Wheat v. Rush Health Systems, Inc.
Filing
55
MEMORANDUM OPINION AND ORDER denying Defendant's Motion 40 for Summary Judgment. Signed by District Judge Halil S. Ozerden on 7/15/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNY WHEAT, JR.
V.
PLAINTIFF
Civil No. 3:13-cv-984-HSO-RHW
RUSH HEALTH SYSTEMS, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant Rush Health Systems, Inc.’s Motion [40]
for Summary Judgment and Memorandum [41] in Support. Plaintiff Johnny
Wheat, Jr. has filed a Response [45] and Memorandum [44] in Support and
Defendant a Reply [49]. After consideration of the parties’ submissions, the record,
and relevant legal authorities, the Court finds that Defendant’s Motion [40] for
Summary Judgment should be denied. Plaintiff’s claims under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), for disparate treatment, failure
to provide a reasonable accommodation, and retaliation will proceed to trial. To the
extent that Plaintiff is now, in his briefing, attempting to pursue a constructive
discharge claim, this claim will not go forward because it was not pleaded in the
Complaint or administratively exhausted before the Equal Employment
Opportunity Commission (“EEOC”).
I. FACTS AND PROCEDURAL HISTORY
Plaintiff has a hearing impairment and wears bilateral hearing aids. He was
employed in various nursing positions at Rush Foundation Hospital in Meridian,
Mississippi, from February 4, 2008, until August 8, 2012, when he resigned. Rush
is owned by Defendant Rush Health Systems, Inc. Plaintiff alleges that Defendant
discriminated against him on the basis of his hearing disability in violation of the
ADA, failed to provide him a reasonable accommodation, and retaliated against him
when he reported the discrimination and subsequently filed two Charges with the
EEOC.
By all accounts, Plaintiff performed well during the first three years of his
employment with Defendant. Plaintiff, a Registered Nurse (“RN”), was assigned to
the Medical Surgery Floor as a Charge and Preceptor Nurse, a supervisory position,
and then assigned to a Staff RN position in the Post-Anesthesia Care Unit. On
February 6, 2011, Plaintiff accepted a position in the Orthopedic Surgery Unit as an
RN Circulator. This was Plaintiff’s first position in the operating room, as opposed
to “on the floor.” As an RN Circulator, Plaintiff assisted orthopedic surgeons during
surgical procedures and prepared for procedures by performing such tasks as
stocking the operating room and positioning patients.
On April 19, 2012, fourteen months after he was hired, Plaintiff was removed
from his position as an RN Circulator and placed on administrative leave with pay.
Defendant maintains that this occurred because Plaintiff was not performing well
in his new position and posed a direct threat to patient safety. Defendant assisted
Plaintiff in searching for another position with Defendant by recommending that he
pursue certain jobs. Plaintiff interviewed for several jobs suggested by Defendant
but did not receive any offers. A couple of positions that Defendant anticipated
becoming available and suggested to Plaintiff did not become available. Defendant
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discussed clinic positions with Plaintiff, which paid significantly less than what
Plaintiff earned as an RN Circulator but offered the work schedule Plaintiff desired.
On May 1, 2012, Plaintiff accepted a clinic position in an urgent care clinic. While
Plaintiff initially received the same compensation he was paid as an RN Circulator,
his compensation was soon reduced by almost six dollars an hour, which was
commensurate with what other clinic nurses earned. Plaintiff resigned on August
8, 2012, after learning that his compensation was being further reduced from
$18.00 to $16.00 an hour. Pl.’s Dep. [45-1] 38, 137-38.
On November 13, 2012, Plaintiff filed this Complaint, asserting claims
pursuant to the ADA, as amended by the ADA Amendments Act of 2008, Pub. L.
No. 110-325, 122 Stat. 3553 (codified as amended in scattered sections of 42 U.S.C.).
Defendant now seeks summary judgment on all of Plaintiff’s claims.
