Comfort Attiogbe-Tay v. SE Rolling Hills LLC
Filing
28
ORDER granting 16 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 11/7/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1109(DSD/LIB)
Comfort Attiogbe-Tay,
Plaintiff,
ORDER
v.
SE Rolling Hills LLC,
a foreign corporation
doing business as The
Colony at Eden Prairie,
Defendant.
Howard L. Bolter, Esq. and Borkon, Ramstead, Mariani,
Fishman & Carp, Ltd., 5401 Gamble Drive, Suite 100,
Parkdale I, Minneapolis, MN 55416, counsel for plaintiff.
Aaron M. Scott, Esq., Elizabeth A. Patton, Esq., Robert
C. Castle, Esq. and Oppenheimer, Wolff & Donnelly LLP,
222 South Ninth Street, Suite 2000, Minneapolis, MN
55402, counsel for defendant.
This matter is before the court upon the motion for summary
judgment by defendant SE Rolling Hills LLC, doing business as The
Colony at Eden Prairie (The Colony).
Based on a review of the
file, record and proceedings herein, and for the following reasons,
the court grants the motion.
BACKGROUND
This employment dispute arises out of the June 3, 2010,
termination
of
plaintiff
Comfort
Attiogbe-Tay
by
The
Colony.
Attiogbe-Tay was employed as a Licensed Practical Nurse (LPN) at
The Colony, a senior living facility in Eden Prairie, Minnesota,
from 2004 until her termination.
worked
the
overnight
shift
Am. Compl. ¶¶ 2, 5.
at
The
Colony
approximately 160 assisted living patients.
and
Attiogbe-Tay
cared
for
Attiogbe-Tay Dep.
71:14-23, 72:11-17.
During her employment with The Colony, Attiogbe-Tay began
experiencing severe knee pain due to degenerative joint disease and
arthritis.
Attiogbe-Tay Aff. ¶ 2.
On several occasions, Director
of Nursing Christy Anderson questioned Attiogbe-Tay about her
knees, including asking Attiogbe-Tay if she was able to complete
her assigned duties.
Anderson Dep. 18:4-9, 21:2-6.
On March 9,
2010, Attiogbe-Tay elected to have knee replacement surgery and was
granted twelve weeks of Family and Medical Leave Act (FMLA) leave.
Attiogbe-Tay Dep. 39:3-19.
The Colony informed Attiogbe-Tay that her FMLA leave would
expire on June 2, 2010, and that she needed to return to work
without restrictions by that date.
See Bolter Aff. Ex. 5.
On June
2, Attiogbe-Tay returned to work and provided a note from her
physician saying that she could not kneel, squat or lift more than
50 pounds, but that she was otherwise cleared to return to work.
Scott Aff. Ex. 8; Attiogbe-Tay Dep. 57:17-59:15.
According to the
note, the restrictions were to be in place for six weeks.
Aff. Ex. 8.
The Colony’s handbook provides that:
If an employee has taken leave for his or her
own serious health condition, prior to
2
Scott
returning from leave, the employee must
provide The [Colony] with certification from
his or her health care provider that the
employee is able to resume work. If medical
restrictions exist at the end of the leave,
The [Colony] will review and discuss the
situation with the employee, and determine
whether
the
work
restrictions
can
be
reasonably accommodated.
Bolter Aff. Ex. 8.
The Colony never initiated discussion of
potential reasonable accommodations with Attiogbe-Tay.
Dep. 39:2-15.
Anderson
On June 3, 2010, The Colony terminated Attiogbe-Tay1
and invited her to reapply once her temporary restrictions were
lifted.
Scott Aff. Ex. 1.
The job description for the LPN position notes that LPNs are
occasionally2 required to kneel, squat and lift up to 100 pounds.
Scott Aff. Ex. 3.
During her time at The Colony, Attiogbe-Tay
would have to lift patients if they had fallen.
