Fired 911 Operator With Sleep Apnea Didn’t Show Need for Help

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By Lawrence E. Dubé

A Wisconsin 911 operator who says she suffered from sleep apnea failed to show she was unlawfully fired due to a disability or because she needed to take a medical leave of absence, a federal appeals court decided.

Claims under the Americans With Disabilities Act and the Family and Medical Leave Act have become increasingly common, with ADA charges representing 32 percent of the Equal Employment Opportunity Commission’s intake in fiscal year 2017. FMLA lawsuits against private and public employers also are proliferating. The Administrative Office of the U.S. Courts recorded 1,277 FMLA lawsuits in federal district courts in fiscal year 2017, up from 1,198 in fiscal 2016.

The court’s decision is a reminder that one of the first priorities for employees in such cases is to establish the employer knew that a worker had a disability and that management knew the employee was entitled to FMLA leave.

Brown County, Wisc., which encompasses the city of Green Bay, said it fired Caroline Guzman, an 11-year employee, because she repeatedly reported to work late. Guzman claimed her tardiness was the result of sleep apnea that was diagnosed years earlier. The U.S. Court of Appeals for the Seventh Circuit March 7 agreed with a lower court there was no evidence Guzman had recently suffered symptoms, and no showing she made county officials aware of any disability before she was fired.

Without evidence that the county was aware of a disability, the appeals court said, Guzman couldn’t show the county’s decision to terminate her employment violated the ADA’s prohibition of employment discrimination.

The appeals court also rejected Guzman’s claim that her chronic tardiness was out of character and should have alerted the county that she needed a leave of absence under the FMLA.

“Clear abnormalities” in an employee’s behavior may tell an employer that the worker is in need of FMLA leave, even if the employee hasn’t made a request, Judge Sharon Johnson Coleman said, writing for the court. However, Guzman’s late arrivals at work never sent Brown County such a signal, Coleman said.

“Six incidents of oversleeping, spread over eighteen months, do not constitute the sort of stark and abrupt change which is capable of providing constructive notice of a serious health condition,” Coleman wrote.

Judges Diane P. Wood and Diane S. Sykes joined in the opinion.

Guzman’s attorney declined to comment on the ruling. Attorneys for the county didn’t immediately respond to a request for comment on the decision.

Janet L. Heins in Mequon, Wis., represented Guzman Crivello Carlson, S.C. in Milwaukee represented Brown County.

The case is Guzman v. Brown Cnty., 2018 BL 77208, 7th Cir., 16-3599, 3/7/18.

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