Broadwater v. State of Minnesota Department of Human Services

Filing 49

ORDER granting 30 Motion for Summary Judgment (Written Opinion). Signed by Judge Richard H. Kyle on 05/23/14. (KLL)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tara Broadwater,
Plaintiff,
v.

Civ. No. 13-539 (RHK/FLN)
MEMORANDUM OPINION
AND ORDER

State of Minnesota Department of Human
Services,
Defendant.

Gregg M. Corwin, Jordan Stockberger, Gregg M. Corwin & Associate Law Office, St.
Louis Park, Minnesota, for Plaintiff.
Kristyn M. Anderson, Alethea M. Huyser, Gary R. Cunningham, Minnesota Attorney
General’s Office, St. Paul, Minnesota, for Defendant.

INTRODUCTION
In this action, Plaintiff Tara Broadwater contends her former employer,
Defendant State of Minnesota Department of Human Services (“DHS”), discriminated
against her based on her disability by denying her request to transfer to another facility
and terminating her employment. DHS now moves for summary judgment; for the
reasons set forth below, its Motion will be granted.
BACKGROUND
The following facts, though largely undisputed, are recited in the light most
favorable to Broadwater.
Broadwater is a board-certified psychiatrist. Beginning in 2007, she worked for
DHS’s State Operated Services Division, treating patients at the Minnesota Security

Hospital (“MSH”) in St. Peter, Minnesota. From 2007 until 2011, Broadwater worked at
MSH without incident and received generally positive performance reviews.
On August 8, 2011, she was the victim of a severe domestic assault, suffering a
concussion, occipital neuralgia, 1 and post-concussion syndrome. Her resulting symptoms
included: severe headaches, insomnia, diminished concentration, loss of appetite, and
difficulty with executive functions such as multitasking. Broadwater returned to work
soon after the injury and continued to work full-time until December 22, 2011. At that
point, she requested a leave of absence under the Family and Medical Leave Act
(“FMLA”) to recover from her injury. Her request was granted and her leave began
December 23.
On December 19, 2011, prior to her FMLA request, one of Broadwater’s patients
complained that he wanted to stop his medications but had not been able to see his doctor
(Broadwater). He complained that he “felt neglected” by Broadwater, prompting DHS to
review the patient’s file. It discovered an absence of psychiatric progress notes in the
file, despite Broadwater having treated the patient numerous times. In response to this
discovery, it opened an internal investigation into her medical documentation for all of
her assigned patients.
On January 6, 2012, Dr. Alan Radke, the State Medical Director, called
Broadwater at home to ask if she could work part-time doing forensic evaluations for

1

Occipital neuralgia is a neurological condition in which the occipital nerves, which run from
the base of the neck up through the scalp, are injured or inflamed, causing chronic pain.
http://www.webmd.com/migraines-headaches/occipital-neuralgia-symptoms-causes-treatments
(last visited May 23, 2014).

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MSH. She declined, telling him she was not a forensic psychiatrist. He asked her when
she would be returning from FMLA leave and she responded that she did not yet know.
Then, according to Broadwater, he referenced a disciplinary proceeding involving her
and suggested she turn herself into the Minnesota Board of Medical Practice; she did not
understand to what he was referring.
The preliminary audit of Broadwater’s patients’ records was completed on January
25, 2012, while she was on leave. It revealed that she had fallen far behind on her
charting during 2011. MSH’s policy required her to dictate progress notes within three
days of seeing a patient, but she had neglected to dictate 105 progress notes between
April and December 2011. (Ochsendorf Aff. Ex. A.) She tried to catch up in December,
dictating all 105 notes over the course of eight days. But they remained temporary notes,
as she never finalized them or placed them in patient files. (Id.) She offered to finalize
them while on leave, but DHS did not allow her to do so. The audit also revealed that she
had not completed the required quarterly progress notes for 17 of her 27 patients. The
results of this audit were provided to DHS’s Division of Licensing, 2 which determined
that Broadwater had violated its Psychiatric Assessment policy and Minnesota Statutes
§ 245A.04, subd. 14 (relating to the licensing of DHS facilities) and issued MSH a
citation. (See Broadwater Dep. Ex. 24.) The remainder of the investigation was stayed
while Broadwater was on leave.

