Clark v. Jackson Hospital & Clinic, Inc.

Filing 30

MEMORANDUM OPINION AND ORDER that Defendant's 16 Motion for Summary Judgment is GRANTED as to Count I and DENIED as to Counts II and III as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 9/23/2013. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LUCY CLARK,
Plaintiff,
v.
JACKSON HOSPITAL & CLINIC, INC.,
Defendant.

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CASE NO. 2:12-CV-836-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Lucy Clark worked as a nurse at Defendant Jackson Hospital &Clinic,
Inc., from May 2009 to September 2011. After confessing to stealing drugs from the
Hospital’s inventory and self-administering them on-site while on duty, she took leave
in 2011 to receive intensive drug treatment. Plaintiff claims that the Hospital violated
her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601–54, and the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101–213, when it did not reinstate her employment when she returned from
treatment. The Hospital moved for summary judgment (Doc. # 16), and the motion
is fully briefed (Docs. # 17, 18, 20, 21, 22). After careful consideration of the
arguments of counsel and the relevant law, the court finds that the motion is due to be
granted in part and denied in part.

I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over Plaintiff’s claims pursuant
to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). This responsibility includes identifying portions of the
record illustrating the absence of a genuine dispute of material fact. Id. If the
movant meets its evidentiary burden, the burden shifts to the nonmoving party to
establish – with evidence beyond the pleadings – that a genuine dispute material to
each of its claims for relief exists. Id. at 324. A genuine dispute of material fact
exists when the nonmoving party produces evidence allowing a reasonable factfinder
to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d
1275, 1279 (11th Cir. 2001).
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III. BACKGROUND
Nurses are licensed by the Alabama Board of Nursing (“ABN”), an
organization governed by the Alabama Nurse Practice Act (“ANPA”). Ala. Code §
34-21-1–93; Ala. Admin. Code r. 610-X-1–13. The ANPA provides that the ABN
may “deny, revoke, or suspend” the license of a nurse who “[i]s unfit or incompetent
due to the use of alcohol, or is addicted to the use of habit-forming drugs to such an
extent as to render . . . her unsafe or unreliable” as a nurse or who “[i]s unable to
practice nursing with reasonable skill and safety to patients” because of substance
abuse. Ala. Code § 34-21-25(b)(1).
Nurses suffering the effects of substance abuse may take advantage of the
Voluntary Disciplinary Alternative Program (“VDAP”), which offers an alternative
to traditional discipline.

Ala. Code § 34-21-25(j); Ala. Admin. Code

r.610-X-13.01–.07. The program requires participation in approved treatment and can
include limits on licenses to practice, including prohibiting access to controlled
substances while on the job. This limitation is known as a “key restriction.”
The Hospital insists it has a standard policy when a nursing employee admits
to diverting narcotics from Hospital inventories for the employee’s own use, but the
policy is unwritten. (See Doc. # 18 at 6–8, 29 (describing the unwritten post-diversion
policy).) Though the Hospital’s disciplinary action guidelines authorize termination
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for such conduct, when diversion comes to light – regardless of whether the nurse ever
seeks treatment or takes leave – the Hospital’s (unwritten) policy prohibits that nurse
from returning to a high-acuity units, where patients are seriously or critically ill and
where the administration of controlled substances is frequent. It is the Hospital’s
judgment that assigning recovering nurses to such units puts patients and the Hospital
at risk. Moreover, it puts the recovering nurse at risk of relapse, because of the stress
inherent in practicing in such units, the wide availability of the drugs, and the nurse’s
knowledge about supervisors and colleagues that may enhance his or her ability to
conceal diversion.
Plaintiff has a history of substance abuse. In February 2009, she lost her job
at an oncology clinic after she confessed to the unauthorized diversion and
self-administration of intravenous Benadryl from the clinic’s inventory. (Doc. # 16
at 12.) She immediately self-reported to the ABN and entered the VDAP, through
which she received two weeks of inpatient treatment followed by intensive outpatient
treatment for another eight to nine weeks. (Doc. # 16 at 15.) Through VDAP, ABN
placed restrictions on Plaintiff’s license as a condition of her keeping it, the most
notable of which prohibited her from accessing or dispensing controlled substances.
(Doc. # 16 at 24.)

