Credeur v. State of Louisiana, 2017 U.S. App LEXIS 11269 (5th Cir., Jun. 23, 2017)
The U.S. Court of Appeals for the 5th Circuit recently upheld a grant of summary judgment, agreeing with the court below that the Plaintiff could not perform an essential function of her job – regular attendance.
Credeur was employed by the Office of Attorney General for the State of Louisiana (“DOJ”) from 2008 to 2014 as a litigation attorney. In 2010, Credeur underwent a kidney transplant and was granted an accommodation to work from home for six months. Three years later, Creduer experienced complications from the transplant and went out on FMLA leave from March to August 2013. When her leave expired, Credeur requested that she be permitted to work from home. The DOJ granted the request on a temporary basis with the goal that Credeur would eventually return to her “normal work hours and duties.”
In January 2014, the DOJ sent Credeur an ADA Supplemental Request for Medical Status. Credeur submitted to the DOJ evaluations form her medical providers. The evaluations conflicted on whether Credeur could return to work at her office in the DOJ. In response, the DOJ advised Credeur that “it is not possible for a litigation attorney to work from home on a long term basis.” The parties had a meeting in March 2014 at which time the DOJ advised that Credeur would be required to work 3-4 hours per day in the office and to take the remaining time as leave. She was expressly told that she would no longer be permitted to work from home.
Credeur returned to the office in late March 2014, at which time the DOJ placed her on a “Last Chance Agreement” which advised her of various performance issues. Credeur refused to sign the agreement and requested FMLA leave, which was granted. A few weeks into her leave, Credeur developed an infection and again requested that she be permitted to work from home instead of being on leave. The request was denied but the DOJ did advise that she would be permitted to stay on leave after her FMLA leave expired in June 2014.
In August 2014 the DOJ again contacted Credeur and advised that litigation attorneys could not work from home on a long term basis. Credeur eventually returned to work in late August 2014. However, two days prior to returning to work, Credeur filed suit against the DOJ alleging failure to accommodate, harassment, and retaliation. Four months later, Credeur resigned from employment.
The central issue in her failure to accommodate claim was whether an essential function of Credeur’s job as a litigation attorney included regular office attendance. The Court observed that there was a general consensus that regular on-site attendance is an essential function of most jobs. The Court stated that “this is especially true when the position is interactive and involves a significant degree of teamwork.”
In affirming the lower court’s decision, the 5th Circuit were mindful of statutory and regulatory mandates requiring that the Court give deference to the employer’s judgment as to what constitutes an essential function of the job. While Credeur argued she had successfully worked from home on several occasions before the DOJ, the Court further found persuasive the fact that neither state statutes nor regulations instruct the courts to “credit the employee’s opinion about what functions are essential.” Accordingly, the court held that Credeur’s unsupported testimony that she could perform her job functions from home did not create a fact dispute sufficient to preclude summary judgment.
With regard to Credeur’s harassment claim, the Court, similarly upheld the lower court’s decision. Credeur alleged that the following conduct constituted harassment based upon her status of being disabled: (1) being ordered to attend a meeting; (2) being required to work 3-4 hours at her office and not from home; (3) criticism of her work performance; (4) threats of termination; (5) being asked to sign “false payroll documents;” and (6) being forced to take an unpaid leave of absence.
The court held that this type of conduct was not harassment which was severe or pervasive. The Court further observed that the record demonstrated deficiencies in Credeur’s performance which were legitimate grounds for concern and criticism. The Court further found no merit to Credeur’s allegation that she was forced to submit “false payroll documents.” Specifically, the payroll documents at issue were the leave slips that the DOJ required Credeur submit to account for the hours she did not work in the office. Credeur took the position that since she did in fact perform some work while at home that she should be compensated for said work. However, the Court pointed out that Credeur took it upon herself to perform work while at home despite being told by the DOJ that she was not to do so as she would not be compensated for said work. Lastly, the Court found the DOJ justified in placing Creduer on unpaid leave as Credeur was ineligible for the initial FMLA which the DOJ had erroneously granted. Therefore, the DOJ’s requirement that the extended leave be unpaid, after the exhaustion of “FMLA” was not harassment.
With regard to Credeur’s retaliation claim, the court applied the same analysis it utilized in evaluating the allegations of harassment. Accordingly, the Court held that the record did not support an inference that the DOJ’s actions were retaliatory.
This case reaffirms that a key element in any disability discrimination claim is the ability of the employee to perform their job duties.