A federal court in Texas has dismissed a nurse’s disability discrimination and retaliation claims because she failed to establish she was qualified to perform the duties of her position with or without reasonable accommodation even after the EEOC found the employer’s six-month cap on leaves of absence violated the American with Disabilities Act. Salem v. Houston Methodist Hospital, C.A. No. 4:14-1802 (S.D. Tex. Oct. 30, 2015).
Fatima Salem was a nurse at Houston Methodist Hospital. Salem suffered from various medical and psychological conditions. Because of these conditions, Salem requested and was granted a leave of absence, which lasted for 59 days and was covered by the FMLA. She returned to work, but subsequently took another leave of absence. The Hospital maintained a policy that “[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.” Salem asked the Hospital to make an exception to this policy when she was unable to return within the six-month limit. The Hospital refused this request and terminated her employment.
Salem filed a charge with the EEOC alleging the termination of her employment violated the ADA. The EEOC found the Hospital’s leave policy violated the ADA “in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.” However, the EEOC was unable to conclude the Hospital violated the ADA when it terminated Salem’s employment. Salem then sued the Hospital in federal district court alleging the Hospital discriminated against her on the basis of disability in terminating her employment, failed to accommodate her disability by not providing her with additional unpaid leave from work, and retaliated against her in violation of federal and Texas state law.
The court granted the Hospital’s motion for summary judgment on all of Salem’s claims. Salem never established she could perform the duties of her position without reasonable accommodation and the court found Salem’s request for additional leave was not a request for a reasonable accommodation under Fifth Circuit authority because she did not provide the Hospital with a date on which she anticipated being able to return to work.
The court noted the Hospital’s “minimal participation” in an interactive process with Salem to determine whether a reasonable accommodation could be made was inappropriate, but that did not alter the outcome because there is no evidence a reasonable accommodation was feasible. The absence of evidence of a feasible reasonable accommodation also required the court to grant the Hospital’s motion for summary judgment on the failure-to-accommodate claim. Salem’s retaliation claim also failed because she could not show the Hospital’s adherence to its six-month leave limit was a pretext for retaliation.
The courts have held under the ADA that indefinite leave is not a reasonable accommodation. However, healthcare employers should note the EEOC’s finding that the Hospital’s leave policy here was unlawful and the court’s remarks on the Hospital’s participation in the interactive process, despite the judgment in favor of Hospital. If Salem had been able to provide a date on which she would have been able to return to work after an extended leave of absence, this case may have come out differently.