Monika Samper v. Providence St. Vincent Medical
Filing
FILED OPINION (RALPH B. GUY, JR., M. MARGARET MCKEOWN and RICHARD C. TALLMAN) AFFIRMED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [8135241]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONIKA SAMPER,
Plaintiff-Appellant,
v.
PROVIDENCE ST. VINCENT MEDICAL
CENTER,
Defendant-Appellee.
No. 10-35811
D.C. No.
3:09-cv-01182-AC
OPINION
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted
December 8, 2011—Seattle, Washington
Filed April 11, 2012
Before: Ralph B. Guy, Jr.,* M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge McKeown
*The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
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SAMPER v. PROVIDENCE ST. VINCENT
COUNSEL
Thomas K. Doyle, BENNETT, HARTMAN, MORRIS &
KAPLAN LLP, Portland, Oregon, for the plaintiff-appellant.
Jeffrey J. Druckman, Janine C. Blatt, DRUCKMAN &
BLATT, P.C., Portland, Oregon, for the defendant-appellee.
OPINION
McKEOWN, Circuit Judge:
This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predict-
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able basis? In the case of a neo-natal intensive care nurse, we
conclude that attendance really is essential.
Monika Samper, a neo-natal intensive care unit (“NICU”)
nurse, sought an accommodation from her employer, Providence St. Vincent (“Providence”), that would have allowed
her an unspecified number of unplanned absences from her
job. She wanted to opt out of Providence’s attendance policy,
which sanctioned five unplanned absences of unlimited duration as well as other permitted absences. Samper appeals the
district court’s summary judgment in favor of Providence on
her reasonable accommodation claim under the Americans
with Disabilities Act (“ADA”). Because regular attendance is
an essential function of a neo-natal nursing position at Providence, we affirm.
BACKGROUND
Providence is a medical facility in Portland, Oregon, that
provides a broad range of medical services. Its NICU offers
a high level of intensive care to premature infants. According
to the NICU charge nurse, absences among NICU staff can
jeopardize patient care: NICU nurses require special training
such that the universe of nurses that can be called in at the last
minute is limited. As the charge nurse explains, given the relevant patient population, being understaffed is “highly undesirable and, potentially, can compromise patient care.”
Nonetheless, striking a balance between the needs of patients
and employees, Providence’s attendance policy allows its
employees to take up to five unplanned absences during a
rolling twelve-month period. In addition, “[u]nplanned
absences related to family medical leave . . . jury duty,
bereavement leave and other approved bases are not counted”
towards this limit, and each absence, however long, counts as
only one occurrence. Samper challenges the application of
this generous absence policy to her circumstances.
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Although Samper claims material issues of fact remain
regarding the circumstances surrounding her dismissal, the
sequence of events is undisputed.1 Samper was employed with
Providence as a registered NICU nurse for eleven years. Since
at least 2005, she has had fibromyalgia, a condition that limits
her sleep and causes her chronic pain. Over the entire period
of her employment, Samper never worked full time, but,
nonetheless, regularly exceeded the number of unplanned
absences permitted even for full-time employees. In July
2000, while on leave of absence, Samper received a performance appraisal that reflected she had taken seven unplanned
absences over the year, exceeding the number permitted by
the attendance policy. She was informed her attendance
needed improvement. In 2002, Samper was placed on work
plans to manage her continued absences, the result, according
to her, of a difficult divorce. At the time, Samper optimistically predicted that because her “personal life [had] dramatically improved in the last few months,” her absences would
decrease.
This was not to be. After two more years of attendance
problems, and yet another negative attendance review, in
August 2005 Samper’s manager asked to meet with her and
a leave-of-absence specialist to address Samper’s chronic
attendance problems. At the meeting, Providence agreed to a
highly flexible accommodation: Samper was allowed to call
in when having a bad day, and move her shift to another day
in the week. Providence did not require Samper to find a
replacement for her shift.
Providence’s flexibility, however, yielded no results. By
1
“We review the district court’s grant of summary judgment de novo
[and] . . . affirm the decision to grant summary judgment when, reviewing
the record as a whole and drawing all reasonable inferences in favor of the
nonmoving party, we find no genuine issue of material fact.” Vander v.
United States Dep’t of Justice, 268 F.3d 661, 663 (9th Cir. 2001) (citations
omitted).
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July 2006, Samper admits that she once more exceeded the
attendance policy, and received a corrective action notice that
was later withdrawn.2 Samper again met with management in
August 2006, which agreed to yet another accommodation
under which Samper’s two shifts-per-week would not be
scheduled on consecutive days. Again, despite hoped for
improvement, Samper received a verbal warning at the end of
the year because of her attendance. Samper responded by
seeking an exemption from the attendance policy altogether.
