Olsen v. Capital Region Medical Center et al

Filing 69

ORDER - Court GRANTS Defendants' Motion for Summary Judgment 30 and DENIES as MOOT Plaintiff's Motion in Limine 64 and defendants' Motion in Limine 65 . Signed on 4/12/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ANDREA OLSEN,

)
)
Plaintiff,
)
)
v.
) Case No. 10-4221-CV-C-FJG
)
CAPITAL REGION MEDICAL CENTER, et al., )
)
Defendants.
)

ORDER
Currently pending before the Court is defendant’s Motion for Summary Judgment
(Doc. # 30); plaintiff’s Motion in Limine (Doc. # 64) and defendants’ Motion in Limine
(Doc. # 65).
I. BACKGROUND
Plaintiff began working for Capital Region Medical Center (“CRMC”) in March
1993 as a Certified Mammography Technologist in CRMC’s Mammography Unit.
According to the job description, a Mammography Staff Technologist is required to
perform mammography examinations according to departmental protocols, adhere to
recommended safety standards, operate the radiographic equipment and perform
radiographic procedures of the breast by selecting proper positioning and technical
factors for each patient and exam, tend to the physical and psychological needs of all
patients, evaluate images for technical quality, obtaining and/or completing all
necessary registration, billing and medical record paperwork, provide assistance to
physicians during procedures, provide assistance with positioning patients, controlling
tube/table movement and specimen collection. This job description was effective on

May 1, 2001 and was reviewed on June 1, 2005.
Plaintiff was initially diagnosed with epilepsy in the 1970's. Her epilepsy is
idiopathic, meaning it has no known cause. Plaintiff’s epilepsy causes her to have
sudden, unpredictable seizures. During her seizures, plaintiff will stop what she is doing
and fall down. All of her muscles contract at once, which sometimes causes her to
shake. She is not aware of her surroundings during a seizure. Plaintiff’s first seizure
occurred at CRMC in 2004 in the mammography office while she was working on a
schedule. On August 1, 2007, plaintiff suffered another seizure while in the back office
of the mammography room. Plaintiff fell, hit her head on the counter, bit her tongue and
cheek. Between June 2008 and August 2010, plaintiff suffered fourteen seizures at
CRMC. During some of these seizures, plaintiff hit her head on counters, suffered cuts
to her head and tongue, injured her face and on one occasion appeared to stop
breathing. On March 5 and July 13, 2010, plaintiff suffered a seizure while she was
working with patients. One of the patients was being positioned in the machine when
plaintiff had the seizure. In a report to CRMC the patient stated that plaintiff had just
begun the compression portion of the mammogram when she fell to the floor. One of
the patients complained to CRMC and stated that it was a patient safety issue and that
she felt that she needed to report it so that “no one else having a mammo will have to
go through what I just went through. Please make certain this safety issue will be taken
care of.” (Defendants’ Exhibit 24).
Beginning in August 2008, following the seizures where plaintiff lost
consciousness, injured herself and had her breathing interrupted, CRMC placed plaintiff
on paid administrative leave until September 25, 2008 so that she could obtain an
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opinion from a neurologist about the reasons for the increase in her seizures. After
plaintiff submitted a letter from a neurologist on September 8, 2008, she returned to
work.
In 2008, the Mammography unit was in a crisis situation because four
technologists, including plaintiff had some uncertainty about the days that they were
available to work or were on leave. An employee in the X-Ray unit, Lauren Carender,
expressed an interest in working in the Mammography Unit. In order to help alleviate
the staffing situation, CRMC hired Ms. Carender as a fifth technologist in August 2008,
so that she could begin training and obtain the necessary experience. Ms. Carender
became a full-time technologist in 2009.
From June 2008 to February 2010, CRMC made a number of accommodations
in an effort to alleviate conditions which might be potential triggers for plaintiff’s
seizures. The accommodations included: removing and remediating mold in plaintiff’s
work areas, investigating the ingredients of products used to clean the mammography
area and machines, having other technicians perform mammograms for patients who
were wearing heavy perfume, installing anti-glare filters on lights in plaintiff’s work room,
adjusting the computers so that text would not scroll, having employees cover view
boxes with x-ray film when not in use in order to reduce the brightness of the light,
permitting plaintiff to wear sunglasses, educating fellow employees on epilepsy and how
to treat persons suffering from a seizure.
