?Takeaway: An employer should consistently follow its policies regarding employee attendance and scheduling. When an employer bends the rules on some occasions but not others, an employee disciplined for a violation may claim discrimination.
?An employee who violated a paid-time-off (PTO) policy was not retaliated against for time off due to her disabilities, the 7th U.S. Circuit Court of Appeals ruled.
In 2017, Brooks Life Science Inc. hired the plaintiff, a Black woman who had multiple sclerosis and sciatica, as a part-time receptionist and administrative assistant. None of her conditions interfered with her ability to perform the essential functions of her role at Brooks, which included letting people into the premises, greeting visitors, scheduling conference rooms and ordering supplies. She worked about 25 hours per week, usually from 8 a.m. to 1 p.m.
One of the plaintiff’s early supervisors nominated her for an award and gave her a gift for her hard work. However, in March 2018, Brooks hired a new supervisor who praised her performance, but also coached her on her failure to abide by Brooks’ PTO policy.
The PTO policy required employees to request prior approval from their supervisors for planned time off and to enter the PTO hours that they used in the company’s payroll software. The new supervisor, however, required employees only to request and enter PTO for schedule changes of 30 minutes or more in duration. Also, for unplanned time off, employees could switch shifts among themselves, so long as they worked the number of hours scheduled.
In May 2018, the supervisor arranged a meeting with the plaintiff and two HR professionals to review the PTO policy and ensure her compliance going forward. The supervisor considered this meeting to be a corrective action and later confirmed it in writing. In mid-July, the plaintiff e-mailed her supervisor regarding a nine-day vacation she scheduled for mid-October. The plaintiff did not have enough PTO to cover all nine days, and the supervisor would not allow her to take additional unpaid days off for the rest of the time.
In early October 2018, the plaintiff’s supervisor returned from a weeklong work trip to Arizona. On Oct. 8, the plaintiff began experiencing pain and e-mailed her supervisor asking for time off. The supervisor replied, allowing the time off but reminded her of the need to keep to the schedule and the fact that she did not have enough PTO to cover her planned vacation.
Shortly thereafter, the supervisor learned that the plaintiff had altered her schedule several times and had enlisted other employees to cover for her while the supervisor was in Arizona. The plaintiff then asked to change the days of her vacation so that it would start and end a day later. Her supervisor again reminded her that her planned vacation went beyond her accrued PTO.
That day, the supervisor met with the plaintiff, and she seemed to acknowledge her prior violations of the policy. The supervisor e-mailed two HR employees summarizing the conversation, and Brooks decided to terminate the plaintiff’s employment. The company did not give a reason for her termination and incorrectly told the unemployment office that she resigned.
The plaintiff sued for race and disability discrimination and retaliation. Brooks moved for summary judgment, which was granted. The plaintiff appealed to the 7th Circuit.
On appeal, the plaintiff argued that her discharge was in retaliation for her request for time off due to her disabilities. She argued that other employees often switched shifts with her, which her supervisor allowed and even encouraged on occasion. She also claimed that her supervisor previously allowed her to take unapproved PTO. The 7th Circuit, however, noted that the supervisor’s flexibility generally extended to unplanned scheduling changes and scheduling changes of less than 30 minutes. In one instance when she encouraged receptionists to cover each other’s shifts, it involved approved uses of PTO to avoid the need for a backup receptionist.
The plaintiff further claimed that Brooks was inconsistent about the reason for her discharge. The court found, however, that the record showed that her supervisor counseled her shortly before her discharge for violations of the PTO policy. It thus upheld the dismissal of her claims.
Parker v. Brooks Life Science Inc., 7th Cir., No. 21-2415 (July 14, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
