Huber v. Westar Foods, Inc.

106 F.4th 725

Tonya C. HUBER, Plaintiff - Appellant v. WESTAR FOODS, INC., Defendant - Appellee

No. 23-1087

United States Court of Appeals, Eighth Circuit

Submitted: December 13, 2023

Filed: July 1, 2024

Appeal from United States District Court for the District of Nebraska - Omaha

Counsel who presented argument on behalf of the appellant and appeared on the brief was Alexis S. Mullaney, of Omaha, NE.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Bonnie M. Boryca, of Omaha, NE.

Before ERICKSON, MELLOY, and STRAS, Circuit Judges.

MELLOY, Circuit Judge.

In December 2019, Tonya Huber experienced a diabetic episode that caused her to miss work. Days later, her employer, Westar Foods, Inc., fired her. Thereafter, Huber brought this action alleging disability discrimination under the Americans with Disabilities Act ("ADA") and Nebraska Fair Employment Practice Act ("NFEPA"), as well as interference with and retaliation for exercising her rights under the Family and Medical Leave Act ("FMLA"). Westar filed a motion for summary judgment, which the district court granted. Huber appeals. We reverse and remand for further proceedings consistent with this opinion.

I.

On appeal from a grant of summary judgment, we view the facts in the light most favorable to Huber as the non-moving party and draw all reasonable inferences in her favor. Lightner v. Catalent CTS (Kansas City), LLC, 89 F.4th 648, 651 (8th Cir. 2023).

Westar Foods operates a number of Hardee's restaurants in the Midwest, employing more than 200 people. In December 2018, Westar hired Huber as a store manager for a Nebraska Hardee's location. Prior to employment with Westar, Huber had worked in the fast-food industry for fifteen years. Westar hired Huber to work full-time at fifty hours per week. Huber's ten-hour shifts typically began at 5 a.m. and ended at 3 p.m., while Huber's duties included managing restaurant staff, overseeing store operations, and ensuring the store was opened each day.

Soon after Huber started working at Westar, she was diagnosed with diabetes. In March 2019, Huber had to start taking insulin, including at work. Over the course of her employment, Huber's insulin dosage increased. To manage her diabetes, Huber needed a room temperature location where she could store her insulin. The restaurant's kitchen and office ran upwards of ninety degrees, and Huber struggled to find a room temperature place for insulin storage. As such, she asked her district manager at the time, Matt Thayer, for help finding suitable storage, but he responded, "That's a [you] problem, not a [me] problem." After Cindy Kelchen became Huber's district manager in September 2019, Huber renewed her request for help finding a room temperature location for her insulin, and Kelchen advised storing it in the freezer. When Huber pointed out that the freezer was not room temperature, Kelchen responded, "Then I don't know what to tell you."

In addition to insulin storage, Huber also needed to find time during her shift to eat a meal so she could take her insulin. Huber was often too busy to take meal breaks during her shifts, so she sought help from Kelchen. Kelchen responded by telling Huber to get better at time management.

In December 2019, Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia.¹ Indeed, because of her blood glucose level, Huber "felt out of it" and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Eventually, Huber was able to drive herself to a nearby doctor's office where she was given an IV and medications that sedated her.

Throughout the day of her stay at the doctor's office, Huber called her son and her boyfriend, Richard Grondin, on multiple occasions. One call to Grondin lasted 45 minutes. According to Grondin, Huber was groggy and incoherent when he spoke with her. Huber's son recalled that her communication was "all over the place" and difficult to comprehend. Huber does not remember these calls due to the impact of her diabetic episode.

On the day of the diabetic episode, Westar first discovered that Huber had not come into work when a customer notified Kelchen that Hardee's was not open. Kelchen tried calling Huber, who did not answer, so Kelchen called Huber's son, who was listed as her emergency contact. Huber's son told Kelchen that Huber was at the doctor's office, that her "levels were off," and that Huber would call back. Huber did not end up calling Kelchen that day.

