Fields v. Clifton T. Perkins Hospital

Filing 43

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 6/19/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH FIELDS,

*

Plaintiff,

*

v.

*

CLIFTON T. PERKINS HOSPITAL,

*

Defendant.
*

*

*

Civil Action No. RDB-12-3254

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION
The Plaintiff Kenneth Fields alleges that Defendant Clifton T. Perkins Hospital failed
to accommodate his disability, violating Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794. Presently pending is the Defendant’s Motion for Summary Judgment (ECF
No. 27). The parties’ submissions have been reviewed and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2011). For the reasons stated below, the Defendant’s Motion
(ECF No. 27) will be GRANTED.
BACKGROUND
On a motion for summary judgment, this Court reviews the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). Defendant Clifton T. Perkins Hospital (the “Hospital”) is a psychiatric facility in
Jessup, Maryland that is operated by the Maryland Department of Health and Mental
Hygiene. The Hospital is a secure inpatient facility for court-committed individuals who
have committed crimes, or are accused of having done so. Def.’s Mem. 1-2, ECF No. 28.
In 2008, Plaintiff Fields began working at the Hospital as a “Security Attendant I, Nursing,”

also known as a “Psychiatric Security Technician.” Am. Compl. ¶ 3, ECF No. 7; Pl.’s Opp.
1, ECF No. 38. In this position, Fields was required to be certified with the Maryland Board
of Nursing as a Certified Nursing Assistant and to renew his certification yearly. Def.’s
Mem. 1. His job duties included “observing patients, measuring vital signs, implementing
delegated nursing interventions, [and] operating medical equipment,” but also involved
“special physical demands” related to

“intervening in patient-to-patient altercating,

physically carrying non-compliant patients to seclusion and/or applying restraints.” Id. at 2.
Over the course of his employment, he received positive performance reviews from his
supervisors and received a non-competitive promotion to Security Attendant II in 2010.
Am. Compl. ¶¶ 4-5; Def.’s Mem. 2.
In early 2010, Fields began experiencing dizziness, nausea, and difficulty walking.
Am. Compl. ¶ 6. He was diagnosed with multiple sclerosis and beginning in February took a
leave from his employment under the Family and Medical Leave Act of 1993 (“FMLA”), 29
U.S.C. §§ 2601-2654. Id. ¶ 7. His twelve-week FMLA leave period expired in May of 2010
and he then used accrued leave, State employee holidays, and leave days donated by his
brother and his friends. Pl.’s Opp. Ex. 3, ECF No. 38-3.
By June of 2010, after undergoing medical care and physical therapy, the Plaintiff’s
symptoms improved and he wished to return to work. Id. ¶ 8. At that time, however, he
was not yet able to perform all of the duties of a Psychiatric Security Technician and was
consequently only cleared to return to work with restrictions. Id. ¶ 9; Pl.’s Opp. Ex. 1, ECF

2

No. 39 (Sealed). Most importantly, Fields’s physician stated that he could not work in any
“safety sensitive” or “dangerous situations due to mobility impairment.”1 Id.
On or about June 23, 2010, the Plaintiff submitted his “return to work slip” to his
supervisor, Barbara Rikard. Am. Compl. ¶ 10. He stated that he badly wanted to return to
work at the Hospital. Deposition of Kenneth Fields 12-15, ECF No. 27-4. The Hospital
had previously placed employees who needed modified duty in the minimum security North
Side; the Plaintiff alleges that he personally knew several other Security Attendants who were
transferred to modified duty positions for health reasons, including mobility impairments.
Id. ¶¶ 11, 18; Pl.’s Opp. 9. Rikard stated that this was the Hospital’s usual practice and that
Fields probably would be assigned to work on the North Side. Am. Compl. ¶ 11; Fields
Dep. 15.
However, when Fields then met with the Hospital’s Director of Human Resources,
Stacie Beverly, she told him that there were no modified duty positions available. Fields
Dep. 25. The Plaintiff states that although Ms. Beverly was the person tasked with handling
disability-related claims on behalf of the Hospital, she had no training or understanding of
the Americans with Disabilities Act or the State Reasonable Accommodations Policy issued
by the Department of Budget and Management. Pl.’s Opp. 3-11; Pl.’s Opp. Ex. 6, ECF No.
38-6. She did not consider that Fields was requesting a reasonable accommodation, and the
Plaintiff argues that she thus failed to engage in the “interactive process” required by the
Rehabilitation Act. Id. Ms. Beverly then referred Fields to the State Medical Director,

1

Other specific medical information contained in this and other documents was sealed. For
purposes of this Motion, the sealed information is immaterial to the question of whether the
Defendant violated the Rehabilitation Act by failing to reasonably accommodate Mr. Fields.

