Shotwell v. Regional West Medical Center

Filing 51

MEMORANDUM AND ORDER - The defendant's motion for summary judgment (filing 39 ) is granted in part and denied in part as set forth above. The plaintiff's failure to accommodate claims and disability discrimination claims are dismissed with prejudice. The defendant's motion for summary judgment on the plaintiff's retaliation claim is denied. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUDY SHOTWELL,
Plaintiff,

4:14-CV-3210

vs.
MEMORANDUM & ORDER
REGIONAL WEST MEDICAL
CENTER,
Defendant.
The plaintiff, Judy Shotwell, has sued her former employer, Regional
West Medical Center, under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practice Act
(NFEPA), Neb. Rev. Stat. § 48-1101 et seq. This matter is before the Court on
the defendant's motion for summary judgment. For the reasons explained
below, the defendant's motion will be granted in part and denied in part.
BACKGROUND
The following facts are not meaningfully disputed. The plaintiff began
employment with the defendant as a bill collector in 1992. Filing 40 at 2.1 She
worked in that position, and later as a Patient Access Representative, until
her termination on December 2, 2013. Filing 40 at 2, 6. The parties agree
that the role of Patient Access Representative is largely administrative,
requiring the employee to sit for long periods of time. Filing 50-1 at 4; filing
44-1 at 2.
The defendant had a "General Leave Policy" throughout the plaintiff's
employment. Filing 40 at 2. The policy provided that the defendant "is not
required to, and generally will not, reserve an employee's position beyond a
total of 20 weeks leave time in a rolling 12-month period." Filing 40 at 2.
Pursuant to the policy, an employee who exceeded 20 weeks leave, and whose
position was not reserved, was placed on unpaid furlough status. Filing 40 at
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1).
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3. A furloughed employee who remained on the defendant's employment rolls,
could reapply for other positions within the company, and was eligible for
continued benefits through the defendant's long-term disability plan. Filing
40 at 2; filing 44-6.
In 2012, the plaintiff had back surgery, causing her to miss several
months of work. Filing 40 at 3. She was on medical leave from November 12,
2012 until February 18, 2013, when she returned to work on a part-time
basis. Filing 40 at 3. On April 18, 2013, she obtained a "return-to-work"
release from her physician, which authorized her to return to full-time
employment as a Patient Access Representative. Filing 40 at 3; filing 7. The
plaintiff returned to full-time work on May 1, 2013. Filing 40 at 3.
On August 16, 2013, the plaintiff broke her leg. Filing 40 at 4. She
underwent surgery for the injury on August 19, which required her to miss 2
weeks of work. Filing 40 at 4. While recovering from her surgery at home, she
spoke with the defendant's Compensation and Benefits Manager, Eric
Vardell. Filing 40 at 4. Vardell informed the plaintiff that she had exceeded
20 weeks leave, and that pursuant to the General Leave Policy, she must
either quit or assume furlough status. Filing 40 at 4. The plaintiff chose to be
furloughed, which Vardell said would be effective until December 1, 2013.
Filing 40 at 4.
Following her conversation with Vardell, the plaintiff called the
defendant's Vice President of Human Resources, Steve Hodges, seeking help.
Filing 40 at 5; filing 49-1 at 53. Hodges told her that furlough could be
"retro'd back and dropped" and that he would check into the matter further.
Filing 40 at 5.
On September 3, 2013, Hodges notified the plaintiff by e-mail that he
had reviewed her records, and that between her previous back injury and
more recent leg injury, she had used up her leave benefits as of August 27.
Filing 40 at 5; filing 40-8. He also wrote, however, that the defendant might
reconsider its decision to place her on furlough status if it received a medical
release from her physician. Filing 40 at 5.
The plaintiff obtained a work release from her physician on September
5, 2013. Filing 40 at 5; filing 40-9. The release authorized the plaintiff to
return to work on a full-time basis starting September 11, 2013, as long as
she remained in a wheelchair, performed only sedentary duties, and received
assistance in and out of doors. Filing 40 at 5; filing 40-9. On September 9,
2013, Hodges informed the plaintiff by e-mail that he received the physician's
release, and that he would review her work station "just to make sure I
understand that [sic] dynamics of that physical layout and the need for
assistance are reasonable." Filing 40 at 6.

