............................................................................................................ passim
42
U.S.C. § 12101(a)................................................................................... 9
42
U.S.C. § 12101(b)(1)............................................................................... 9
42
U.S.C. § 12111(8)................................................................................... 8
42
U.S.C. § 12111(9)(B).............................................................................. 9
42
U.S.C. § 12112(b)(5)(A)......................................................................... 9
42
U.S.C. § 12117....................................................................................... 1
42
U.S.C. § 12206....................................................................................... 1
Americans with Disabilities
Act Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008)................................................................................ 11
Family and Medical Leave
Act, 29 U.S.C. §§ 2601-2654........................ passim
29
U.S.C. § 2601(a)(4)................................................................................. 8
29
U.S.C. § 2612(a)(1)................................................................................. 9
29 U.S.C.
§ 2612(a)(4)................................................................................. 9
Pennsylvania Human Relations
Act, 43 Pa. Con. Stat. § 955........................... 4
Other Authorities
29 C.F.R. Pt. 1630, App. §
1630.2(o).............................................................. 9
29 C.F.R. § 825.702(a)................................................................................... 19
29 C.F.R. § 825.702(b)................................................................................... 11
29 C.F.R. § 825.702(c)(2)......................................................................... 17, 21
29 C.F.R. § 1630.4(a)(1)(v)............................................................................ 10
EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002), available
at http://www.eeoc.gov/policy/docs/accommodation.html................... 9, 12, 16
EEOC Fact Sheet, The
Americans with Disabilities Act: Applying Performance and Conduct Standards to
Employees with Disabilities, available at http://eeoc.gov/facts/performance-conduct.html
(Jan. 20, 2011)................ 12
EEOC Fact Sheet, The Family
and Medical Leave Act, the Americans with Disabilities Act, and Title VII of
the Civil Rights Act of 1964, available at http://eeoc.gov/policy/docs/fmlaada.html
(July 6, 2000)............................ 15
Federal Rule of Appellate
Procedure 29(a)....................................................... 1
Federal Rule of Civil
Procedure 54(b)............................................................... 2
STATEMENT
OF INTEREST
The Equal Employment Opportunity
Commission (“EEOC” or “Commission”) is the primary agency charged by Congress
with interpreting, administering, and enforcing various federal laws
prohibiting employment discrimination, including Title I of the Americans with Disabilities Act of 1990, as amended
(“ADA”), which prohibits employment discrimination based on disability. See
42 U.S.C. §§ 12117, 12206. This case involves the overlap between
the ADA and the Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2601-2654, the statute allowing qualifying employees to take
reasonable leave for medical reasons. Specifically, the case presents the
issue whether a request for FMLA leave precludes
an accommodation request under the ADA
and, if not, whether a request for FMLA
leave can simultaneously serve as a request for accommodation under the ADA.
Contrary to established authority in
other circuits, the district court in this case held as a matter of law that a
request for FMLA leave precludes an
employee from claiming to be a “qualified individual” under the ADA and, further, can never constitute a
request for a reasonable accommodation under the ADA. Because resolution of this legal issue
will affect the EEOC’s enforcement of the ADA,
the Commission offers its views to the Court. See Fed. R. App. P. 29(a).
STATEMENT
OF THE ISSUES
1. Does a request for temporary
medical leave for the treatment of an intermittent condition that will allow an
employee to return to work in the near future necessarily constitute an
admission that the employee cannot perform the essential functions of his
position and is therefore not a “qualified individual” under the ADA?
2. Does a request for temporary
medical leave under the FMLA constitute a
request for a reasonable accommodation under the ADA?
STATEMENT
OF THE CASE
This is an appeal from a final
judgment under Federal Rule of Civil
Procedure 54(b) granting summary judgment in favor of Defendant Mondelēz Global,
LLC (Mondelez).
