Equal Employment Opportunity Commission v. Wesley Health System, LLC

Filing 97

MEMORANDUM OPINION and ORDER denying 73 Motion for Summary Judgment. Signed by District Judge Keith Starrett on 11/14/18. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
v.

PLAINTIFF

CIVIL ACTION NO. 2:17-CV-126-KS-MTP

WESLEY HEALTH SYSTEM, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons provided below, the Court denies Defendant’s Motion for
Summary Judgment [73].
I. BACKGROUND
Lois Cooper was a nurse in the Transitional Care Unit (“TCU”) at Wesley
Medical Center in Hattiesburg, Mississippi. In April 2014, she injured her shoulder
and took leave. In July 2014, Cooper’s doctor cleared her to return to work with
restrictions. Defendant determined that Cooper could not safely return to work in the
TCU because lifting and pushing patients was an “essential function” of her job. So,
Defendant advised Cooper to apply for a vacant position in its network for which she
was qualified. Cooper applied for one such position, but Defendant hired another
candidate. Defendant finally terminated Cooper’s employment on August 8, 2014.
Cooper filed a charge of discrimination with the EEOC, alleging violations of
Title I of the Americans with Disabilities Act (“ADA”).1 The EEOC determined that

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42 U.S.C. § 12102, et seq.

there was reasonable cause to believe that Defendant had violated the ADA and
invited Defendant to informal negotiations to address the alleged unlawful
employment practices. Negotiations failed, and the EEOC filed this lawsuit against
Defendant.
II.DISCUSSION
Defendant argues that the Court should grant summary judgment as to
Plaintiff’s claim that Defendant failed to accommodate Cooper when she sought to
return to work after taking leave.2 Rule 56 provides that “[t]he 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 also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
138 (5th Cir. 2010). “An issue is material if its resolution could affect the outcome of
the action.” Sierra Club, Inc., 627 F.3d at 138. “An issue is ‘genuine’ if the evidence is

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Defendant argued in briefing that Plaintiff only asserted a single claim –
that it failed to accommodate Cooper when she sought to return to work. Rebuttal
at 9, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss. Oct.
4, 2018), ECF No. 88. Defendant’s description of the pleadings is inaccurate.
Plaintiff asserted three theories of liability: discriminatory treatment in violation of
42 U.S.C. § 12112(a), failure to accommodate in violation of 42 U.S.C. §
12112(b)(5)(A), and denial of employment opportunities in violation of 42 U.S.C. §
12112(b)(5)(B). Complaint at 4, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126KS-MTP (S.D. Miss. July 25, 2017), ECF No. 1. Plaintiff also alleged three
actions/inactions by Defendant that constituted said violations: refusal to engage in
the interactive process, failure to reasonably accommodate Cooper’s disability, and
termination. Id. at 5. The Court clarifies this issue because the parties argued past
one another in briefing, neither squarely addressing the other’s arguments.
Moreover, in addressing the present motion, the Court will only assess Plaintiff’s
failure-to-accommodate claim because that is the only claim Defendant addressed.
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sufficient for a reasonable jury to return a verdict for the nonmoving party.” Cuadra
v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
“Under the ADA, it is unlawful for an employer to fail to accommodate the
known limitations of an employee’s disability.” Credeur v. Louisiana, 860 F.3d 785, 792
(5th Cir. 2017). To prove a failure-to-accommodate claim, a plaintiff must show that:
“(1) the plaintiff is a ‘qualified individual with a disability;’ (2) the disability and its
consequential limitations were ‘known’ by the covered employer; and (3) the employer
failed to make ‘reasonable accommodations’ for such known limitations.’” Id. (quoting
Neely v. PSEG Texas, Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)).
A.

Whether Lifting Was an Essential Function
First, Defendant argues that Plaintiff cannot establish that Cooper was a

“qualified individual” under the ADA because the evidence demonstrates that she could
not perform the “essential functions” of her job with or without a reasonable

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accommodation. Specifically, Defendant contends that Cooper could not lift or carry at
least 50 pounds or push up to 300 pounds. In response, Plaintiff argues that these
physical requirements were not actually “essential functions” of her job.
Under the ADA, a “qualified individual” is one “who, with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). “Fact-finders must determine
whether a function is ‘essential’ on a case-by-case basis.” Credeur, 860 F.3d at 792
(quoting EEOC v. LHC Group, Inc., 773 F.3d 688, 698 (5th Cir. 2014)). “The term
essential functions means the fundamental job duties of the employment position the
individual with a disability holds or desires. The term . . . does not include the
marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). The Court must give
“consideration . . . to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description . . . , this description
shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8).
But “courts should not give blind deference to an employer’s judgment, but
should instead evaluate the employer’s words along with its policies and practices.”
Credeur, 860 F.3d at 794. EEOC regulations provide a non-exhaustive list of factors the
Court should consider:
(i)

The employer’s judgment as to which functions are essential.