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Shortly thereafter, in May 2009, Plaintiff went to work at Jackson Hospital.
Plaintiff initially practiced in the admission unit, a low-acuity unit where the need to
dispense controlled substances was less frequent. (Doc. # 16 at 30.) After about a
year there, she went to a progressive care unit (“PCU”), a high-acuity unit. (Doc. #
16 at 36.) Around the same time, Plaintiff requested that the ABN lift the license
restriction that prohibited her from dispensing controlled substances; it denied her
request. (Doc. # 16 at 38–39.)
In early 2011, Plaintiff began diverting a narcotic painkiller, Dilaudid, from
Hospital inventory and self-administering the controlled substance on-site and while
on duty. (Doc. # 16 at 43.) Though Plaintiff was still practicing under the key
restriction that prohibited her from accessing controlled substances, she would pull
Dilaudid for a patient when prescribed, in violation of the key restriction, administer
the prescribed dose to the patient, and rather than disposing of excess in accordance
with mandatory waste procedures, she would self-administer it. (Doc. # 16 at 43.)
Plaintiff’s on-site and on-duty diversion and self-administration continued for three
to four months. (Doc. # 16 at 44.) In April 2011, Hospital administrators confronted
Plaintiff, and she confessed. (Doc. # 16 at 45.) She immediately reported her
diversion and use of the drug to the ABN. (Doc. # 16 at 48.)

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Plaintiff then reentered intensive treatment for substance abuse. She received
twelve weeks of intensive outpatient treatment. (Doc. # 16 at 51.) To seek treatment,
and having not been terminated by the hospital, she took leave under the FMLA
beginning May 9, 2011, and ending July 31, 2011. (Doc. # 16 at 49, Doc. # 18 at 57.)
After her FMLA leave expired, the Hospital placed Plaintiff on a general leave of
absence for thirty days.
In accordance with Hospital policy, Plaintiff could not return to work after her
FMLA leave expired until a healthcare provider completed a “Fitness for Duty
Medical Certification.” (Doc. # 18 at 46, 57.) The Hospital provided notice of this
policy to Plaintiff in its letter approving her FMLA leave. (Doc. # 18 at 57.) Plaintiff
never provided a certification.
Meanwhile, consistent with its post-diversion policy, the Hospital also refused
to allow Plaintiff to return to the PCU, though the Hospital insists that it would have
allowed her to return to an equivalent position in a non-high acuity unit.1 During her
thirty days of general leave, Hospital administrators also told Plaintiff that her job in
the PCU had been filled and that she could not return to the PCU for that reason; in
reality, it had not been. (Doc. # 21-3, Doc. # 17 at 18.) Plaintiff was not qualified for

1

The parties have not made clear what effect, if any, submitting a certification would
have had on Plaintiff’s ability to return to the PCU or any other high-acuity unit.
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available positions in other units (Doc. # 17 at 47), and at the end of her general leave,
the Hospital terminated her employment, explaining there were no positions available
in which to place her. (Doc. # 21-4.)
Weeks later, when Plaintiff applied for unemployment benefits with the
Alabama Department of Industrial Relations (“DIR”), the Hospital justified Plaintiff’s
termination by reference to restrictions imposed by the ABN. (Doc. # 21-6.) When
the DIR awarded Plaintiff benefits, the Hospital appealed that decision, explaining that
it terminated Plaintiff “due to license restrictions.” (Doc. # 21-7.) After the DIR
Hearing and Appeals Division denied its first appeal, the Hospital appealed again, this
time explaining that it terminated Plaintiff because she violated the Hospital’s drug
and alcohol policy. (Doc. # 21-9.) There was no mention of the post-diversion policy
or of Plaintiff’s failure to provide a Fitness for Duty Medical Certification.
Months later, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”), claiming her termination amounted
to discrimination against her on the basis of disability. (Doc. # 1-1.) In response, the
Hospital again pointed to Plaintiff’s VDAP-imposed license restrictions, which it
asserted “left her unqualified to continue working in any nursing capacity where
controlled substances would be handled or dispensed,” and to the unavailability of
positions in other units. (Doc. # 21-10 at 4.) And when responding to Plaintiff’s
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interrogatories in this litigation, the Hospital offered a similar explanation, pointing
to the requirements of work on the PCU, the key restriction imposed by the ABN, and
the lack of other available positions. (Doc. # 21-11 ¶ 12.)
IV. DISCUSSION
Plaintiff’s complaint consists of three counts, alleging FMLA interference and
retaliation claims and an ADA claim. For the reasons that follow, summary judgment
is due on the FMLA interference claim, while the other two claims survive.
A.

FMLA Claims

The FMLA entitles eligible employees to “12 workweeks of leave during any
12-month period . . . [b]ecause of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.” 29 U.S.C. §
2612(a)(1)(D). Following the leave, employers must restore the employee to the
position “held by the employee when the leave commenced” or to “an equivalent
position.” 29 U.S.C. § 2614(a)(1). There are two species of FMLA claims –
interference and retaliation.
1.