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Soon after receiving the e-mail, the plaintiff met with Hodges to discuss
possible workplace accommodations. Filing 40 at 6. Specifically, the plaintiff
informed Hodges—consistent with the physician's work release—that she
could return to work in a wheelchair as long as she had help opening doors.
Filing 40 at 6; filing 50-1 at 18. At the meeting, Hodges also encouraged the
plaintiff to apply for long-term disability insurance through the defendant's
disability provider, UNUM. Filing 40 at 6. Later that day, after the plaintiff
left the meeting, she received a call from Hodges and the defendant's Chief
Financial Officer, David Griffith. Filing 40 at 6. Hodges informed the plaintiff
that the defendant had decided to keep her on furlough status. Filing 40 at 6.
The plaintiff was formally terminated by the defendant on December 2, 2013.
Filing 40 at 6.
The plaintiff filed for long-term disability insurance with UNUM on
September 12, 2013, while she was still on furlough status. Filing 40 at 6-7.
As part of the application, the plaintiff indicated that, with respect to her
occupational duties, she "was unable to walk – stand – sit for any length of
time." Filing 40 at 7 (quoting filing 40-12 at 5). UNUM approved the
plaintiff's application for long-term disability, noting that she was "unable to
perform the material and substantial duties of [her] regular occupation due
to [her] medical condition of lumbar disc degeneration." Filing 40 at 8
(quoting filing 49-2 at 1).
The plaintiff and her doctor filed paperwork with UNUM after she was
awarded benefits. On one questionnaire, filed December 26, 2013, the
plaintiff informed UNUM that she stopped work the previous August
"[b]ecause of my condition AND other reasons." Filing 40 at 8; filing 40-14 at
13. When prompted to explain the "other reasons," the plaintiff noted that
she had been "having trouble sitting, standing, and getting around due to my
back." Filing 40-14 at 13. She also claimed that, as of the previous summer,
"things were getting worse" and that "it had gotten really bad and I knew I
would not be able to continue my job." Filing 40 at 8 (quoting filing 40-14 at
13). Her physician, Dr. Donn Turner, responded to a questionnaire from
UNUM on or around February 3, 2014, indicating that the plaintiff was
unable to perform her occupational duties, which included "mostly sitting,"
exertion of up to 10 pounds, and brief periods of standing. Filing 40 at 9;
filing 40-15 at 2.
On November 11, 2013, while the plaintiff was still on furlough status,
she applied for disability benefits through the Social Security Administration
("SSA"). Filing 40 at 9. The plaintiff noted on her application that she had
stopped working to due physical and/or mental conditions, and because she
"was let go as due to my disabilities per RWMC missed too much work."
Filing 40-13 at 5. She also stated on the application that she "received reg
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pay and paid time off [and] extended illness bank [f]or time not allowed to
work per could not work do to my disabilities." Filing 40-13 at 6. The SSA
denied her claim. Filing 40 at 9.
On April 24, 2014, the plaintiff asked the SSA to reconsider its denial
of her November claim. Filing 40 at 9. In addition to expressing her
disagreement with the SSA's original determination, the plaintiff also stated,
"my disabling condition continues and I am unable to sustain gainful work
activity." Filing 40-16 at 1. The SSA granted the plaintiff's request for
reconsideration and awarded her benefits. Filing 40 at 10.
After exhausting her administrative remedies, the plaintiff filed this
suit.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The existence of a mere scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
ANALYSIS
The plaintiff alleges that the defendant failed to make reasonable
accommodations for her disability, in violation of the ADA 42 U.S.C. § 12112
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and NFEPA; that the defendant retaliated against her for requesting
reasonable accommodations, in violation of the ADA, 42 U.S.C. § 12203 and
the NFEPA, Neb. Rev. Stat. § 48-1114; and that the defendant discriminated
against the plaintiff based on actual and perceived disabilities in violation of
the ADA, 42 U.S.C. § 12112 and the NFEPA, Neb. Rev. Stat. § 48-1114.
The defendant has moved for summary judgment, arguing that the
plaintiff is not a qualified individual with a disability. Filing 39. The
defendant specifically contends that the plaintiff was unable to perform the
essential functions of her job, with or without accommodation. Filing 40 at
12. The Court agrees. Accordingly, the defendant's motion for summary
judgment will be granted on the plaintiff's failure to accommodate claim
under the ADA and the NFEPA, and on her discrimination claim based on
actual and perceived disabilities under the ADA and the NFEPA. Morriss v.
BNSF Ry. Co., 817 F.3d 1104, 1107 (8th Cir. 2016). But the Court will deny
the defendant's motion for summary judgment with respect to the plaintiff's
