Crane v. AHC of Glendale LLC et al

Filing 39

ORDER: AHC's motion for summary judgment at docket 26 is GRANTED. The clerk is directed to enter judgment in favor of AHC on all counts and close the case. Signed by Judge John W Sedwick on 9/24/2016. (REK)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 Tracy Crane, 12 13 14 15 16 Plaintiff, vs. AHC of Glendale, LLC, dba Advanced Healthcare of Glendale; and John Doe 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 2:14-cv-2415 JWS ORDER AND OPINION [Re: Motion at Docket 26] 17 18 19 I. MOTION PRESENTED At docket 26, Defendant AHC of Glendale, LLC (“AHC”) moves for summary 20 judgment on all claims brought by Plaintiff Tracy Crane (“Plaintiff”). Plaintiff responds at 21 docket 33. AHC replies at docket 34. The parties filed statements of supporting facts 22 and responses to those statements at dockets 28-1, 32, 35, and 36. Oral argument 23 was not requested and would not be of additional assistance to the court. 24 25 II. BACKGROUND Plaintiff began working for AHC on October 11, 2011, as a Certified Physical 26 Therapist Assistant (“CPTA”). On September 4, 2012, Plaintiff was involved in an 27 incident at work. Based on the incident, Plaintiff pursued a workers’ compensation 28 claim for an injury to her back and right shoulder. While the claim was pending, a -1- 1 doctor placed Plaintiff on restricted work status. The restrictions prevented her from 2 lifting, pushing, or pulling more than thirty pounds without assistance, and prevented 3 her from reaching overhead with her right arm.1 During her recovery, AHC provided 4 additional staff members to assist Plaintiff with her duties. AHC also allowed her to 5 audit charts and do paperwork. Her work limitations became more restrictive over time: 6 her thirty-pound weight limitation was lowered to ten pounds, and she was also told to 7 avoid repetitive stooping and bending and to avoid any twisting, turning or awkward 8 positioning.2 In mid-May of 2013, Plaintiff’s workers’ compensation case was closed 9 based in part on an independent medical exam that concluded Plaintiff did not show 10 signs of permanent impairment or the need for ongoing pain management or work 11 restrictions in relation to the work-place incident. In light of the workers’ compensation 12 decision, AHC concluded that Plaintiff’s physical injuries were not a result of the work 13 incident and that it would no longer accommodate her work restrictions. AHC 14 administrators told Plaintiff that in order to be placed back on the schedule, she w ould 15 need to provide a doctor’s clearance to work without restrictions. She did not obtain the 16 clearance. Instead, her work restrictions became more prohibitive: her weight limitation 17 for activities that involved lifting, pushing, or pulling was reduced again from ten pounds 18 to five pounds, and she was not allowed to engage in any repetitive stooping, bending, 19 or kneeling or to use her right upper arm.3 She has not been placed back on the 20 schedule and her insurance was terminated. 21 Plaintiff filed a complaint against AHC. Her complaint alleges that AHC violated 22 the Americans with Disabilities Act (“ADA”) when it refused to continue to accommodate 23 her disability because it believed that her physical limitations were not a result of a 24 25 26 1 27 2 28 3 Doc. 32-1 at p. 15 (Plaintiff’s Ex. C). Doc. 32-1 at p. 17 (Plaintiff’s Ex. C). Doc. 32-1 at p. 19 (Plaintiff’s Ex. C). -2- 1 work-related injury but, rather, just a personal medical condition.4 She seeks damages 2 for emotional distress, pain, suffering, anxiety, loss of enjoyment of life, and lost wages. 3 She also seeks punitive damages. Her complaint also alleges that AHC violated the 4 Family and Medical Leave Act (“FMLA”). She alleges that she was eligible for and 5 entitled to take leave under FMLA and that AHC knew as much, but nonetheless failed 6 to advise her of her rights and terminated her employment without allowing her to take 7 FMLA leave. She states that the AHC’s actions constitute unlawful interference with 8 her rights under FMLA. AHC moves for summary judgment on both the ADA and the 9 FMLA claim. 10 11 III. STANDARD OF REVIEW Summary judgment is appropriate where “there is no genuine dispute as to any 12 material fact and the movant is entitled to judgment as a matter of law.”5 The 13 materiality requirement ensures that “only disputes over facts that might affect the 14 outcome of the suit under the governing law will properly preclude the entry of summary 15 judgment.”6 Ultimately, “summary judgment will not lie if the . . . evidence is such that a 16 reasonable jury could return a verdict for the nonmoving party.”7 However, summary 17 judgment is mandated “against a party who fails to make a showing sufficient to 18 establish the existence of an element essential to that party’s case, and on which that 19 party will bear the burden of proof at trial.”8 20 21 22 23 4 24 25 42 U.S.C. § 12112(b)(5). 