Interference

“To establish an interference claim, ‘an employee need only demonstrate by a
preponderance of the evidence that [she] was entitled to the benefit denied.’” Krutzig
v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) (quoting Strickland v.
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Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206–07 (11th Cir. 2001)).
The employee “does not have to allege that [her] employer intended to deny the right;
the employer’s motives are irrelevant.” Strickland, 239 F.3d at 1208. Plaintiff does
not contend that the Hospital denied or interfered with her right to take leave, only that
FMLA entitled her to return to a job in the PCU or an equivalent position, and the
Hospital interfered with Plaintiff’s rights when it refused to allow her to do that.
Plaintiff’s contentions fail, however, because she did not satisfy a condition of
her entitlement to restoration. The FMLA permits employers to require each returning
employee to obtain certification from his or her healthcare provider showing that the
employee is able to resume work and to provide that certificate to the employer. 29
U.S.C. § 2614(a)(4); 29 C.F.R. §§ 825.312, 825.313(d). Where an employer
uniformly imposes such a requirement, it is “a condition of restoration” following
leave. 29 U.S.C. § 2614(a)(4). So long as the employer provides a conforming notice
of such policy when it approves the employee’s leave, if the employee fails to provide
a certification upon conclusion of the leave, she may be terminated. 29 C.F.R. §
825.313(d). The Hospital had such a policy, (Doc. # 18 at 46), and provided
conforming notice to Plaintiff (Doc. # 18 at 57). Plaintiff has offered no proof that the
Hospital did not apply its written policy to all employees returning from FMLA leave,
and it is undisputed that Plaintiff did not produce a conforming certification. Without
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the certification, Plaintiff was not entitled restoration and therefore her interference
claim fails.2 The Hospital could not interfere with a right Plaintiff did not have.
2.

Retaliation

The court’s finding that Plaintiff was not entitled to reinstatement under the
FMLA because she did not submit a Fitness for Duty Medical Certification is not
equivalent to a finding that the Hospital acted on that basis in failing to reinstate and
ultimately terminating her. In fact, Gilbert Darrington, the Hospital’s Human
Resources Director, expressly disclaimed that justification for the Hospital’s decision
not to reinstate Plaintiff. (Doc. # 17 at 17–18.) Accordingly, the court moves on to
Plaintiff’s other claims.
“[T]o succeed on a retaliation claim, an employee must demonstrate that [her]
employer intentionally discriminated against [her] in the form of an adverse
employment action for having exercised an FMLA right.” Strickland, 239 F.3d at
1207.

Unlike an interference claim, a retaliation claim requires proof of an

impermissible retaliatory animus.

Id.

And unlike its position on Plaintiff’s

interference claim, the Hospital does not dispute that Plaintiff was entitled to

2

Plaintiff has offered evidence that her failure to provide the certification was not why
the Hospital refused to reinstate her. (Doc. # 17 at 17, Docs. # 21-3, 21-4.) Whether the
Hospital declined to reinstate Plaintiff because she did not submit a certification or because it
aimed to interfere with her FMLA rights or for some other reason is immaterial. Motive is
irrelevant in an interference claim. Strickland, 239 F.3d at 1208.
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protection of her right to FMLA leave. The Hospital does dispute that it refused to
reinstate and ultimately terminated Plaintiff because she took leave.
In the absence of direct evidence of retaliation, the McDonnell Douglas
burden-shifting framework developed by the Supreme Court for Title VII cases also
applies to FMLA retaliation claims. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439
F.3d 1286, 1297 (11th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)). Once a plaintiff states a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its action. Hurlbert,
439 F.3d at 1297. If the defendant meets its burden of production, the plaintiff must
then show that defendant’s reason is pretextual. Id.
Plaintiff states a prima facie case of retaliation by demonstrating that (1) she
engaged in statutorily protected activity, (2) she suffered an adverse employment
action, and (3) the adverse employment action was causally related to her protected
activity. Id. Elements (1) and (2) are not in dispute. Plaintiff engaged in protected
conduct by taking FMLA leave, and her termination is an adverse employment action.
This leaves only the third element.