Samper’s absences and requests for further absences
occurred against a backdrop of multiple other absences that
were not counted towards the unplanned absence limit. For
example, in early 2005, Samper obtained intermittent medical
leaves. In November 2005, she was allowed to take time off
to attend a trial involving her spouse. Although her attendance
in early 2007 improved, by May 2007, Samper sought and
was given a month-long leave of absence to obtain counseling. She received another medical leave of over two weeks in
October. The following year, 2008, began with another twoweek medical leave.
Although none of these leaves counted towards her
unplanned attendance limit, despite ongoing accommodation,
Samper was issued a corrective action notice in March 2008
for seven unplanned absences over the previous twelve-month
period, some of several days in length. Matters came to a head
in early 2008, when management informed Samper that her
part-time position would cease to exist, and that she could
transfer to another position or face termination. Samper
responded by making inappropriate comments in the presence
of patients. Providence issued two corrective action notices in
March: one for seven unplanned absences over the previous
2
We accept Samper’s representation that she had only seven absences
over the twelve-month period preceding the evaluation. However, the corrective action notice states that Samper had seventeen absences over the
previous twelve months.
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twelve months, and another for her comments. After two further unplanned absences in April, Samper was scheduled to
discuss her attendance issues with management at a meeting
at which Samper was (not uncharacteristically) absent. Samper was finally discharged for, among other issues, seven
absences in a twelve month period, and general problems with
attendance.
Samper filed suit alleging, among other claims, a violation
of the ADA due to failure to accommodate. The district court
granted summary judgment in favor of Providence, reasoning
that because Samper was unable to adhere to Providence’s
attendance policy, she was unqualified for her position as a
matter of law. The court also held that the 2006 part-time
work plan was a reasonable accommodation, and that the
accommodation that Samper requested, to obtain a waiver
from the five unplanned absence limit, was unreasonable.
DISCUSSION
[1] This case turns on the role that regular attendance plays
in the functions of a NICU nurse. To establish a prima facie
case for failure to accommodate under the ADA, Samper must
show that “(1) [s]he is disabled within the meaning of the
ADA; (2) [s]he is a qualified individual able to perform the
essential functions of the job with reasonable accommodation;
and (3) [s]he suffered an adverse employment action because
of [her] disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114
(9th Cir. 2003); see also 42 U.S.C. §§ 12112(a), (b)(5)(A)
(requiring reasonable accommodation). Providence does not
dispute that Samper is disabled, that she has the requisite
technical skills for the job, or that she suffered an adverse
employment action. Samper runs into an insurmountable hurdle, however, in arguing that regular attendance is not an
essential function of the NICU nurse position.
[2] An individual is qualified if “with or without reasonable accommodation, [she] can perform the essential func-
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tions of the employment position . . . .” 42 U.S.C. § 12111(8).
“The court first examines whether the individual satisfies the
requisite skill, experience, education and other job-related
requirements of the position. The court then considers
whether the individual can perform the essential functions . . .
with or without a reasonable accommodation.” Bates v.
United Parcel Svc., Inc., 511 F.3d 974, 990 (9th Cir. 2007)
(en banc) (internal quotation marks omitted). Although Samper retains the burden of proof in making her prima facie case,
Providence has the burden of production in establishing what
job functions are essential as “much of the information which
determines those essential functions lies uniquely with the
employer.” Id. at 991 (citations and internal quotation marks
omitted). To meet its burden of production, Providence “must
clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of
fact, would support a finding” favorable to the defendant—in
this case, that compliance with the attendance policy is an
essential function of the job. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 507 (1993) (emphasis in original, citation and
internal quotation marks omitted).
[3] It is a “rather common-sense idea . . . that if one is not
able to be at work, one cannot be a qualified individual.”
Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999).
Both before and since the passage of the ADA, a majority of
circuits have endorsed the proposition that in those jobs where
performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may
be necessary for a variety of reasons. Sometimes, it is
required simply because the employee must work as “part of
a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727
(5th Cir. 1998). Other jobs require face-to-face interaction
with clients and other employees. Nowak v. St. Rita High
Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans
World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline
customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d
209 (4th Cir. 1994) (teacher). Yet other jobs require the
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employee to work with items and equipment that are on site.
EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir.
2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator,
201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner,
169 F.3d 481 (production worker); Corder v. Lucent Techs.,
Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir.
1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.
Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping
aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding
clerk under the Rehabilitation Act); Law v. U.S. Postal Serv.,
852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Rehabilitation Act).
