By Jim Cline and Amy Liden
In City of Philadelphia, a Pennsylvania federal district court granted summary judgment in favor of the city after it terminated an employee for taking an unapproved leave of absence.
John Burns was a police officer with the Philadelphia Police Department. In April 2021, Burns claimed a fellow officer struck him in the back, aggravating his existing back injury. He subsequently stopped reporting to work and began using his paid sick leave. A month later, Human Resources sent Burns a letter stating that he could use his accrued leave and, once exhausted, apply for a Medical Leave of Absence.
Burns used all his accrued leave but did not return to work or apply for a Medical Leave of Absence. Instead, he visited the police station and spoke with several individuals who told him he was still on medical sick leave. He remained on unpaid sick leave until 2023. During this time, Burns maintained regular communication with the police department, submitted monthly doctor’s notes, and was repeatedly told by management that he could remain on medical leave.
In January 2023, Burns attempted to return to work. He presented a doctor’s note to the EMS unit requesting a restricted duty assignment. EMS approved the request, and the Police Department’s Safety Office also signed off on the assignment. However, when Burns reported to his new post, the administrative staff discovered he lacked the proper return-to-duty paperwork. Upon investigation, the head of the Safety Office found that Burns had not been on the payroll since 2021. As a result, his restricted duty assignment was rescinded, and he was subsequently terminated for abandoning his position.
Burns sued under the ADA and state law, asserting that the city discriminated against him when it revoked his restricted duty status and terminated him based on his disability. He also claimed that the city failed to accommodate his disability and retaliated against him for seeking accommodations.
The city argued that Burns restricted duty status was revoked, and he was later terminated because he abandoned his position by failing to apply for a Medical Leave of Absence, and thus they did not have a duty to find him a reasonable accommodation.
The Court agreed that Burns failed to apply for a Medical Leave of Absence, even though he knew it was required. Therefore, the city could not accommodate his restricted duty assignment after he effectively abandoned his position. The Court also reasoned that the City had previously accommodated Burns’s various health issues and had allowed him to remain on unpaid medical leave until his return. Although Burns’s superiors told him it was “fine” to remain on unpaid leave, they had no reason to believe the leave was unauthorized. Furthermore, the city only realized he had abandoned his position when he returned to work, and his restricted duty status was revoked on the same day the Safety Office discovered he had not been on payroll since 2021. Although the Court ruled in favor of the City, it expressed sympathy for Burns, stating:
“That said, not all the fault rests with Mr. Burns… Mr. Burns can establish that multiple people in different units across the Police Department were not proactive, shirked responsibility, made mistakes, gave Mr. Burns incorrect information, and were unprofessional. Understandably, that is frustrating for Mr. Burns, but that doesn’t make the City’s conduct illegal.”
In the end, although the City mishandled aspects of the situation, the Court ultimately ruled in its favor because it could not reasonably accommodate Mr. Burns after he took an unauthorized leave of absence.
This seems to be a case of the court arriving at the correct conclusion but for the wrong reason. Part of the problem here is that it doesn’t appear that the Officer contested the underlying job abandonment claim, including the lack of any Loudermill hearing involved in that claim. The court apparently assumes that the failure to submit the medical leave form constitutes job abandonment voiding the City’s reasonable accommodation obligations, but at least under Washington law, the requirements of abandonment were not fully met.
In a recent case an Island County Deputy Sheriff, the Arbitrator overturned a discharge based on a claim of job abandonment where there was no notice and Loudermill hearing. While employers often will argue that job abandonment constitutes a “constructive discharge” requiring no affirmative employer action to treat the employee as separated from employment, that assumption is difficult to square with civil service requirements which require that the appointing authority expressly provide notice and issue a discharge notice (after due process).
This Philadelphia officer was in constant contact with police department officials but not with City Human Resources. Since those police managers should have been agents of the City, it’s hard to understand how that wouldn’t have imposed on the city the duty to engage in a reasonable accommodation discussion.
On the other hand, in this case, the officer was out on unpaid leave for 18 months. While not addressed by the court, which concluded no continued employment rights existed, even if the officer hadn’t been found to have abandoned his job, the case law on accommodation does not support unpaid medical leave for that duration, absent unusual circumstances. Ninth Circuit case law limits medical leaves to a year and many courts have found even much shorter medical leaves at the outer duration of what’s “reasonable” to accommodate.
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