3

stating that he had presented a doctor’s certificate that he could return to work only with
“restrictions that this facility are [sic] unable to accommodate.” Id. at 11.
Dr. Mike Lyons of the State Medical Director’s Office evaluated Fields on July 1,
2010. Pl.’s Opp. Ex. 11, ECF No. 39-2 (Sealed). In his report, Dr. Lyons stated that
although Fields would like to return to work in a modified position, the Hospital could not
accommodate him. Id. The State doctor further informed the Plaintiff that he should “get
his financial things in other because it didn’t look like he would be returning.” Fields Dep.
21, 50. Thereafter, the Plaintiff’s Certified Nursing Assistant certificate expired on July 28,
2010. The Plaintiff states that he did not renew his certificate because Dr. Lyons told him
that he would not be returning to work. Id. at 38-39. As a result of the determination that
he could not return to his old position, and that no light duty positions could accommodate
him, the Plaintiff applied for involuntary medical retirement on September 1, 2010. Id. at 4749.
While his retirement application was being processed, the Plaintiff had a follow-up
appointment with Dr. Lyons on September 3, 2010. Id. The doctor noted that Fields was
no longer in physical therapy, had more strength in his arm, and was able to walk without a
cane. Am. Compl. ¶ 28; Dr. Lyons Report of Sept. 7, 2010, ECF No. 28-3 (Sealed). Still, the
doctor opined that Fields was “unlikely to improve enough in the foreseeable future that
would enable him to safely, consistently, and reliably perform the full duties of [the
Psychiatric Security Technician] position.

Therefore, the agency is advised to start

appropriate administrative steps regarding his employment status.” Am. Compl. ¶¶ 28-29;
Dr. Lyons Report of Sept. 7, 2010, ECF No. 28-3 (Sealed).
4

Upon receiving such a recommendation from the State Medical Director’s Office,
Human Resources Director Ms. Beverly would normally have issued an “options” letter to
the employee, detailing procedures for applying for disability, seeking reasonable
accommodations, or being terminated. Deposition of Stacie Beverly 137-45, ECF No. 27-9.
However, she did not do so on this case because, according to her, Fields’s application for
retirement made the issue moot. Am. Compl. ¶ 31. Therefore, Beverly stated that Fields
was never denied reassignment because he never asked for it. Id. ¶ 32. By the time Fields’s
involuntary medical retirement was finalized, he had been on paid leave from work at the
Hospital from February 26 to September 30, 2010, a period of approximately seven months.
Affidavit of Stacie Beverly, ECF No. 28-1 (Sealed). In addition, the Hospital held Fields’s
position open during this time on the chance that he was able to return. Id.
Fields filed a claim with the Equal Employment Opportunity Commission, alleging
that the Hospital discriminated against him by denying his request for reasonable
accommodation and his request for reassignment. The EEOC denied his claim and issued
him a right to sue letter, exhausting his administrative remedies. Then, Fields filed suit pro se
in this Court against the Hospital. See ECF Nos. 1 & 1-1. The Plaintiff ultimately retained
counsel and filed an Amended Complaint against the Hospital and the Secretary of the
Maryland Department of Health and Mental Hygiene, Joshua M. Sharfstein, asserting claims
for violations of the Rehabilitation Act and the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq., and for breach of his employment agreement.

See ECF No. 7.

