Spangler v. Federal Home Loan Bank of Des Moines

• Decision Date: 30 January 2002
• Docket Number: No. 01-2476.,01-2476.
• Citation: 278 F.3d 847
• Parties: Theresa SPANGLER, Appellant, v. FEDERAL HOME LOAN BANK OF DES MOINES, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

278 F.3d 847

Theresa SPANGLER, Appellant, v. FEDERAL HOME LOAN BANK OF DES MOINES, Appellee.

No. 01-2476.

United States Court of Appeals, Eighth Circuit.

Submitted: November 1, 2001.

Filed: January 30, 2002.

Pamela J. Walker, Des Moines, IA, argued, for appellant.

Mark McCormick, Des Moines, IA, argued, for appellee.

Before BYE, BEAM, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Theresa Spangler, who suffers from depression, brought this action against the Federal Home Loan Bank of Des Moines ("the Bank") alleging the Bank's termination of her employment violated her rights under the Americans with Disabilities Act of 1990 ("ADA") and the Family and Medical Leave Act ("FMLA"). Spangler now appeals the district court's grant of summary judgment in favor of the Bank on both of her claims. We affirm the district court's judgment on Spangler's ADA claim, but reverse as to her FMLA claim.

I. BACKGROUND

Theresa Spangler began working for the Bank in the Demand Services Department in 1982. Spangler suffers from dysthymia, a form of depression, along with phobia and bouts of more intense depression. Her former therapist first diagnosed Spangler with this mental illness in 1993. At that time, Spangler took a six week leave of absence from the Bank and went through treatment. Spangler's current psychiatrist also diagnosed Spangler with dysthymia in 1997. At that time, she took another leave of absence to undergo treatment. After her 1997 diagnosis, Spangler informed her supervisor that she took this leave to obtain treatment for her depression. Spangler also recalls later telling a variety of other supervisors and Bank personnel about her depression.

The Bank's attendance policy allowed supervisors to excuse occasional absences due to illness or injury depending on the circumstances and on the employee's past attendance. The Bank dealt with excessive absenteeism through counseling, warning, and, on occasion, termination if necessary. Employees were to arrange time off for personal business and medical appointments in advance. The Bank's FMLA policy required employees to request leave 30 days in advance or, if the leave was not predictable, the employee needed to provide as much notice as was practicable. The Bank posted this information about the FMLA in the employee break room and printed it on the back of employee time cards.

Bank records show a persistent pattern of absenteeism and tardiness throughout Spangler's employment with the Bank. Spangler was absent for family or medical reasons for 32 days in 1993, 17.6 days in 1994, 12.4 days in 1995, and 29.3 days in 1996.

In 1997, as part of restructuring after the sale of the Demand Services Department, the Bank transferred Spangler and other employees to the main Bank. The Bank assigned Spangler a new position within the Member Financial Services Department. During the transition, Bank management discussed Spangler's absence from the Bank at that time and depression as the cause of her absence. In July of 1997, a member bank¹ Spangler was responsible for providing with cash services complained that Spangler's absenteeism was interfering with its business. Some of Spangler's duties were then reassigned to another employee. One morning in September of 1997, Spangler left a voice mail message on a supervisor's machine in the morning stating she would not be at work that day, thus forcing the supervisor to do Spangler's work instead of attending a scheduled training session.

Throughout 1997 and 1998, Spangler's many unscheduled absences and her persistent tardiness were routinely noted by the Bank. Spangler used five days of unscheduled vacation for personal reasons from September 15 through 19, 1997. Each morning when she was absent, Spangler notified her supervisor by leaving a voice mail message. In September, Spangler was warned that she needed to be on time to work and to talk to someone instead of leaving voice mail messages when she was unable to make it to work. Her 1997 performance appraisal noted that her 21 absences that year were excessive and that absenteeism was a problem for Spangler.

In early January, Spangler again missed a string of days from work, each morning leaving messages she would not be in that day or she would be late, but then not arriving at work at all. Spangler was warned and put on a six-month probation during which she was not to be absent more than twice at the risk of termination. Spangler was absent twice during the probationary period. Immediately after the probation ended, Spangler had four unexcused absences in July and August of 1998. Due to more absences, Spangler was again put on probation on August 31, 1998. On September 15 she missed work because of transportation problems. The following day, a Bank employee noted in a memorandum to Spangler's manager that Spangler phoned and stated she would not be in that day because it was "depression again." On September 17, when Spangler had not yet arrived at work in the middle of the morning, and had not yet called with any explanation, Spangler's manager terminated her employment.

II. DISCUSSION

We review the district court's grant of summary judgment de novo. Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 678 (8th Cir.2001). Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.; Fed. R.Civ.P. 56(c).

A. Americans With Disabilities Act

The ADA bars employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, the appellant must establish that (1) her condition qualifies as a disability under the ADA definition, (2) she is qualified to perform the essential functions of her position with or without accommodation, and (3) she has suffered an adverse employment action because of her disability. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 948 (8th Cir.1999). "The Act defines `a qualified individual with a disability' as `an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, ___, 122 S.Ct. 681, 689, 151 L.Ed.2d 615, ___ (2002) (quoting 42 U.S.C. § 12111(8)). Spangler's claim under the ADA fails because she has not shown that she is "able to perform, with or without accommodation, `the essential functions of the employment position [she] holds.'" Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir.2001) (quoting 42 U.S.C. § 12111(8)).

This court has repeatedly held that "`regular and reliable attendance is a necessary element of most jobs.'" Pickens, 264 F.3d at 777 (quoting Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir.1999) and Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998) and citing Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir.1999)). Moreover, "an employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones." Pickens, 264 F.3d at 777 (quoting Moore, 187 F.3d at 848) (alteration in original).

The duties of Spangler's position included taking daily phone calls, answering inquiries from other Banks regarding cash services, and completing transactions in a timely manner. The member bank customers of the Bank relied on Spangler's services for their daily cash needs. Spangler's absenteeism prevented her from performing these essential functions. Although her duties were sometimes reassigned to other employees of the Bank, reassignment prevented those employees from performing all of their duties. In any event, we have held "an employer is under no obligation to reallocate the essential functions of a position that a qualified individual must perform." Maziarka, 245 F.3d at 681-82 (8th Cir.2001) (holding an employee's requested accommodation for a later make up of the time missed for frequent leaves of absence was not a reasonable alternative). We accordingly affirm the district court's grant of summary judgment to the Bank on Spangler's ADA claim.

B. Family and Medical Leave Act

Under the FMLA, an eligible employee is entitled to 12 workweeks of leave during any 12-month period if he or she has a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The definition of "serious health condition" includes a "mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

The rights Congress created under the FMLA are fundamentally different than those granted under the ADA. One of Congress's purposes in enacting the ADA involved eliminating the discrimination qualified individuals with disabilities face in their day to day lives. 42 U.S.C. § 12101. In contrast, the FMLA was created, in part, because of "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4). While the ADA's protection is almost perpetual, lasting as long as the employee continues to meet the statutory criteria, the FMLA grants eligible employees 12 weeks of leave to deal with a specified family situation or medical condition. 29 U.S.C. § 2612.

Furthermore, the ADA does not protect an employee unable to perform "the essential functions of the employment position that such individual holds." In contrast, the FMLA was designed to protect the employee who is "unable to perform the functions of the position of the employee" from losing her position during the...