claim that she suffered retaliation for requesting a reasonable
accommodation in violation of the ADA and NFEPA. The plaintiff need not be
a qualified individual to maintain this claim, and the defendant has
presented no evidence that the plaintiff lacked a good faith belief that her
request for accommodation was reasonable. See Heisler v. Metropolitan
Council, 339 F.3d 622, 632 (8th Cir. 2003).
I. Failure to accommodate
The plaintiff alleges that the defendant failed to make reasonable
accommodations for her disability in violation of the ADA, 42 U.S.C. § 12112,
and the NFEPA, Neb. Rev. Stat. § 48-1111. Specifically, the plaintiff alleges
that she could return to work following surgery with use of a wheelchair,
filing 1 at 2, and "so long as she could get help entering the secured work
area and help opening the bathroom door." Filing 1 at 3. Rather than
providing these accommodations, the plaintiff contends that the defendant
"put her on an unpaid furlough status as of August 28, 2014." Filing 1 at 3.
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). Discrimination can include "not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or employee." 42
U.S.C. § 12112(b)(5)(A). With exceptions not relevant here, disability
discrimination claims brought under NFEPA are analyzed under the same
framework as disability discrimination claims brought under the ADA. See,
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Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002); Marshall v.
Eyecare Specialties, P.C. of Lincoln, 876 N.W.2d 372, 381 (Neb. 2016).
To make a failure to accommodate claim, a plaintiff "must establish
both a prima facie case of discrimination based on disability and a failure to
accommodate it." Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 905
(8th Cir. 2015). To establish a prima facie case of discrimination, a plaintiff
must show that she 1) has a qualifying disability under the ADA; 2) is a
qualified individual under the ADA; and 3) was subjected to an adverse
employment action due to her disability. Kelleher v. Wal-Mart Stores, Inc.,
817 F.3d 624, 631 (8th Cir. 2016). Then, if the plaintiff establishes a prima
facie case of discrimination, she must then establish a failure to accommodate
her disability. Schaffhauser, 794 F.3d at 905.
The defendant argues that the plaintiff is not a qualified individual
under the ADA. Filing 40 at 12. To be a qualified individual under the ADA,
an employee must "(1) possess the requisite skill, education, experience, and
training for [her] position, and (2) be able to perform the essential job
functions, with or without reasonable accommodation." Fenney v. Dakota,
Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003) (internal alterations
omitted) (quoting Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir. 2001)).
The defendant does not dispute that the plaintiff had the requisite
skill, education, experience, and training to perform her job. Filing 40 at 13.
However, the defendant argues that the plaintiff was unable to perform her
essential job functions, with or without accommodation, following surgery on
her leg. To support its argument, the defendant points to several
representations made by the plaintiff in applications for Social Security and
long-term disability benefits. These statements, the defendant contends,
negate an essential element of the plaintiff's ADA claim—that she was able
to perform essential job functions following leg surgery. The defendant
argues, in other words, that the plaintiff cannot be unable to work for
purposes of Social Security disability benefits, yet able to perform the
essential functions of her job under the ADA.
The Supreme Court has considered "the legal effect upon an ADA suit
of the application for, or receipt of, disability benefits." Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 800 (1999). In doing so, the Court has held
that the law neither forecloses nor erects a special presumption against a
beneficiary of disability benefits who is simultaneously pursuing a claim
under the ADA. Id. at 805. However, the Court noted that an inherent
discrepancy may exist where the plaintiff claims a "total disability or the
like" for purposes of disability benefits, and an ability to perform an essential
job function under the ADA. Id. at 807 (quotations omitted). When this
occurs, the ADA plaintiff "cannot simply ignore the apparent contradiction
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that arises out of the earlier SSDI total disability claim." Id. at 806. Rather,
to overcome the defendant's motion for summary judgment, the plaintiff must
present a sufficient explanation "to warrant a reasonable juror's concluding
that, assuming the truth of, or the plaintiff's good faith belief in, the earlier
statement, the plaintiff could nonetheless perform the essential functions of
[her] job, with or without reasonable accommodation." Id. at 807 (internal
quotations omitted).
Here, the defendant relies primarily on two filings by the plaintiff with
the Social Security Administration that, it argues, directly conflict with the