2

The Division of Licensing is an independent division of DHS, separate from the State Operated
Services Division for which Broadwater worked.

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By July 2012, Broadwater’s doctor cleared her to return to work part-time. She
did not wish to return to her position at MSH and began looking for employment at other
DHS-administered psychiatric facilities. Dr. Peter Miller, who knew of the ongoing
disciplinary investigation, offered her a part-time position with the Community
Behavioral Health Hospital (“CBHH”). Miller’s understanding from Radke was that
Broadwater would be allowed to return to work for DHS part-time under close
supervision with just a letter of reprimand. Radke denies telling Miller this. According
to Radke, he and Miller discussed a range of possible outcomes of Broadwater’s
investigation, which included her returning to work part-time with a letter of reprimand.
Regardless, at some point—it is not clear from the parties’ submissions when or how—
Broadwater requested to transfer to CBHH. DHS denied her request, citing its policy
against allowing transfers while an investigation is pending. So on October 2, 2012, she
returned to her position at MSH to work part-time.
The following day, Karen Ochsendorf, who was in charge of the investigation,
interviewed Broadwater. In the interview, Broadwater acknowledged that she was
expected to dictate progress notes within three days of seeing a patient, admission notes
within seven days, and discharge summaries within two weeks. She also acknowledged
she was behind on her notes and had tried to catch up by dictating 105 notes in
December. Broadwater described her injury and symptoms to Ochsendorf, ostensibly as
part of her explanation for why she was behind on her notes in December. She told
Ochsendorf she “never was the best at getting notes done in a timely manner” and that
late notes were an “ongoing issue” for her, which at least three people had addressed with
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her previously. Broadwater stated she had been caught up on her charting in March
2011, but began to slide again. She described the period between April and December
2011 as “the worst it slid.” Ochsendorf issued a completed investigation report to Radke,
Pratt, and Karen Olson. The report included Broadwater’s statements to Ochsendorf
regarding her charting and injury and noted that Broadwater was rated as “below
expectations due to dictation timeliness” in her 2008 performance review. Broadwater
recalls explaining to Ochsendorf that she had lost some of her notes due to technical
problems with the charting software, but this was not mentioned in the report.
After reviewing the report, Radke, Pratt, and Olson met to discuss the results of
the investigation. Each testified that they discussed several disciplinary options for
Broadwater, ranging from a letter of reprimand to suspension or dismissal. Ultimately,
they recommended dismissal to Anne Barry, who was the final decision maker. Barry sat
down with the three of them to discuss the range of disciplinary options, and concluded
dismissal was appropriate given the large volume of late notes and the duration of
Broadwater’s problems with charting. On October 12, 2012, Pratt called Broadwater into
his office and informed her they were eliminating her position. She later requested a
reason for the elimination and was sent a letter citing her failure to timely complete her
patient charting, explaining it had violated MSH policy and Minnesota law and caused
MSH to receive a citation from the Licensing Division.
In 2013, Broadwater commenced the instant action against DHS, alleging it had
discriminated against her on the basis of her disability by terminating her and not
allowing her to transfer to the CBHH facility. Broadwater asserted claims under the
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Minnesota Human Rights Act, Minn. Stat. § 363A.01 et seq., which she has agreed to
dismiss, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12201 et seq.,
which remains pending. DHS now moves for summary judgment on the ADA claim.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557
U.S. 557, 586 (2009). The moving party bears the burden of showing that the material
facts in the case are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc). The Court must view the evidence, and the inferences that may
be reasonably drawn from it, in the light most favorable to the nonmoving party. Beard
v. Banks, 548 U.S. 521, 529–30 (2006); Weitz Co. v. Lloyd’s of London, 574 F.3d 885,
892 (8th Cir. 2009). The nonmoving party may not rest on mere allegations or denials,
but must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue of material fact for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood v.
SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
ANALYSIS
The ADA prohibits discrimination against qualified individuals on the basis of
disability. 42 U.S.C. § 12112(a). Broadwater asserts DHS discriminated against her on
the basis of her disability in two ways—by dismissing her because of her disability and
by failing to accommodate her disability via transfer to CBHH.

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I.