On November 18, 2008, following a seizure where plaintiff hit her head and
required three staples, CRMC decided that the risk of harm to plaintiff and others
prevented her from performing the duties of a mammographer and decided to work with
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her to find an alternative position. On November 19, 2008, CRMC placed plaintiff on
paid administrative leave and advised that they would help plaintiff find an open position
that did not involve patient care. When plaintiff’s paid administrative leave expired on
December 19, 2008, she was then placed on FMLA leave beginning on December 22,
2008. Plaintiff returned to work as a mammography technologist in March 2009,
following CRMC’s changes to her work environment. However, plaintiff’s seizures
continued. She had a seizure on April 20, 2009, May 18, 2009, October 15, 2009,
November 20, 2009, March 5, 2010, June 21, 2010 and July 13, 2010. In July 2010,
CRMC determined that the accommodations were not working and plaintiff’s seizures
posed a risk to herself and the patients and she could no longer work as a
mammographer. On July 14, 2010, defendant Robert Mazur, Vice-President of Human
Resources, notified plaintiff of CRMC’s decision to place her on administrative leave and
to attempt to find an alternative position for her. On July 29, 2010, Mr. Mazur
responded to plaintiff’s request that CRMC create a new position for her as a Breast
Health Coordinator. He explained that the position required an individual who was a
registered nurse. He also explained that this position was not created because the
patient volume did not justify creation of the position. But, Mr. Mazur did offer plaintiff a
position as a temporary file clerk in the Imagining Department. He explained that this
was not a permanent solution, but rather was an opportunity for plaintiff to continue her
employment, while they considered more permanent job opportunities. Plaintiff
accepted the position and worked there until January 14, 2011, when the position
expired. Plaintiff suffered two more seizures while working in the temporary position,
one on August 4, 2010 and another on August 17, 2010. Following the expiration of the
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temporary file clerk position, CRMC placed plaintiff on unpaid administrative leave with
full benefits. From January 2011 through April 2011, CRMC continued to provide
plaintiff with a current list of open positions at the hospital. On May 17, 2011, after
being informed by plaintiff and her counsel that her seizures were under control as a
result of a change in medications and that she had regained her driver’s license, CRMC
offered to reinstate plaintiff at her prior rate of pay and with full seniority and benefits.
Plaintiff rejected this offer and on May 31, 2011, CRMC terminated plaintiff’s
employment. CRMC did not fill plaintiff’s position after her discharge in May 2011. The
Mammography department had only four technologists and their hours were reduced
after plaintiff’s discharge.
Plaintiff filed her first Charge of Discrimination with the Missouri Commission on
Human Rights and the Equal Employment Opportunity Commission on August 10,
2009, alleging disability and age discrimination. Plaintiff claims that CRMC and
defendant Mazur violated the Americans With Disabilities Act (“ADA”), Age
Discrimination in Employment Act (“ADEA”) and the Missouri Human Rights Act
(“MHRA”) by discriminating against her based on her disability and age and retaliating
against her for filing her first charge of discrimination. In connection with her age
discrimination claim plaintiff alleges that she was replaced by a younger employee, Ms.
Carender and that plaintiff’s supervisor, Carrie Fischer, left a note on April 20, 2009,
inquiring if plaintiff desired to work full-time or part-time because she was “nearing
retirement age.”

II. STANDARD
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A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he substantive law
will identify which facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving
party meets this requirement, the burden shifts to the non-moving party to “set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. 242,
248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986), the Court emphasized that the party opposing summary judgment
“must do more than simply show that there is some metaphysical doubt as to the
material facts” in order to establish a genuine issue of fact sufficient to warrant trial. In
reviewing a motion for summary judgment, the court must view the evidence in the light
most favorable to the non-moving party, giving that party the benefit of all inferences
that may be reasonably drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler
v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
III. DISCUSSION
A. Disability Discrimination - ADA/MHRA
As there is no direct evidence of discrimination, the Court will proceed to analyze
plaintiff’s claims of discrimination under the burden-shifting framework of McDonnell
Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This
framework requires plaintiff to first establish a prima facie case of discrimination. To

6

establish a prima facie case of discrimination under the ADA, the plaintiff must show:
1) an ADA-qualifying disability; 2) qualifications to perform the essential
functions of her position with or without reasonable accommodation; and
3) an adverse employment action due to her disability.
