Dispatcher Has No ADA or FMLA Claim

By James Denis

Jun. 2, 2009

Charlene Wisbey worked as 911 emergency dispatcher for the city of Lincoln, Nebraska, from 1980 until she was terminated in April 2007. In February 2007, Wisbey was granted intermittent leave for six months under the Family and Medical Leave Act because of her chronic anxiety, depression and problems with concentration and her energy level.

Because of her condition, in March 2007 the city required Wisbey to undergo a psychiatric evaluation to determine her fitness for duty. As a result of that examination, the doctor determined that Wisbey’s depression, together with her fatigue and inability to concentrate, rendered her unfit to perform her job duties. Wisbey was placed on paid leave on March 29, 2007, and terminated on April 3, 2007, based on the doctor’s findings.

Wisbey filed suit in the U.S. District Court for Nebraska, alleging that the city terminated her in violation of the FMLA and the Americans with Disabilities Act. The court ruled in favor of the city on those claims. With respect to her ADA claim, the court found that Wisbey failed to show as pretext the city’s claim that it terminated her because she was unfit for duty. The court reasoned that “when an employee’s termination is based upon the recommendations of a physician, it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.”

With respect to her FMLA claim, the court also found that “the FMLA does not require an employer to retain an employee who has not made a valid FMLA leave request; is not seeking temporary leave to recover from a disability or impairment, but rather ongoing and intermittent leave; and cannot perform the essential functions of her job.” Wisbey v. Lincoln, D. Neb., No. 08-3093 (4/10/09).

Impact: Employers should rely on opinions and recommendations of health care providers in considering possible accommodations, as well as in determining if an employee has the ability to perform essential job functions.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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