II. DISCUSSION
A.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “[i]f 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). “A fact is ‘material’ if its resolution in favor of one party might affect
the outcome of the lawsuit under governing law. An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
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Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments are not an adequate substitute for specific facts showing a
genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759
(5th Cir. 2002). Where both parties have submitted evidence of contradictory facts,
“the court must draw all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see Tiblier v. Dlabel, 743
F.3d 1004, 1007 (5th Cir. 2014).
B.
The Americans with Disabilities Act
“The Americans with Disabilities Act is an antidiscrimination statute designed
to remove barriers which prevent qualified individuals with disabilities from enjoying
employment opportunities available to persons without disabilities.” Seaman v.
CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). The ADA prohibits discrimination
against a “qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The term “discriminate” is defined to include
“not making reasonable accommodations to the known physical and mental
limitations of an otherwise qualified individual with a disability . . . .” 42 U.S.C. §
12112(b)(5)(A). The ADA also prohibits retaliation against an individual because he
has opposed an act or practice made unlawful by the ADA or engaged in protected
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activity, such as filing a charge with the EEOC. 42 U.S.C. § 12203(a). Plaintiff has
pleaded and administratively exhausted three ADA claims: a disparate treatment
claim, a reasonable accommodation claim, and a retaliation claim.
A plaintiff may prove discrimination or retaliation under the ADA through
direct evidence or, alternatively, through indirect evidence using the McDonnell
Douglas burden-shifting method of proof. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th
Cir. 2009). In this case, Plaintiff utilizes the McDonnell Douglas framework.
Under McDonnell Douglas, a plaintiff creates a presumption of discrimination or
retaliation by establishing a prima facie case. McInnis v. Alamo Cmty. College
Dist., 207 F.3d 276, 279-80 (5th Cir. 2000)(ADA discrimination claim); Feist v. La.
Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013)(ADA
retaliation claim). Once a plaintiff does so, the burden shifts to the defendantemployer to articulate a legitimate, nondiscriminatory or nonretaliatory reason for
the adverse employment action. This causes the presumption of discrimination or
retaliation to dissipate. The burden then shifts back to the plaintiff to ultimately
show that the employer’s proffered reason is not true but is instead pretext for
discrimination or retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th
Cir. 2007). “[T]o satisfy step three of the McDonnell Douglas framework, a plaintiff
must put forth evidence rebutting each of the nondiscriminatory reasons the
employer articulates.” Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010).
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C.
Plaintiff’s ADA Disparate Treatment Claim
To establish a prima face case of disparate treatment, Plaintiff must show
that: (1) he was disabled within the meaning of the ADA; (2) he was qualified and
able to perform the essential functions of the job; and (3) he suffered an adverse
employment action because of his disability. Neely v. PSEG Texas, Ltd. P’ship, 735
F.3d 242, 245 (5th Cir. 2013). According to Defendant, Plaintiff’s disparate
treatment claim cannot survive summary judgment because Plaintiff did not have a
disability as defined by the ADA, he was not qualified for his position as an RN
Circulator, and he did not suffer an adverse employment action. Def.’s Mem. [41]
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1.
Whether Plaintiff was Disabled
“The term ‘disability’ means, with respect to an individual - (A) a physical or
mental impairment that substantially limits one or more major life activities of
such individual; (B) a record of such impairment; or (C) being regarded as having
such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). The
ADA expressly identifies “hearing” as a major life activity. 42 U.S.C. § 12102(2)(A).
“In an ADA case, the relevant time for assessing the existence of a disability is the
time of the adverse employment action.” Chevron, 570 F.3d at 618. Plaintiff
maintains that he suffered from a disability as defined by the ADA because he had
a substantially limiting hearing impairment, and he was “regarded as” having such
an impairment by Defendant.
Congress amended the ADA in 2008, and, in doing so, found that the holdings
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of the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999), and Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184
(2002), had “narrowed the broad scope of protection intended to be afforded by the
ADA, thus eliminating protection for many individuals whom Congress intended to
protect[.]” Pub. L. No. 110-325, September 25, 2008, 122 Stat. 3553. Congress
provided that the Supreme Court’s decisions had resulted in lower courts incorrectly
finding “that people with a range of substantially limiting impairments are not
people with disabilities.” Id. The 2008 ADA as amended now directs courts to
construe “[t]he definition of disability . . . in favor of broad coverage of individuals . .