plaintiff's ADA claim.2 First, the defendant points to the plaintiff's November
2013 application for Social Security benefits, in which she indicated she had
stopped working due to physical and/or mental conditions and because she
"was let go as due to [her] disabilities . . . missed too much work." Filing 4013 at 5. The plaintiff also indicated on the application that she had received
paid time off for "time not allowed to work per could not work do [sic] to my
disabilities." Filing 40-13 at 6. Second, the defendant points to the plaintiff's
April 24, 2014 filing with the SSA, in which she asked the Administration to
reconsider its denial of her November claim. There, the plaintiff stated, "my
disabling condition continues and I am unable to sustain gainful work
activity." Filing 40-16 at 1.
After reviewing these facts in the light most favorable to the
nonmoving party, Torgerson, 643 F.3d at 1042, the Court determines that the
plaintiff's statements to the SSA conflict with a required element of her ADA
claim—that she was able to perform her job duties with accommodation. In
reaching this decision, however, the Court acknowledges that the plaintiff did
not expressly state to the SSA that she was "unable to work," and that her
representations therefore carry a level of ambiguity not previously addressed
by the Eighth Circuit. Cf., Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1050 (8th
Cir. 2005) (plaintiff indicated on Social Security application that he was
"unable to work"); Lane v. BFI Waste Sys. of N. Am., 257 F.3d 766, 768 (8th
Cir. 2001) (plaintiff stated on Social Security application that he was "unable
to engage in any substantial work"); Lloyd v. Hardin County Iowa., 207 F.3d
The defendant also points to several statements by the plaintiff on applications for longterm disability benefits through UNUM that, the defendant contends, require explanation
under Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). While these statements
provide contextual support for the defendant’s motion, it is not entirely clear if the plaintiff
is required under Cleveland to explain such discrepancies, assuming they exist, in those
particular filings. See, e.g., Murphey v. City of Minneapolis, 358 F.3d 1074 (8th Cir. 2004).
Either way, the Court need not reach that issue because the plaintiff’s statements to the
SSA provide a sufficient basis for granting summary judgment on the plaintiff’s failure to
accommodate claim.
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1080, 1082 (8th Cir. 2000) (plaintiff indicated on Social Security application
that he was "totally disabled and unable to work"). But the Court examines
the statements not only as they appear in the relevant filings, but also in the
context they were made. Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 382
(6th Cir. 1998). And when that is done, clear discrepancies emerge.
To begin with, the plaintiff concedes that she was unable to walk
following the August 19, 2013 surgery on her leg, but that she was capable of
returning to work with accommodation—namely, a wheelchair. Filing 49-1 at
18. Yet the plaintiff's deposition testimony and filings with UNUM cast
serious doubt as to her ability to sit. For example, in her application for longterm disability insurance, the plaintiff stated that, as a result of her medical
condition, she was unable to "sit for any length of time." Filing 40-12 at 5.
Similarly, in a letter to the private disability provider, the plaintiff's
physician noted her inability to perform certain occupational duties,
including "[m]ostly sitting."3 Filing 40-15 at 1. And when asked at her
deposition why she didn't apply for jobs with the defendant while on furlough
status, the plaintiff answered, "[d]ue to the fact of me not being able to sit for
any length of time." Filing 50-1 at 28.
It is against this backdrop that the Court interprets the plaintiff's
statements to the SSA—particularly that her "disabling condition continues"
and that she was "unable to sustain gainful work activity"—as conflicting
with a required element of her ADA claim: that she was able to perform her
job functions with reasonable accommodation. Filing 40-16 at 1.
Of course, the existence of a discrepancy between the plaintiff's filings
with the SSA and a required element under the ADA is not, itself, dispositive
of her claim. Cleveland, 526 U.S. at 806. Rather, the plaintiff can overcome
the defendant's motion for summary judgment by explaining the discrepancy
such that a reasonable jury could conclude that, despite her statements to the
SSA, she "could nonetheless perform the essential functions of her job, with
or without reasonable accommodation." Id. at 807 (internal quotations
omitted).
The plaintiff proffers two reasons motivating her applications for
disability benefits: "1) her employer failed to accommodate her disability[,]
and 2) her employer and private disability insurer encouraged and helped her
to apply for disability." Filing 43 at 13. But to the extent the plaintiff argues
that her motive for filing for SSA benefits is relevant, she is incorrect. Indeed,

