Amazon FMLA & ADA case proceeds

A former Amazon fulfillment associate who suffered from periodontal disease, including radiographic bone loss, and who was fired for job abandonment when she failed to return to work two weeks after undergoing surgery to extract five teeth, can proceed to trial on her FMLA interference claim, a federal court in Florida determined, finding evidence her condition was more than just a routine dental problem. While the court also allowed her ADA discrimination claims to advance, her retaliation claims failed on summary judgment.

Gum issues. In April 2021, the employee visited a doctor for severe pain, swelling, and bleeding in her upper gums and was diagnosed with an abscess and gum infection requiring extraction of five teeth as well as radiographic bone loss. Her subsequent request for a leave of absence from May 16 through June 6 was approved and she underwent surgery to extract the teeth on May 14.

On that same day, her doctor submitted a note stating that she could return to work in two weeks. As a result, the company approved her leave only through May 28. At a follow-up appointment on May 26, her doctor found the employee was still healing, had discomfort, and could not eat. Two days later, he submitted a note in which he filled in the blank after “able to return to work on _____” with “office,” while also stating in the remarks section that the employee needed to rest for three additional weeks.

Termination. Contending that the note was a request for a leave extension, the employee twice called the company’s disability and leave services department to check on the request’s status. She also continued to stay home and rest after May 28 even though she had not been approved for leave after that date. Despite emails from the company warning her of the risk of job abandonment, she did not communicate with it beyond May 28. She was ultimately terminated on June 10.

Collateral estoppel. The employee then sued, asserting claims under the ADA and the FMLA. Amazon first argued that she was collaterally estopped from asserting her ADA claims because the underlying factual issues had been fully litigated before the Florida Commission on Human Relations (FCHR). Disagreeing, the court pointed to the Supreme Court’s 1986 University of Tennessee v. Elliott decision holding that unreviewed state agency findings are not entitled to preclusive effect in Title VII actions in federal court.

Though the Supreme Court has not yet ruled on the preclusive effect of collateral estoppel in ADA cases, the court here observed, it has extended the Elliott exception to claims arising under the ADEA and several circuits have extended it to ADA claims. Noting that the ADA incorporates Title VII’s enforcement powers, remedies, and procedures, the court concluded that the FCHR’s determination was not entitled to preclusive effect on ADA claims. Thus, it denied summary judgment to Amazon on its affirmative defense.

FMLA interference. Amazon next argued that it was entitled to summary judgment on the employee’s FMLA interference claim because, under FMLA regulations, “periodontal disease ordinarily do[es] not meet the definition of serious health condition.” Further, it contended, because her expected recovery time was only three to four weeks, her condition was not serious. For her part, the employee pointed out that she received continuing treatment from April 12 through June 9, and although her condition may not have been permanent, it could be life threatening if not treated.

Agreeing with the employee, the court noted that a condition may qualify as a serious health condition involving continuing treatment if it involves a “period of incapacity of more than three consecutive, full calendar days” and at least two or more subsequent treatments within 30 days of the initial incapacity. Here, there was evidence the employee was incapacitated for two weeks following her surgery and that she visited her doctor twice after becoming incapacitated.

Complications. Further, said the court, pursuant to FMLA regulations, absent complications, “periodontal disease” or “routine dental... problems” “[o]rdinarily” do not qualify as a serious health condition. Here, however, not only was there evidence of complications, including radiographic bone loss and a large periapical pathology abscess in at least two of her teeth which lead to the extraction of her upper maxillary teeth, courts have considered periodontal disease a “serious medical condition” in other contexts.

Though Amazon pointed to Flanagan v. Keller Products Inc., a federal district court case in which an employee claimed her dental condition was a serious health condition because it was a “chronic” illness, that case involved a different subsection of the applicable regulation and the employee there lacked evidence she was incapacitated for more than three consecutive calendar days, so she could not proceed under section 825.115(a). “In short,” said the court, “while dental disease sometimes may not rise to the severity required for FMLA protection, that does not imply dental disease can never create eligibility under the FMLA.”

Denial of benefits. Denying summary judgment on this claim, the court also rejected Amazon’s contention the employee did not request leave, certified by her doctor, after May 28, and thus there was benefit for Amazon to deny. According to the employee, she requested extended leave by submitting her doctor’s May 28 note and following up with two phone conversations. Accordingly, the court found a material fact dispute regarding this issue as well.

ADA discrimination claims. As to the employee’s ADA failure-to-accommodate and disability discrimination claims, Amazon argued that her gum infection did not substantially limit any major life activity, she only had “garden-variety restrictions” after her surgery, and she resumed working for Lyft just a week after her surgery. According to the employee, however, she experienced severe pain and is still substantially limited in her ability to eat, communicate with others, and work. She also claimed that she while she tried to resume working for Lyft after her surgery, she was unable to do so because she was in too much pain. “These competing interpretations of the evidence,” said the court, created a genuine issue of material fact as to the seriousness of her injuries and how much they affected her life.

Qualified individual. Regarding whether the employee was a qualified individual under the ADA, she argued that she would have been able to perform her job if given the leave necessary to complete her treatment. She claimed she requested a leave extension by submitting the May 28 doctor’s note and following up with telephone calls. But even if the note was a request for extended leave, it was a request for open-ended leave, Amazon argued, and thus it was not a reasonable accommodation. Finding fact questions as to whether the employee requested a leave extension, and whether it was for three weeks or an indefinite period of time, the court concluded that there were fact questions for a jury to decide and thus it also denied summary judgment on this issue.

Retaliation. Finally, as to the employee’s FMLA retaliation claim, rather than attempting to make out her case under the McDonnell Douglas standard, she asked the court to consider her case under a “mixed-motive” framework. Declining to do so, the court noted that the Eleventh Circuit has declined to extend that framework to FMLA retaliation claims. Further, “her reliance on a mixed-motive theory forecloses her success under McDonnell Douglass” as she made no effort to show that Amazon’s stated reason for firing her was pretextual. As a result, the court granted summary judgment against her FMLA retaliation claim. Her ADA retaliation claim likewise failed.

SOURCE: Marrero v. Amazon.com Services, LLC, (S.D. Fla.), No. 23-20601-CIV-ALTONAGA/Damian. January 19, 2024.

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