. to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. §
12102(4)(A).
The 2008 ADA Amendments became effective on January 1, 2009, and
because they are not retroactive, “[m]ost recent Fifth Circuit cases have involved
conduct occurring prior to the effective date of the [2008 Amendments] and have
applied the pre-amendment standards.” Mann v. Louisiana High Sch. Ath. Ass’n,
535 F. App’x 405, 410 n.1 (5th Cir. 2013). Because the events giving rise to this
dispute occurred after January 1, 2009, the ADA Amendments apply here. The
parties have directed the Court to no Fifth Circuit precedent construing and
applying the new Amendments, and the Court unfortunately does not have the
benefit of such guidance.
EEOC regulations addressing the amended standards for determining
disability provide:
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(ii) An impairment is a disability within the meaning of this
section if it substantially limits the ability of an individual
to perform a major life activity as compared to most people
in the general population. An impairment need not prevent,
or significantly or severely restrict, the individual from
performing a major life activity in order to be considered
substantially limiting. Nonetheless, not every impairment
will constitute a disability within the meaning of this
section.
(iii) The primary object of attention in cases brought under
the ADA should be whether covered entities have complied
with their obligations and whether discrimination has
occurred, not whether an individual’s impairment
substantially limits a major life activity. Accordingly, the
threshold issue of whether an impairment “substantially
limits” a major life activity should not demand extensive
analysis.
...
(v) The comparison of an individual’s performance of a major
life activity to the performance of the same life activity by
most people in the general population usually will not
require scientific, medical, or statistical analysis. . . .
29 C.F.R. § 1630.2(j)(1).
Plaintiff testified that he suffers from a genetic hearing loss and has worn
bilateral hearing aids for eighteen years. Pl.’s Dep. [45-1] 21. Plaintiff’s
grandmother and grandfather were completely deaf, as are several of Plaintiff’s
aunts and uncles. Id. In his EEOC charge, Plaintiff stated that he suffers from an
80% loss of hearing in his right ear, and a 45% loss of hearing in his left ear. EEOC
Charge [1-1] 1. In his deposition, Plaintiff averred that he suffers from an 80%
hearing loss in his right ear and a 50 to 60% loss of hearing in his left ear. Pl.’s
Dep. [45-1] 21. Plaintiff claims he was first prescribed hearing aids by Dr. Cater, a
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doctor in Meridian, Mississippi, in 1993 or 1994, and that he was not accepted into
the military because he failed its hearing test. Id. at 22-24. Plaintiff testified that
he “can function normally under normal circumstances with [his] hearing aids” but,
even with his hearing aids, has difficulty with “a lot of background noise and music
and muffled voices, that kind of stuff.” Id. at 22.
Defendant does not contest that Plaintiff wears hearing aids and “has some
form of a hearing impairment” but contends that Plaintiff’s “alleged hearing issues
have not affected any of his major life activities as defined by the ADA.” Def.’s
Mem. [41] 14. Defendant submits that “Plaintiff’s only alleged hearing difficulty
while at Rush concerned the fact that Plaintiff had trouble hearing some things if
the radio was too loud in the operating room. This does not amount to a disability.”
Id. at 15. Defendant maintains that Plaintiff’s own testimony as to his hearing
impairment, in the absence of medical records or other evidence, cannot sustain his
summary judgment burden to establish an actual disability under subsection (A) of
42 U.S.C. § 12102(1).
Defendant’s focus on Plaintiff’s “trouble hearing some things if the radio was
too loud in the operating room” is misplaced because this position centers around
Plaintiff’s hearing with the benefit of bilateral hearing aids. The amended ADA
provides that “[t]he determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects of
mitigating measures such as . . . hearing aids . . . .” 42 U.S.C. § 12102 (4)(E)(I).
