MFEPA the Wrong Way: Townes v Md. Dept. of Juvenile Services
The Family and Medical Leave Act (“FMLA”) protects an employee’s right to return to the same position or an equivalent position. In addition to the FMLA, the Maryland Fair Employment Practices Act (“MFEPA”) provides substantial protections for employees, including the right to a reasonable accommodation for a disability. In a recent decision, a federal court in Maryland found that the MFEPA requires employers to engage in an interactive process to determine whether a disabled employee is able to perform the essential functions of any available job, not just the prior position which he or she held. When an employee takes leave due to disability and later requests an accommodation, employers must carefully consider these overlapping protections upon the employee’s attempt to return.
In this particular case, the plaintiff began working for the Maryland Department of Juvenile Services in 1995 as a case management specialist, and was promoted twice by mid-1999 to a “CMS III.” The plaintiff, who lived in Baltimore City, was transferred from Baltimore City to a region based in Anne Arundel County.
The plaintiff began receiving treatment from a psychiatrist in 2008, however, she received satisfactory job performance evaluations or better through 2011. In late 2011 she was diagnosed with severe anemia, vitamin D deficiency, and uterine fibroids, causing medical leave beginning in December 2011. The plaintiff provided the employer with notice of her condition and supplied medical documentation, but the employer did not inform her of her FMLA rights. Upon her return in February 2012, she was assigned to a case with a minor and later learned that the minor had stopped attending high school; as per the employer’s protocol, she alerted her supervisor.
The plaintiff then took a second period of medical leave from May 2012 until June 2012 for a surgical procedure. When she returned to work, the employer accused her of maintaining insufficient contacts with the minor that had left school, conducted a “mitigating conference,” moved the plaintiff ’s office to Annapolis, issued her first unsatisfactory performance evaluation along with a later reprimand, and forbid her from accessing leave from her leave bank or applying to other positions.
In July 2012, the employer reassigned the plaintiff to a new position requiring her to visit youths statewide. During this time, the employer issued her additional negative performance evaluations and her caseload increased substantially, causing her to suffer a panic attack. She then took a third leave of absence beginning in March 2013. In April 2013, the plaintiff ’s psychiatrist contacted the employer and informed them that she was medically disabled from work due to an adjustment disorder which had exacerbated her underlying bipolar disorder.
The psychiatrist later advised that the plaintiff could return to work if the employer made accommodations for her condition, including moving her to a new assignment, limiting her to the day shift, placing her in a position near her home in Baltimore City, and reducing her commute. Internal communications showed that the employer’s Human Resources department and management were unsure of how to accommodate the plaintiff and did not believe that any positions were available that would meet the requested accommodations. A member of management also apparently did not consider the psychiatrist’s contact to resemble a request for reasonable accommodation from the plaintiff.
The employer then sent the plaintiff to the State Medical Director (“SMD”), who referred her for an evaluation with a psychologist. The psychologist also concluded that the plaintiff would probably not be able to return to work without the requested reasonable accommodations. Despite this opinion, the SMD concluded that she could not perform her essential duties, regardless of accommodations. The employer then placed the plaintiff on leave without pay and later removed her from the payroll, and the plaintiff took disability retirement.
The plaintiff then brought suit against the employer, alleging interference and retaliation under the FMLA and failure to make a reasonable accommodation under the MFEPA. The employer responded with a motion to dismiss and a later motion for summary judgment.
The plaintiff first alleged interference for the employer’s failure to notify her of her rights under the FMLA. In order to make a case for interference, an eligible employee protected by the FLMA must show that she was entitled to leave, gave the employer adequate notice, that the employer denied her benefits to which she was entitled, and that this interference with her rights caused her prejudice. The court dismissed this claim, as the plaintiff received much more than the 12 weeks of FMLA leave that she was entitled to, and suffered no prejudice from the employer’s failure to inform her of her rights.
The plaintiff ’s second claim was for retaliation. To raise a claim for retaliation, the employee must show that she engaged in protected activity, the employer took adverse action against her, and that the adverse action was causally connected to her protected activity. The plaintiff alleged that the employer issued her a reprimand due to taking leave, which prevented her from drawing leave from the Leave Bank. However, as the plaintiff was a state employee, she was required to exhaust all other forms of leave prior to drawing on the Leave Bank, and the plaintiff acknowledged that she did not do so. Accordingly, the court found the claim for retaliation meritless.
The third count alleged failure to make a reasonable accommodation for the known disability of an otherwise qualified employee under the MFEPA. Under the Maryland statute, employers are required to “make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability” unless the accommodation would impose an “undue hardship.” Employers are also required to make an interactive, individualized assessment to identify a reasonable accommodation for qualified employees.
In order to prevail on a claim for failure to accommodation, the employee must show that she provided the employer notice of her disability, that she could perform the essential functions of the position with a reasonable accommodation, and that the employer failed to make such accommodations. The employer argued that the plaintiff did not provide notice of her disability, and that a reasonable accommodation did not exist for the plaintiff ’s disability.
Upon consideration, the court noted that the plaintiff ’s psychiatrist had reached out to the employer with her request for accommodation. Under Maryland Reasonable Accommodations Policy and Procedure, an employee may make a request for reasonable accommodation to “a supervisor, manager, ADA Coordinator, or Human Resources manager,” the request may be made verbally or in writing, and the request need not use the phrase “reasonable accommodation.”
The plaintiff ’s psychiatrist stated that he believed she could return to work once the requested accommodations were made. At the time, internal discussions were made regarding a position near Baltimore City and the employer concluded that no position was available for the plaintiff, however, during the case the employer later conceded that some case managers were hired to locations in Baltimore City and Baltimore County. The plaintiff ’s psychiatrist also later reviewed a list of job vacancies from 2013 and concluded that several of these could have met the requested accommodations. However, the psychiatrist was never contacted by anyone from the employer in order to clarify the requested accommodations and work together to determine a position for the plaintiff.
Based on the foregoing, the court found there was a genuine dispute of material fact as to whether the employer engaged in an “interactive” process to conduct an individualized assessment of the plaintiff ’s ability to perform the duties required of “a” job that met her request for accommodations, not just her prior position.
Under the MFEPA, when an employee requests a reasonable accommodation, an employer should take care to engage in an interactive process to determine whether the employee can return to any open position. Employers who receive any sort of request for accommodation should be aware that there are no “magic words” necessary to invoke an accommodation under the MFEPA and related federal statutes. Upon receiving an apparent request for accommodation, an employer should “interact” with the employee and start a good faith conversation while conducting an “individualized” assessment of whether the request can be met. Furthermore, employers must know that accommodating an employee does not only include searching for that same position, but all jobs within the company to ensure compliance.
For more information about this article, please contact James K. Hetzel at 410.230.2675 or jhetzel@fandpnet. com.