5 Fed. R. Civ. P. 56(a). 26 6 27 7 28 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). -3- 1 The moving party has the burden of showing that there is no genuine dispute as 2 to any material fact.9 Where the nonmoving party will bear the burden of proof at trial 3 on a dispositive issue, the moving party need not present evidence to show that 4 summary judgment is warranted; it need only point out the lack of any genuine dispute 5 as to material fact.10 Once the moving party has met this burden, the nonmoving party 6 must set forth evidence of specific facts showing the existence of a genuine issue for 7 trial.11 All evidence presented by the non-movant must be believed for purposes of 8 summary judgment and all justifiable inferences must be drawn in favor of the 9 non-movant.12 However, the non-moving party may not rest upon mere allegations or 10 denials, but must show that there is sufficient evidence supporting the claimed factual 11 dispute to require a fact-finder to resolve the parties’ differing versions of the truth at 12 trial.13 13 14 15 IV. DISCUSSION A. ADA An ADA claim is subject to the familiar burden-shifting framework derived from 16 McDonnell Douglas Corp. v. Green.14 A plaintiff must first establish a prima facie case 17 of discrimination on account of disability. A prima facie case in context of the ADA 18 requires a plaintiff to put forth evidence to show that she: (1) is “disabled” within the 19 meaning of the ADA; (2) is a “qualified individual” able to perform the essential 20 functions of the job with or without reasonable accommodation; and (3) suffered an 21 22 9 23 10 24 11 25 12 26 27 28 Id. at 323. Id. at 323-25. Anderson, 477 U.S. at 248-49. Id. at 255. 13 Id. at 248-49. 14 411 U.S. 792 (1973). See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 (2003) (applying the McDonnell Douglas burden-shifting framework to an ADA disability claim). -4- 1 adverse employment action because of her disability.15 If she does so, then the burden 2 shifts to the employer to articulate a legitimate, nondiscriminatory reason for its 3 employment action.16 If the employer does so, the presumption of discrimination 4 disappears, but the plaintiff can prove discrimination by offering evidence to 5 demonstrate that the employer’s explanation is pretexual.17 6 The issues raised in AHC’s motion deal only with Plaintiff’s prima facie case. It 7 argues that Plaintiff does not have evidence to show she is “disabled” under the ADA 8 nor the evidence to show she can perform the essential functions of her job with 9 reasonable accommodations. The ADA defines disability as “(A) a physical or mental 10 impairment that substantially limits one or more of the major life activities of such 11 individual; (B) a record of such impairment; or (C) being regarded as having such an 12 impairment.”18 AHC argues that Plaintiff has not adequately alleged an impairment that 13 limits a major life activity nor has she provided evidence sufficient to defeat a summary 14 judgment motion. In response, Plaintiff points to her EEOC intake questionnaire where 15 she asserts that her condition limits her ability to walk, stand, or sit for long periods of 16 time and her ability to lift, carry, push, pull, or bend. 19 In her follow-up EEOC 17 questionnaire she states that her injury prevents her from being able to be a CPTA and 18 that she has a hard time sleeping and breathing in addition to her other physical 19 restrictions.20 She also testified in her deposition that she is unable to walk or stand for 20 21 22 15 23 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). 16 24 25 Raytheon, 540 U.S. at 49 n.3. 17 Id. 26 18 27 19 28 20 42 U.S.C. § 12102(1). Doc. 32-1 at p. 41. Doc. 32-1 at p. 47. -5- 1 extended periods of time and has difficulty holding things.21 Her supporting 2 documentation also includes some medical records to detail her injuries. 22 In reply, 3 AHC asserts that the medical records were not previously produced and should be 4 excluded. However, rather than move to exclude the evidence, AHC concedes that 5 these records likely create an issue of fact as to Plaintiff’s disability status. The court 6 agrees that Plaintiff’s testimony and medical records are sufficient to raise a question of 7 fact on the issue of her disability status.23 8 9 AHC argues that even assuming Plaintiff is disabled in accordance with the terms of the ADA; she nonetheless has no evidence to show she is qualified for the 10 position. An individual is qualified if she can perform the essential functions of the job 11 with or without accommodations. Essential functions are “fundamental job duties of the 12 employment position . . . not includ[ing] the marginal functions of the position.”24 “If a 13 disabled person cannot perform a job’s ‘essential functions’ (even with a reasonable 14 accommodation), then the ADA’s employment protections do not apply.”25 “If, on the 15 other hand, a person can perform a job’s essential functions, and therefore is a 16 qualified individual, then the ADA prohibits discrimination” with respect to employment 17 18 19 20 21 22 23 24 25 26 27 28 21 Doc. 27-1 at p. 23 (Tracy Crane depo. at p. 71). 