Shockley v. City of St. Louis, No. 4:10CV638 FRB, 2011 WL 4369394, *6 (E.D.Mo.
Sept. 19, 2011) citing Norman v. Union Pac. R.R.Co., 606 F.3d 455,459 (8th Cir. 2010).
In 2008, Congress enacted amendments to the ADA. “The amendments broadened the
definition of what constitutes a disability and rejected the strict standards the Supreme
Court set forth in Toyota [Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)].”
Nyrop v. Independent Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir.2010).
To establish a prima facie case of discrimination under the MHRA, a plaintiff
must show:
(1) that the defendant engaged in some discriminatory act; (2) that the
plaintiff's disability was a contributing factor for the defendant's actions;
and (3) that as a direct result of defendant's conduct as alleged, the
plaintiff suffered damages. Missouri Approved Jury Instr. (Civil) 31.24 (6th
ed.). “[I]n order to be disabled under the MHRA, a person must have an
impairment that limits a major life activity and with or without reasonable
accommodation that impairment must not interfere with performing a job.”
Medley v. Valentine Radford Commc'ns, 173 S.W.3d 315, 320
(Mo.Ct.App.2005).
Hanlon v. Missouri Dept. of Health & Human Services, 2:10-CV-04267, 2012 WL
528316, *4 (W.D.Mo. Feb. 17, 2012).
In the instant case, the defendants do not dispute that plaintiff’s epilepsy qualifies
as a disability. Rather, defendants argue that plaintiff cannot show that she was
qualified individual under either the ADA or the MHRA. Defendants also argue that they
are entitled to summary judgment based on the direct threat affirmative defense.

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1. Is Plaintiff “Qualified” to Perform the Essential Functions of a
Mammography Technologist?
The ADA defines a “qualified individual” as “an individual 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). “Essential
functions” are “the fundamental job duties of the employment position the individual with
a disability holds or desires” and “does not include the marginal functions of the
position.” 29 C.F.R. § 1630.2(n). In determining the essential functions, the ADA states
that “consideration shall be given to the employer’s judgment as to what functions of a
job are essential, and if an employer has prepared a written description before
advertising or interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). “Plaintiffs are only
required to make a facial showing that reasonable accommodation is possible. . . . Once
Plaintiffs have demonstrated the existence of an accommodation that seems
reasonable on its face . . .the burden of production shifts to [defendant] to show that it is
unable to accommodate.” EEOC v. Hibbing Taconite Co., 720 F.Supp.2d 1073, 107980 (D.Minn. 2010)(internal citations and quotations omitted).
In the instant case, the parties do not dispute the essential functions of a
mammographer technologist. Plaintiff argues that she was fully capable of performing
the essential functions of her job and the only accommodation she required was
intermittent leave to rest and recuperate following a seizure. Plaintiff states that
defendants granted her that accommodation and she was performing her job “very
well.” Plaintiff also states in her suggestions in opposition that “the record is devoid of
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any evidence that [she] could not perform all functions required of a mammography
technologist at any other time except when she was actually experiencing a seizure or
recovering therefrom.” (Plaintiff’s Suggestions in Opposition, p. 16)(emphasis added).
Thus, plaintiff in essence admits that she could not perform the essential functions of
her position when she was having a seizure and for some unspecified period of time
afterwards. Plaintiff cites to EEOC v. Kinney Shoe Corp., 917 F.Supp. 419, 427
(W.D.Va. 1996), aff’d by, Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997),
in support of her position that she was qualified to perform the essential functions of her
position, even though she experienced seizures during her workday. However, in that
case, the plaintiff was a shoe salesman. The Court stated that “the factfinder must
examine the specific facts of each case to determine if temporary incapacitation renders
an individual unqualified for the position at issue.” Id. at 427. The Court distinguished
the position of a shoe salesman from that of a nurse, stating: “a nurse is charged with
caring for patients, a task which if compromised, can leave other individuals in difficult
straits. A shoe salesman, in contrast, is charged with selling shoes, a task which if
compromised, simply leaves customers without shoes for a brief period.” In other
cases, courts have found that individuals suffering seizures cannot perform the
essential functions of their jobs. In McFarland-Peebles v. Virginia Dept. of Motor
Vehicles, 352 Fed.Appx. 848 (4th Cir. 2009), the plaintiff suffered a dozen epileptic
seizures over the period of four years. The Court noted that although her seizures were
initially controlled with medication, the seizures were becoming more frequent and
severe over time. The Court found that “[s]uch frequent seizures would significantly
interfere with, if not negate, her ability to perform the essential functions of her job.” Id.