A. Statement of
the Facts
Mondelez is one of the nation’s
largest producers of snack foods. Joint Appendix (“JA.”) 238 (Mondelez Resp. to RFAs at 4). Plaintiff
Frederick Capps worked for Mondelez as a mixing technician, a job requiring him
to load ingredients into and operate a mixing machine that made dough. JA.38-39
(Capps Depo. at 21-28). Capps had a
degenerative bone disease necessitating the replacement of both hips in 2004. JA.47
(Capps Depo. at 57-60); JA.312 (Dr. Guttin
Report at 2). Following this surgery, he required intermittent FMLA leave when he experienced periodic inflammation
in his hips; this leave was routinely requested and granted. JA.63-64 (Capps Depo. at 124-26); JA.184 (Pace Depo. at 28); JA.312 (Dr. Guttin Report
at 2).
During one such period of
inflammation, after informing Mondelez that he would need to take FMLA leave for the day and miss his 1 p.m.
shift because of leg pain, Capps went to a pub in the evening and became
extremely drunk. JA.42-45 (Capps. Depo.
at 40-50); JA.363 (Mondelez FMLA log). Police
pulled him over on his way home, gave him a field sobriety test, took him to
the hospital for a blood test (which indicated a blood alcohol level more than
four times the legal limit), and took him to jail, where he spent several
hours. JA.45 (Capps. Depo. at 49-50); JA.414-16
(Incident Report Form); JA.423 (Toxicology Report). After returning home the
next morning, Capps told Mondelez that he would need to take another day of FMLA leave due to continuing leg pain and
would therefore need to miss his 1 p.m. shift. JA.46-47 (Capps Depo. at 56-57); JA.363 (Mondelez FMLA log). He returned to work for his next
scheduled shift. JA.48-49 (Capps Depo. at
64-65).
Early the following year, Mondelez’s
Human Resources Manager, William Oxenford, received a copy of a newspaper
article mentioning Capps’s arrest, sentencing, and parole in connection with
the drunk driving incident. JA.128-30 (Oxenford
Depo. at 49, 56-57); JA.263 (Mondelez
Supp. Response to Interrogatory No. 18); JA.359 (newspaper article). Concerned
that the incident may have involved a misuse of FMLA leave, Oxenford initiated an
investigation into Capps’s leave usage. JA.130-31 (Oxenford Depo. at 60-64); JA.219-20 (McAvoy Depo. at 20-22). After comparing the
dates of his FMLA leave usage with the
dates of his arrest and court actions, Oxenford and Mondelez plant manager
Rusty Moore concluded that Capps had misused his FMLA leave and terminated him for violations
of the “Company Dishonest Act Policy.” JA.143
(Oxenford Depo. at 109-10); JA.152-53 (Oxenford Depo. at 148-49); JA.204-05 (Moore Depo. at 18-22); JA.219-22 (McAvoy Depo. at 20-31); JA.404 (termination
letter).
Capps then sued Mondelez, alleging
the company had interfered with his FMLA
leave, retaliated against him for using FMLA
leave, terminated him due to his disability in violation of the ADA, failed to accommodate his disability as
required under the ADA, and retaliated
against him for exercising his ADA rights. JA.286-93 (Plaintiff’s Second
Amended Complaint). Mondelez moved for summary judgment on all counts, while
Capps moved for summary judgment on his FMLA
interference claim. JA.9-10 (Dist. Ct.
Op. at 6-7).
B. The District
Court Decision.
In an order dated November 24,
2015, the court denied Capps’s motion and granted Mondelez’s motion in full. JA.5
(Dist. Ct. Op. at 2). The court rejected
Capps’s FMLA interference claim because it
found that Capps could not show he was denied FMLA
benefits: Mondelez allowed him to take the leave he requested. JA.11-14 (Dist. Ct. Op. at 8-11). The court similarly
rejected Capps’s FMLA retaliation claim
because it concluded that Capps could not show his termination was causally
connected to his having taken FMLA leave, making
him unable to establish a prima facie case of retaliation. JA.14-16 (Dist. Ct. Op. at 11-13). In addition, even if
Capps had successfully made out his prima facie case, the court found that
Mondelez’s rationale for the termination – that it concluded after
investigation that Capps had misused his FMLA
leave – was legitimate, and Capps failed to show that this rationale was a
pretext for an underlying discriminatory motive. JA.16-21 (Dist. Ct. Op. at 13-18).