Wrongful Termination
In the absence of direct evidence of discrimination, which she has not alleged,

Broadwater’s wrongful-termination claim under the ADA is analyzed using the familiar
McDonnell Douglas burden-shifting framework. E.g., Knutson v. Schwan’s Home Serv.,
Inc., 711 F.3d 911, 913 (8th Cir. 2013); Brown v. City of Jacksonville, 711 F.3d 883,
888–89 (8th Cir. 2013). Broadwater must first establish a prima facie case of
discrimination, which requires her to show: (1) she is a qualified individual with a
disability; (2) she suffered an adverse employment action; and (3) the adverse action was
based on her disability. Brown, 711 F.3d at 888. DHS does not dispute that Broadwater
was a qualified individual and suffered an adverse employment action. But it contends
she was not disabled within the meaning of the ADA and any alleged disability was not
the cause of her termination.
A. Broadwater’s Disability
As relevant to Broadwater’s claim, a disability under the ADA is defined as “a
physical or mental impairment” that “substantially limits the ability of the individual to
perform a major life activity as compared to most people in the general population.” 29
C.F.R. § 1630.2. “Major life activities” include “sleeping, . . . concentrating, thinking,
. . . and working,” 42 U.S.C. § 12102(2), all of which Broadwater contends were
substantially limited by her post-concussion syndrome.
Broadwater’s strongest evidence of disability relates to her impaired ability to
work. When she returned from FMLA leave, her doctors had only cleared her to work up
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to twenty hours per week. DHS dismisses this restriction as insubstantial, citing cases
that require a plaintiff to be “unable to work in a broad class of jobs” before qualifying as
disabled. St. Martin v. City of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012) (internal
quotation omitted); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999);
Knutson v. Ag Processing, Inc., 394 F.3d 1047, 1051 (8th Cir. 2005). 3 But these cases
apply an outdated version of the ADA. When Congress amended the ADA in 2008, it
overturned then-existing precedent and instructed courts to construe the definition of
disability “in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A)
(emphasis added); see also Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th
Cir. 2010) (The 2008 amendments “broadened the definition of what constitutes a
disability.”); 29 C.F.R. 1630.2(j)(1) (An individual’s impairment need not “prevent” or
“significantly or severely restrict” a major life activity to qualify as a disability.).
Under the current, more liberal definition, the Court concludes that being unable to
work more than twenty hours a week could qualify as a “substantial” limitation. The
standard American workweek is forty hours. Thus, her ability to work is half that of most
people in the general population. Moreover, Broadwater suffers from insomnia and
diminished executive functioning and concentration. Although the record of these
limitations (insofar as it has been submitted to the Court) is thin, the evidence of her
impairments overall is sufficient to create a question of material fact regarding her

3

See also Ifill v. United Parcel Serv., No. 04 Civ. 5963, 2008 WL 2796599, at *9 (S.D.N.Y. July
17, 2008); Kelly v. Retirement Pension Plan, 209 F. Supp. 2d 462, 475 (E.D. Pa. 2002); Shaw v.
Greenwich Anesthesiology Assocs., P.C., 137 F. Supp. 2d 48, 55 (D. Conn. 2001); Newton v.
Signature Grp., No. 99 CV 4772, 2000 WL 1016945, at *9 (N.D. Ill. July 20, 2000).