EEOC regulations also indicate that medical analysis is usually not required in
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order to establish an actual disability under 42 U.S.C. § 12102(1)(A). 29 C.F.R. §
1630.2(j)(1)(v). Both parties, furthermore, have offered evidence reflecting that
Plaintiff, at times, experienced difficulty hearing in the operating room. Leslie
Sanders, Defendant’s Director of Surgical Services, testified that it had been
reported to her that Plaintiff sometimes did not respond to others’ statements in the
operating room. Dep. of Leslie Sanders [45-2] 16. Plaintiff has demonstrated the
existence of a genuine issue of material fact as to whether he had an actual
disability. See 42 U.S.C. § 12102(1)(A).
Plaintiff has also offered sufficient evidence creating a triable fact issue as to
whether he was “regarded as” disabled under subsection (C) of 42 U.S.C. § 12102(1).
On October 17, 2011, Plaintiff was scheduled to assist Dr. Martin in a shoulder
procedure but was “pulled off” the case by his immediate supervisor, Sherry
Woodrick, who was a nurse coordinator for the Orthopedic Surgery Unit. Pl.’s Dep.
[45-1] 45-49, 76. The same day, Plaintiff inquired to Sanders, Woodrick’s
immediate supervisor, about why he had been pulled off the case. Id. at 47.
Plaintiff submits that he asked Sanders whether it was due to “positioning” or
“safety” and that she said no. Id. at 48. According to Plaintiff and Plaintiff’s
contemporaneous notes from October 17, 2011, Sanders told him that the surgeons
were frustrated with him because “sometimes you don’t hear, and they have to
repeat themselves.” Pl.’s Dep. [45-1] 78.
Based on the foregoing, Plaintiff has met his prima facie burden of
establishing a fact question as to whether he had a disability as defined by the ADA
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under subsection (A) and (C) of 42 U.S.C. § 12102(1).
2.
Whether Plaintiff was a Qualified Individual
Defendant maintains that Plaintiff does not meet the definition of a
“qualified individual with a disability” because he could not perform the essential
functions of his job as an RN Circulator, regardless of the level of accommodation
offered. The ADA provides that 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). This means
that a plaintiff could either (1) perform the essential functions of the job; or (2) that
a reasonable accommodation of his disability would have enabled him to perform
the essential functions of his job. Burch v. City of Nacogdoches, 174 F.3d 615, 619
(5th Cir. 1999).
Defendant maintains that Plaintiff was removed from the Orthopedic
Surgery Unit and placed on administrative leave with pay because he had repeated
performance problems unrelated to his hearing that posed a direct threat to patient
safety. Defendant submits that Plaintiff’s co-nurses in the Orthopedic Surgery
Unit, and at least two of the four surgeons, lacked confidence in Plaintiff’s abilities
as an RN Circulator. Def.’s Mem. [41] 16-20; Dep. of Dr. Martin [45-19] 7-8; Dep. of
Dr. Rush [45-18] 10-12. The precipitating event, which resulted in Sanders
removing Plaintiff from the Orthopedic operating room, was an incident on April 10,
2012, when Plaintiff was assisting in transporting a patient into the operating room
and purportedly positioned the patient in such a way that the patient was in danger
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of sliding off of a bed. Def.’s Mem. [41] 3-10; Witness Statements [40-23].
In response to Defendant’s contention that he was unqualified, Plaintiff
points to a Staff Assessment Form [45-4], dated September 9, 2011, forty days prior
to Plaintiff being removed from Dr. Martin’s case by Woodrick and Sanders. The
Assessment was Plaintiff’s first and only evaluation as an RN Circulator, and he
received a score of 9 out of 10. Woodrick and Sanders signed the Assessment.
Plaintiff has also offered the deposition testimony of two of the four surgeons he
worked with in the Orthopedic Surgery Unit, Dr. Pomierski and Dr. Watson. Dr.
