(CN) - A lesbian who increasingly took off from work to care for her son with Asperger's can sue her county employers for discrimination, a federal judge ruled.
Not long after Montgomery County, Pa., hired Amy Medley to work as a nursing assistant at its Parkhouse Providence Pointe facility, Medley began missing work to care for her son, Anthony, who has Asperger's syndrome and developmental delay.
The ruling notes that Medley's partner, Antoinette, is an adoptive parent of Anthony and shares equally in his care. Medley's sister, a stay-at-home mom, also watches Anthony occasionally when his parents are working.
Medley testified that Anthony has been afraid to go outside in "gloomy" weather ever since his school bus slid on some ice in November 2010.
A doctor certified that Anthony suffered from panic attacks and would hide in the closet, scratch himself, and express fears his mother would die.
Montgomery County requires employees to notify their superior two hours before the start of their shifts if they cannot come to work "for whatever reason," but Medley did not always make this deadline.
After accumulating 100 "points" for four unexcused absences, Medley explained to County Officer Beverly Jackson that she wanted to file a grievance to contest the points.
Jackson agreed to forward her the paperwork, but allegedly said "it is not going to change the policy [and] it is not going to change that fact that [plaintiff] didn't call out within the two hours and that is the rule."
The next day, Medley was fired pursuant to the county's written policy that an employee will "self terminate" upon collecting 100 points.
Medley then sued for discrimination under the Family Medical Leave Act (FMLA).
U.S. District Judge John Padova declined to grant the county summary judgment last week.
"The evidence of record establishes that plaintiff sought intermittent FMLA leave and that such leave was granted by the county," Padova wrote. "The record further establishes that plaintiff was fired, and that her firing was causally related to her attempts to invoke the intermittent FMLA leave that the county granted."
Medley's circumstances may have also made her unable to comply with the county's two-hour notice rule, according to the ruling.
"When plaintiff was employed by the county, she worked the 7:00 a.m. to 3:00 p.m. shift, and was not able to call out two hours before invoking her FMLA leave on those occasions because Anthony did not always begin to suffer from anxiety attacks two hours before her shift started," Padova wrote.
Quoting Medley's deposition, Padova said: "'The reason [she] was calling out at like 6 o'clock was because [Anthony] was spazzing out. [She] couldn't call out at 5:00 a.m. if he was spazzing at 6:00.'"
These allegations establish "a prima facie case of FMLA discrimination," according to the 13-page ruling.
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