(ii)

Written job descriptions prepared
interviewing job applicants for the job;

(iii)

The amount of time spent on the job performing the function;

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before

advertising or

(iv)

The consequences of not requiring the incumbent to perform the
function;

(v)

The terms of a collective bargaining agreement;

(vi)

The work experience of past incumbents in the job; and/or

(vii)

The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3).
Cooper’s job description provided that she was “frequently” – 34-66% of her time
at work – required to lift and carry 50 pounds or more, and to push up to 300 pounds.
Exhibit G at 2, EEOC v. Wesley Health Sys., LLC, No. 2:17cv126-KS-MTP (S.D. Miss.
Sept. 27, 2018), ECF No. 80-7. However, Defendant’s Safety Guidelines also provided
that staff should “[a]sk for assistance when the load is too large or too heavy,”
apparently contemplating that staff would seek and receive assistance when lifting
patients. Exhibit V at 2, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP
(S.D. Miss. Sept. 27, 2018), ECF No. 80-22.
Cooper testified that nurses in the TCU never moved patients alone. Exhibit A
at 19, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss. Aug.
30, 2018), ECF No. 73-1. She said: “You always got help. You never lifted alone because
. . . you could injure the patient or you could injure yourself.” Id. She later elaborated:
“[I]f you needed help with them, turning them, positioning them, or walking them to
the – or getting them on the bedside commode or the bathroom, you would go get help.
You did not do it alone. You did the buddy system.” Id. at 26. She said there was
always enough staff to get another person to help, and that she had never had to
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support the full weight of a patient on her own. Id. Cooper also described devices for
lifting, moving, and/or transferring patients: chair lifts and bed lifts, id. at 27-29, and
she testified that she did not have to use her own strength to get a patient into these
devices. Id. at 28. Addressing the job description, Cooper affirmed that she was
sometimes required to lift and/or carry 50+ pounds, but she could not “say if it was
frequent” or not. Id. at 31, 35. She also acknowledged that “emergency or crisis
situations” could arise, but she could “call rapid response and get additional assistance
up to assist.” Id. at 34.
Howard Franklin, the Administrator of the TCU, confirmed that staff in the
TCU sometimes used a “buddy system” to transfer patients, depending on the
situation. Exhibit B at 10, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP
(S.D. Miss. Aug. 30, 2018), ECF No. 73-2. But he elaborated: “The job is very physically
demanding. . . . [Y]ou can never tell what’s going to happen when it comes to
transferring and moving these patients.” Id. at 36. He said it “can’t be guaranteed” that
assistance from other staff will be available. Id. at 37. But according to him, “lifting is
going to be part of the process of doing [a registered nurse’s] duties throughout a 12hour shift.” Id. at 40. He testified: “I witness everyday RN’s lifting and moving
patients.” Id. He confirmed that other staff sometimes help nurses lift and transfer
patients. Id. at 40, 43. He also confirmed the availability of devices to assist in lifting
and moving patients. Id. at 40-41, 44.
Melissa Lott, Defendant’s Director of Nursing in the TCU, testified that no one

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working in the TCU “can lift a patient.” Exhibit H at 25, EEOC v. Wesley Health Sys.,
LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss. Sept. 27, 2018), ECF No. 80-8. She said:
“You cannot lift a patient. You can assist the patient to the side of the bed and assist
them up if they are ambulatory, but you cannot lift.” Id. She described devices that
nurses use to lift patients, id. at 27-30, and she testified that nurses in the TCU always
get assistance when moving patients. Id. at 44. However, she stated that a nurse still
should be able to move patients on her own, in case others were not available to assist.
Id. at 44-45. Finally, she directly testified that nurses in the TCU are not required to
frequently lift more than fifty pounds. Id. at 30.
On summary judgment, “the court must view the facts and the inference to be
drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, Inc.,
627 F.3d at 138. Plaintiff presented direct testimony from Cooper and Lott indicating
that nurses in the TCU always seek and receive assistance in lifting patients, and that
they are not frequently required to lift more than fifty pounds. Moreover, the record
contains testimony about devices nurses use to move and lift patients. This is sufficient
to create a genuine dispute of material fact as to whether the lifting/pushing
requirements were essential functions of Cooper’s job. See LHC Group, 773 F.3d at 698
(where record contained evidence that traveling was not as prominent a part of duties
as job description suggested, there was genuine dispute of material fact as to whether
driving was an essential function).

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B.

