Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—5th Cir.: City attorney, fired after requesting additional FMLA leave, revives retaliation claim, (Apr 10, 2025)

By Kathleen Kapusta, J.D.

The attorney, who suffered from anxiety and fibroids, also convinced the appeals court to reverse summary judgment as to her anxiety-related ADA and state-law claims.

Although a city attorney failed to show her municipal employer did not reasonably accommodate her fibroids—she was allowed to flex her schedule and work remotely—a jury could find the city did not attempt to accommodate her anxiety, said the Fifth Circuit, reversing in part the grant of summary judgment against her ADA and state-law disability discrimination claims. Nor was the city entitled to summary judgment on her FMLA retaliation claim, the court concluded, finding fact issues regarding the real reason for her termination just a month after she requested additional leave. The court, however, affirmed summary judgment as to her FMLA interference claim (Way v. City of Missouri City, No. 24-20144 (5th Cir. Apr. 9, 2025)).

Anxiety. A year after she was hired as First Assistant City Attorney for the City of Missouri City, Texas, the attorney told her supervisor, the City Attorney, that she was developing anxiety and was going to see a doctor. Her supervisor acknowledged that she seemed overwhelmed. The next day, the attorney welled up with tears in front of her supervisor and asked her for accommodations, including “clear expectations, timelines and workflows that work for everyone.” She also asked the supervisor to provide this information in writing. Instead, the supervisor mailed the city’s HR director asking how she could reclassify the First Assistant City Attorney position to just Assistant City Attorney.

Fibroids. A month later, the attorney left work early to go to the hospital due to painful pelvic floor spasms. The following day, she showed her supervisor the medications she had prescribed to control the spasms and cope with the pain. About two months later, the attorney complained to the HR director about the way her supervisor had treated her since learning of her medical conditions, including failing to accommodate her need for time off.

About a year later, the attorney requested a flexible work schedule and the ability to work remotely during the month of July. She noted that she would need leave for surgery that month and she provided a medical certification form stating that she suffered from “several months of dysfunctional uterine bleeding.” The city granted her requests.

More efficient? In August or September, the supervisor, who had been asked for suggestions on how to make the legal department more efficient, contacted a trade group representative for municipal lawyers. The representative determined that the office lacked “sufficient support staff,” that the city’s legal budget appeared to be “substantially lower” than that of similar cities, and that even if the city hired an additional paralegal at a “competitive salary,” its legal budget would still be “well within norms.”

Additional leave. In October, the attorney began a second period of FMLA leave for a second surgery. She returned to work in December and told her supervisor and HR director that she would need four more days of leave at the end of the month for a third surgery. She returned on December 31. On January 19, she was told her position had been eliminated.

Lower court proceedings. The attorney then sued under the ADA, the FMLA, and the Texas Commission on Human Rights Act and the lower court ultimately granted summary judgment against all her claims.

Disability discrimination—anxiety. On appeal, the Fifth Circuit found the attorney sufficiently alleged her anxiety was an impairment that substantially limited a major life activity. Specifically, she alleged her anxiety causes her “thoughts to race,” “affects her ability to think and concentrate,” “causes [her] to become fixated on tasks,” and ultimately “resulted in an inability to sleep and eat until she began her anti-anxiety medication.” Moreover, she told her supervisor she was developing anxiety and welled-up in tears in front of her. This, said the court, was enough for a reasonable jury to find her major life activities “of caring for herself, sleeping, and thinking” were substantially limited, rendering her disabled under the ADA.

She also provided sparse but sufficient evidence to show her employer failed to accommodate her. She pointed to her email notifying her supervisor that she was developing anxiety, her supervisor’s acknowledgement that she seemed overwhelmed, and the incident in which welled-up with tears, causing her supervisor to “sarcastically inquire as to the reason behind [her] emotional distress.”

She then asked her supervisor for specific accommodations to help her cope and provided an email in which she reported that she had requested help from her supervisor to address her anxiety. She further alleged that her supervisor never provided her with any of her requested accommodations for her anxiety. Reversing summary judgment on this claim, the court found that whether her evidence would ultimately show that her anxiety substantially limited her major life activities, that the city knew about her anxiety, and that it failed reasonably to accommodate it were questions best left for a jury to determine.