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at 849. As a result, the Fourth Circuit found that the district court had properly granted
summary judgment because plaintiff had failed to establish a prima facie case.
Similarly, in Gault v. University of Chicago Hospitals, No. 90 C 0321, 1991 WL 38757
(N.D.Ill Mar. 19, 1991), the plaintiff who was a nurse suffered from epilepsy and
experienced unpredictable seizures. Plaintiff worked in a burn unit and suffered a
seizure while she was using scissors to change a dressing, once while serving as a
charge nurse, another time while assisting in the suctioning of a patient’s breathing
apparatus resulting in extubation of the patient and another time while cutting a
dressing, causing a patient to leave his room to seek help. The Court concluded that
“Gault cannot contend that she was meeting her position requirements.” Id. at *1. In the
instant case the Court does not find that plaintiff was performing the essential functions
of her position due to her uncontrolled and unpredictable seizures which occurred
between June 2008 and August 2010.
Plaintiff also argues that she was able to perform the essential functions of her
position with an accommodation. After she suffered a seizure, plaintiff would go home
for the day and would usually take the next day off as well. Plaintiff argues that this
intermittent leave was a reasonable accommodation and allowed her to perform the
essential functions of her position. In reply, defendants argue that due to “the unique
and patient-care related functions of Plaintiff’s position, her seizures precluded her from
performing those and other essential duties, and no accommodation from CRMC
alleviated, or would have alleviated, the issue because the cause of her uncontrolled
seizures was ineffective medication.” (Defendants’ Reply Suggestions, p. 15). The
Court agrees and finds that due to the unique requirements of plaintiff’s position, it was
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not possible for her to carry out the essential functions of her position, during the time
that she was having a seizure. Plaintiffs’ arguments regarding intermittent leave really
address the time period after the seizure was over, when plaintiff needed to recover.
Therefore, the Court finds that plaintiff was not a qualified individual under the ADA or
the MHRA because she could not perform the essential functions of her position while
she was experiencing an uncontrolled and unpredictable seizure.
2. Did Plaintiff’s Seizures Constitute a “Direct Threat”?
Even if the Court had found the plaintiff could perform the essential functions of
her position, the Court finds that defendant would be entitled to summary judgment
because plaintiff’s seizures posed a direct threat to the health and safety of herself and
others. The ADA includes a section on qualification standards. That section states in
part:
The term “qualification standards” may include a requirement that an
individual shall not pose a direct threat to the health or safety of other
individuals in the workplace.
42 U.S.C. § 12113( b).
Under the MHRA, defendants must show a threat of “demonstrable serious
harm” to the employee or others. 8 C.S.R. § 60-3.060(1)(F)2-3.
The EEOC regulations implementing this provision define direct threat as:
a significant risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by reasonable
accommodation. . . .The determination that an individual poses a “direct
threat” shall be based on an individualized assessment of the individual’s
present ability to safety perform the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies
on the most current medical knowledge and/or on the best available
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objective evidence. In determining whether an individual would pose a
direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Courts generally have held that the existence of a direct threat is a
defense to be proved by the employer. . . .We have recognized an
exception to the general rule: [W]here the essential job duties necessarily
implicate the safety of others, then the burden may be on the plaintiff to
show that she can perform those functions without endangering others.
Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir.2007)(internal citations and quotations
omitted).
Defendants argue that courts have found seizure related disabilities to constitute
a direct threat to the employee and others. Defendants also argue that in the instant
case, plaintiff suffered fifteen seizures over the course of a three year time period.
During this time, plaintiff suffered numerous injuries to herself, including cuts and
abrasions, bites to her tongue and cheek and on one occasion an interruption of her
breathing. Additionally, defendant notes that on two separate occasions in March and
July 2010, plaintiff suffered seizures while she was conducting mammogram
examinations on patients. In July 2010, plaintiff had a seizure while the patient was in
the mammography machine in the early stages of the compression of her breast.