Attiogbe-Tay was
the only LPN scheduled for the overnight shift, but, in the past,
had called for assistance from other staff members when lifting
patients.
Attiogbe-Tay Dep. 107:12-20.
1
The Colony argues that Attiogbe-Tay voluntarily resigned her
position because she returned to work with restrictions after being
warned of the consequences of doing so.
Mem. Supp. 3.
For
purposes of this motion, the court treats the employment action as
a termination.
2
The job description defines “occasionally” as having a
frequency of between one percent and thirty-three percent of an
eight-hour shift. Scott Aff. Ex. 3.
3
On May 7, 2012, Attiogbe-Tay filed this action in Minnesota
court, alleging disability discrimination, failure to accommodate,3
FMLA interference and FMLA retaliation.
The Colony timely removed
and moves for summary judgment.
DISCUSSION
I.
Standard of Review
“The 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(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
3
Attiogbe-Tay alleges her disability discrimination and
failure-to-accommodate claims under both the Americans with
Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA).
4
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
essential
necessarily renders all other facts immaterial.
element
Celotex, 477 U.S.
at 322-23.
II.
Disability Discrimination
Attiogbe-Tay argues claims for disability discrimination under
the ADA and the MHRA.4
Both statutes prohibit employers from
discriminating against individuals because of their disability.
See 42 U.S.C. § 12112(a); Minn. Stat. § 363A.08.
A plaintiff may
prevail on a disability discrimination claim either by presenting
direct
evidence
or
by
proceeding
under
the
burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 439 n.4 (8th
Cir. 2007).
Under either framework, however, in order to trigger
the protections of the ADA or the MHRA, a plaintiff must show that
she is a qualified individual with a disability.
See Krauel v.
Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (“The
threshold requirement for coverage under the ADA is that the
plaintiff be a qualified individual with a disability.” (citation
4
Other than one exception not relevant here, the ADA and MHRA
are analyzed under the same standard. See Kammueller v. Loomis,
Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).
5
and internal quotation marks omitted)); see also Burchett v. Target
Corp., 340 F.3d 510, 516 (8th Cir. 2003) (“To establish a prima
facie case of disability discrimination, a plaintiff must show that
... she was qualified to perform the essential functions of the
job.”).
The Colony argues that Attiogbe-Tay was not a qualified
individual.
employee
“To be a qualified individual under the ADA, an
must
(1)
possess
the
requisite
skill,
education,
experience, and training for [her] position; and (2) be able to
perform the essential job functions, with or without reasonable
accommodation.”
Kallail v. Alliant Energy Corporate Servs., Inc.,
691
930
F.3d
925,
(8th
Cir.
2012)
(alteration
(citation and internal quotation marks omitted).
disputes
that
Attiogbe-Tay
possessed
the
experience necessary for the LPN position.
in
original)
Neither party
requisite
skill
and
The Colony argues,
however, that Attiogbe-Tay was unable to perform the essential
functions of the LPN position.
A.
Essential Functions
Specifically, The Colony argues that kneeling, squatting and
lifting over 50 pounds - activities from which Attiogbe-Tay was
restricted at the time of her return - were all essential functions
of the job.
An employer bears the burden of showing that a
particular function is essential.
See Benson v. Nw. Airlines,
Inc., 62 F.3d 1108, 1113 (8th Cir. 1995).
6
“Essential functions of
the job are fundamental job duties, and the employer’s judgment in
this regard is considered highly probative.”
Duello v. Buchanan
Cnty. Bd. of Supervisors, 628 F.3d 968, 972 (8th Cir. 2010)
(citation and internal quotation marks omitted).
A function is
essential when (1) the position exists to perform that function,
(2) the function may only be performed by a limited number of
employees
or
(3)
§ 1630.2(n)(2).
it
requires
special
expertise.
29
C.F.R.
In addition to the judgment of an employer, other
evidence of essential functions includes written job descriptions,
amount of time spent performing the function, the consequences of
not performing the function and the current work experience of
others in similar jobs.