Pomierski testified that he did not have problems or complaints with Plaintiff’s
work performance. Dep. of Dr. Pomierski [45-5] 9. Dr. Watson testified that he did
not recall any problems with Plaintiff’s work performance as it pertained to patient
safety or any “specific deficiency,” though he noted that “sometimes” Plaintiff did
not stock the operating room with such things as a Daptic, a dressing sponge, or a
CryoCuff. Dep. of Dr. Watson [45-17] 7, 11.
Both parties have offered evidence of contradictory material facts on the issue
of whether Plaintiff was “qualified” as that term is defined by the ADA. Summary
judgment as to this element is inappropriate.
3.
Whether Plaintiff was Subjected to an Adverse Employment Action
The ADA prohibits an employer from discriminating “against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions and privileges of employment.” 42 U.S.C. §
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12112(a). “A job transfer that includes a shift change that involves changes in
duties or compensation or can be objectively characterized as a demotion may be an
‘adverse employment action’ under the ADA’s anti-discrimination provision.” Hunt
v. Rapides Healthcare System, LLC, 277 F.3d 757, 770 (5th Cir. 2001).
Defendant asserts that Plaintiff was not subjected to an adverse employment
action because, after he was removed from the Orthopedic Surgery Unit and placed
on administrative leave with pay, Defendant worked with Plaintiff in an effort to
find him a comparable position, and Plaintiff chose to work in a lower-paying clinic
position because he did not want to work weekends. Def.’s Mem. [41] 20-22.
Plaintiff maintains that he accepted the clinic position because Defendant would
not allow him to work any longer in the Orthopedic operating room and that, while
he interviewed for several jobs Defendant suggested, he did not obtain those jobs,
and opportunities that Defendant anticipated becoming available and suggested to
Plaintiff did not materialize. Pl.’s Dep. [45-1] 61-70, 85-94.
Plaintiff claims in his second EEOC Charge:
Greg Baldwin[, Defendant’s human resources manager,]
stated they would attempt to find me another position that
I could do at the same rate of pay. On or about April 26,
2012, Baldwin told me he had a clinic position open and
asked me to try it for two weeks. I asked him whether there
would be a change in pay and he said he did not think so,
but we may have to talk about it. On May 1, 2012, I went
to work at Urgent Care Clinic. On May 11, 2012, I was told
that my pay would be reduced from $21.57 to $18.00 per
hour. On May 25, 2012, I was told that I would only make
$16.00 per hour working in the clinic.
Second EEOC Charge [1-2].
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Defendant removed Plaintiff from the Orthopedic operating room. While
Defendant assisted Plaintiff in searching for other another position with Defendant,
and Plaintiff interviewed for several jobs, the clinic position that Plaintiff
ultimately accepted paid significantly less and involved different job duties. On the
other hand, the position accommodated Plaintiff’s preferred schedule. On these
facts, a reasonable jury could conclude that Plaintiff suffered an adverse
employment action. Summary judgment as to this element would be inappropriate
based on the present record.
4.
Defendant’s Legitimate Nondiscriminatory Reasons
The burden now shifts to Defendant to articulate a legitimate
nondiscriminatory reason for the alleged adverse employment action. Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). Defendant’s burden is one of
production, not persuasion, and Defendant need only produce “any evidence which,
taken as true, would permit the conclusion that there was a nondiscriminatory
reason for the adverse action . . . .” Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993)). Defendant has met this burden by offering abundant
evidence that Plaintiff was removed from the Orthopedic Surgery Unit because of
performance problems unrelated to his hearing. Def.’s Mem. [41] 8-10. Defendant
cites to several incidents which raise concerns about patient safety and substandard
performance, including evidence that Plaintiff refused constructive criticism from
his more experienced coworkers. Id. at 3-5, 8-10.
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5.
Pretext
Because Defendant has met its burden of production, the burden shifts back
to Plaintiff to produce evidence that Defendant’s proffered nondiscriminatory
reasons are pretext for discrimination. “[A] plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully
discriminated.” Reeves, 530 U.S. at 148.