Turning to Capps’s claim for failure
to accommodate his disability under the ADA,
the court held that he had not requested an accommodation. JA.21-22 (Dist. Ct. Op. at 18-19). Although it
acknowledged that Capps had requested intermittent medical leave under the FMLA, the court held that, as a matter of law,
“a request for FMLA leave is not
alternatively a request for a reasonable accommodation” under the ADA. JA.21 (Dist.
Ct. Op. at 18) (quoting Rutt v. City of
Reading, 2014 WL 5390428, at *4 (E.D. Pa. Oct. 22, 2014)). The court
explained that an employee who requests FMLA
leave “is telling his employer that he has a ‘serious health condition that
makes the employee unable to perform the functions of the position of such
employee.’” JA.21 (Dist. Ct. Op. at 18) (quoting
29 U.S.C. § 2612). An employee
seeking a reasonable accommodation under the ADA,
in contrast, “is signaling that he ‘can perform the essential functions of the
employment position.’” JA.21 (Dist. Ct.
Op. at 18) (quoting 42 U.S.C.
§ 12111). Under this theory, the court concluded that Capps’s FMLA request indicated that “he could not work
at all,” which precluded him from making the necessary showing under the ADA that “he can perform the essential
functions of his job.” JA.22 (Dist. Ct.
Op. at 19).
SUMMARY
OF ARGUMENT
The FMLA
and the ADA have distinct but
complementary goals. The FMLA provides
job security for employees requiring temporary medical leave, while the ADA requires employers to provide reasonable
accommodation, including temporary medical leave, to qualifying employees with
disabilities. Qualifying for relief under one statute does not necessarily
preclude the application of the other.
In summarily disposing of Capps’s ADA claim the district court made two
mistakes. First, it held that Capps could not qualify for a reasonable
accommodation under the ADA because his
request for FMLA leave constituted an
admission that he could not perform the essential functions of his job. To the
contrary, however, numerous courts have held that an employee may be a “qualified
individual” under the ADA who requires the
reasonable accommodation of temporary medical leave. No part of either
statutory scheme makes such a position inconsistent or untenable.
Second, the court held that a request
for FMLA leave cannot, as a matter of law,
simultaneously constitute a request for reasonable accommodation under the ADA. This conclusion runs counter to the administrative
regulations and interpretive guidelines applying to both statutes, which
clearly contemplate the use of FMLA leave
as a reasonable accommodation under the ADA.
Courts in several circuits, including the Third, have explicitly accepted the
guidelines’ interpretation of the statutes on this point.
The EEOC urges the Court to make
clear that there is nothing inherently inconsistent with arguing that an
employee is a qualified individual under the ADA
but still requires temporary medical leave as a reasonable accommodation, and further,
that a single leave request may trigger an employee’s rights under the FMLA and the ADA
simultaneously.
ARGUMENT
A. There is Nothing Inherently
Inconsistent in Simultaneously Seeking Relief Under the FMLA and the ADA.
The district court found an inherent
inconsistency in Capps’s argument that he needed temporary medical leave under
the FMLA but was nevertheless a “qualified
individual” – one “who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual holds
or desires,” 42 U.S.C. § 12111(8) –
entitling him to a reasonable accommodation under the ADA. JA.21-22 (Dist. Ct. Op. at 18-19). As a closer reading
of the statutes, administrative regulations, and interpretive guidelines of the
EEOC and the Department of Labor makes clear, however, there is nothing
fundamentally inconsistent in an employee seeking relief under both statutes.
Congress passed the FMLA in part to increase job security “for
employees who have serious health conditions that prevent them from working for
temporary periods.” 29 U.S.C.
§ 2601(a)(4). To that end, the statute requires covered employers to
provide eligible employees up to twelve workweeks of leave during any twelve-month
period for any qualifying purpose. Id. § 2612(a)(1). One such
qualifying purpose is a “serious health condition that makes the employee
unable to perform one or more of the essential functions of his or her job.” Id. § 2612(a)(4).