The

Defendants moved to dismiss the Amended Complaint and the Plaintiff voluntarily
dismissed the claims under the Americans with Disabilities Act and for breach of contract.
5

This Court also dismissed Mr. Sharfstein, leaving only the Rehabilitation Act claim against
the Hospital. See ECF No. 17. After a period of discovery, the Defendant Hospital moved
for summary judgment as a matter of law on the single remaining claim.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if the movant shows 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(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact
exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. In considering a motion for summary judgment, a judge’s function is
limited to determining whether sufficient evidence exists on a claimed factual dispute to
warrant submission of the matter to a jury for resolution at trial. Id. at 249. In undertaking
this inquiry, this Court must consider the facts and all reasonable inferences in the light most
favorable to the nonmoving party. Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433
(4th Cir. 2013).
However, there must be a “genuine” dispute as to those facts. Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson, 477 U.S. at
247-48 (emphasis in original))). This Court must abide by its affirmative obligation to
prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999
F.2d 774, 778-79 (4th Cir. 1993). If the evidence presented by the nonmoving party is
merely colorable, or is not significantly probative, summary judgment must be granted.
6

Anderson, 477 U.S. at 249-50. A party opposing summary judgment must “do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190
F.3d 624, 633 (4th Cir. 1999). This Court has previously explained that a “party cannot
create a genuine dispute of material fact through mere speculation or compilation of
inferences.” Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted).
ANALYSIS
Section 504 of the Rehabilitation Act of 1973 provides that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). It is
a violation of the Rehabilitation Act to fail to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A); see Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001)
(holding that analysis of “failure to accommodate” language of the Americans with
Disabilities Act applies to Rehabilitation Act claims).
To prove a Rehabilitation Act violation, a plaintiff must show that: (1) he suffers a
disability under the statute; (2) with or without reasonable accommodations, he is otherwise
qualified to perform the employment position in question; and (3) he was excluded from that
employment because of his disability. McDavid v. Arthur, 437 F. Supp. 2d 425, 428 (D. Md.
2006) (citing Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995)). To
be “qualified” under the Act, a court must determine:
7

(1) whether an individual can

“perform the essential functions of the job, i.e., functions that bear more than a marginal
relationship to the job at issue,” and (2) if not, whether “any reasonable accommodation by
the employer would enable [him or her] to perform those functions.” Tyndall v. Nat’l Educ.
Ctrs., Inc. of Cal., 31 F.3d 209, 212 (4th Cir. 1994).
This Court assumes, for purposes of this Motion, that the Plaintiff’s multiple sclerosis
was sufficiently severe to render him disabled under the Rehabilitation Act. Indeed, the
Plaintiff admits that throughout the time he was applying to return to work, he was unable
to perform the essential functions of the position of Psychiatric Security Technician. The
Defendant argues that it reasonably accommodated the Plaintiff by allowing him the take
paid leave while holding his position open for his possible return.
This Court has previously held that leave may be a reasonable accommodation, but
an employer is not required to provide an indefinite period to treat a disabling condition.
Moore v. Md. Dep’t of Pub. Safety, No. CCB-11-0553, 2013 U.S. Dist. LEXIS 19471, at *10 (D.
Md. Feb. 13, 2013) (holding that defendant did not violate the Rehabilitation Act by placing
plaintiff on medical leave without pay after she missed eight months of work for cancer
treatment) (citing Appendix: Interpretive Guidance, 29 C.F.R. § 1630.2(o) (2011) (“[O]ther
accommodations could include permitting the use of accrued paid leave or providing
additional unpaid leave for necessary treatment . . . .”)); Myers v. Hose, 50 F.3d 278, 283 (4th
Cir. 1995). In this case, the Plaintiff was on paid leave from employment at the Hospital for
a total of seven months. The Hospital allowed him to use FMLA leave, accrued leave, and
donated leave, while keeping his position open. The Plaintiff does not argue that it was
unreasonable for the Hospital to allow him to stay out of work for this period while he was
8

