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Lipp v. Cargill Meat Solutions Corp.

United States Court of Appeals, Eighth Circuit

December 19, 2018

Sheena Lipp Plaintiff - Appellant
v.
Cargill Meat Solutions Corporation Defendant-Appellee

          Submitted: June 12, 2018

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         Sheena Lipp sued her former employer, Cargill Meat Solutions Corporation ("Cargill"), for disability discrimination under the Americans with Disabilities Act ("ADA") and the Iowa Civil Rights Act ("ICRA"). Lipp appeals the district court's[1] grant of summary judgment in favor of Cargill. For the reasons discussed below, we affirm.

         I. BACKGROUND

         From 1995 until her termination in 2014, Lipp worked for Cargill's meat and processing facility in Ottumwa, Iowa.[2] Throughout her employment, Lipp's job duties involved stacking and supplying empty boxes to the production line, labeling boxes, and sometimes manually moving pallets and packed boxes.

         In 2000 Lipp was diagnosed with an incurable lung disease known as eosinophilic granuloma. This disease makes it difficult for Lipp to walk, run, or otherwise exert herself physically, especially during "flare ups." Beginning in October 2012, Lipp's lung disease required several work restrictions. Specifically, she needed to attend three to four out-of-town doctor's appointments per year. She also needed days off during her flare ups, which would occur two to four times per year and last two to four days per occurrence. Lipp also needed to work no more than eight hours a day, five days a week, in a clean working environment free from dust or dirt, with lifting assistance whenever she was required to move pallets. Lipp agrees that Cargill accommodated all of these needs-at least until she was terminated in November 2014.

         Central to this case is Cargill's work attendance policy and its application to Lipp as well as its interaction with the ADA. Cargill maintains a written attendance policy with progressive disciplinary action for unplanned absences. The policy states that "[p]unctuality and regular attendance is crucial for efficient plant operations, safety, and moral[e]." Employees must report their absences daily using Cargill's automated call-in system at least a half-hour before the start of their shifts, unless they are on approved extended leave. The call-in system prompts employees to press buttons on their phones corresponding to the reason for their absences, including illness, injury, personal business (including vacation), and leave of absence. Under the policy, an employee is charged one "occurrence" point for each "unplanned" absence (as distinct from "planned" absences such as vacation, jury duty, or family and medical leave).

         An employee may accrue up to six occurrence points in a calendar year without disciplinary action. An employee's seventh and eighth points each result in written warnings, and the ninth point results in termination. Violations and written warnings remain effective for one year after the date they occur and freeze an employee's point total across calendar years until the disciplinary period expires. An employee may take up to five single days of vacation in addition to the six occurrence absences in a year, but no vacation days are allowed after accruing seven occurrence points.

         Cargill's attendance policy provides that employees "may be required to verify any absences from work." (Emphasis added.) It also states that all verification "must be presented upon the first day the employee returns to work," and "[a]ll medical verification must be brought to the nursing department." (Emphasis added.) The policy additionally states that a doctor's note can reduce, but not eliminate, the number of occurrence points accrued for unplanned sick days.

         On January 19, 2014, Lipp began what turned out to be roughly a nine-month, unplanned leave of absence unrelated to her medical condition, in order to care for her elderly mother, who had significant health issues. During the first six months of her absence, Lipp provided Cargill with three successive notes from her mother's doctor explaining her absence and predicting how long she would need to care for her mother, including a first note on January 30 (saying she would be needed through February 19), another on February 20 (saying she would be needed through March 21), and another on August 25 (saying she would return to regular work duty on October 15). Lipp called in to work every day to report her absences and continued to pay for her health insurance. By April of 2014 she had exhausted her twelve weeks of available leave under the FMLA.

         Upon Lipp's return to work on October 15, Cargill provided her with a series of written notifications and warnings informing her of multiple attendance violations dating back to the previous year, explaining that as of October 15, 2014, Lipp had accumulated 194 occurrence points and was being "place[d] on Last Chance for attendance." The note further provided that "Employee needs to understand that any call ins, lates[, ] leave early without authorization will violate the last chance agreement and will terminate her employment."

         Lipp refused to sign any of the notifications and warnings, including the "last chance" notice. She asked a human resources representative, "what about if I have to take off for my breathing or my lungs or [go] to a doctor appointment?" She was told she needed "to get permission from [her] foreman." Within a week after returning to work Lipp attended a doctor's appointment for her lung disease with Cargill's permission. She verified the appointment with a doctor's note and did not receive an occurrence point. However, Lipp also asked her supervisor about the possibility of missing work because of a breathing flare-up and was told "it didn't matter," that "[o]ne day missed with non-approval was termination."[3]

         Shortly thereafter, on October 30, Lipp used Cargill's automated call-in system to report being absent. Lipp believes she reported being "sick" because of a breathing flare-up. Cargill says Lipp reported being absent for "vacation." Lipp acknowledges "it is possible" she keyed in the ...


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