The ADA
serves a different but complementary role. Congress passed the ADA “to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1).
Because disability discrimination includes the “failure to make modifications
to existing . . . practices,” the statute requires reasonable accommodation of
qualified disabled individuals (absent undue hardship) to allow them “the
opportunity to compete on an equal basis and to pursue those opportunities for
which our free society is justifiably famous.” Id. §§ 12101(a)(5), (8), 12112(b)(5)(A).
“Reasonable accommodations” available
to qualified individuals under the ADA may
include “job restructuring, part-time or modified work schedules . . .
and other similar accommodations for individuals with disabilities.” Id.
§ 12111(9)(B); see also 29
C.F.R. Pt. 1630, App. § 1630.2(o) (“[O]ther accommodations [under the ADA] could include permitting the use of
accrued paid leave or providing additional unpaid leave for necessary
treatment.”); EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002), at
“Leave,” available at http://www.eeoc.gov/policy/docs/accommodation.html
[hereinafter “EEOC Enforcement Guidance”] (“Permitting the use of accrued paid
leave, or unpaid leave, is a form of reasonable accommodation when necessitated
by an employee’s disability.”); cf. 29
C.F.R. § 1630.4(a)(1)(v) (“It is unlawful for a covered entity to
discriminate on the basis of disability against a qualified individual in
regard to . . . [l]eaves of absence, sick leave, or any other
leave.”). Thus, it is clear from both the language of the ADA and the Commission’s administrative
guidance materials interpreting it that a temporary leave of absence can be a
reasonable accommodation under the ADA.
The district court wrongly concluded
that an employee requesting temporary leave under the FMLA could not, as a matter of law, be a
“qualified individual” capable of “perform[ing] the essential functions” of his
job. JA.21-22 (Dist. Ct. Op. at 18-19)
(citing Rutt v. City of Reading,
2014 WL 5390428, at *4 n.11 (E.D. Pa. Oct. 22, 2014)). In the court’s
view, seeking temporary medical leave under the FMLA while claiming an ability to perform
one’s job was an impermissible attempt to “have it both ways.” JA.23 (Dist. Ct. Op. at 19). Contrary to this
conclusion, however, a long history of case law – from this Circuit and others
– has rejected this precise argument and concluded instead that temporary
medical leave may indeed be a reasonable accommodation for qualified
individuals under the ADA. There is no
inherent inconsistency in arguing that an employee may need an accommodation of
temporary medical leave but still be a “qualified individual” under the ADA. See 29 C.F.R. § 825.702(b) (“ADA’s
‘disability’ and FMLA’s ‘serious health condition’ are different concepts, and
must be analyzed separately.”).
Cehrs
v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.
1998), is illustrative of the line of cases that properly analyze temporary
medical leave as a potential reasonable accommodation. Cehrs involved a plaintiff with pustular
psoriasis who periodically needed to take leave when her condition flared up.
After determining that she had a physical impairment that affected and
substantially limited her major life activities both during flareups and during
the disease’s dormant periods, the court then considered whether
her intermittent need for temporary leave rendered her unqualified to perform
her position. The court rejected the employer’s argument that because “regular
and predic[t]able attendance is a job requirement,” an employee “who must
occasionally request medical leave is unqualified.” Cehrs, 155 F.3d at 782. Instead, the
court held, “[N]o presumption should exist that uninterrupted attendance is an
essential job requirement . . . [A] medical leave of absence can constitute a
reasonable accommodation under appropriate circumstances.” Id. at 782-83.
Other courts have similarly found
that temporary medical leave may constitute a reasonable accommodation,
notwithstanding the employee’s inability to work during the duration of the
leave. See, e.g., Rascon v. US
West Commc’ns, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998) (holding that
whether attendance is an essential job function “simply is not the relevant
inquiry when a reasonable accommodation of disability leave is at issue.