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To establish a causal connection, a plaintiff must only demonstrate that the
protected activity and adverse action are not “wholly unrelated.”3 Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1278 (11th Cir. 2008) (internal quotations omitted).
“The burden of causation can be met by showing close temporal proximity between
the statutorily protected activity and the adverse employment action.” Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Thus, the Hospital’s
refusal to return Plaintiff to the PCU immediately upon her return from leave and her
termination a month later – regardless of the Hospital’s motives – suffice to establish
the causal connection for the purposes of Plaintiff’s prima facie case.
Plaintiff having established a prima facie case, the burden of production now
shifts to the Hospital to articulate a legitimate reason for its adverse action. The
Hospital points to Plaintiff’s failure to submit a Fitness for Duty Medical Certification
and to its post-diversion policy. These non-retaliatory reasons satisfy the Hospital’s
burden; thus, Plaintiff must show pretext. “[A]n employer’s failure to articulate clearly
and consistently the reason for an employee’s discharge may serve as evidence of
pretext.” Hurlbert, 439 F.3d at 1298. As Plaintiff correctly points out, the Hospital’s
changing justifications for Plaintiff’s termination and its failure to articulate these
3

Neither party argues that Univ. of Texas Sw. Med. Cntr. v. Nassar, __ U.S. ___, 133 S.
Ct. 2517 (2013), altered the causation standard in FMLA claims, and accordingly, the court
assumes for the purposes of its analysis of this motion that in a post-Nassar landscape, temporal
proximity can suffice to establish causation in an FMLA claim.
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justifications to Plaintiff herself, undermine the Hospital’s explanations and suggest
they are pretextual. The Hospital did not offer either of these explanations in its
termination letter to Plaintiff or its dealings with the DIR or the EEOC. In fact, a
Hospital administrator denied in deposition testimony that the Hospital declined to
reinstate Plaintiff because of her failure to submit a certification. (Doc. # 17 at 17.)
Accordingly, Plaintiff has presented evidence – in the form of her termination
letter, information submitted by the Hospital to the DIR and EEOC, interrogatory
responses, and deposition testimony – from which a reasonable jury could conclude
that the Hospital’s explanation is pretextual. The court must leave for the jury
whether the reasons are actually pretextual.
B.

ADA Claim

The ADA prohibits an employer from discriminating against “a qualified
individual on the basis of disability” in the “terms, conditions, [or] privileges of
employment.” 42 U.S.C. § 12112(a). Discrimination may include termination, other
adverse employment actions, or the failure to make reasonable accommodations. Id.
at § 12112(b). The same McDonnell Douglas analysis that applies in the FMLA
retaliation context applies to an ADA claim. Raytheon v. Co. v. Hernandez, 540 U.S.
44, 50 (2003).

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To establish a prima facie case, a plaintiff alleging a violation of her rights
under the ADA must show that she is a qualified individual with a disability and that
her employer discriminated against her because of that disability. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). “[A] physical or
mental impairment that substantially limits one or more major life activities” is a
disability. 42 U.S.C. § 12102(1)(A); see also 29 C.F.R. § 1630.2(g) (defining
“disability” and implementing equal employment provisions of the ADA). A
“qualified individual” is an individual “who, with or without reasonable
accommodation, can perform the essential functions” of the job. 42 U.S.C. §
12111(8).
1.

“Currently Engaging” and § 12114(a)

Attacking Plaintiff’s prima facie case, the Hospital first argues Plaintiff cannot
prevail on her ADA claim because at the relevant time, she was currently engaging in
illegal use of drugs.4 The ADA expressly excludes “any employee or applicant who
is currently engaging in the illegal use of drugs” from its definition of qualified
individuals, when the employer “acts on the basis of such use.” Id. at § 12114(a). But
the ADA also qualifies the exclusion by providing that those who have ceased using

