911 F.3d 537
8th Cir.2018Background
- Sheena Lipp worked at Cargill from 1995 until termination in Nov. 2014; she has a disabling lung disease that causes intermittent flare-ups and work restrictions.
- Cargill maintained a written attendance policy: progressive discipline for unplanned absences, culminating in termination at the ninth occurrence; policy required daily call-ins and medical verification for sick absences.
- Lipp took ~9 months of unplanned leave in 2014 to care for her mother; she provided doctor notes for that leave but exhausted FMLA leave.
- On returning Oct. 15, 2014, Cargill placed Lipp on a “Last Chance” attendance agreement; within weeks she missed another day (Oct. 30) and did not timely provide medical verification.
- Cargill recorded the Oct. 30 absence as "vacation," counted it as a 195th occurrence, and terminated Lipp for violating the attendance policy; Lipp later produced medical notes but after termination.
- Lipp sued under the ADA and Iowa Civil Rights Act alleging intentional disability discrimination and failure to accommodate; the district court granted summary judgment for Cargill and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lipp presented direct evidence that Cargill terminated her because of disability | Lipp says she reported being "sick" on Oct. 30 and was fired for a disability-related flare-up | Cargill says records and witnesses show Lipp reported "vacation" and failed to timely verify an unapproved absence | No direct evidence; plaintiff conceded she might have keyed the wrong reason and offered no specific facts to rebut employer evidence |
| Whether Lipp was a "qualified individual" able to perform essential job functions with or without accommodation | Lipp contends intermittent flare-up leave is a reasonable accommodation and she could perform essential duties | Cargill contends regular, reliable attendance is an essential function and Lipp’s 195 unplanned absences show she could not reliably attend | Lipp was not a qualified individual because she could not show regular and reliable attendance at termination |
| Whether Cargill failed to provide a reasonable accommodation (intermittent leave) | Lipp seeks accommodation for flare-up absences without strict verification, asserting prior accommodations | Cargill argues unlimited or additional unverified absences would eliminate an essential job function and are unreasonable | Denied: additional unverified intermittent leave immediately after extensive unplanned absence would relieve essential attendance function and is not a reasonable accommodation |
| Whether any purported procedural or evidentiary issues (e.g., hearsay about call-in records) preclude summary judgment | Lipp challenges admissibility of Cargill’s evidence showing she called in as "vacation" | Cargill argues evidence could be presented in admissible form and objections were not raised below | Court rejects plaintiff’s hearsay challenge and affirms summary judgment on record-based grounds |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for intentional discrimination)
- Greer v. Emerson Elec. Co., 185 F.3d 917 (regular and reliable attendance is necessary for most jobs)
- Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961 (excessive absences can show inability to perform job even if permitted)
- Brannon v. Luco Mop Co., 521 F.3d 843 (medical leave may be a reasonable accommodation in some circumstances)
- Pickens v. Soo Line R.R. Co., 264 F.3d 773 (unlimited leave as accommodation can be unreasonable as a matter of law)
- Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043 (employee must be able to perform essential functions at time of termination)
- Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d 933 (employer’s generosity in accommodations does not convert an unreasonable accommodation into a required one)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standards)