22 Doc. 32-1 at pp. 11-14 (Plaintiff’s Ex. C). 23 See, e.g., Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) (holding that medical evidence is not required to raise a genuine issue of material fact regarding the impairment of a major life activity and that a declaration alone can suffice), abrogated on other grounds in Univ. Of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013); Scott v. Mabus, 618 Fed. Appx. 897, 900 (9th Cir. 2015) (noting that a plaintiff’s testimony can be sufficient to establish a disputed fact so long as the testimony consists of more than conclusory declarations.) 24 Bates v. United Parcel Serv., Inc., 511 F.3d 974, 989 (9th cir. 2007) (en banc) (citing 29 C.F.R. § 1630.2(n)(1)). 25 Cripe v. City of San Jose, 261 F.3d 877, 884 (9th Cir. 2001). -6- 1 actions.26 While the plaintiff retains the “ultimate burden of persuading the fact finder 2 that [she] can perform the job’s essential functions,” the employer has the initial burden 3 of production to come forward with evidence of what duties are essential to the position 4 at issue.27 5 AHC contends that the essential functions of the job include “[using] push and 6 pull equipment,. . . lifting 10-290 pounds with one, two or more assistants or assistance 7 of hydraulic equipment as indicated, . . . walking, reaching, bending, lifting, grasping, 8 find hand coordination, pushing, [and] pulling . . . .”28 In support, AHC cites to the job 9 description for the position of rehabilitation therapist. 29 Plaintiff argues that the job 10 description has not been properly authenticated and is therefore not admissible 11 evidence. However, an inquiry into authenticity concerns the genuineness of an item of 12 evidence, and documents may be authenticated by review of their contents if they 13 appear to be sufficiently genuine.30 Indeed, the authenticity of the document does not 14 appear to be genuinely in dispute. That is, Plaintiff concedes that the document 15 properly sets forth the physical requirements of the job,31 and she does not otherwise 16 suggest that Exhibit 1 is not an official job description from AHC or that her signature 17 and date on the document have been falsified. The characteristics of the document 18 itself, in terms of its appearance, contents, and substance lead the court to conclude 19 20 21 22 26 23 27 24 28 25 29 26 27 28 Id. at 884-85. Bates, 511 F.3d at 991. Doc. 28-1 at p. 1, ¶ 2. Doc. 27-1 at pp. 2-7 (AHC’s Ex. 1). 30 Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (citing Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 n. 24 (9th Cir. 2002)) (quotation marks omitted). 31 See doc. 32 at p. 1, ¶ 2. -7- 1 that the document has been authenticated by its distinctive characteristics and that it is 2 what it appears to be: an official job description.32 3 A job description prepared before hiring is relevant to determine what the 4 position’s essential functions are. A job description alone does not autom atically 5 establish that the listed duties on that description are essential w hen the evidence 6 conflicts over what is truly an essential function of a position.33 Here, however, Plaintiff 7 does not point to evidence to show a conflict over what the truly essential functions of 8 the position are. She disputes the accuracy of the job description by pointing to the fact 9 that it lists duties she was not allowed to perform as only an assistant to a rehabilitation 10 therapist, but she does not otherwise dispute that her job as a CPTA is physical in 11 nature and has physical requirements such as lifting, pushing, pulling, bending, walking, 12 and reaching. In her EEOC questionnaire that she submitted in support of her 13 opposition, she admitted that the “manual skills” were “necessary to perform [her] job.”34 14 She stated: “As a Physical Therapist Assistant at [AHC] my job requires frequent 15 bending, stooping, walking, carrying oxygen tanks, pushing heavy objects or people, 16 lifting heavy patients several times from various positions . . . throughout the day, every 17 Monday through Friday.”35 Therefore, the undisputed evidence shows that physical 18 duties were not merely a marginal part of her CPTA position, and Plaintiff does not 19 point to any evidence showing a dispute as to whether the essential duties of Plaintiff’s 20 job at AHC required physical activities. 21 22 It is also undisputed that Plaintiff could not perform these physical activities unassisted. She acknowledges that she could not continue her career as CPT A 23 24 25 32 Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC, v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011). 