Id. § 1630.2(n)(3); see Dropinski v.
Douglas Cnty., Neb., 298 F.3d 704, 707 (8th Cir. 2002).
Here, The Colony regarded kneeling, squatting and lifting more
than 50 pounds as essential functions of the LPN position.
This
conclusion is reinforced by the “Physical Job Demands” document
which related specifically to the LPN position and was signed by
Attiogbe-Tay when she began her employment with The Colony in
September 2004.
See Scott Aff. Ex. 3.
The document reflects that
The Colony expected LPNs to kneel, squat and lift up to 100 pounds
for between one percent and thirty-three percent of each shift.
Id.
Moreover, such physical tasks are inherently connected with
attending to patients, and the consequences of failing to perform
the duties are potentially dire.
7
See 29 C.F.R. § 1630.2(n)(3)
(listing the
consequences
of
not
performing a function
as a
relevant factor in determining whether function is essential).
As
a result, the court finds that kneeling, squatting and lifting over
50 pounds were essential functions of the LPN position.
Thus,
given the restrictions imposed by her physician, Attiogbe-Tay was
unable to perform these essential functions without reasonable
accommodation.
B.
Reasonable Accommodation
Attiogbe-Tay responds that she would have been able to perform
these functions with reasonable accommodations.
“In cases where
the employee claims that [she] is able to perform the essential
functions of the job with a reasonable accommodation, the employee
must only make a facial showing that a reasonable accommodation is
possible.”
Brannon v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir.
2008) (citations and internal quotation marks omitted). Reasonable
accommodations include “job restructuring, part-time or modified
work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.”
§ 12111(9)(B).
42 U.S.C.
Upon a facial showing by the employee, the burden
“shifts to the employer to show that it is unable to accommodate
the employee.”
Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d
8
707, 712 (8th Cir. 2003) (citations and internal quotation marks
omitted).
reasonably
Attiogbe-Tay
accommodated
argues
her
by
that
(1)
The
Colony
allowing
could
her to
have
call for
assistance when a resident fell, (2) providing her with an aide or
(3) allowing her a six-week leave of absence until her restrictions
expired.
1.
Calling for Assistance and Providing an Aide
Attiogbe-Tay argues that allowing her to call for assistance
with fallen residents and providing her with an aide would have
been reasonable accommodations.
reallocate
or
eliminate
the
An employer, however, “need not
essential
accommodate a disabled employee.”
functions of
a
job
to
Dropinski, 298 F.3d at 709-10.
Allowing Attiogbe-Tay to call for assistance would transfer the
essential functions of Attiogbe-Tay’s job to other employees, who
would then be hampered in the performance of their own duties.
See
id. As to providing Attiogbe-Tay with an aide, an employer “is not
obligated to hire additional employees ... to assist [the employee]
in her essential duties.”
Fjellestad v. Pizza Hut of Am., Inc.,
188 F.3d 944, 950 (8th Cir. 1999) (citation omitted).
As a result,
no reasonable juror could find that allowing Attiogbe-Tay to call
for assistance or providing her with an aide would have been a
reasonable accommodation.
9
2.
Leave of Absence
Attiogbe-Tay next argues that The Colony should have extended
her leave for six additional weeks until her restrictions expired.
A “medical leave of absence might, in some circumstances, be a
reasonable accommodation.”
Brannon, 521 F.3d at 849.
The Colony
responds that, even if Attiogbe-Tay can make a facial showing that
extended leave would be reasonable, providing such leave would
constitute an undue hardship for The Colony.
