‘No Leave Available’ Text Supports ADA Claim

A sales associate at a Dollar General store who asked how to request leave and was told by text that no leave was available could proceed with her Americans with Disabilities Act (ADA) failure-to-accommodate claim, the 8th U.S. Circuit Court of Appeals ruled.

The plaintiff was a lead sales associate at a Dollar General store in Concordia, Mo. She, along with her immediate supervisor and two others, had a key to open and close the store. The key holders had to coordinate their schedules so that at least one of them would be at the store to open and/or close it each day.

The plaintiff had anxiety, migraines and depression and wished to take a leave of absence due to her worsening medical condition. At one point, following a visit to her doctor, she texted her supervisor and asked how she could request a leave of absence. The supervisor responded that she was not sure but would talk to the district manager.

One week later, the employee followed up by texting her supervisor again. She also asked about a rumor that she intended to quit, which the supervisor had allegedly spread among her co‑workers. The supervisor did not initially respond, but the employee continued to ask.

When the supervisor finally texted back, she had three messages for the employee: “There [was] no [leave of absence],” she could remain with Dollar General as long as she could “do the job and not be sick all the time,” and she should “[r]ead the employee handbook.”

The plaintiff and her supervisor later met in person. During the meeting, the plaintiff made clear that she was seeking a leave of absence due to anxiety and depression. The supervisor reiterated that she did not believe that any form of leave was available and warned the plaintiff that she could not remain a full-time employee or continue as a key holder if she kept missing shifts.

The following week, the plaintiff missed a shift due to an emergency room visit for gastritis and anxiety. She requested vacation for the remainder of the week, but her supervisor refused because two of the four key holders, including the supervisor, were scheduled to be gone. The plaintiff then informed her supervisor that she was quitting because it was the only way she could get better. Dollar General replaced the plaintiff with someone the supervisor had hired about a week earlier, after the subject of the plaintiff’s taking leave had come up.

The plaintiff sued her supervisor and Dollar General in Missouri state court. She claimed that they discriminated against her under both the ADA and the Missouri Human Rights Act, interfered with her ability to seek medical leave under the Family and Medical Leave Act, and retaliated against her for attempting to exercise her rights under each of these laws. The defendants removed the case to federal district court, which dismissed the plaintiff’s lawsuit in its entirety on summary judgment.

On appeal, the 8th Circuit considered whether the plaintiff requested a reasonable accommodation under the ADA. The court considered whether the plaintiff did enough to notify Dollar General that she was seeking an accommodation. The plaintiff repeatedly told her supervisor that she wanted to take a leave of absence related to her known medical condition, even if she never referenced the ADA. While the plaintiff never used the word “accommodation” or asked about anything other than leave, to have a claim, an employee need not suggest what accommodation might be appropriate.

Once the plaintiff made the request, Dollar General had an obligation to take some initiative and identify a reasonable accommodation. All the supervisor did, however, was direct the plaintiff to read the employee handbook, which was not enough.

The 8th Circuit reversed the dismissal of the plaintiff’s ADA failure-to-accommodate claim but affirmed the dismissal of her other claims.

Garrison v. Dolgencorp LLC, 8th Cir., No. 18-1066 (Oct. 3, 2019).

The moral of the story here is that all supervisors should be instructed to correctly advise employees of their rights to leave and to a reasonable accommodation under the ADA. Misstatements by a supervisor may render the employer liable even if leave is available under the company’s written policies.