4

The court assumes, without deciding, that Plaintiff’s history of poly-substance abuse
did or does amount to a disability at the relevant time, i.e., that it substantially limited one or
more of her major life activities. Raytheon, 540 U.S. at 50 n.4.
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drugs and either begun or completed a supervised rehabilitation program are qualified
individuals. 42 U.S.C. § 12114(b). This is known as the “safe harbor” provision. It
allows an active user to seek rehabilitation, cease use, and regain ADA protection.
See McDaniel v. Miss. Baptist Med. Ctr., 869 F. Supp. 445, 450 (S.D. Miss. 1994)
(describing the safe harbor provision). Much of the parties’ briefing on summary
judgment is devoted to hair-splitting analyses of cases interpreting the “currently
engaging” language, with the Hospital arguing Plaintiff was currently engaging while
Plaintiff argues she qualified for the safe harbor provision.
The court is not in a position to grant summary judgment on the ADA claim
based on application of § 12114(a). First, line-drawing based on timing and duration
of treatment offers few meaningful distinctions upon which the court could rest a legal
conclusion, and the cases cited by the parties and reviewed by the court are all over
the map of how much time must pass after cessation and rehabilitation before one is
no longer “currently engaging.”5 Second, and more importantly, the Hospital’s
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See, e.g., Mauerhan v. Wagner Corp., 649 F.3d 1180, 1187 (10th Cir. 2011) (holding
that “an individual is currently engaging in the illegal use of drugs if the drug use was
sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an
ongoing problem” and concluding that, on the record before it, an employee was “currently
engaging” within the meaning of § 12114(a) after thirty days of intensive treatment (internal
quotations omitted)); Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir. 1999)
(adopting the same standard for “currently engaging” and holding that an employee was
“currently engaging” where employee had used cocaine as much as five times a week for two
years but had refrained from drug use for five weeks when he was terminated); Shafer v. Preston
Mem’l Hosp. Corp., 107 F.3d 274, 278 (4th Cir. 1997) (holding that “an employee illegally using
drugs in a periodic fashion during the weeks and months prior to discharge is ‘currently
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argument presupposes Plaintiff’s illegal use of drugs caused her discharge. Given the
differences in explanations for her termination discussed above, even if Plaintiff was
“currently engaging in illegal use of drugs,” there is a genuine issue of material fact
as to whether the Hospital was acting “on the basis of such use.” 42 U.S.C. §
12114(a).
2.

Post-Diversion Policy

Identifying a nondiscriminatory justification for its action, the Hospital next
argues that even if Plaintiff was a qualified individual, her termination did not result
from a disability, but from its generally applicable post-diversion policy.
It may be a defense to a charge of discrimination . . . that an alleged
application of qualification standards, tests, or selection criteria that
screen out or tend to screen out or otherwise deny a job or benefit to an
individual with a disability has been shown to be job-related and
consistent with business necessity, and such performance cannot be
accomplished by reasonable accommodation . . . .

engaging in the illegal use of drugs’” and concluding that nurse who diverted narcotics from
hospital supply less than one month before she was fired was “currently using”); McDaniel, 869
F. Supp. at 450 (finding that there was a genuine issue of material fact precluding summary
judgment where the plaintiff presented evidence he was terminated during the course of inpatient
drug treatment or after he completed treatment); Andriacchi v. City of Chicago, No. 96-C-4378,
1996 WL 685458, at *3 (N.D. Ill. Nov. 22, 1996) (finding that the current use exclusion did not
warrant dismissal of ADA claim, where the plaintiff alleged he was terminated after he had been
in drug treatment for approximately four months). This analysis is made more difficult by the
parties’ failure to identify what time period – between July when Plaintiff’s FMLA leave ended
and the Hospital refused to allow her to return to the PCU and September when the Hospital
terminated her – was “current” for the purposes of applying § 12114(a). Thus, a material factual
dispute exists.
16

42 U.S.C. § 12113(a).6 Where an employer applies a neutral rule of general
applicability in making staffing decisions, a discriminatory animus cannot be said to
drive that decision. Raytheon Co., 540 U.S. at 53. And a rule may be “neutral” even
where the workplace misconduct it prohibits is related to a disability. Id. at 54 n.6.
It appears the Hospital’s post-diversion policy is a neutral rule of general
applicability.7
But, again, the Hospital’s argument presupposes the policy is what led to
Plaintiff’s termination. As discussed above, Plaintiff has produced substantial
evidence to the contrary, and that contrary evidence is sufficient to allow a reasonable
jury to find that the Hospital’s focus on the post-diversion policy is pretextual. The
Hospital is not entitled to summary judgment on Plaintiff’s ADA claim.

6

Specifically, an employer “may hold an employee who engages in the illegal use of
drugs or who is an alcoholic to the same qualification standards for employment or job
performance and behavior that such entity holds other employees, even if any unsatisfactory
performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C.
§ 12114(c)(4).
7

Likewise, the Hospital’s prohibition on diversion is a neutral rule of general
applicability. (Doc. # 18 at 36 (prohibiting “unauthorized possession, usage, or disposal of
drugs,” as well as “[u]sing drugs inappropriately while working”).) The irony is not lost on the
court that pursuant to Hospital policy, Defendant could have terminated Plaintiff simply for
violating that policy – irrespective of whether she was addicted to drugs or ever used them – and
that doing so may have prevented this litigation.
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V. CONCLUSION
Accordingly, it is ORDERED that Defendant’s Motion for Summary Judgment
(Doc. # 16) is GRANTED as to Count I and DENIED as to Counts II and III.
DONE this 23rd day of September, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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