[4] The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse. This at-risk
patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job
unites the trinity of requirements that make regular on-site
presence necessary for regular performance: teamwork, faceto-face interaction with patients and their families, and working with medical equipment. Samper herself admits that her
absences sometimes affected “teamwork and cause[d] a hardship for [her] coworkers who must cover for [her].” Similarly,
once at work, Samper’s tasks required her to “lift babies, push
cribs and isolettes.” More critically, she had to “get up at a
moment’s notice to answer alarms [and] . . . [o]ften . . . run
to codes.”
[5] Rather than merely relying on Samper’s own admissions, or the logical presumption that it is essential for a nurse
to be present regularly and predictably to do her job, Providence supplies evidence to meet its burden of production with
alacrity. Providence notes that the written job description
required strict adherence to the attendance policy. Under the
heading “standards of performance,” “Attendance” and
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“Punctuality” are listed as essential functions. The more
detailed statement provides that the employee must
“[d]emonstrate[ ] performance by adhering to established policies and procedure and exhibiting the defined characteristics
associated with attendance and punctuality.” As Providence
further explains in a declaration from Samper’s former supervisor, NICU nurses must have specialized training, and it is
very difficult to find replacements, especially for unscheduled
absences. Understaffing compromises patient care. Providence’s evidence meets its burden of production. See 29
C.F.R. § 1630.2(n)(3) (“Evidence of whether a particular
function is essential includes, but is not limited to [t]he
employer’s judgment as to which functions are essential; . . .
[w]ritten job descriptions; . . . [t]he consequences of not
requiring the incumbent to perform the function; [and t]he
current work experience of incumbents in similar jobs.”).
The record shows that Samper’s position differs from those
considered by our sister circuits in only one important respect:
Samper’s regular, predictable presence to perform specialized,
life-saving work in a hospital context was even more essential
than in those cases. This is not a job where it is possible to
argue, as in the case of the dockworker in Yellow Freight, that
“workers were basically fungible with one another, so that it
did not matter who was doing the [job] on any particular day;
[and the employer] did not follow any fixed policy other than
to treat each case individually, giving very lengthy leaves to
people he found deserving.” 253 F.3d at 958 (Wood, J., dissenting). As the First Circuit observed in rejecting a scheduling accommodation requested by a nurse, “[m]edical needs
and emergencies—many potentially life-threatening—do not
mind the clock, let alone staff-nurse convenience. . . . The 24hour hospital unit setting thus affords a particularly compelling context in which to defer to rational staffing judgments
by hospital employers based on the genuine necessities of the
hospital business.” Laurin v. Providence Hosp., 150 F.3d 52,
59-60 (1st Cir. 1998).
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[6] Samper offers nothing to rebut Providence’s undisputed evidence except for highlighting that Providence’s policy allows for some unplanned absences, and that her
absences had exceeded those permitted under the policy in
past years without repercussions. She claims, without evidence, that “[t]he impact on staffing levels resulting from an
employee’s first absence is the same as the impact from an
employee’s twentieth absence,” and clings to our decision in
Humphrey v. Memorial Hosps. Ass’n for support, where we
noted that “regular and predictable attendance is not per se an
essential function of all jobs.” 239 F.3d 1128, 1135 n.11 (9th
Cir. 2001).
Our observation that regular attendance is not necessary for
all jobs is hardly remarkable when on-site presence is not
required for all jobs, a point not lost on our sister circuits. See
Waggoner, 169 F.3d at 485 (“In some jobs . . . working at
home for a time might be an option.”); Jackson, 22 F.3d at
279 (“[O]ther jobs . . . can be performed off site or deferred
until a later day.”); Carr, 23 F.3d at 530 (“Indeed, in appropriate cases, that section requires an agency to consider work
at home, as well as reassignment in another position, as potential forms of accommodation.”). Similarly, in Humphrey, a
medical transcriptionist provided evidence that other transcriptionists were allowed to work at home, and therefore, his
attendance was not required for performance. 239 F.3d at
1137. However, even when an employee “work[s] at home,
. . . regular hours on a consistent basis” often remain a
requirement. Carr, 23 F.3d at 530.
Samper’s focus on Humphrey, the unusual case, blinds her
to the rule. “Except in the unusual case where an employee
can effectively perform all work-related duties at home, an
employee ‘who does not come to work cannot perform any of
his job functions, essential or otherwise.’ ” Yellow Freight,
253 F.3d at 948 (quoting Waggoner, at 484-85). As the evidence easily establishes, Samper’s engagement with patients
is far more direct than that of a medical transcriptionist—
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although attendance may not be necessary to transcribe
details regarding medical treatment, in the context of a neonatal nurse, it is necessary to provide that treatment in the first
place. Not only is physical attendance required in the NICU
to provide critical care, the hospital needs to populate this
difficult-to-staff unit with nurses who can guarantee some
regularity in their attendance.