The Court considers the physician's statements for contextual purposes only. See
Murphey, 358 F.3d at 1079 (holding that a "physician's opinion does not amount to a 'sworn
statement' or representation by [the plaintiff] that [s]he is totally and permanently disabled
and unable to work.").
3

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the Supreme Court requires not that the ADA plaintiff describe his or her
motivation for filing a benefits application, but rather that he or she explains
discrepancies that "negate an essential element of [an] ADA case." See
Cleveland, 526 U.S. at 806. The plaintiff provides no such explanation, and
has therefore failed as a matter of law to establish that she is a qualified
individual under the ADA. Fenney, 327 F.3d at 712 ("[T]he plaintiff retains
the ultimate burden of proving that he is a qualified individual . . . ."); see,
also, Lane, 257 F.3d at 770 (merely stating that the plaintiff was required to
apply for SSA by a private insurance provider is insufficient to survive
summary judgment when statements in the SSA application conflict with the
plaintiff's ADA claim).
In sum, the plaintiff's assertions to the Social Security Administration
conflict with an essential element of her claim under the ADA. The plaintiff
has proffered no evidence to harmonize these inconsistent statements such
that a reasonable jury could conclude that she was able to perform the
essential functions of her job, with or without reasonable accommodation.
Accordingly, the plaintiff has failed to make out a prima facie case for failure
to accommodate under the ADA, and the Court will grant summary judgment
in favor of the defendant on that claim.
The complaint also alleges that the defendant placed the plaintiff on
unpaid furlough status, and later terminated her employment, as a result of
actual and perceived disabilities in violation of the ADA and NFEPA. Filing 1
at 4-5. To maintain this claim, however, the plaintiff must demonstrate that
she is a "qualified individual" under the ADA. Morriss, 817 F.3d at 1107.
Accordingly, the Court's summary judgment for the defendant on the
plaintiff's failure to accommodate claim is also dispositive of her claim for
disability discrimination under the ADA, 42 U.S.C. § 12112, and the NFEPA,
Neb. Rev. Stat. § 48-1114.
II. Retaliation
The plaintiff alleges that the defendant retaliated against her for
requesting reasonable accommodations in violation of the ADA, 42 U.S.C.
§12203, and the NFEPA, Neb. Rev. Stat. § 48-1114. Filing 1 at 4. Specifically,
the plaintiff contends she was placed on unpaid furlough status, and later
terminated, as a result of her "engaging in the protected activity of asking for
reasonable accommodation for her disability in violation of the ADA." Filing 1
at 4.
The defendant has moved for summary judgment on the plaintiff's
retaliation claim on the grounds that she is not a qualified individual under
the ADA. Filing 39. However, the Eighth Circuit has held that an ADA
plaintiff who is "adjudged not to be a qualified individual with a disability"
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may nonetheless pursue a retaliation claim based on a request for
accommodation "as long as she had a good faith belief that the requested
accommodation was appropriate." Heisler, 339 F.3d at 632. The defendant
has provided no evidence that the plaintiff lacked a good faith belief that her
request for accommodation was appropriate. Accordingly, the defendant's
motion for summary judgment on the plaintiff's retaliation claim is denied.
IT IS ORDERED:
1.

The defendants' motion for summary judgment (filing 39) is
granted in part and denied in part as set forth above.

2.

The plaintiff's failure to accommodate claims and disability
discrimination claims are dismissed with prejudice.

3.

The defendant's motion for summary judgment on the
plaintiff's retaliation claim is denied.

Dated this 30th day of August, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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