The district court correctly held that an employer was entitled to summary judgment as to an employee’s Rehabilitation Act discrimination claim and FMLA retaliation claim, arising from the employer’s decision not to hire her for a permanent position. However, the district court erred in granting summary judgment as to the employee’s FMLA interference claim, which involved genuine issues of material fact to be decided by a jury.
The employee failed to demonstrate that the employer refused to make a reasonable accommodation for her depression. The record shows that the employer provided a reasonable accommodation; when she failed to follow that plan, her supervisors attempted a new accommodation: referring her to an employment assistance program. But her attendance problems persisted.
Because the employee didn’t demonstrate that the purported basis for not hiring her was merely a pretext for discriminating against her on the basis of her depression, and because her attendance problem was a legitimate and nondiscriminatory reason to not hire her, summary judgment was appropriate on her Rehabilitation Act discrimination claim.
However, the district court incorrectly concluded that the employee’s disclosure of her depression was insufficient to put her employer on notice that she could have qualified for FMLA protections.
The record contains evidence that if the employee had known that the FMLA protected her position, she would have used only sick leave for her leave of absence. Instead, she used a combination of sick leave and annual time to take four weeks off. A jury could find that she was prejudiced by the employer’s failure to inquire into the availability of FMLA leave and thus interfered with her FMLA rights.
Affirmed in part, vacated in part, and remanded. Judge Gregory concurred in part and dissented in part.