Employers can defend themselves against claims made under the Americans with Disabilities Act (ADA). But they must follow their stated employment policies and document everything that happens along the way. The U.S. Court of Appeals for the Seventh Circuit recently affirmed this approach in Hooper v. Proctor Health Care Inc.

Doctor as patient

The plaintiff, a physician with bipolar disorder, was hired to work at an outpatient clinic that provided urgent and primary care. A year later, the plaintiff met with the clinic’s Director of Human Resources because he thought that he needed time off from work following an incident in his personal life.

During the meeting, the plaintiff revealed to the Director that he had bipolar disorder. The two discussed the possibility of a medical leave of absence. The plaintiff alleged that, during the meeting, the Director mentioned that she had a contentious relationship with her bipolar mother-in-law. Later, after discussing the situation with the clinic’s Vice President of Human Resources, the Director and Vice President of HR decided to place the plaintiff on paid medical leave of absence.

The plaintiff met with his psychiatrist, who agreed that he should be placed on leave and wrote a note excusing him from work. When the plaintiff met with his psychiatrist again a month later, the psychiatrist decided that he could return to work and wrote another note.

Second opinion

The clinic requested a second, independent medical confirmation. The second psychiatrist also determined that the plaintiff could return to work and suggested certain accommodations to reduce the plaintiff’s stress. This psychiatrist verbally informed the clinic of the evaluation’s results and issued a written report two weeks later.

After receiving the verbal report, the clinic contacted the plaintiff on several occasions, leaving him voicemail messages to return to work. But the plaintiff didn’t return to work or respond to the messages. The clinic eventually sent the plaintiff a letter stating that he’d been cleared to return to work and that it had been trying to contact him. If he didn’t respond by the end of the week, the letter stated, the plaintiff’s employment would be terminated. And that’s what happened.

Missed opportunities

The plaintiff filed a claim alleging that he was terminated because of his disability. He alleged that he didn’t see his former employer’s letter in time to respond to it because his mother had died and he’d been out of town. Two months after his termination, the plaintiff asked his former employer to review its decision. The request was denied because it wasn’t made according to the clinic’s policy — within seven days of termination.

The employer moved for summary judgment dismissing the plaintiff’s claims. In response, the plaintiff argued that the clinic had failed to reasonably accommodate his disability by not discussing the psychiatrist’s recommendations. However, the trial court granted summary judgment in the employer’s favor, finding that the plaintiff hadn’t even asserted a failure- to-accommodate claim in his complaint. Thus, he couldn’t assert such a claim in opposition to the clinic’s motion for summary judgment, and there was no genuine issue of fact on which to base his disability discrimination claim.

The plaintiff appealed, arguing that the trial court should have considered his failure-to-accommodate claim on its merits. As to his discrimination claim, he asserted that the court had ignored disputed facts in evidence.

Appeals court affirms

The appeals court affirmed the trial court’s finding, holding that the plaintiff’s complaint failed to mention any facts to put the employer on notice that he was pursuing a failure-to-accommodate claim. The court also found that the claim would fail on its merits because the plain- tiff didn’t require an accommodation. The accommodation was only a suggestion.

Regarding his discrimination claim, the appeals court found that summary judgment was proper because the plaintiff had failed to create an issue of fact to raise an inference of disability discrimination. In fact, the plaintiff hadn’t presented any evidence to undermine the fact that the clinic had believed he could return to work and had terminated him because he’d failed to both return to work and respond to attempts at communication. The court further stated that it isn’t a “super personnel department” with the ability to speculate about the reasons for the employer’s actions. In any case, speculation was insufficient to create a question of fact as to whether the clinic’s proffered reason for termination, the plaintiff’s failure to return to work, was pretextual.

Finally, the court decided that the Director’s remark about her mother-in-law wasn’t evidence of bias. It was just a stray remark with no causal connection to the plaintiff’s termination.

Write it down

Hooper should remind employers that documentation is critical. When an employee is on leave, record all of your efforts to remain in contact with the employee and clearly inform the individual about decisions related to his or her ability to return to work by a certain date. The employer in this case was able to dismiss the action based on its documentary evidence.