Plaintiff contends that when he was “pulled off” of Dr. Martin’s case on
October 17, 2011, Sanders told him, “it’s your hearing. . . . They don’t like having to
tell you something twice.” Pl.’s Dep. [45-1] 48. If believed by a jury, this testimony
could cast doubt on the validity of all of Defendant’s stated nondiscriminatory
reasons. Summary judgment as to pretext is inappropriate, and Plaintiff’s
disparate treatment claim will proceed to trial.
D.
Plaintiff’s Failure to Provide a Reasonable Accommodation Claim
It is unlawful for a covered employer not to make a reasonable accommodation
“to the known physical or mental limitations of an otherwise qualified individual with
a disability . . . unless such covered entity can demonstrate that the accommodation
would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).
After the passage of the ADAA, a plaintiff in this circuit
“‘must prove the following statutory elements to prevail in
a failure-to-accommodate claim: (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.
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Neely v. PSEG Texas, Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)(citing Feist, 730
F.3d at 452).
For the same reasons stated in relation to Plaintiff’s disparate treatment
claim, Plaintiff has met his prima facie burden of establishing that he is a qualified
individual with a disability. Defendant does not contest the second statutory
element to the extent that it is undisputed that Sanders and Plaintiff discussed
Plaintiff’s hearing difficulties on October 17, 2011. The Court will focus on the
third statutory element and Defendant’s assertion that “once Plaintiff indicated to
Rush management that he had a hearing impairment, management acted
appropriately in an attempt to assist Plaintiff in his employment.” Def.’s Mem. [41]
23-27.
1.
Determining a Reasonable Accommodation
“The ADA provides a right to reasonable accommodation, not the employee’s
preferred accommodation.” EEOC v. Agro Distrib., 555 F.3d 462, 471 (5th Cir.
2009). The ADA defines the term “reasonable accommodation” to include
reasonable modifications or adjustments that would enable the employee to perform
the essential functions of his current job or “reassignment to a vacant position.” 42
U.S.C. § 12111(9)(B). “[W]hen an employer’s unwillingness to engage in a good
faith interactive process leads to a failure to accommodate, the employer violates
the ADA.” Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999).
However, “an employer cannot be found to have violated the ADA when
responsibility for the breakdown of the informal, interactive process is traceable to
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the employee and not the employer.” Id.
The EEOC’s interpretive guidance on the accommodation of reassignment
provides:
In general, reassignment should be considered only when
accommodation within the individual’s current position
would pose an undue hardship. . . .
Reassignment may not be used to limit, segregate, or
otherwise discriminate against employees with disabilities
by forcing reassignments to undesirable positions or to
designated offices or facilities. Employers should reassign
the individual to an equivalent position, in terms of pay,
status, etc., if the individual is qualified, and if the position
is vacant within a reasonable amount of time.
A
“reasonable amount of time” should be determined in light
of the totality of the circumstances. As an example, suppose
there is no vacant position available at the time that an
individual with a disability requests reassignment as a
reasonable accommodation. The employer, however, knows
that an equivalent position for which the individual is
qualified, will become vacant next week. Under these
circumstances, the employer should reassign the individual
to the position when it becomes available.
An employer may reassign an individual to a lower graded
position if there are no accommodations that would enable
the employee to remain in the current position and there are
no vacant equivalent positions for which the individual is
qualified with or without reasonable accommodation. An
employer, however, is not required to maintain the
reassigned individual with a disability at the salary of the
higher graded position if it does not so maintain reassigned
employees who are not disabled. It should also be noted
that an employer is not required to promote an individual
with a disability as an accommodation.
The determination of which accommodation is appropriate
in a particular situation involves a process in which the
employer and employee identify the precise limitations
imposed by the disability and explore potential
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accommodations that would overcome those limitations. . .
.
29 C.F.R. Pt. 1630, App. § 1630.2(o) (internal citation omitted).
This guidance is in accord with Fifth Circuit precedent.
When no reasonable accommodation can be made to the
plaintiff’s prior job, he may be transferred to another
position. The plaintiff bears the burden of proving that an
available position exists that he was qualified for and could,
with reasonable accommodations, perform. A disabled
employee has no right to a promotion, to choose what job to
which he will be assigned, or to receive the same
compensation as he received previously.
Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)(internal citations
omitted); see Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 622-23 (5th Cir.
2000)(“The ADA does not require an employer to give an employee with a disability
his job of choice especially when there are qualified individuals who desire the same
position.”).
According to Plaintiff, Sanders told him on October 17, 2011, that he was
removed from Dr. Martin’s case, not for safety or patient-positioning reasons, but
because the doctors were frustrated with Plaintiff’s hearing difficulties and did not
like having to repeat themselves. Pl.’s Dep. [45-1] 48-49, 77-78. Plaintiff submits
that Sanders told him that he had “30 days to turn it around” and that he should
probably look for another job. Id. Within two days, Sanders “talked with all 4
surgeons to inform them then [sic] the radio must be at a level Johnny can hear
discussions and instructions during surgical cases.” Action Plan [40-13] 1.
Plaintiff, however, testified that Dr. Martin and Dr. Rush continued to play loud
music in the operating room, and on numerous occasions, Plaintiff was told to turn
the music back up after he had turned it down. Pl.’s Dep. [45-1] 109, 113-14.
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Plaintiff also testified that after meeting with Sanders, he was not allowed to work
in the Orthopedic operating room as often and was assigned to more menial tasks
such as answering the phone, stocking supplies, and pulling records. Pl.’s Dep. [451] 56-57, 68, 73, 80-81, 109, 119. This evidence raises a genuine issue of material
fact as to whether Defendant attempted to provide Plaintiff with a reasonable
accommodation that would allow him to perform the essential functions of his job as
an RN Circulator.
As to the accommodation of reassignment, Defendant assisted Plaintiff in
searching for another job with Defendant. Plaintiff testified that Greg Baldwin,
Defendant’s human resources director, told him about roughly five possible job
opportunities. Pl.’s Dep. [45-1] 66-67. Plaintiff interviewed for several jobs
suggested by Baldwin that he did not receive, and a couple of positions that
Baldwin anticipated becoming vacant did not materialize. Id. at 61-70, 85-94.
Baldwin and Sanders suggested that Plaintiff pursue positions that required
Plaintiff to work every other weekend. Plaintiff rarely worked weekends as an RN
Circulator and did not want to work weekends because he spent that time with his
children and attended weekend church services. Id. at 70, 142-43.
Defendant maintains that “Defendant offered Plaintiff several comparable
positions” and that “[i]t should be dispositive of Plaintiff’s claim that he turned
down several comparable positions [and] has identified no request to be placed in a
position that was both open and for which he was qualified.” Def.’s Mem. [41] 25.
The testimony cited by Defendant for this point does not indicate that Defendant
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“offered” Plaintiff several comparable positions. Baldwin testified that he and
Plaintiff “discussed” clinic positions, a position as a “floater,” a position in the “cath
lab” that Plaintiff interviewed for but did not receive, and a supervisory nursing
case management position that Plaintiff interviewed for but did not receive. Dep. of
Gregory Baldwin [45-6] 25. Donnie Smith, Defendant’s vice president of human
resources, testified that “Scott was down at Watkins at the time, he was a nurse –
director of nursing down there and – and we had some positions open down there,”
but Plaintiff “wanted to work a day job,” “didn’t want to be on call,” and “wanted to
be off on weekends,” which limited the options for his employment. Dep. of Donald
Smith [45-7] 19.
While it is clear that Plaintiff was not interested in pursuing certain
positions because of shift and compensation concerns, it is also undisputed that
Plaintiff interviewed for several positions for which he was arguably qualified but
did not receive any offers. Other positions that Defendant anticipated becoming
available and suggested to Plaintiff did not become available. According to
Plaintiff, Baldwin asked him to try a clinic position but did not tell him that
accepting the position would result in a substantial decrease in pay. Though
Plaintiff was initially paid the same in the clinic position as he was paid as an RN
Circulator, his compensation was soon reduced by almost six dollars an hour. The
evidence raises a genuine issue of material fact as to whether Plaintiff’s
reassignment to a clinic position was a reasonable accommodation.