. . . An allowance of time for medical care or treatment may constitute a
reasonable accommodation.”), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001); see also Byrne v. Avon Prods., Inc., 328 F.3d 379,
381 (7th Cir. 2003) (“Time off may be an apt accommodation for intermittent
conditions. Someone with arthritis or lupus may be able to do a given job even
if, for brief periods, the inflammation is so painful that the person must stay
home.”); Humphrey v. Mem’l Hosps. Ass’n,
239 F.3d 1128, 1135 (9th Cir. 2001) (“A leave of absence for medical treatment
may be a reasonable accommodation under the ADA.”);
Criado v. IBM Corp., 145 F.3d 437,
443-44 (1st Cir. 1998) (“A leave of absence and leave extensions are reasonable
accommodations in some circumstances.”); Rodgers
v. Helman, 869 F.2d 253, 259 (4th Cir. 1989) (holding that temporary leave
may be a reasonable accommodation for alcoholic employees seeking treatment under
the Rehabilitation Act).
Several Third Circuit cases have
likewise explained (albeit in dicta) that medical leave may constitute a
reasonable accommodation under the ADA. See,
e.g., Conoshenti v. Pub. Serv.
Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004) (noting the existence
of cases “that have permitted a leave of absence as a reasonable accommodation
under the ADA”); Walton v. Mental Health Ass’n of SE Pa.,
168 F.3d 661, 671 (3d Cir. 1999) (“[U]npaid leave supplementing regular sick
and personal days might, under other facts, represent a reasonable accommodation.”);
Fogleman v. Greater Hazleton Health
Alliance, 122 F. App’x 581, 585 (3d Cir. 2004) (“In some instances, it may
be possible for a requested leave of absence to constitute a reasonable accommodation.”).
This does not mean that a requested
medical leave necessarily constitutes a reasonable accommodation. An
employee proceeding under the ADA still
has the burden of showing that a proposed accommodation is either “reasonable
on its face, i.e., ordinarily or in the run of cases,” U.S. Airways, Inc. v. Barnett, 535 U.S.
391, 401 (2002), or reasonable under the special circumstances presented in his
particular situation, id. at
405-06. In addition, as explained in Cehrs,
an employer is entitled to argue that a requested accommodation of temporary
medical leave imposes an undue hardship. Cehrs,
155 F.3d at 781 (citing 42 U.S.C.
§ 12111(10)(B)). For example, a request for an indefinite leave of
absence, with no indication given of its anticipated duration, would not be
reasonable. See Rascon, 143
F.3d at 1334 (“[A]n indefinite unpaid leave is not a reasonable accommodation
where the plaintiff fails to present evidence of the expected duration of her
impairment.”); Nowak v. St. Rita High
Sch., 142 F.3d 999, 1004 (7th Cir. 1998) (“The ADA does not require an employer to
accommodate an employee who suffers a prolonged illness by allowing him an
indefinite leave of absence.”); Conoshenti,
364 F.3d at 151 (“[T]he federal courts that have permitted a leave of absence
as a reasonable accommodation under the ADA
have reasoned, explicitly or implicitly, that applying such a reasonable
accommodation at the present time would enable the employee to perform his
essential job functions in the near future.”). But the cases cited above do
establish that, contrary to the district court’s conclusion (and that of Rutt, the unpublished district court
decision on which it relied), there is nothing fundamentally inconsistent about
seeking temporary medical leave as a reasonable accommodation. Because the
district court came to the opposite conclusion, it erred as a matter of law.
B. A Single Request for Medical
Leave Triggers an Employee’s Rights Under Both the FMLA and the ADA.
As noted above, the FMLA and the ADA
have different but sometimes overlapping purposes. The FMLA gives job security to employees requiring
medical leave, and the ADA provides for
reasonable accommodation – including, potentially, medical leave – for
qualifying employees with disabilities. Even though the statutes have distinct
primary aims, “[t]he FMLA and the ADA both require a covered employer to grant
medical leave to an employee in certain circumstances.” EEOC Fact Sheet, The Family and Medical Leave
Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act
of 1964, available at http://eeoc.gov/policy/docs/fmlaada.html, at
Question 1 (July 6, 2000) [hereinafter EEOC FMLA/ADA Fact Sheet]. See
generally Jelsma v. City of Sioux
Falls, 744 F. Supp. 2d 997, 1017 (D.S.D. 2010) (“Congress designed the FMLA and ADA
to dovetail together to protect American workers.”).