In examining the factors identified above, plaintiff’s epilepsy was something
which she had been diagnosed with several years ago. Although plaintiff had previously
been able to control her seizures, from June 2008 through August 2010, plaintiff
experienced a total of fourteen seizures in this two year period. Additionally, with regard
to the duration factor, plaintiff’s seizures lasted long enough to cause her to lose
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consciousness for a period of several minutes. As to the nature and severity of the
potential harm, as previously discussed, plaintiff’s seizures resulted in fairly significant
injuries to herself, such as a cut on her head which required three staples to close, an
interruption in her breathing when she became lodged in between some furniture in the
mammography room, and other abrasions and cuts to her hand and face. Regarding
the likelihood of the potential harm, the Court finds that the occurrence of fourteen
seizures over a two year time frame is evidence that the seizures and plaintiff’s resulting
injuries would continue to occur. The Court also finds that the danger that plaintiff
would lose consciousness and fall and either injure herself or a patient she was
performing an examination on was imminent, as this had occurred fourteen times over a
two year period of time and no accommodations which defendants had instituted in
plaintiff’s work area seemed to alleviate the seizures. Thus, the imminence of the
potential harm was significant.
Plaintiff argues that the defendants cannot prevail on their direct threat defense
because they were operating in a vacuum, they failed to perform any objective or
rational analysis of the safety risks to plaintiff or her patients and instead relied on their
own subjective beliefs and conjecture. Plaintiff argues that Robert Mazur envisioned
that Andrea could “collapse on top of a patient.” Plaintiff argues however that Mr. Mazur
nor anyone else at CRMC consulted with any health care provider to determine what
sort of injury a patient might incur if she were trapped in the mammography machine.
But, the defendants did not have to consult any health care providers to determine what
sort of injuries might occur, because on two separate occasions, plaintiff was
conducting an mammography examination on patients when she suffered a seizure.
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Although both patients were very upset by the occurrence, neither suffered any physical
injuries. However, as the Court noted in Mayes v. Whitlock Packaging Corp., No. 09CV-278-JHP, 2010 WL 1754200, *5 (E.D.Okla. Apr. 29, 2010),“[t]he law does not
require [defendant] to wait for a serious injury before eliminating such a threat.” In the
instant case, it is not hard to imagine what harm a patient could potentially suffer if the
mammography machine was in full compression and plaintiff experienced a seizure or if
plaintiff were to fall on a patient while she was positioning them in the machine. Plaintiff
argues that there was a safety release button which patients could push to release the
compression of the machine. However, even if this were true, it has not been shown
that the button was easily reachable by all patients. Additionally, this would not have
prevented the risk that plaintiff would fall onto or cause a patient to fall during an
examination.
Plaintiff also argues that defendant’s alleged concerns about the plaintiff’s safety
were insincere because they failed to conduct any safety analysis of the temporary file
clerk position that she was offered. Plaintiff states that no one consulted a physician to
determine whether the file room was a safer environment for plaintiff. However, it is
clear from Mr. Mazur’s letter to plaintiff that the file clerk position was only a temporary
position, until they could find a more permanent position for plaintiff. Mr. Mazur stated:
“I would like to offer you the opportunity to return and assist in the completion of that
project [transitioning of files in the Radiology Department], not as a permanent solution
to this situation, but rather as an opportunity to continue your employment while we
consider other more permanent job opportunities.” (Defendant’s Ex. 39). Additionally,
the evidence established that the defendants believed this position would place plaintiff
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in a controlled environment and would involve more sitting, so that if she did suffer a
seizure, the risk of injury would be reduced. Plaintiff did in fact suffer two seizures while
working in the file room, but neither caused severe injuries to plaintiff.
After analysis of the factors discussed above, the Court finds that defendant has
shown that plaintiff posed a direct threat to both herself and others. As the Court stated
in Wurzel v. Whirlpool Corp., No. 3:09CV498, 2010 WL 1495197, *9 (N.D.Ohio Apr. 14,
2010), “[t]he ADA prohibits discrimination based on sterotypes (i.e. adverse action
simply on the basis of the person’s disabling, or perceived disabling condition). The Act
does not, however, bar acting when that condition leads to harm or risk of harm.” The
Court finds that defendants’ actions were not motivated by discrimination based on
plaintiff’s epilepsy, but rather were in response to the unpredictable and severe
consequences caused by plaintiff’s seizures. Because plaintiff posed a direct threat to
herself and to others, plaintiff was not a qualified individual under either the ADA or the
MHRA. Therefore, because plaintiff has not met the requirements of a prima facie case,
the Court hereby GRANTS defendant’s Motion for Summary Judgment on plaintiff’s
disability discrimination claim under the ADA and the MHRA.