26 33 27 34 28 35 Cripe, 261 F.3d at 888-89. Doc. 32-1 at p. 47, ¶ 2 (emphasis added). Doc. 32-1 at p. 54, ¶ 12d (emphasis added). -8- 1 because her injuries prevented her from “perform[ing] the manual skills necessary to 2 perform [her] job.”36 3 The remaining question as to Plaintiff’s prima facie case is whether she could 4 nonetheless perform her essential job duties with reasonable accommodation. Plaintiff 5 sets forth two accommodations that she believes reasonably allow her to perform her 6 job: (a) assigning an additional employee to perform the physical duties associated with 7 her job; or (2) assigning her lighter, non-physical duties such as auditing charts and 8 doing intake forms.37 9 Neither of Plaintiff’s proposed accommodations can be deemed reasonable. 10 Reasonable accommodations can include some job restructuring, but does not require 11 elimination of any of the job’s essential duties. That is, the ADA does not require an 12 employer “to reallocate job duties in order to change the essential function of a job.”38 13 Plaintiff’s request to perform only non-physical tasks such as chart auditing is clearly a 14 request to eliminate the physical tasks, which were admittedly not marginal aspects of 15 her job, and to reallocate those duties to som eone else. The suggestion that other 16 employees could do or assist with Plaintiff’s essential tasks effectively eliminates those 17 tasks from her job description and reallocates those duties to another em ployee. 18 Indeed, courts have consistently held that it is not reasonable to require an employer to 19 allocate other employees to complete the essential duties of another employee’s 20 work.39 21 36 22 23 Doc. 32-1 at p. 47, ¶ 2 (emphasis added); doc. 27-1 at p. 19 (Tracy Crane depo. at p. 56). 37 24 Doc. 32-1 at p. 53, ¶12c. 38 25 26 27 28 Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir. 1998) (quoting Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995)). 39 Soto-Ocasio, 150 F.3d at 20 (holding that it was not a reasonable accommodation to require the employer to allocate other employees to complete the work); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996) (holding that hiring a helper to do an essential duty of a job would was not a reasonable proposed accommodation because “hiring a helper to -9- 1 She stresses that the job description recognizes the potential for assistance from 2 others or from hydraulic equipment when lifting and therefore suggests that the 3 description itself acknowledges the reasonableness of using assistance. However, as 4 noted by AHC, even if the job description acknowledges that an employee may need 5 assistance in lifting patients, it also states that the position requires being able to use 6 push and pull equipment, walk, reach, bend, push, and pull. There is no mention of 7 using a team of people to perform all physical tasks. Plaintiff also argues that the fact 8 that AHC had provided such an arrangement during the pending workers’ 9 compensation claim provides an inference of reasonableness, but, as discussed above, 10 that arrangement clearly “exceeded what the law requires.” Its decision to cease 11 providing an accommodation that exceeded what the law requires does not somehow 12 make that decision a violation of the ADA.40 13 B. FMLA 14 AHC argues that it should be granted summary judgment as to Plaintiff’s FMLA 15 claim. The FMLA makes it “unlawful for any employer to interfere with, retain, or deny 16 the exercise of or the attempt to exercise,” the rights conferred to employees under the 17 act.41 AHC argues that Plaintiff’s FMLA claim is misplaced to the extent it seeks to 18 enforce her right to a work-place accommodation. Indeed, the FMLA does not address 19 the right to accommodation for disabled employees but, rather, protects an employee’s 20 right to use a certain amount of unpaid leave for his or her own serious illness or to care 21 for family members and to return to the same or an equivalent job after using protected 22 leave.42 However, Plaintiff’s FMLA claim is not focused on accommodations but, rather, 23 does in fact address Plaintiff’s right to take leave. She alleges that she was eligible for 24 25 perform the overhead work would mean the helper would de facto perform [the plaintiff’s] job”). 26 40 27 41 28 42 See Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997). 29 U.S.C. § 2615(a). 29 U.S.C. §§ 2612(a)(1), 2614(a)(1). -10- 1 FMLA leave, but that AHC failed to advise her of her right to take leave and terminated 2 her rather than allow her to take the required leave. AHC argues that her claim must 3 nonetheless fail because she did not actually request to take FMLA leave and because 4 AHC in fact gave Plaintiff leave until such time as she was able to provide a doctor’s 5 clearance. The court agrees that Plaintiff has not made a showing of interference. 