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alleged disability. E.g., Fenney v. Dakota, Minn. & E. R. Co., 327 F.3d 707, 716 (8th
Cir. 2003) (reversing summary judgment, in part, because plaintiff proffered sufficient
evidence of disability to create “a reasonable inference from which an issue of material
fact can be drawn”).
B. Causation
Broadwater advances two arguments regarding why her termination was based on
her disability. First, she argues that the timing of the investigation and her termination
were “highly suspicious.” To the contrary, DHS commenced its investigation just days
after a patient complained about neglect. This was months after her allegedly disabling
injury and before she requested FMLA leave. True, her termination came within two
weeks of her returning from FMLA leave and after Pratt, Radke, and Olson read the
investigation report mentioning her injury. But that report also detailed the extent and
duration of her dilatory charting, which is why DHS says it terminated her. So the timing
of her termination also supports DHS’s proffered reason. The Eighth Circuit was
presented with similar facts in Hill v. Walker, 737 F.3d 1209, 1219 (8th Cir. 2013).
There, the employer terminated the plaintiff eleven days after she engaged in a protected
activity and ten days after she engaged in misconduct. Id. The Court stated, “where the
employer’s proffered reason for action is virtually contemporaneous with the protected
activity, we are disinclined to declare a genuine issue of fact for trial based on temporal
proximity alone.” Id. Similarly, this Court concludes that timing alone is insufficient
evidence of causation where the decision makers discovered information about both her
disability and misconduct simultaneously.
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Second, Broadwater contends her problems with charting were caused by her
disability and thus even DHS’s proffered reason for terminating her was “based on” her
disability. Putting the legal merit of this argument aside, the evidence clearly shows she
consistently failed to record her patients’ notes in a timely manner before she became
disabled. Her performance reviews dating back to 2007 and 2008 mention this issue, and
Broadwater herself acknowledged it was an “ongoing” problem. In addition, the 105
progress notes she dictated in December dated back to April 2011—four months before
her disabling injury in August.
In the absence of evidence showing DHS terminated Broadwater “on the basis of
disability,” her claim for wrongful termination fails.
C. Pretext
Even if Broadwater had established a prima facie case of discrimination, she has
not presented sufficient evidence to demonstrate DHS’s proffered reason for her
termination (her belated charting) was pretext for discrimination. Brown, 711 F.3d at
888–89 (once plaintiff establishes prima facie case, the burden shifts to employer to
proffer legitimate, non-discriminatory reason for termination, at which point the burden
shifts back to plaintiff to demonstrate proffered reason is mere pretext).
A plaintiff may demonstrate pretext by showing the employer’s proffered reason
for terminating her has no basis in fact or is otherwise unworthy of belief. Logan v.
Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005). According to Broadwater,
she was “caught up” on her notes. She asserts she was caught up because she had
dictated the 105 late notes before the investigation began. But this argument misses the
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mark. She was not, in fact, current on her notes because she never finalized them. And
more importantly, regardless of whether she eventually “caught up,” she acknowledges
she violated DHS policy by dictating them months after her patient visits. The Court fails
to understand the logic behind Broadwater’s argument that her “catching up” in
December somehow nullified DHS’s authority to discipline her for eight months’ worth
of policy violations. There is no genuine dispute that she was behind on her charting and
in violation of DHS policy.
Broadwater also asserts she was not as far behind on her notes as DHS alleges.
She claims some of her notes were lost due to computer difficulties; thus her late notes
“had more to do with the inherent problems with the hospital’s dictations system, and less
to do with [her] deficiencies.” (Pl.’s Mem. at 14.) But “[t]he critical inquiry in
discrimination cases like this one is not whether the employee actually engaged in the
conduct for which he [or she] was terminated, but whether the employer in good faith
believed that the employee was guilty of the conduct justifying discharge.” McCollough
v. Univ. of Ark. for Med. Sci., 559 F.3d 855, 861–62 (8th Cir. 2009) (emphases added).
Broadwater acknowledges that the investigation report did not mention her technical
difficulties and she has presented no evidence calling into question the decision maker’s
good-faith belief that her missing and late notes were due to her own “deficiencies.”
A plaintiff may also prove pretext by “showing that the employer varied from its
normal policy or practice to address the employee's situation.” Hite v. Vermeer Mfg.
Co., 446 F.3d 858, 867 (8th Cir. 2006) (citing Erickson v. Farmland Indus., Inc., 271 F.3d
718, 727 (8th Cir. 2001). “For example, the employee could show that the employer
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routinely treated similarly situated employees who were not in the protected class more
leniently.” Id. (citing Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir.
2002)).
Broadwater alleges that other, non-disabled employees who were behind on their
charting were not terminated or even disciplined. But in support, she offers only vague
hearsay testimony—for example, that there were “rumors” other doctors were behind or
other doctors told her they were behind. But she has offered no admissible evidence to
confirm this allegation or any further details, such as whether they were days behind or
months behind, whether patients had complained about them (prompting an
investigation), or whether their supervisors knew they were behind. In fact, the most
specific comparator she offers is an unnamed DHS physician who, according to the local
newspaper, was fired for late charting in 2005, rehired in 2009, and then fired for the
same reason again in 2013. In the Court’s view, this article (issues of its admissibility
aside) undermines Broadwater’s allegation, as it shows DHS has fired a (presumably)
non-disabled employee for the same infraction as Broadwater—twice.
Finally, she argues DHS’s disciplinary policy on charting is inconsistent because
first Radke was going to reprimand her, but then she was terminated. Even assuming an
employer changing its adverse employment decision could be evidence of pretext,
Broadwater has not shown that such a change occurred here. In support of this argument,
she cites a September email from Miller in which he states that Radke told him she would
receive a reprimand. But Radke did not make the ultimate decision, Barry did, and the
emails among Radke, Pratt, Olson, and Barry prove she did not reach a decision
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regarding Broadwater until October 11, 2012. Up until that date, their emails
demonstrate they were actively considering several possible courses of action. Thus,
while Miller’s email may reveal a change in Radke’s opinion or expectation as to
Broadwater’s discipline, it does not support an inference that DHS decided to reprimand
her and later changed its decision after she returned from leave.
In sum, Broadwater has failed to present sufficient evidence that her termination
was based on her alleged disability, and she has further failed to demonstrate that DHS’s
proffered reason for terminating her employment was pretextual. As a result, her
wrongful-termination claim fails.
II.

