Compton v. Arkansas Department of Veteran Affairs et al

Filing 45

ORDER granting defts' 29 Motion for Summary Judgment; finding as moot 40 Motion in Limine; and dismissing pltf's complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 3/1/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

MARILYN COMPTON

v.

PLAINTIFF

No.4:09-cv-814-DPM

ARKANSAS VETERANS HOME;

and DAVID FLETCHER, Director,

Arkansas Veterans Home

DEFENDANTS

ORDER

Marilyn Compton sued her former employer, the Arkansas Veterans
Home, and its director, David Fletcher, and others, alleging violations of Title
VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and
the Family Medical Leave Act. Fletcher and the Veterans Home are the
remaining defendants; they move for summary judgment. Document No. 29.
Taking the disputed facts of record in the light most favorable to Compton,
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011), the Court

concludes that Fletcher and the Veterans Home are entitled to summary
judgment. Here is why.
1. Background. The Veterans Home hired Compton in August 2007

as the Assistant Director of Nursing. The Veterans Home considers this a

critical position.

While she was on the job, Compton began to suffer

symptoms of carpal tunnel syndrome. The symptoms sometimes impaired
her ability to perform her job, which required a substantial amount of
handwriting in completing and revising the comprehensive care plans for
each resident of the Veterans Home.
On 17 November 2008, Compton left work and went to the hospital
because of an accelerated heart rate and sudden anxiety. This spell was likely
caused by the return of a co-worker with whom Compton had previously had
unpleasant encounters. Document No. 34-3, at 4-7. Compton was treated by
an emergency room physician, diagnosed as having had an anxiety attack,
prescribed medication, and told she could return to work in two days, on 19
November 2008. Document Nos. 29-4 & 29-5, at 1.
Compton did not return to work on November 19th. Instead, she
visited her family physician who put her on six-weeks work leave because of
an" acute" illness. No other details were given. Document No. 29-5, at 2. Thus
began Compton's extended absence from the Veterans Home. Her absence
was supported by numerous doctors' notes excusing her from work from
November 2008 through August 2009. These notes - dated roughly every two

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to four weeks during that period - were from three different doctors; none of

them mentioned carpal tunnel syndrome as a reason for leave; and two of
them listed"depression" as her only medical condition. Document No. 29-5,

at 3-12. Compton also filed an EEOC complaint on 20 November 2008
alleging racial discrimination in the workplace. Those allegations are not in
issue in this case.
The Veterans Home eventually placed Compton on FMLA leave in early
January 2009. When she did not return to work after the statutory twelve­
week-maximum period, the Veterans Home gave her an additional five and
a half weeks of leave. Despite the instruction that she must file biweekly
status reports, Compton made little effort to keep her employer updated on
her condition. In a 5 May 2009 letter, Doyle Batey, Deputy Director for the
Department of Veterans Affairs, informed Compton that her FMLA leave had
expired; that her last doctor's note had instructed her to remain off work
through 30 April 2009; and that the Veterans Home had expected her back at
work the next day, May 1st. The letter warned Compton that" [f]ailure to
return to work is considered job abandonment[,]" and that she had until May
15th to return or inform the Veterans Home of her status. Document No. 29-7.

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The notes continued, as did Compton's absence. The Veterans Home fired

her on 16 June 2009.
The parties agree that Compton began to develop symptoms of carpal
tunnel syndrome in her right arm in May 2008. And it is uncontroverted that
in December 2008 a doctor diagnosed her with the condition, about a month
after she stopped going to work at the Veterans Home.
2. FMLA. Because Compton concedes that she does not have a viable
claim for relief under the FMLA, Document No. 43, at I, the Veterans Home
and Fletcher are entitled to judgment on that claim.
3.

ADA. In her complaint, Compton initially described her claim

under the ADA as one for wrongful discharge. It is evident from her later
papers, however, that her claim arises from the Veterans Home's alleged
failure to reasonably accommodate her alleged disability.

Specifically,

Compton expected the Veterans Home to pay for surgical decompression to
relieve the symptoms of her carpal tunnel syndrome. For example, Compton
says that by failing to pay for her surgery,

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II

the Defendants did not

accommodate her disability[,]" Document No. 34, at 1, and the Defendants'

refusal" to pay for surgery that would relieve her carpal tunnel syndrome"
was in violation of the ADA, Document No. 36, at 10.
"To prove disability discrimination, an employee must show that (1) the
employee is disabled within the meaning of the ADA; (2) the employee is
qualified (with or without reasonable accommodation) to perform the
essential functions of a job; and (3) the employee suffered an adverse
employment action because of the disability." Henderson v. Ford Motor Co.,
403 F.3d 1026, 1034 (8th Cir. 2005). In her failure-to-accommodate claim,
Compton "at all times retains the burden of persua[sion] ... that [she] has
been the victim of illegal discrimination due to [her] disability." Fenney v.

Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 712 (8th Cir. 2003).
Compton offers no authority holding that an employer must pay for
surgery as a reasonable accommodation. The appendix to Part 1630 of Title
29 of the Code of Federal Regulations, titled "Interpretive Guidance On Title
I of the Americans with Disabilities Act," is instructive on this point. A
reasonable accommodation, it states, "is any change in the work environment or
in the way things are customarily done that enables an individual with a
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disability to enjoy equal employment opportunities." 29 C.F.R. § 1630.2(0),

Appendix at 395 (2011) (emphasis added). Compton's request for surgery is
beyond the scope of a reasonable change in the work environment.
Although it was not mentioned in her complaint, Compton also argued
in her deposition and papers that she needed special"software ... as well as
the corrective surgery" as an accommodation. Her software/surgery claim
fails in any event because she never gave adequate notice to the Veterans
Home that she was requesting this accommodation. "[I]t is the responsibility
of the individual with a disability to inform the employer that an
accommodation is needed." Kobus v. College of St. Scholastica, Inc., 608 F.3d
1034, 1038 (8th Cir. 2010) (quotation omitted); Ballard v. Rubin, 284 F.3d 957,
960 (8th Cir. 2002). If the employee fails to do so, "then [the] employer has no
duty to accommodate." Buboltz v. Residential Advantages, Inc., 523 F.3d 864,
870 (8th Cir. 2008), abrogated in immaterial part by Torgerson, 643 F.3d at 1058.
There does not appear to be any hard-and-fast rule about the form of a
request. Indeed, the absence of an express and unequivocal request is not
II

necessarily fatal to a failure-to-accommodate claim." Ballard, 284 F.3d at 961.
But the notice nonetheless must make clear that the employee wants
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assistance for his or her disability[]" and lithe employer must know of both

the disability and the employee's desire for accommodations for that
disability." Ballard, 284 F.3d at 962 (quoting Taylor v. Phoenixville School

District, 174 F.3d 142, 158-59 (3d Cir. 1999».
Compton never adequately notified that Veterans Home that she was
requesting accommodation - either through surgery or software - for her
carpal tunnel syndrome. As to the software, she told Marion Harris, her
immediate supervisor, that the software would make it easier for her to
complete the care plans and prevent her hand from hurting. Compton
acknowledges, however, that she made this request before she knew she had
carpal tunnel. Cf Ballard, 284 F.3d at 962 (employer must know of both the
disability and the employee's desire for accommodation). The context,
moreover, is critical. It is undisputed that Compton made the software
request when discussing with Harris whether the Veterans Home needed the
software to meet the requirements of the Veterans Administration, which
periodically reviewed the facility.

The Court therefore concludes that

Compton's request for this software was not adequate to trigger the Veterans
Home's obligation to initiate the interactive accommodation process. Cf

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Cravens v. Blue Cross and Blue Shield ofKansas City, 214F.3d 1011,1021 (8th Cir.
2000) (employee with carpal tunnel syndrome

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specifically requested

assistance" with an accommodation).
Compton next says that the Veterans Home was put on notice once her
doctor diagnosed her carpal tunnel syndrome in December 2008 and
recommended surgery. It is undisputed, however, that she made no specific
request for surgery to her employer. Instead, she thought her doctors would
notify the Veterans Home of her need for surgery; and she relied upon the
doctors to do so. But the only communication from her doctors about the
need for surgery. was an April 2009 letter from Dr. Richard Wirges to a case
manager at the Public Employee Claims Division. As discussed later, there
is no evidence this letter ever reached the Veterans Home.
Finally, Compton argues that the Veterans Home should have had
constructive notice of her disability because of a claim she litigated before the
Arkansas Workers' Compensation Commission.

In that case, the

Administrative Law Judge eventually awarded Compton disability benefits
and concluded that the Department of Veterans Affairs remained liable for

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continued reasonably necessary medical treatment, including, but not

limited to recommended surgery." Document No. 39-1, at 8.
Compton's argument that the decision in her workers' compensation
case constituted adequate notice fails for two reasons. First, the ALI's Order
resolving the claim was not entered until late August 2009, more than a
month after Compton had been let go. Second, the Veterans Home offered
unrebutted affidavits demonstrating it was not privy to all of the details of the
workers' -compensation dispute.

Rather, the Public Employee Claims

Division of the Arkansas Insurance Department processes, investigates, and
responds to workers' -compensation claims filed by employees of state
agencies. The Department of Veterans Affairs is not asked to dispute such a
claim and is not advised of every step in the claims process. Compton
responded by pointing to various Arkansas statutes governing employee
claims and the PECD, and by speculating that the Veterans Home had to have
cooperated in the investigation and was therefore aware of her condition. But
this is only speculation; Compton did not meet proof with proof on this issue.
Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir. 2010).

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4.