An
undue
hardship
difficulty or expense.”
is
“an
action
requiring
significant
42 U.S.C. § 12111(10)(a).
Whether an
accommodation poses an undue hardship is considered in light of the
following factors:
(i)the nature and cost of the accommodation
...;
(ii) the overall financial resources of the
facility ... involved in the provision of the
reasonable
accommodation;
the
number
of
persons employed at such facility; the effect
on expenses and resources, or the impact
otherwise of such accommodation upon the
operation of the facility;
(iii) the overall financial resources of the
covered entity; the overall size of the business of a covered
entity with respect to the number of its employees; the number,
type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce
of
such
entity;
the
geographic
separateness,
administrative, or fiscal relationship of the facility or
facilities in question to the covered entity.
Id. § 12111(10)(b).
Here,
Attiogbe-Tay
was
Attiogbe-Tay Dep. 71:14-20.
the
only
overnight
LPN
on
duty.
To cover Attiogbe-Tay’s shifts during
10
her twelve-week FMLA leave, The Colony paid other nurses on its
staff overtime and employed temporary LPNs from a staffing agency.
Anderson Decl. ¶¶ 3-4. The Colony asserts that these modifications
resulted in an uneven level of care to its residents and fatigue to
the other LPNs.
Id. ¶¶ 3, 6.
The Colony also bore considerable
expense - $8,000 in additional staffing costs - as a result of
Attiogbe-Tay’s twelve-week FMLA leave.
Id. ¶ 4.
Given The
Colony’s relatively small staff size, its concerns over the quality
of resident care and the negative effects on its budget and staff,
no reasonable jury could decline to find that the extended leave
was an undue hardship on The Colony.
See, e.g., Epps v. City of
Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (noting that a
proposed leave of absence was an undue hardship when employer
“could not reallocate ... job duties among its small staff of
fifteen to twenty-two police officers.”).
As a result, Attiogbe-
Tay was not qualified to perform the essential functions of the LPN
position either with or without reasonable accommodations, and
summary judgment is warranted.5
5
Attiogbe-Tay also argues that failing to participate in an
interactive process establishes a prima facie case of disability
discrimination. However, “[t]o establish that an employer failed
to participate in an interactive process, a disabled employee must
show ... the employee could have been reasonably accommodated but
for the employer’s lack of good faith.” Cravens v. Blue Cross &
Blue Shield of Kan. City, 214 F.3d 1011, 1021 (8th Cir. 2000)
(citation omitted). As already explained, there were no reasonable
accommodations available and any claim premised on failure to
participate in an interactive process fails.
11
III.
Failure to Accommodate
Attiogbe-Tay next argues claims under the ADA and MHRA for
failure to accommodate her disability.
Failure-to-accommodate
claims are subject to a modified McDonnell Douglas burden-shifting
framework.
Fenney, 327 F.3d at 712.
“Under the modified burden-
shifting approach, the employee must first make a facial showing
that [she] has an ADA disability and that [she] has suffered [an]
adverse employment action.
Then [she] must make a facial showing
that [she] is a qualified individual.”
Brannon, 521 F.3d at 848
(third alteration in original) (citation and internal quotation
marks omitted).
“The employee at all times retains the burden of
persuading the trier of fact that [she] has been the victim of
illegal discrimination due to [her] disability.”
at 1112 (citation omitted).
Benson, 62 F.3d
Here, as already explained, Attiogbe-
Tay cannot demonstrate that she was a qualified individual or that
her proposed accommodations were reasonable.
As a result, summary
judgment is warranted on the failure to accommodate claim.
IV.
FMLA Interference
Attiogbe-Tay also argues that The Colony interfered with her
FMLA rights by terminating her upon her return from FMLA leave.
The FMLA prohibits an employer “from interfering with, restraining,
or
denying
an
employee’s
exercise
of
...
any
[FMLA]
right.”
Stallings v. Hussman Corp., 447 F.3d 1041, 1050 (8th Cir. 2006)
(citation omitted).
The Colony, however, allowed Attiogbe-Tay to
12
take her FMLA-mandated twelve weeks of leave and instructed her to
return to work at the conclusion of that leave.
Scott Aff. Ex. 5.