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2.
Pretext
Defendant contends that it “did everything it could to allow Plaintiff to
continue working and succeed in his employment.” Def.’s Mem. [41] 30. Plaintiff,
on the other hand, testified that Sanders told him, “[t]hey don’t like having to tell
you something twice” and thereafter limited his assignments to more menial tasks.
Pl.’s Dep. [45-1] 48. While Defendant insists that it offered Plaintiff the
accommodation of turning the music down in the operating room, Plaintiff testified
that some of the surgeons ignored Sanders’ direction to keep the music down.
Plaintiff also testified that Smith, Defendant’s vice president of human resources,
told him on May 25, 2012, that “[i]t’s time we get all this S-H-I-T settled. . . Your
rate of pay is going to be $16.00 an hour. . . . It’s going to be $16.00 [an] hour, and if
you don’t like that, then you can hunt something else. . . . [P]ut that in your little
notes . . . .” Pl.’s Dep. [45-1] 139-40. Based on the current record, a genuine issue of
material fact exists as to pretext, and Plaintiff’s failure to provide a reasonable
accommodation claim will proceed to trial.
E.
Plaintiff’s Retaliation Claim
“To establish a prima facie case of retaliation under the ADA . . ., a plaintiff
must show that (1) she participated in an activity protected under the statute; (2)
her employer took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the adverse action.” Feist, 730
F.3d at 454. “If the employee establishes a prima facie case, the burden shifts to
the employer to state a legitimate, non-retaliatory reason for its decision. After the
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employer states its reason, the burden shifts back to the employee to demonstrate
that the employer’s reason is actually a pretext for retaliation.” Id. (citation
omitted).
Reporting alleged discrimination to human resources and filing a charge with
the EEOC constitute protected activities under the antiretaliation provision of the
ADA, and Plaintiff has satisfied this element of his prima facie burden. For the
same reasons as addressed in relation to his ADA disparate treatment claim,
Plaintiff has also shown the existence of a genuine issue of material fact as to
whether he suffered an adverse employment action. Defendant seeks summary
judgment as to the third element, maintaining that Plaintiff has not provided
evidence that any causal connection existed between his engagement in protected
activity and the alleged adverse employment action. Defendant also submits that
Plaintiff has offered no evidence of pretext.
On September 9, 2011, Plaintiff was evaluated as an RN Circulator and
received a score of 9 out of 10. On October 17, 2011, Plaintiff was pulled off of Dr.
Martin’s case and allegedly told by Sanders that it was because of his hearing and
not because of patient safety concerns such as positioning. Pl.’s Dep. [45-1] 48.
Within a week of this meeting and after Plaintiff reported Sanders’ alleged
comments to human resources, Sanders placed Plaintiff on a performance Action
Plan [40-13], which provided that Plaintiff needed to improve in the areas of
positioning the patients, prepping the Orthopedic operating room, and learning the
instruments and supplies. According to Plaintiff, this was “180 degrees from what”
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Sanders had originally told him. Id. at 57-58. Plaintiff filed his first EEOC Charge
in January 2012, and on February 10, 2012, he was written up for the first time in
his four-year career. Disciplinary Action Form [40-21]. He was removed from the
Orthopedic operating room two months later. Defendant offers plausible
explanations as to why Plaintiff was counseled, disciplined, and removed from his
position. But viewed in the light most favorable to Plaintiff, the conflicting evidence
creates material questions of fact regarding whether Defendant unlawfully
retaliated against Plaintiff in violation of the ADA. Plaintiff’s retaliation claim will
proceed to trial.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant Rush
Health Systems, Inc.’s Motion [40] for Summary Judgment is DENIED. Plaintiff’s
ADA claims for disparate treatment, failure to provide a reasonable
accommodation, and retaliation will proceed to trial.
SO ORDERED AND ADJUDGED, this the 15th day of July, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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