A store manager’s inability to be physically present at work during the busy season was a legitimate business reason for her termination, the 9th U.S. Circuit Court of Appeals ruled.
Cynthia Lawler had managed a Montblanc retail store in a mall for nearly a decade. The store made a third of its sales during the holiday season. Thus, from Thanksgiving to Jan. 2, Lawler was required to work 60 to 70 hours per week.
Due to her chronic arthritis, Lawler requested a 25-hour workweek. The company responded that the manager job required her full-time presence, and inquired about the nature and scope of her disability and any possible accommodations.
On Aug. 4, 2009, Lawler fell and fractured two toes on one foot. The next day, she drove to the store to use the fax machine to submit her doctor’s certification, which stated that Lawler needed to be off from work until Sept. 2, 2009. She contends that, at the store, she encountered Montblanc CEO Jan-Patrick Schmitz. Schmitz, who was on a routine visit, asked, in an “abrupt, brisk” manner, why Lawler was not professionally dressed. The store manager disclosed her disability status and said she would be leaving the store. In an “intimidating,” “abrupt” and “gruff” tone, Schmitz replied, “We will talk when I get back.” When he returned, he “stared” at her. Lawler claims that Schmitz became “very, very angry” when he noticed that new products were not displayed.
When Lawler tried to respond, Schmitz “got mad that [Lawler] was confronting him.” He also complained about how parts were being stored. The CEO instructed Lawler to give him a report on the racial backgrounds of store customers. When she reminded him that she was on disability leave, he replied, “You will do it or else.”
On Sept. 2, 2009, the day Lawler was scheduled to return to work, her doctor provided a letter recommending that she remain on leave until Jan. 5, 2010, because of her arthritis. In response to an HR inquiry about accommodations that could be provided to permit Lawler to return, the doctor reiterated the leave requirement.
On Oct. 14, 2009, Montblanc sent a termination letter to Lawler because, as she had been advised in July, the company needed a full-time manager in the store. In response, Lawler sued Montblanc for intentional infliction of emotional distress and for disability-related discriminatory termination, retaliation and harassment under the California Fair Employment and Housing Act (FEHA). The trial court dismissed her case on summary judgment, and the 9th U.S. Circuit Court of Appeals affirmed the ruling. The 9th Circuit encompasses California, Arizona, Oregon, Washington, Hawaii, Alaska, Idaho, Montana and Nevada. Appeals court decisions are the law only in the states within that circuit, but other circuit courts may look to their sister court decisions in similar cases.
Under California Law, two of the elements of a claim for intentional infliction of emotional distress are “outrageous” conduct that is so “extreme as to exceed all bounds of that usually tolerated in a civilized society” and emotional distress that is so “severe” that “no reasonable person in civilized society should be expected to endure it.”
First, Schmitz’s “gruff,” “abrupt” and “intimidating” conduct did not meet this test, as the law does not protect employees from impolite communication of dissatisfaction with their work performance. Second, Lawler’s claimed emotional injuries of “anxiety, sleeplessness, upset stomach and sometimes muscle twitches” were not sufficiently “severe” as a matter of law.
Further, to establish a discriminatory disability termination claim under FEHA, an employee must demonstrate that she was able to perform the essential job functions, with or without accommodation. Here, Lawler admitted that her duties could be performed only in the store, and she did not provide any evidence that she could perform any of her responsibilities, regardless of the accommodation.
As to the retaliation claim, once an employee has made an initial factual showing, the defendant employer can rebut the showing with proof of a “legitimate business reason” for the termination. Montblanc’s stated business reason for terminating Lawler -- her absence from work -- met this test. In this case the company did a third of its annual business during the period in which Lawler could not perform her duties. The fact that the company knew that Lawler’s absences were disability related did not change this analysis.
Finally, to establish a harassment claim under FEHA, the employee must show a concerted pattern of harassment. Unlike discrimination, harassment consists of actions outside the scope of job duties. However, here, all of Schmitz’s actions were related to business operations and Lawler’s position as a manager. Even if the actions had been unrelated to business, this single occasion of “gruff,” “abrupt” and “intimidating” speech was not severe enough to constitute a hostile work environment.
Accordingly, the court of appeals affirmed the trial court’s dismissal of all of Lawler’s claims.
Lawler v. Montblanc North America LLC, 9th Cir., No. 1-16206 (Jan. 11, 2013).
Ilana Pearlman is an attorney with Foster Employment Law, the Worklaw® Network member firm in Oakland, Calif.
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