The doctor's office kept Huber under its care until it closed for business. When Huber was discharged in the evening, the medical staff would not permit her to drive because of her condition, so she called Grondin for a ride. Because of her state, Huber was unable to convey to Grondin the directions to where she was, "so he had to use an app to locate her." When they eventually arrived at Huber's home, Huber was delirious, disoriented, and ill, so Grondin decided to stay overnight out of concern for her safety.

Huber slept until 7:45 a.m. the next day, December 21. She had been scheduled to work at 5 a.m. that morning, but she was still ill and recovering from the medications administered at the doctor's office the day before. Westar's attendance policy has a "call-in" requirement, which states that if a store manager is going to be late for work or if they are unable to work, they must call their district manager immediately and at least two hours prior to the start of their shift "when possible." Additionally, the attendance policy states that "[t]exting, emailing or leaving a message is not" an acceptable way to notify management of an absence or tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she called Kelchen and emailed her a doctor's note excusing her from work through December 26. On the call, Huber conveyed her experience and the nature of the diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that Huber was at the doctor's office because "her levels of her diabetic [sic] was off." During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber why she did not notify her in accordance with the call-in policy on either December 20 or 21, Huber explained how the diabetic episode made it extremely difficult to call, mentioning to Kelchen that she could do an internet search to understand the symptoms better. Kelchen did not understand or believe that Huber could not have called, especially when she was able to call her boyfriend and son and drive herself to the doctor's office. During the conversation, Kelchen asked Huber five times why she did not make a "simple phone call" to inform Westar about her absence.

Immediately following her call with Huber, Kelchen called Frank Westermajer, Westar's owner and president, to convey her conversation with Huber. It is undisputed that during the call, the decision was made to fire Huber when she returned from sick leave on December 26. The parties disagree as to whether Westermajer was the sole decision-maker, or whether Kelchen was also a decision-maker.

In the days following her diabetic episode, Huber continued to struggle with her health, experiencing fluctuating blood glucose levels that required hourly readings. On December 22, pursuant to her doctor's guidance, Huber emailed Kelchen and Amy Rowe, Westar's HR representative, requesting FMLA paperwork. Huber did not receive a response and followed up on December 23 to request FMLA forms ahead of a follow-up doctor's appointment that day. Rowe did not provide the paperwork but responded that she had the doctor's note excusing Huber from work and therefore needed nothing additional from Huber's doctor.

At the follow-up appointment, the doctor provided Huber with another note requiring her to be out of work through January 2 due to her diabetes. After the doctor's appointment, Huber once again requested FMLA paperwork, but received no response. The next morning, on December 24, Rowe responded, once again not providing paperwork, but instead requesting a meeting that afternoon despite her awareness of Huber's medical leave. Rowe planned to fire Huber at the meeting. Huber, whose condition was not stable, responded by declining the meeting, providing the new doctor's note, and asking once again for the FMLA paperwork.

Because Huber's sick leave was extended, the December 26 meeting did not occur, and Rowe instead sent Huber a termination letter. The letter stated that the reason for the termination was because Huber "failed to follow the Company's notice procedures for [her] absences on December 20, 2019 and on December 21, 2019." The letter noted that Huber was "fully aware" of the company's notice procedures in part because the company had previously disciplined her for not abiding by them. The letter further explained that because Huber was "driving and in contact with [her] son" on the day of her diabetic episode, she "should have been able to provide notification of [her] absences to the Company . . . or at the very least prior to [her] scheduled shift on Saturday, December 21."

In addition to providing a reason for termination, Westar's letter also addressed Huber's FMLA request, stating that "[b]ased on [her] explanation that [she] drove [herself] to the clinic on December 20th and the circumstances on December 21, 2019," and because she had "failed to provide notice as soon as possible and practical [and] did not request any need for an accommodation until after the unscheduled absences," her absences would not be covered under the FMLA.

Thereafter, Huber brought this lawsuit alleging Westar violated the ADA and...