Fibroids. As to her claim based on fibroids, while the court found her condition met the requirements of a qualifying disability, the attorney failed to show the city did not reasonably accommodate her. Her requests to flex her schedule to make time for her medical appointments and to work remotely during July were deemed reasonable by her supervisor and granted by the city. Accordingly, the court affirmed summary judgment against this claim.

ADA and TCHRA retaliation. The attorney also alleged her termination constituted unlawful retaliation in violation of the ADA and the TCHRA. Affirming summary judgment against this claim as well, the court found she was unable to show a causal connection between her January 2021 termination and her August 2019 request for accommodation for her anxiety and her November 2019 email to HR complaining about her supervisor. “That is far from the ‘very close’ temporal proximity that our caselaw requires to establish a causal link, at least ‘without other evidence of retaliation,’” said the court.

Her fibroids-based retaliation claims also suffered from the same defect as her accommodation request occurred seven months before her termination.

FMLA interference. In support of her FMLA interference claim, the attorney argued that the city incorrectly classified her FMLA status, leading to a lack of proper notice regarding a salary decrease. Though she pointed to emails revealing her desire to classify her leave as “family medical leave” rather than “administrative leave,” there was no indication the city’s possible misclassification would have affected her pay because both administrative leave and her FMLA leave were unpaid. So even if her assertions were true, observed the court, she failed to show how the city’s mistake prejudiced her.

FMLA retaliation. Turning finally to the attorney’s FMLA retaliation claim, the court noted her termination less than a month after she requested a leave extension was sufficient to establish a causal link. Though the city claimed it fired her because city council “took action... to eliminate the position of the First Assistant City Attorney... to re-deploy the budget for that position to create the position of Junior Associate Assistant City Attorney,” the court found evidence of pretext.

Here, the court pointed to the trade group representative’s report to the supervisor that the City Attorney’s office lacked sufficient support staff, its legal budget appeared to be “substantially lower” than that of similar cities, and that even if the city hired an additional paralegal at a “competitive salary,” its legal budget would still be “well within norms.” The supervisor argued that she interpreted the report “to mean the legal division would be better suited by hiring a paralegal instead of an attorney,” but this did not follow from the report’s recommendation, said the court, concluding that a reasonable factfinder could “infer the ultimate fact of retaliation” from the apparent falsity of the city’s explanation.

The timing of the attorney’s termination after requesting additional FMLA leave could also be viewed as suspicious, said the court, noting that the city terminated her 18 months after the supervisor initially suggested eliminating her position but within weeks of her returning from leave and requesting additional leave. This, the court reasoned, could support a jury finding that the city fired her because it was unhappy with her medical absences, not because budget constraints compelled eliminating her position.

Cat’s paw. For its part, the city argued that it was the city council that voted to redeploy the budget, and the city councilors did not know about the attorney’s medical issues. The termination letter, however, stated that the city made its decision because the supervisor’s report stated that the attorney’s position “was not a practical application of the City’s resources.” That statement, said the court, suggested that the council may have “merely acted as a rubber stamp, or the cat’s paw,” for the supervisor’s animus.

The court also pointed to evidence showing the supervisor’s retaliatory animus, including that shortly after the attorney stated that she was seeking medical treatment for anxiety, the supervisor told the city manager that the attorney’s position “was not a practical application of the City’s resources,” and asked the HR director how she could demote her. The attorney also alleged that her supervisor “engaged in a continuous pattern of harassment and bullying” toward her, which she supported by the contemporaneous internal complaint she filed with HR. Accordingly, the court reversed summary judgment to the city on this claim.

The case is No. 24-20144.

Judge: Smith, J.

Attorneys: Russell S. Post (Beck Redden) for Jamilah Way. William S. Helfand (Lewis, Brisbois, Bisgaard & Smith) for City of Missouri City, Texas.

Companies: City of Missouri City, Texas

Cases: EmployeeLeave DisabilityDiscrimination Discrimination Discharge Retaliation LouisianaNews MississippiNews TexasNews GCNNews