According to a recent 8th Circuit Court of Appeals decision, regular attendance is an essential function of a job, even when the employee’s absences are for legitimate medical and personal reasons, and taken with the employer’s permission.
James Schierhoff worked for GlaxoSmithKline (GSK) as a packaging mechanic until April of 2002, when his employment was terminated for excessive absenteeism. Prior to that, Schierhoff had been absent from work for various medical and personal reasons, including FMLA leave during both 2000 and 2001, as well as additional personal time off in each of those two years.
Between June of 2000 and March of 2002, Schierhoff had "excused" absences totaling 172 workdays, which equated to about 40 percent of the work time in that period. In April of 2002, Schierhoff received a termination memo, stating that his absences "have impaired the operation of the department and diminished [his] effectiveness to the company."
Schierhoff sued GSK, alleging both age and disability discrimination. Although he did not dispute the company’s assertion that he had often been absent, Schierhoff claimed that he was terminated for other reasons.
He based his claim on comments made by his immediate supervisor. According to Schierhoff, in the fall of 2001 his immediate supervisor, Edward Rohowetz, commented to him, "[Y]ou know, I bet you got something hurting all over your body all the time, you’ve had a rough life…. You know, as old and worn out as you are, why don’t you just quit? You don’t need the money anyway." Schierhoff understood this comment to mean that Rohowetz regarded him as "generally disabled and unable to perform [his] job," and he asserted that the comment, coupled with Rohowetz’s role in his termination, demonstrated that the termination was undertaken because of Schierhoff’s age or disability. Schierhoff pointed to positive performance evaluations and the lack of any warning of his upcoming termination as support for this claim. According to Schierhoff, GSK’s policies for handling attendance problems necessitated a warning or progressive discipline rather than termination. He also noted that his absences were due to recovery from a scheduled surgery and other injuries, and argued that because the leave was taken with GSK’s permission, it could not be the reason for his termination.
The 8th Circuit found that Schierhoff was unable to establish a case of age discrimination because he failed to present sufficient evidence that he was performing his job at the level of GSK’s legitimate expectation, as he was not present for over 40 percent of workdays.
The fact that the absences were for legitimate medical and personal reasons did not affect the court’s analysis. As the court noted, the ability to perform one’s job is an element of both age and disability discrimination. To prove age discrimination Schierhoff must demonstrate that he was able to perform his job "at a level that meets his employer’s legitimate expectations." To prove disability discrimination, he must show that he could perform his job either "with or without reasonable accommodation." "[R]egular and reliable attendance is a necessary element of most jobs," Greer v. Emerson Elec.Co., 185 F.3d 917, 921 (8th Cir. 1999) and an employee who cannot attend work cannot perform the essential functions of his job. This is true even when the absences are with the employer’s permission. See Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001)
In this case, there was undisputed evidence that Rohowetz was not involved in the decision-making process that led to Schierhoff’s discharge, and had acted only as a "messenger" for the HR manager in communicating the termination decision. Based on that evidence, the 8th Circuit found that Rohowetz’s remarks were "stray remarks in the workplace" that did not directly indicate that a discriminatory attitude more likely than not was a motivating factor in the ultimate decision to fire Schierhoff. Schierhoff v. GlaxoSmithKline Consumer Healthcare LP, 8th Cir., No. 05-1552 (April 14, 2006)
Although the employer was successful in defending this case, it should be noted that Schierhoff’s case relied entirely upon the age- and disability-related remarks of Rohowetz, Schierhoff’s supervisor. Without those remarks, Schierhoff would have had no evidence—direct or indirect—of alleged discrimination. Because of the huge expense of employment litigation, along with the employers time away from business to handle the situation, knowledgeable employers should ensure that supervisors are trained to act and speak appropriately and professionally in order to avoid making any inappropriate statements upon which legal claims may be based
Contact Kevin Pokorny, Training Consultant, to learn more about discrimination and other forms of harassment training. 515-221-1718.