Whether Defendant Offered a Reasonable Accommodation
Next, Defendant argues that Plaintiff has no evidence that it failed to offer

Cooper a reasonable accommodation. A “reasonable accommodation” may include “job
restructuring, part-time or modified work schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices, . . . and other similar
accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9); see also 29
C.F.R. § 1630.2(o)(2)(ii). The term may also include “[m]odifications or adjustments to
the work environment, or to the manner or circumstances under which the position
held or desired is customarily performed, that enable an individual with a disability
who is qualified to perform the essential functions of that position . . . .” 29 C.F.R. §
1630.2(o)(1)(ii). But the ADA “does not require an employer to relieve an employee of
any essential functions of his or her job, modify those duties, reassign existing
employees to perform those jobs, or hire new employees to do so.” LHC Group, 773 F.3d
at 698.
Defendant argues that it accommodated Cooper by assisting her in identifying
and applying for an available position that did not require heavy lifting. Plaintiff
argues, among other things, that Defendant could have allowed her to lift with
assistance. As noted above, the record contains evidence that nurses in the TCU always
seek and receive assistance in lifting patients, that they are not frequently required to
lift more than fifty pounds, and that nurses in the TCU use devices to help them move
and lift patients. Both Cooper and Lott testified that nurses always get assistance
when moving or lifting patients. If it is, in fact, the common practice in the TCU for
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nurses to receive assistance when lifting or moving patients, then Cooper’s proposal
that she receive such assistance would have been a reasonable accommodation.
Additionally, Plaintiff has presented evidence from which a jury could
reasonably infer that Defendant did not engage in the interactive process in good faith.
“An employee’s request for accommodation triggers an obligation on behalf of the
employer to engage with good faith in an interactive process to identify an appropriate
accommodation.” Jurach v. Safety Vision, LLC, 642 F. App’x 313, 318 (5th Cir. 2016)
(citing Griffin v. UPS, 661 F.3d 216, 224 (5th Cir. 2011). “An employer is liable when
its unwillingness to participate in the process leads to a failure to reasonably
accommodate.” Id. But “an employer that demonstrates good faith efforts to engage in
the interactive process and to make a reasonable accommodation is shielded from
liability.” Id.
Cooper was injured in April 2014 and she took leave until July 2014. On July
15, 2014, Cooper attempted to return to work, but Defendant would not permit her to
do so because of lifting restrictions in the latest report from Cooper’s doctor. Defendant
officially terminated Cooper’s employment on August 8, 2014, after it rejected her
application for another position. However, on June 24, 2014 – three weeks before
Defendant even knew about Cooper’s restrictions – Melissa Lott, the TCU Director of
Nursing, sent an e-mail to Phebe McKay, the Chief Nursing Officer. Exhibit Q to
Response at 2, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss.
Sept. 27, 2018), ECF No. 80-17. According to Lott, Terry Trigg, the HR Director, “told

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us to go ahead and put in a rec to replace [Cooper].” Id. Lott said:
We are doing it by the book with Terry’s help, but this is a nurse [we]
would rather not have back. She says she is coming back with
restrictions. That’s good because she can’t work with restrictions, so just
FYI, her FMLA will be up next week, so just wanted you to be aware if
you see TCU night nurse position come across. We really need it filled.
Again, we are going to follow Terry’s lead, but want to be able to hire
ASAP when all is settled.
Id. At her deposition, Lott admitted that she did not want Cooper to come back. Exhibit
C to Motion for Summary Judgment at 19, EEOC v. Wesley Health Sys., LLC, No. 2:17CV-126-KS-MTP (S.D. Miss. Aug. 30, 2018), ECF No. 73-3. Lott testified: “[Cooper] is
a chronic complainer. It’s hard to come to work when you have a nurse that constantly
complains about her duties as a nurse.” Id. A jury could reasonably infer from this
evidence that Defendant never intended to accommodate or retain Cooper, and that it
used her condition as excuse to get rid of her.3
III. CONCLUSION
For these reasons, the Court denies Defendant’s Motion for Summary Judgment
[73].

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See Cutrera v. Bd. of Supervisors of Louisiana State Univ., 429 F.3d 108, 113
(5th Cir. 2005) (“An employer may not stymie the interactive process of identifying
a reasonable accommodation for an employee’s disability by preemptively
terminating the employee before an accommodation can be considered or
recommended.”); Liner v. Hospital Service Dist. No. 1 of Jefferson Parish, 230 F.
App’x 361, 364 (5th Cir. 2007) (jury could reasonably infer that employer did not
make good faith effort to reasonably accommodate employee where it merely told
him to apply for other jobs that he may or may not get, and did not work with
employee to identify a vacant position for a transfer).
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SO ORDERED AND ADJUDGED this 14th day of November, 2018.

/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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