Absence Does Not Make The Heart Grow Fonder: Texas Court Holds Attendance Issues Can Preclude Disability Claims

In Wolf v. Lowe's Companies, Inc., No. 4:16-CV-01560 (March 13, 2018), United States District Judge Alfred H. Bennett of the Southern District of Texas granted Lowe's motion for summary judgment on a former sales employee's claims under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate, as well as her claim under the Family and Medical Leave Act (FMLA) for retaliation. The court held that the plaintiff had failed to establish a prima face case under the ADA because her excessive absenteeism and tardiness prevented her from being qualified to perform her job. Additionally, temporal proximity between the plaintiff's use of FMLA leave and her discharge was insufficient to establish a prima facie case of retaliation.

Background

Beginning in March of 2005, Tamara Wolf worked as a sales specialist for Lowe's for approximately nine years. From November of 2005 through December of 2013, Wolf received written warnings and negative remarks on her performance evaluations on several occasions for excessive absences and tardiness, and for her inability to complete assignments on time, among other performance issues. On December 7, 2013, Lowe's administered a "final notice" to Wolf due to her continued "excessive attendance problems."

In the spring of 2014, Wolf informed her supervisors and Lowe's human resources department that she suffered from major depressive disorder, attention deficit disorder, cerebral palsy, polyarthritis, and fibromyalgia. She submitted two notes from her psychiatrist confirming these diagnoses. Wolf also alleged that these conditions affected her work attendance. Wolf then applied for and received intermittent FMLA leave.

While allowing for protected intermittent leave, Lowe's tracked Wolf's non-protected absences and tardiness and continued to hold Wolfe accountable for her other, preexisting performance deficiencies. In an effort to remedy these issues, Lowe's administered multiple performance improvement plans. Lowe's ultimately terminated Wolf's employment on August 22, 2014. Thereafter, Wolf filed suit alleging that prior to her illnesses, she received positive performance reviews and that Lowe's terminated her employment because of her illnesses and in retaliation for requesting intermittent leave for symptoms related to her illnesses in violation of the ADA and the FMLA.

The Court's Analysis

In considering Lowe's motion for summary judgment on Wolf's ADA claims, Judge...