still employed and paid through leave, in one form or another. However, the Plaintiff argues
that the Defendant failed to accommodate him by not allowing him to return to work in a
different position on the Hospital’s North Side.
The Plaintiff has the burden to demonstrate that an accommodation is reasonable.
Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 509 (E.D. Va. 2007), aff’d, 250 F.
App’x 552 (4th Cir. 2007) (per curiam). Offering a different employment position as a
reasonable accommodation is typically a last resort. Bryant v. Better Bus. Bureau of Greater Md.,
Inc., 923 F. Supp. 720, 742 (D. Md. 1996) (citing Appendix: Interpretive Guidance, 29 C.F.R.
§ 1630.2(o)); see also School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 289 n.19 (1987)
(“Although [employers] are not required to find another job for an employee who is not
qualified for the job he or she was doing, they cannot deny an employee alternative
employment opportunities reasonably available under the employer’s existing policies.”).
After discovery in this case, the Plaintiff has not adduced sufficient evidence to show
that assigning him to the North Side of the Hospital was a reasonable accommodation.
Although he states that the Hospital had assigned certain other employees to lighter duty
positions on the North Side, the Plaintiff has not shown that any such positions were
available at the relevant time, or why creating a new position would have been reasonable.
Ms. Beverly noted Fields’s physician’s opinion that he could only return to work with
“restrictions that this facility [is] unable to accommodate.” Pl.’s Opp. Ex. 10, ECF No. 39-2
(Sealed). Dr. Lyons concurred in this assessment. Pl.’s Opp. Ex. 11, ECF No. 39-2 (Sealed).
Although the Plaintiff argues that Ms. Beverly should have been able to identify other
positions to which he could have been transferred, his conclusory allegations in this regard
9

are insufficient to create a genuine issue of material fact as to whether such positions existed.
His identifying specific, isolated tasks he could have performed despite his physician’s
restrictions is not sufficient show that the Hospital could have accommodated him by
transferring him to a reasonably available alternative position.
The Plaintiff’s argument similarly fails in his contention that the Defendant failed to
engage in an interactive process required under the Rehabilitation Act, or that any such
failure was a violation of the Act. Wells, 483 F. Supp. 2d at 511 (“the employee must
demonstrate that the employer’s failure to engage in the interactive process resulted in the
failure to identify an appropriate accommodation for the qualified employee.”). Despite Ms.
Beverly’s alleged failure to recognize that Fields was requesting an accommodation, and her
failure to identify available positions that the Plaintiff could perform, the Plaintiff had several
contacts with Defendant’s personnel regarding his request to return to work in a different
job. The Plaintiff cannot show that any failure in this process resulted in the failure to
identify a reasonable accommodation because, as noted above, he has not shown that any
other positions were reasonably available.
Furthermore, the Hospital kept Fields’s position open while he used leave to which
he was entitled. However, there was no projected end date for his working restrictions and
the Defendant was not required to provide a further leave period on the chance that a light
duty position might come open. Moore, 2013 U.S. Dist. LEXIS 19471, at *11 (“Additional
medical leave is a reasonable accommodation only where it is ‘finite and will be reasonably

10

likely to enable the employee to return to work.’” (quoting Kitchen v. Summers Continuous Care
Ctr., LLC, 552 F. Supp. 2d 589, 596 (S.D. W. Va. 2008)).2
Finally, this Court notes that shortly after the State Medical Director’s Office
determined that the Plaintiff would not likely be able to return to work, he voluntarily let his
State nursing certification lapse. The Defendant argues that because Fields was no longer
licensed, the Hospital’s obligation to reasonably accommodate him was extinguished. The
evidence in this case does not reveal that the licensing issue played a role in the Hospital’s
determination that there were no alternative positions available to Fields. Nevertheless, the
Plaintiff’s allowing his certificate to expire invariably would have made it more difficult for
the Hospital to accommodate him in an alternative position for which a nursing license was
required. Fields’s failure, through no one’s fault but his own, to maintain his nursing
certificate, is additional evidence that a transfer to a completely new position was not a
reasonable accommodation in this case. Considering all of the circumstances surrounding
the Plaintiff’s request to return to work, the Defendant did not violate the Rehabilitation Act
as a matter of law.

2

Because the Plaintiff has not carried his burden to show why his desired accommodation was
reasonable, this Court does not reach the question of whether the Hospital was still not required to
transfer him because such accommodation would pose an undue hardship on the Defendant. 42
U.S.C. § 12112(b)(5)(A) (discrimination includes “not making reasonable accommodations . . .,
unless such covered entity can demonstrate that the accommodation would impose undue hardship
on the operation of the business of such covered entity.”).

11

CONCLUSION
For the reasons stated above, Defendant’s Motion (ECF No. 27) is GRANTED.
A separate Order follows.

Dated: June 19, 2014

/s/
Richard D. Bennett
United States District Judge

12