B. Age Discrimination - ADEA/MHRA
In order to establish a prima facie case of age discrimination, plaintiff must
establish:
(1) [s]he is over forty; (2) [s]he was qualified for the position; (3) [s]he
suffered an adverse employment action; and (4) similarly-situated
employees outside the class were treated more favorably.
Anderson v. Durham D & M, L.L.C., 606 F.3d 513,523 (8th Cir.2010). “The Eighth Circuit

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Court of Appeals has ‘frequently stated that the last prong of the prima facie case is
established by demonstrating the plaintiff was replaced by a substantially younger
individual.” Hastings v. Papillion-LaVista School Dist., 780 F.Supp.2d 958, 962-63
(D.Neb. Jan. 25, 2011), citing McGinnis v. Union Pac.R.R., 496 F.3d 868, 875-76 (8th
Cir.2007). In Clark v. Matthews International Corp., 639 F.3d 391, 398 (8th Cir. 2011),
the Eighth Circuit stated:
The MHRA and the ADEA are worded similarly. Both statutes generally
prohibit employers from discriminating against their employees “because
of” their age. 29 U.S.C. § 623(a)(1); Mo. Ann. Stat. § 213.055(1). Under
the ADEA, the United States Supreme Court has stated that “the ordinary
meaning of the ADEA's requirement that an employer took adverse action
‘because of’ age is that age was the ‘reason’ that the employer decided to
act.” Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2350,
174 L.Ed.2d 119 (2009). Under the ADEA, “therefore, a plaintiff must
prove that age was the ‘but for’ cause of the employer's adverse decision.”
Id. In our prior opinion, we explained that this meant that Clark had to
“show that if it were not for his age, he would not have been terminated
and he would have become a primary-packaging designer.” Clark, 628
F.3d at 469. Under the MHRA, however, Clark is not required to prove that
age was the “but for” cause of Matthews's adverse employment actions.
According to the Supreme Court of Missouri, “[n]othing in [the] statutory
language of the MHRA requires a plaintiff to prove that discrimination was
a substantial or determining factor in an employment decision; if
consideration of age ... contributed to the unfair treatment, that is
sufficient.” Daugherty v. City of Md. Heights, 231 S.W.3d 814, 819
(Mo.2007).
Id.. at 398.
Plaintiff argues that defendant hired Lauren Carender as a mammography
technician in September 2008 and that Ms. Carender’s start date coincided with the first
instance in which plaintiff was forced to take leave from her job. Additionally, plaintiff
states that on April 20, 2009, plaintiff’s supervisor left a note for plaintiff asking if she
intended to continue working full-time or if she wanted to work part-time as she was
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“nearing retirement age.” Plaintiff argues that defendant’s intent in hiring Ms. Carender,
was to replace plaintiff with a younger, less qualified worker.
Defendants argue that plaintiff cannot show that she was qualified for the
position, because her seizures were debilitating and were increasing in frequency
between 2008 to 2010. Additionally, defendants argue that Ms. Carender did not
replace plaintiff. Rather, Ms. Carender was hired because there was a need for more
mammographers in the department and Ms. Carender had expressed an interest in
becoming certified in mammography. The evidence shows that no one was hired to
replace plaintiff. Rather, Ms. Carender worked alongside plaintiff in the mammography
department with plaintiff from 2008 until 2011. When plaintiff was discharged, only four
technologists remained and CRMC did not hire anyone to replace plaintiff’s position.
Plaintiff argues that there is a question of fact regarding the issue of whether she
was replaced by a younger individual. Plaintiff points to the fact that when she was first
hired, Ms. Carender was in training and that after she completed her training was
around the same time that plaintiff left the department. Plaintiff also points to a note left
on plaintiff’s work area asking if she wanted to continue to work full-time as she reached
“retirement age” as evidence of discriminatory intent.