Failure to Accommodate
Broadwater also alleges that DHS discriminated against her by failing to transfer

her to CBHH. “An employer commits unlawful discrimination . . . if the employer does
‘not mak[e] reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or employee,
unless [the employer] can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of [the employer].’” Fjellestad v. Pizza Hut of
Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999) (quoting 42 U.S.C. § 12112(b)(5)(A)).
As an initial matter, the Court notes that DHS made at least one reasonable
accommodation to Broadwater’s disability—it allowed her to return to work part-time.
But Broadwater asserts it should have transferred her to CBHH and allowed her to work
part-time there instead of at MSH. This claim fails for the same reason as her termination
claim. As already discussed, DHS was not required to employ her in light of her
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delinquent charting, let alone transfer her to CBHH. And although DHS denied her
transfer before reaching the decision to terminate her, its denial was in accordance with
its policy prohibiting transfer of employees who are subject to ongoing investigations.
Employers are not “required to reassign a disabled employee to a position when such
transfer would violate a legitimate, non-discriminatory policy . . . and for good reason.
The contrary rule would convert a nondiscrimination statute into a mandatory preference
statute.” Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 679 (7th Cir. 1998) (cited
favorably by the Eighth Circuit in Cravens v. Blue Cross & Blue Shield of Kansas City,
214 F.3d 1011, 1020 (8th Cir. 2000)). So DHS was permitted to deny Broadwater’s
transfer according to this policy, regardless of her disability.
Additionally, her claim fails because she has not adduced sufficient evidence that
she requested the transfer as an accommodation for her disability—an essential element
of the claim. E.g., Ballard v. Rubin, 284 F.3d 957, 960–61 (8th Cir. 2002). In her
deposition, she was asked, “Did you ever request an accommodation for your disability?”
and Broadwater responded that she “simply talked to [her] supervisors so they understood
exactly what was going on with [her] on a regular basis.” (Broadwater Dep. at 53.) But
she could not recall any instance in which she communicated to DHS that she was
requesting a transfer because of her disability. Rather, she argues that her supervisors’
knowledge of her disability (which they deny) “should have prompted [them] to make
appropriate inquiries about a possible need for an accommodation.” (Pl.’s Mem. at 20.)
But the burden was not on DHS to inquire whether she needed accommodation. The
ADA places the initial burden on the employee to request accommodation. Ballard, 284
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F.3d at 960–61. Only then must the employer engage in the interactive process to
attempt to find a reasonable accommodation. Id. A request for accommodation need not
be in writing or use “the magic words ‘reasonable accommodation,’” but it “must make
clear that the employee wants assistance for his or her disability.” Id. at 962 (emphasis
added). Broadwater has not met this burden. There is no dispute she requested a
transfer, but she has not demonstrated that she “made clear” to DHS that she was
requesting the transfer because of her disability. This stands in contrast to her request to
work part-time, which was clearly sought as an accommodation to her disability, and
which DHS granted.
DHS was entitled to dismiss Broadwater for violating its policy instead of
transferring her to another facility—this alone defeats her failure-to-accommodate claim.
In addition, she has not shown she requested accommodation from DHS—an essential
element of the claim.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that DHS’s Motion for Summary Judgment (Doc. No. 30) is GRANTED
and the Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 23, 2014
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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