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The Importance of Policy, Practice, and Documentation

Sept. 2, 2014

She had repeated unexpected absences. She made routine use of intermittent FMLA. The employee’s supervisor is on the phone and wants to fire her. You, the HR professional on the front line, must ensure that enforcing company expectations does not violate employee legal rights. In the case described in this article, the employer was careful to stick to proper procedures and document events along the way. Ultimately, the company prevailed over the former employee’s lawsuit alleging violations of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Here’s what happened in the Tenth Circuit Court of Appeals, a federal court with jurisdiction over Oklahoma:


Rebecca Murphy was an accounting assistant for Samson Resources. Her job description clearly communicated attendance was an essential job function. However, Murphy suffered from Migraines that interfered with her ability to work. Even so, Samson allowed her to make up her hours as she was able. Unfortunately, she soon became so far behind that she could not get caught up. Within a few short months, Samson had documented serious performance problems including data entry errors, payment to the wrong party, and late payments.

Murphy tried to transfer out of her position, but was refused in light of her performance and attendance problems. Shortly thereafter, Murphy applied for leave under the Family and Medical Leave Act (FMLA). FMLA was granted and Murphy used it intermittently to cover her migraine absences. Murphy then applied for short term disability (STD) leave, to run concurrently with her FMLA leave.

Samson’s STD policy required employees to return immediately after leave unless a long term disability leave application was under review. Under the policy, failure to return after leave would constitute job abandonment. The first day Murphy should have returned, she emailed Samson to say she would submit a new certification the following week. No new certification arrived, so Samson fired Murphy for job abandonment.

The Lawsuit

Murphy sued. She asserted the company discriminated against her because of her migraines and that it further violated the ADA by failing to provide her with a reasonable accommodation. Murphy also argued her termination was retaliation for exercising her FMLA rights. After losing in trial court, Murphy appealed.


In order to pursue her ADA claim, Murphy had to show she was disabled within the meaning of the Act, she was qualified for the job, and that Samson discriminated against her because of her disability. The Appellate Court found that Murphy did not show she was a qualified individual under ADA.

In order to be “qualified,” Murphy had to show she could, with or without reasonable accommodation, perform the essential functions of her job. Courts often look to the employer’s job description. Murphy’s job description required regular and punctual attendance and she did not argue the point. Instead, she claimed that she could have met Samson’s attendance standards with reasonable accommodation.

First, Murphy claimed that a flexible work schedule was reasonable. However, the Court cited precedent under which an accommodation that avoids an essential function is not reasonable. Next, Murphy argued that an extended leave would have been reasonable. The Court held that a leave of absence is not a reasonable accommodation for an employee who continually requests leave and does not know if or when she will return to work. The Court specifically noted that leave for medical care may be a reasonable accommodation, but that leave must be accompanied by some probable time frame after which the employee will return to work. Murphy’s request for an indefinite leave of absence was held not to be reasonable. Consequently, because neither accommodation requested was reasonable, Murphy was not a qualified individual under ADA, and she therefore lost her ADA discrimination claim.

FMLA Retaliation

Murphy’s claim of FMLA retaliation was based on her allegation that Samson refused her transfer request, gave her a negative performance review, and fired her because she used FMLA leave. First, Murphy’s transfer request was quickly disposed of as a potential form of retaliation because the transfer was denied more than a week before Murphy requested FMLA leave.

Second, when the Court considered Murphy’s performance review, it determined the negative evaluation was suspicious because it was close in time to Murphy’s FMLA leave request. Therefore, the FMLA retaliation analysis could proceed to the next step. In the next step, Samson would have to show a legitimate, non-retaliatory reason for Murphy’s poor performance appraisal. Obviously, evidence of Murphy’s actual poor performance was sufficient to overcome the suspicious timing. To revive her claim, Murphy would have to show that Samson’s evidence of her poor performance was merely a pretext for getting rid of her. To do so, Murphy would have to give the Court some good reason for doubting Samson’s explanation, and she was unable to do so.

Third and finally, Murphy claimed that “job abandonment” for failure to recertify her leave was also a pretext for retaliation. Murphy argued a technical aspect of Samson’s leave policy but the Court simply disagreed with her interpretation of Samson’s policies. Thus, the Court found Samson treated Murphy in accordance with its lawful employee leave policies. Consequently, the Court held that Murphy failed to show that Samson’s terminated her for anything other than poor performance. Therefore, Murphy also lost her FMLA retaliation claim.

What Oklahoma HR Professionals Need to Know

According to my legal dictionary, a frivolous lawsuit is one that has no legal basis, perhaps filed to harass or extort money from the defendant. Murphy’s lawsuit may not have been frivolous if Samson did not have its act together. For every wrong Murphy alleged, Samson had a documented, neutral, business related reason for its actions. Without that evidence, the case would have turned on whether a jury believed Murphy more than it believed Samson’s representatives.

Samson engaged in several best practices employers should generally follow. First, Samson had an accurate job description for Murphy that stated essential job functions including attendance. That made it easy for Murphy, Samson, and the Court to know the standard to which Murphy should be held. Second, Samson had solid policies and procedures that it meticulously followed. Third, Samson documented Murphy’s poor performance as it was discovered. Fourth, Samson documented reasons for its employment actions, such as why it denied Murphy’s request for a transfer, why it granted FMLA leave, why it granted STD leave, and how it tried to accommodate Murphy’s disability.

Employees who have bona fide medical issues that give rise to unpredictable and sometimes indefinite absence create complex problems in HR management. The Samson case demonstrates how a Company can prevail in a lawsuit stemming from those problems. To show your decisions are non-discriminatory, meticulously document legitimate business reasons for employment decisions and follow your company’s lawful policies and procedures. If you are uncertain about the wisdom or legality of any of your employment practices, you should consult with a qualified employment law attorney.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.