The Court disagrees. The supervisor of the imaging department stated that in
the summer of 2008, the mammography unit was in a “crisis mode” because four
technologists, including plaintiff were taking some type of leave or had some uncertainty
about their availability to work. Ms. Carender, an employee in the X-Ray department
expressed an interest in working in the Mammography unit. In order to become a
certified mammography technologist, an individual must be trained and complete a
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number of mammography examinations. In order to assist with getting Ms. Carender
trained, CRMC hired Ms. Carender in August 2008, so that she could begin the training
and obtain the necessary hands-on experience. Ms. Carender became a full-time
Mammography Technologist in 2009. Plaintiff first took paid administrative leave from
August 2008 until September 25, 2008. Plaintiff was again placed on paid
administrative leave beginning on November 19, 2008 until December 19, 2008.
Plaintiff was then placed on FMLA leave beginning on December 22, 2008 until March
2009. Plaintiff then returned to work in March 2009. Plaintiff was not placed on
administrative leave again until July 14, 2010. Thus, this timing demonstrates that
plaintiff’s position was not replaced by Ms. Carender. Rather, Ms. Carender was hired
to assist with the department’s need for additional technologists, during a busy time.
Additionally, the Court also does not find that the note left by plaintiff’s supervisor is
evidence of pretext. In Rivers-Frison v. Southeast Mo. Community Treatment Center,
133 F.3d 616 (8th Cir.1998), the Court stated:
[N]ot every prejudiced remark made at work supports an inference of
illegal employment discrimination. We have carefully distinguished
between comments which demonstrate a discriminatory animus in the
decisional process or those uttered by individuals closely involved in
employment decisions, from stray remarks in the workplace, statements
by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process.
Id. at 619 (internal citations omitted). In the instant case, the Court finds that the note
left by plaintiff’s supervisor was simply an inquiry about the hours plaintiff wished to
work and is not indicative of any type of age related animus.
Accordingly, the Court finds that plaintiff cannot meet the elements of a prima
facie case of age discrimination because she cannot demonstrate that she was qualified
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for the position nor that she was replaced by a younger individual. Accordingly, the
Court hereby GRANTS defendant’s Motion for Summary Judgment on plaintiff’s ADEA
Claim and her age discrimination claim under the MHRA.
C. Retaliation
To establish a prima facie case of retaliation under the ADA, plaintiff must show:
1) that she engaged in protected conduct, 2) that reasonable employees
would have found the challenged retaliatory action materially adverse, and
3) that the materially adverse action was causally linked to the protected
conduct.
Weger v. City of Ladue, 500 F.3d 710, 726 (8th Cir. 2007).
Plaintiff states that defendants informed her that they intended to terminate her
from her position in the mammography department on July 14, 2010. The letter from
Mr. Mazur stated that plaintiff would be placed on paid administrative leave for the
purpose of exploring other job opportunities that did not involve patient contact and
would provide a safer environment. The letter stated that if no alternative position was
identified by July 28, 2010, it would be necessary to end plaintiff’s employment. Plaintiff
states that the EEOC issued it Notice of Right to Sue on plaintiff’s initial charge of
discrimination on July 13, 2010. Plaintiff argues that defendants’ conduct in placing her
on leave and threatening to terminate her was in retaliation for her previous complaints
of disability and age discrimination.
Defendants argues that plaintiff filed her charge of discrimination on August 10,
2009, which was eleven months before Mr. Mazur’s July 14, 2010 letter. Defendants
argue that the issuance of the Notice of Right to Sue letter one day before she was
placed on administrative leave is purely coincidental. The Right to Sue letter is a
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ministerial act by a government agency and is not protected activity by the plaintiff.
Additionally, defendants argue that there is no evidence that CRMC even received the
letter or had reviewed it when it placed plaintiff on administrative leave. Rather,
defendants argue that the decision to place plaintiff on administrative leave was instead
prompted by a seizure that she had suffered the day before while a patient was in the
mammography machine.
Plaintiff argues that she first engaged in protected activity on January 5, 2009,
when her attorney sent a letter to the hospital’s president. Plaintiff states that she was
returned to work, but continued to demand restoration of her sick leave and unpaid
wages for the periods when she was placed on involuntary leave. Plaintiff filed a charge
of discrimination on August 10, 2009, complaining of disability and age discrimination.