The district court summarily
concluded that “a request for FMLA leave
is not alternatively a request for a reasonable accommodation.” JA.21 (Dist. Ct. Op. at 18). This holding runs
counter to the EEOC’s interpretation of the ADA,
the Department of Labor’s interpretation of the FMLA, and several cases in the courts of
appeals that have addressed the issue.
As the Commission has explained in
its ADA guidance material, because the ADA and the FMLA
are complementary, an employer covered under the statutes has the affirmative
obligation to “determine an employee’s rights under each statute separately,
and then consider whether the two statutes overlap regarding the appropriate
actions to take.” EEOC Enforcement Guidance, at Question 21. The Commission’s
technical assistance materials explain that a covered employee’s request for
time off for a reason potentially related to a disability requires his employer
to treat that request as one “for ADA
reasonable accommodation as well as FMLA
leave.” EEOC FMLA/ADA Fact Sheet, at Question 16. The employer must so treat
the request however it is phrased. See EEOC
Enforcement Guidance, at Question 1 (“To request accommodation, an individual
may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable
accommodation.’”); id. at Example B
(“An employee tells his supervisor, ‘I need six weeks off to get treatment for
a back problem.’ This is a request for a reasonable accommodation.”). Thus,
the Commission’s position is unambiguous: in circumstances implicating both
statutes, a single leave request puts an employer on notice of an invocation of
rights under both statutes.
Similarly, the Department of Labor’s regulations
interpreting the FMLA make clear that FMLA leave may simultaneously be treated as a
reasonable accommodation under the ADA.
In providing examples of how the statutes might overlap, the regulations offer
the hypothetical of an employee taking ten weeks of FMLA leave as a reasonable accommodation under
the ADA: “This [FMLA] designation does not prevent the parties
from also treating the leave as a reasonable accommodation and reinstating the
employee into the same job, as required by the ADA,
rather than an equivalent position under FMLA,
if that is the greater right available to the employee.” 29 C.F.R. § 825.702(c)(2).
Several courts have accepted this
interpretation and acknowledged that the same request for leave can implicate
both the FMLA and the ADA. See Smith v. Diffee Ford-Lincoln-Mercury, Inc.,
298 F.3d 955, 967 (10th Cir. 2002) (holding that the plaintiff’s request for FMLA leave constituted a request for
reasonable accommodation under the ADA); Oatman v. Fuji Photo Film USA, Inc., 54 F.
App’x 413, at *3 (5th Cir. 2002) (“Undoubtedly, as Plaintiff suggests, there is
some level of interplay between the FMLA and the ADA.”). This Court itself recently
stated, albeit in dicta in an unpublished decision, “We recognize that a
request for FMLA leave may qualify in
certain circumstances as a request for an accommodation under the ADA.” McCall
v. City of Phila., --- F. App’x ---, 2015 WL 7274068, at *2 (3d Cir. Nov.
18, 2015) (citing 29 C.F.R. § 825.702(c)(2)).
Thus, the district court’s conclusion that leave requests under the two statutes
are mutually exclusive is simply wrong.
The district court supported its
conclusion with citation to a single unpublished district court decision, Rutt v. City of Reading, 2014 WL 5390428 (E.D.
Pa. Oct. 22, 2014). JA.21-22 (Dist.
Ct. Op. at 18-19). Rutt involved a
plaintiff who sued her employer alleging numerous violations of the FMLA and the ADA
as well as wrongful termination under Pennsylvania state law. In dismissing
many of the plaintiff’s claims in response to the defendant’s Rule 12(b)(6) motion, the court held as a
matter of law that “FMLA leave is not a
reasonable accommodation” under the ADA. Rutt,
2014 WL 5390428, at *4. As the sole support for its conclusion, the opinion relied
on another unpublished district court case, Trevino
v. United Parcel Services, 2009 WL 3423039 (N.D. Tex. Oct. 23, 2009). Trevino is not persuasive authority,
however.