6 Plaintiff does not even allege, much less point to evidence to show, that she provided 7 notice of her intent to take FMLA leave.43 Nor is there anything in the record to show 8 that AHC subsequently denied her FMLA request; rather, it is undisputed that Plaintiff 9 was told she could be put back on the schedule when she had a doctor’s unrestricted 10 clearance to work.44 Indeed, Plaintiff does not necessarily disagree. Rather, Plaintiff 11 responds that “[t]his case does not present [a] traditional f act pattern” and asserts that 12 her claim is based on the fact that AHC “essentially forced [her] to take a leave of 13 absence that she had not requested and that she did not need.” 45 As AHC points out, 14 however, Plaintiff’s response is directly contrary to the allegations in her complaint. As 15 noted above, in the complaint she alleges she was denied FMLA leave. “Factual 16 assertions in pleading and pretrial orders, unless amended, are considered judicial 17 admissions conclusively binding of the party who made them.”46 Plaintiff therefore 18 cannot now assert that she was forced to take leave. 19 20 Regardless, even removing the pleading issue, Plaintiff has not set forth a viable interference claim. “Forced or involuntary leave is not, . . . in and of itself, actionable 21 22 43 23 24 25 See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (noting that a prima facie case of FMLA interference requires an employee to establish that he was eligible for FMLA leave, his employer was covered by the FMLA, he was entitled to leave under the FMLA, he provided sufficient notice of his intent to take leave, and the employer denied the leave). 26 44 27 45 28 46 Doc. 32 at p. 4 ¶ 8; doc. 27-1 at p. 22 (Tracy Crane depo. at p. 63). Doc. 33 at p. 13. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). -11- 1 under the FMLA.”47 An interference claim could arise from an allegation that an 2 employer forced the employee to take leave that she did not request or need if the 3 employee can show she was forced to take leave even though she did not have a 4 serious health condition that precluded her f rom working.48 That is not the situation 5 alleged here. Moreover, such an interference claim only ripens “when and if the 6 employee seeks FMLA leave at a later date, and such leave is not available because 7 the employee was wrongfully forced to use FMLA leave in the past.” 49 Again, that is not 8 the situation alleged here. 9 C. 10 Objections to AHC’s statement of facts Plaintiff sets forth various objections to AHC’s statement of facts. Except for 11 Plaintiff’s objection to AHC’s job description at Exhibit 1, which the court has ruled 12 admissible, the court does not need to specifically address the objections in detail 13 because the court did not rely on the allegedly objectionable material in its decision. 14 Many of Plaintiff’s objections are based on the fact that AHC’s statement of facts 15 describes AHC’s past accommodations for Plaintiff as “extraordinary” and conclusively 16 states that the job duties she could no longer perform were “essential.” The court 17 agrees that AHC’s counsel’s assertions of legal conclusions as fact are not evidence 18 and recognizes that Plaintiff disagrees with those legal conclusions. The court did not 19 take counsel’s statements as fact. The court made its own legal conclusions based 20 only on the admissible evidence provided by the parties: Plaintiff’s EEOC documents, 21 Plaintiff’s deposition, and the job description provided by AHC. Plaintiff also objects to 22 AHC’s inclusion of details about the workers’ compensation claim, arguing that the 23 results of the independent medical exam in relation to Plaintiff’s workers’ compensation 24 25 26 47 Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006); Heyne v. HGILakeside, Inc., 589 F. Supp. 2d 1119, 1128 (S.D. Iowa 2008). 27 48 28 49 Wysong v. Dow Chemical Co., 503 F.3d 441, 449 (6th Cir. 2007). Id. -12- 1 claim are not relevant or material to the determination of whether Plaintiff is disabled. 2 The resolution of the workers’ compensation claim, while relevant, is not determinative 3 of whether Plaintiff suffered from a disability as defined by the ADA, but as noted 4 above, the court concluded in favor of Plaintiff on that issue, agreeing that Plaintiff 5 provided sufficient evidence to support a prima facie case of disability. The 6 independent medical exam and the results of Plaintiff’s workers’ compensation claim 7 are not relevant to the remainder of the court’s ADA analysis and were not considered. 8 9 V. CONCLUSION Based on the preceding discussion, AHC’s motion for summary judgment at 10 docket 26 is GRANTED. The clerk is directed to enter judgment in favor of AHC on all 11 counts and close the case. 12 DATED this 24th day of September, 2016 13 14 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13-

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