[7] Turning to the reasonable accommodation analysis,
Samper attempts to gild the lily by claiming not that attendance in general is an essential function, but, rather that her
proposed variation to the attendance policy constitutes a reasonable accommodation.
[8] Even under a “fact-specific, individualized analysis” of
the accommodation, Samper’s argument fails. Wong v.
Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir.
1999). As Providence points out, “Samper never quantified
the number of additional unplanned absences she was seeking,” even though she could have done so at any time during
her years-long negotiating with the hospital over attendance.
As the Seventh Circuit observed in similar circumstances in
Yellow Freight and Jovanovic, such behavior suggests that
“the only imaginable accommodation” that would satisfy the
employee “would be an open-ended schedule that would
allow [her] to come and go as [s]he pleased.” Yellow Freight,
253 F.3d at 951 (quoting Jovanovic, 201 F.3d at 899 n.9). In
these cases, the court was “hard-pressed to imagine a manufacturing facility that could operate effectively when its
employees are essentially permitted to set their own work
hours.” Id. To imagine a NICU facility, responsible for the
emergency care of infants, operating effectively in such a
manner, stretches the notion of accommodation beyond any
reasonable limit. An accommodation that would allow Samper to “simply . . . miss work whenever she felt she needed
to and apparently for so long as she felt she needed to [a]s a
matter of law . . . [is] not reasonable” on its face. Waggoner,
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169 F.3d at 485; see US Airways, Inc. v. Barnett, 535 U.S.
391, 401 (2002).
[9] Indeed, Samper’s request so far exceeds the realm of
reasonableness that her argument leads to a breakdown in
well-established ADA analysis. In most cases, the essential
function and reasonable accommodation analyses are separate: first, a court inquires as to the job’s essential functions,
after which the plaintiff must establish that she can perform
those functions with or without reasonable accommodations.
See Bates, 511 F.3d at 994. Samper essentially asks for a reasonable accommodation that exempts her from an essential
function, causing the essential functions and reasonable
accommodation analyses to run together. Samper’s approach
would eviscerate any attendance policy, leaving the hospital
with the potential for unlimited absences.
To be sure, as Samper emphasizes, the hospital did not
adopt a no-tolerance policy. Her theory is essentially a “drop
in the bucket” approach—if Providence permits five unscheduled absences plus other absences for all NICU nurses, additional absences by a single employee will hardly have any real
effect on patient care. Providence acknowledges that it can
work around five unplanned absences, so, as Samper’s argument goes, it ought to be able to accommodate her for an
unspecified number of absences. But this approach ignores
recognition of employer needs and would gut reasonable
attendance policies.
[10] Providence endeavored to balance the realities of illness, family matters and other unplanned emergencies faced
by its employees against the vital demands of critical infant
care, by cabining the overall number of absences. Samper’s
arguments do nothing to undermine Providence’s principal
claim, backed up with evidence: unplanned absences are a
hardship to the NICU, and the written policy represents the
outer limit to the number of unplanned absences that can be
tolerated without serious repercussions on patient care.
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[11] Providence was under no obligation to give Samper a
free pass for every unplanned absence. Importantly, even
though Samper “had fashioned a poor attendance record for
[her]self well before [s]he was diagnosed,” Yellow Freight,
253 F.3d at 951, Providence had already provided her with
various accommodations. In 2005, Samper was allowed to
call in when having a bad day, and move her shift to another
day in the week; from 2006 her schedule comprised a maximum of two day-time shifts a week, with no two days back
to back, along with a history of extended leaves not counted
towards the attendance policy. We need not decide whether
these accommodations exceeded Providence’s ADA obligations. Cf. Laurin, 150 F.3d 52 (day-time only shifts accommodation for nurse unnecessary under the ADA). Despite
Providence’s Herculean efforts to accommodate her, Samper’s attendance from 2005 until she was terminated never
met the attendance policy requirements. As in Yellow Freight,
“the fact that [the employer] had infinite patience with regard
to [the employee’s] poor attendance does not necessarily
mean that every company must put up with employees who
do not come to work.” 253 F.3d at 948 (square brackets in
original omitted). Ultimately, despite Providence’s patience
and accommodations, “there was literally nothing in the
record to suggest that the future would look different from the
past,” leaving Providence with little choice but to terminate
Samper. Corder, 162 F.3d at 928.
[12] Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and
dependable attendance. An employer need not provide accommodations that compromise performance quality—to require
a hospital to do so could, quite literally, be fatal.
AFFIRMED.
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