Trevino acknowledges that the ADA may require employers to consider leave as
a reasonable accommodation but nevertheless holds that “FMLA leave is not a reasonable accommodation
under the ADA.” Id. at *12. The cases it relies on do not
remotely support that holding. Trevino
quotes the observation in Navarro v.
Pfizer Corp., 261 F.3d 90 (1st Cir. 2001), that the statutes “have
divergent aims, operate in different ways, and offer disparate relief.” Id. (quoting Navarro, 261 F.3d at 101). Although this
is an accurate statement of the law, nothing in either statute precludes their working
in tandem to secure employee rights, as explained above. Indeed, the court in Navarro mentioned the differences between
the statutes in the context of rejecting the employer’s argument that
regulations interpreting language in the ADA
should be applied to cabin the plaintiff’s ability to take time off from work
to care for her temporarily disabled daughter under the FMLA. Navarro,
261 F.3d at 98. Because the employer’s proposed interpretation of the FMLA “clashe[d] with the underlying purposes
of the statute,” the court rejected it. Id.
at 101. Nothing in the opinion supports treating the two statutes as mutually
exclusive or denying an employee the protections of one statute because he has
invoked the benefits of the other. See 29 C.F.R.
§ 825.702(a) (“FMLA is not intended to
modify or affect . . . the Americans
with Disabilities Act of 1990 [as amended] or the regulations issued under that
act.” (internal quotation marks omitted)).
Trevino also cites Vice v. Blue Cross & Blue Shield of
Oklahoma, 113 F. App’x 854 (10th Cir. 2004), but Vice simply acknowledges that the statutes
take different approaches to medical leave, with the FMLA offering a “limited but mandatory leave
entitlement” and the ADA containing a “far
more generalized principle of accommodation.” Vice, 113 F. App’x at 857. The opinion
does not even arguably imply that FMLA
leave cannot be considered as a potential reasonable accommodation.
In short, Rutt and Trevino are not persuasive authority for
the district court’s holding that a request for FMLA leave cannot constitute a request for a
reasonable accommodation under the ADA. Nothing
in the language of either statute supports such an interpretation, and the
administrative guidelines and the appeals court decisions to address the issue
squarely reach the opposite conclusion. The EEOC therefore respectfully
requests that this Court explicitly reject the district court’s interpretation and
instead hold that a single request for leave may, in appropriate circumstances,
trigger an employer’s obligations under both the FMLA and the ADA.
CONCLUSION
Congress enacted both the FMLA and the ADA
to protect vulnerable employees. Although the statutes have distinct
operations and underlying purposes, they should be interpreted jointly in a way
that best secures employee rights. See 29
C.F.R. § 825.702(c)(2) (explaining that an employee’s rights should be
assessed under both statutes and, where they conflict, the employee should be
provided “the greater right”); EEOC Enforcement Guidance, at Question 21
(noting that employers should “determine an employee’s rights under each
statute separately, and then consider whether the two statutes overlap regarding
the appropriate actions to take”). Nothing in either statute requires mutual
exclusivity.
For the foregoing reasons, the EEOC
requests that this Court hold that a request for leave under both the FMLA and the ADA
is not inherently
contradictory, and that an employer should treat an employee’s request for
medical leave as a request for a reasonable accommodation under the ADA.
Respectfully
submitted,
P.
DAVID LOPEZ
General
Counsel
JENNIFER
S. GOLDSTEIN
Associate
General Counsel
MARGO PAVE
Assistant General Counsel
s/ Jeremy D. Horowitz
JEREMY
D. HOROWITZ
Attorney
U.S.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office
of General Counsel
131
M Street, NE, Room 5SW24J
Washington,
DC 20507
(202)
663-4716
jeremy.horowitz@eeoc.gov