Upon return from FMLA leave, an employer is “under no obligation to
reinstate [the employee] if she remain[s] unable to perform the
essential functions of her position.”
Spangler v. Fed. Home Loan
Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002).
explained,
Attiogbe-Tay
was
unable
functions of the LPN position.
to
perform
the
As already
essential
As a result, Attiogbe-Tay was not
entitled to reinstatement under the FMLA and summary judgment is
warranted.
V.
FMLA Retaliation
Attiogbe-Tay next argues that The Colony retaliated against
her for taking FMLA leave.
The FMLA prohibits an employer from
retaliating against an employee who asserts their rights under the
Act.
See, e.g., Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th
Cir. 2006); Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002).
In
the absence of direct evidence of retaliation,6 the court applies
a variant of the burden-shifting analysis set forth in McDonnell
Douglas.
See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832
6
Attiogbe-Tay argues that the court should infer retaliatory
intent from The Colony’s statement that she was required to return
to work without restrictions.
See Bolter Aff. Ex. 5.
Direct
evidence, however, “most often comprises remarks by decisionmakers
that reflect, without inference, a [retaliatory] bias.” McCullough
v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009)
(emphasis added). As a result, the court does not consider this
direct evidence of FMLA retaliation and proceeds under the
McDonnell Douglas framework.
13
(8th Cir. 2002).
To prevail, a plaintiff must first establish a
prima facie case of retaliation by showing (1) that she engaged in
conduct protected under the FMLA, (2) that she suffered an adverse
employment action and (3) a causal connection between the two.
Hite, 446 F.3d at 865.
Upon a prima facie showing, the defendant
has the burden to offer a legitimate, non-retaliatory reason for
the adverse action.
must
then
rebut
the
See Smith, 302 F.3d at 833.
defendant’s
justification
The plaintiff
by
presenting
evidence that the proffered reason is pretextual. See id. Summary
judgment is inappropriate if the plaintiff presents such evidence
and creates a reasonable inference of retaliation.
See id.
Here, even if Attiogbe-Tay could establish a prima facie case
of
retaliation,
The
Colony
has
proffered
a
legitimate,
non-
retaliatory reason for her termination: that Attiogbe-Tay was
unable to perform the essential functions of the position.
See,
e.g., Basith v. Cook Cnty., 241 F.3d 919, 933 (7th Cir. 2001);
Barket v. NextiraOne, LLC, No. 01-278, 2002 WL 1457631, at *5 (D.
Minn. July 3, 2002).
Attiogbe-Tay argues that this reason is
pretextual, as (1) she was immediately terminated upon her return
from FMLA leave and (2) after she took FMLA leave, Anderson stated
that she would not recommend Attiogbe-Tay for an extended leave of
absence because of her work performance.
See Bolter Aff. Ex. 19.
The timing of termination alone, however, is not sufficient to
demonstrate pretext.
Logan v. Liberty Healthcare Corp., 416 F.3d
14
877, 881 (8th Cir. 2005).
of
the
termination
is
This is especially true when the timing
entirely
consistent
with
The
Colony’s
proffered reason for the termination: that, upon the expiration of
her FMLA leave, Attiogbe-Tay was unable to perform the essential
functions of the job.
Moreover, Anderson’s comment was made in
response to an email requesting that she review Attiogbe-Tay’s file
to determine whether she was “an employee [The Colony] would want
to make the rare exception for of offering [a leave of absence]
to.”
Bolter Aff. Ex. 19.
To read Anderson’s response to such a
request as reflecting retaliatory intent amounts to nothing more
than speculation.
See Sprenger v. Fed. Home Loan Bank of Des
Moines, 253 F.3d 1106, 1113 (8th Cir. 2001) (“The inferences [the
plaintiff] would have us draw do not follow naturally from the
evidence presented, and would constitute sheer speculation.”).
As
a result, no reasonable jury could find pretext, and summary
judgment on the FMLA retaliation claim is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF No. 16] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
November 7, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
15
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