Retaliation. Compton also contends that the Veterans Home

retaliated against her for filing the EEOC charge in November 2008. She
makes her retaliation claim under Title VII, not the ADA; the analysis is the
same. The court must analyze retaliation claims (whether under Title VII,
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the ADA, or the ADEA), under the burden-shifting framework of McDonnell

Douglas Corp. v. Green[.]" Stewart v. Independent School District No. 196, 481
F.3d 1034, 1042-43 (8th Cir. 2007).
Compton must make her prima facie case by showing three things: (1)
that she engaged in statutorily protected activity; (2) that she suffered an
adverse employment action; and (3) that a causal connection exists between
the two events. Stewart,481 F.3d at 1043. If Compton establishes a prima

facie case, the burden shifts to the Defendants to show a non-retaliatory reason
for why they let her go. If the Veterans Home can show a legitimate reason,
the burden then returns to Compton, who must present evidence that creates
a question of fact on whether the Veterans Home's reason was merely a
pretext for retaliation. Ibid. Although the amount of proof required to show
causation is less at the prima facie stage than at the pretext stage, the ultimate
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burden of proving retaliation remains at all times with [Compton]." Ibid.

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Compton has not made a prima facie case for retaliation. First, she

asserts that the Veterans Home retaliated against her by posting her job
position so that others could apply for it in January 2009 and by advertising
the position in the Arkansas Democrat-Gazette in February 2009. Document No.

1, at 3; Document No. 36, at 12. Compton offers no legal support for the
proposition that posting or advertising her position, without more, constitutes

an adverse employment action within the ambit of Title VII or the ADA.
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An adverse action occurs when an employee suffers some personal loss

or harm with respect to a term, condition, or privilege of employment."

Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999). Although Compton says
in her complaint that she "interpreted these [postings] as threats of
termination[,]" Document No.1, at 3, the undisputed facts undermine this
interpretation. She was not terminated as a result of the job postings. No one
was hired in her place. About five months passed before Compton was fired.
And she does not assert that the posting was ever used as a basis for any
employment action against her. In sum, the posting and advertising of her
position did not affect a term, condition, or privilege of her employment.
" Although actions short of termination may constitute adverse actions within
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the meaning of [Title VII], not everything that makes an employee unhappy
is an actionable adverse action." Montandon v. Farmland Industries, Inc., 116
F.3d 355, 359 (8th Cir. 1997) (quotations omitted).
Compton also attempts to ground her retaliation claim on her actual
firing in July 2009-a definite "adverse employment action." Compton,
however, still cannot establish the required causal link between her
November 2008 EEOC complaint and her July 2009 termination. "[I]t remains
clear that a gap in time between the protected activity and the adverse
employment action weakens an inference of retaliatory motive, and that,
given a delay of sufficient length, the causal nexus tends to evaporate."

Stewart, 481 F.3d at 1044 (six-month gap between filing of EEOC claim and
alleged retaliatory act too long to infer retaliatory motive) (quotations
omitted); see also Sisk v. Picture People, Inc., _ F.3d _, No. 10-3398, at 7 (8th
Cir. 28 February 2012) (collecting timing cases). In Compton's case, the gap
of nearly eight months between the two events diminishes any potential
inference of retaliatory motive.

And when coupled with the fact that

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Compton had not returned to work during the entire period, that

inference-along with the necessary causal nexus-evaporates.
Even assuming that Compton could establish her prima facie case, her
retaliation claim fails as a matter of law at the pretext stage. Her extended,
uncommunicative absence from work establishes the Veterans Home's
legitimate, non-retaliatory reason for terminating her. Compton had been
gone from work for almost eight months. During that time, the Veterans
Home extended her FMLA leave beyond the legally required period and
made many attempts to communicate with Compton to discuss her work
status. The Veterans Home told her that if she could not return to work by a
certain date, her job would be considered abandoned. Yet Compton gave no
indication if or when she would ever return to her position at the Veterans
Home.
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[E]mployers should not be burdened with guess-work regarding an

employee's return to work after an illness." Peyton v. Fred's Stores ofArkansas,

Inc., 561 F.3d 900, 903 (8th Cir. 2009). The Veterans Home was left to guess
whether Compton would ever return. The Assistant Director of Nursing is
an important position, even if not a critical one as Defendants assert. Her
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absence diminished the Veterans Home ability to do its good, and needed,
work. Mter almost eight months' absence, and with little communication
from her, the Veterans Home's decision to fire Compton was a legitimate one.
Compton has offered no proof that this reason was merely a pretext for
discrimination. No reasonable fact-finder could conclude otherwise. Diaz v.
Tyson Fresh Meats, Inc., 643 F.3d 1149, 1152 (8th Cir. 2011).

*

*

*

Because the evidence does not support any reasonable inference of
discrimination or retaliation, the Veterans Home and Fletcher are entitled to
judgment as a matter of law. Motion for summary judgment, Document No.
29, granted.

Compton's complaint is dismissed with prejudice.

Defendants' motion in limine, Document No. 40, is denied as moot.
So Ordered.

D.P. Marshall Jr.

United States District Judge

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The