Plaintiff claims that all of these actions constitute protected activity. Plaintiff argues that
she was removed from the mammography unit on July 14, 2010, which was the day
after she suffered a seizure in the presence of a patient and was also the day after the
EEOC issued its Notice of Right to Sue letter.
The defendant argues that there is no temporal proximity, because the protected
conduct occurred in 20091, but plaintiff was not removed from the Mammography Unit
until July 2010. Courts have noted that “any inference of causal connection is
substantially weakened by the length of time, more than a year, between the allegedly
protected activity and the supposedly retaliatory conduct.” Moore v. Lehigh Cement

1

The three instances of protected activity plaintiff alleges are: 1) a January 5,
2009 letter from her counsel complaining of disability discrimination; 2) a June 3, 2009
letter from her counsel demanding restoration of sick leave and 3) August 10, 2009
charge of discrimination.
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Co., No. C 09-3066-MWB, 2011 WL 454499, *15 (N.D.Iowa Feb. 4, 2011). In Shanklin
v. Fitzgerald, 397 F.3d 596, 604 (8th Cir.), cert. denied, 546 U.S.1066, 126 S.Ct. 807,
163 L.Ed.2d 636 (2005) the Court noted that “[t]en months elapsed between the date
Shanklin filed her EEOC charge and the date the Board discharged Shanklin. With this
lengthy delay, any causal nexus inference tends to evaporate.” In the instant case,
plaintiff filed her charge of discrimination on August 10, 2009, but she was not removed
from the Mammography Unit until eleven months later in July 2010. Additionally,
defendant notes that the issuance of a right to sue letter is not protected activity and
cannot show the required nexus. In Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273,121 S.Ct.1508,149 L.Ed.2d 509 (2001), the Court stated it is an “utterly implausible
suggestion that the EEOC’s issuance of a right-to-sue letter - an action in which the
employee takes no part - is a protected activity.” The Court agrees and finds that there
is no causal connection between plaintiff’s protected activity in 2009 and her removal
from the Mammography Unit in July 2010. Accordingly, the Court finds that plaintiff has
failed to establish a prima facie case of retaliation. Therefore, the Court hereby
GRANTS defendants’ Motion for Summary Judgment on Plaintiff’s Retaliation claim.
D. Claims Against Robert Mazur
Plaintiff has named Mazur, CRMC’s Human Resources Director, as an individual
defendant under all of her claims. However, individual supervisors or co-workers
cannot be held liable under the ADA or the ADEA. In Ebersole v. Novo Nordisk, Inc.,
No. 1:11CV25 SNLJ, 2011 WL 6115655 (E.D.Mo. Dec. 8, 2011), the Court stated:
in Alsbrook v. City of Maumelle, the Eighth Circuit held that Title II of the
ADA does not permit individual liability, and that Court then observed that,
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with respect to Title I (the Title at issue here), “three [Circuits] have held
that there is no liability under Title I against individuals who do not
otherwise qualify as ‘employers' under the statutory definition.” 184 F.3d
999, 1005 n. 8 (8th Cir.1999).
Id. at *1. Additionally, the Court stated that “this Court has repeatedly held that
individuals are not liable under the ADA.” Id. The Court continued, “[i]t is well-settled in
the Eighth Circuit that individuals are not subject to individual liability under Title VII of
the Civil Rights Act of 1964, and longstanding precedent in this Court also holds that
individuals are not liable under the ADEA.” Id.
Defendants noted that individual liability does exist under the MHRA. However,
they argue that plaintiff must satisfy every element for her claims against Mr. Mazur thus showing that her disability, age or protected activity was a contributing factor in
some action or decision by him. As stated above, because plaintiff cannot meet the
prima facie elements of a disability, age or retaliation claim, her individual claims against
Mr. Mazur fail as well. Accordingly, defendants’ Motion for Summary Judgment as to
the individual claims against Mr. Mazur are hereby GRANTED.
IV. CONCLUSION
For the reasons stated above, the Court hereby GRANTS Defendants’ Motion for
Summary Judgment (Doc. # 30) and DENIES as MOOT Plaintiff’s Motion in Limine
(Doc. # 64) and defendants’ Motion in Limine (Doc. # 65).

Date: April 12, 2012
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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