Swank v. CareSource Management
Filing
36
Order and Decision granting Defendant's Motion for summary judgment (Related Doc # 25 ). Judge John R. Adams on 9/30/15.(K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KATHERINA SWANK,
Plaintiff,
vs.
CARESOURCE MANAGEMENT
GROUP CO.,
Defendant.
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CASE NO. 1:13CV2048
JUDGE JOHN R. ADAMS
ORDER AND DECISION
This matter is before the Court on a motion for summary judgment filed by Defendant
CareSource Management Group Co. (“CareSource”). Doc. 25. The Court finds that no genuine
disputes of material fact exist as to Plaintiff Katherina Swank’s claims of disability
discrimination and retaliation. As such, for the following reasons, CareSource is entitled to
judgment as a matter of law, and its motion for summary judgment is GRANTED.
I.
FACTS AND PROCEDURAL HISTORY
This case arises out of Swank’s employment termination. The parties do not dispute the
underlying facts:
Swank is a Registered Nurse (“RN”) and was hired by CareSource in 2007 as a Case
Manager in the Warrensville Heights office. Doc. 24-1 at 26, 47. CareSource is a managed
healthcare organization that manages Medicaid recipients. Doc. 24-1 at 43-44. As a Case
Manager, Swank worked with members and healthcare providers to conduct healthcare
assessments and to assist in member management. Doc. 24-1 at 43-46.
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Between late 2008 and early 2009, Swank was diagnosed with rheumatoid arthritis. Doc.
24-1 at 29-36, 117-118, 124-131. She experienced intermittent difficulty with walking and lifting
heavy items. Doc. 24-1 at 40. She also became more susceptible to illness due to a weakened
immune system. Doc. 24-1 at 41-42. In March of 2009 Swank sought a medical accommodation
so that she could work at home. Doc. 24-1 at 134-141; 24-2 at 11. This accommodation was
denied due to information gathered from her physician. Doc. 24-1 at 141-144; 24-2 at 12.
Instead, CareSource offered Swank a Case Manager Teleworker position, which she accepted.
Doc. 24-1 at 117-119.
In spring of 2011, CareSource entered into discussions with the Ohio Department of Jobs
and Family Services (“ODJFS”) to explore a new approach to delivery of managed care services.
CareSource was under contract with ODJFS servicing Medicaid recipients. Doc. 24-3 at 18.
ODJFS mandated that CareSource restructure their health plans so that it followed a high touch,
community-based model. Doc. 24-1 at 52; Doc. 24-3 at 18. While the Case Manager position
was previously completed via telephone, ODJFS now required Case Managers to meet face-toface with certain patients on a quarterly basis. Doc. 24-1 at 52; Doc. 24-3 at 18.
In response to this mandate, CareSource eliminated the Case Manager position and
created the High Risk Case Manager (“CMHR”) position to meet the needs of its patients. Each
CMHR was assigned to oversee a team consisting of a Licensed Practical Nurse (“LPN”), a
social worker, and a patient navigator. Doc. 24-3 at 20-21. The CMHR was an registered nurse
who served as the accountable point of contact for the CareSource member and was ultimately
responsible for coordinating the appropriate care treatment plan for the member. Doc. 24-3 at 2224. Driving was not listed under “Essential Functions” on the job description, but was listed on
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the job description under “Work Environment/Physical Requirements”. Doc. 24-2 at PageID #:
292
Swank was offered the CMHR position in November of 2011. Doc. 24-1 at 62-64. She raised
concerns that the driving portion of the position would be an issue due to her rheumatoid
arthritis. Doc. 24-1 at 63-64. She then sent a letter to Pam Tropiano, the Vice President of
Health Services, stating that the CMHR position “would be hazardous considering [her] current
health condition.” Doc. 24-1 at 155-156; 24-2 at 15.
In December of 2011 Swank met with her supervisors and was offered the contract for
the CMHR position. Doc. 24-1 at 60, 161-162. She again expressed concern about the driving
portion of the job. Doc. 24-1 at 72. Her supervisors suggested that Swank make a formal request
for accommodation and informed her that CareSource would temporarily waive the driving
requirements of the CMHR position pending review of Swank’s limitations and any possible
accommodations. Doc. 24-1 at 73, 162. Driving was not necessary during this temporary
transition period to the new model, which is why CareSource allowed Swank this temporary
accommodation. Doc. 24-1 at 73. Swank was told that any other available positions were in
Dayton and would only be given to employees in the Dayton office. Doc. 24-3 at 47.
Swank completed an accommodation request, stating: “Unable to tolerate being exposed
to changes in weather conditions. Unable to sit/stand for long periods of time.” Doc. 24-2. Her
doctor noted that she would experience “difficulty” performing her tasks and duties identified in
the job description. Doc. 24-2. No accommodations were listed in this request form by either
Swank or her physician. Doc. 24-2.
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In May of 2012, Swank answered “No.” to her supervisors when asked if she was able to
perform her job duties with or without an accommodation. Doc. 24-1 at 221. Swank was then
terminated on May 21, 2012. Doc. 24-1 at 221.
II.
LEGAL STANDARD OF REVIEW
A party seeking summary judgment must show “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 it is one that might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual
issue is “genuine” requires consideration of the applicable evidentiary burdens. Id. At 252.
Further, on summary judgment, the inferences to be drawn from underlying facts must be viewed
“in the light most favorable to the party opposing the motion.” U.S. v. Diebold, Inc., 369 U.S.
654, 655 (1962). The pivotal question in deciding a motion for summary judgment is whether a
reasonable fact finder could make a finding in favor of either party. See Anderson 477 U.S. at
250 (“The inquiry performed is the threshold inquiry of determining whether there is the need for
a trial – whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.”).
The initial burden of showing the absence of any “genuine issue” belongs to the moving
party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has satisfied its
burden of proof, the burden then shifts to the nonmoving party. The nonmoving party may not
simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact
to be resolved by a jury” or other fact-finder at trial. Cox v. Kentucky Dep’t of Transp., 53 F.3d
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146, 150 (6th Cir. 1995). A party opposing summary judgment must show that there are facts
genuinely in dispute, and must do so by citing to the record. Fed.R.Civ.P. 56(c)(1)(a).
III.
LEGAL ANALYSIS
A. Disability Discrimination
Where a plaintiff has direct evidence that the employer relied on his or her disability in
making an adverse employment decision, or if the employer admits reliance on the handicap:
1) the plaintiff bears the burden of establishing that she is “disabled”;
2) the plaintiff bears the burden of establishing that she is “otherwise
qualified” for the position despite her disability:
a) without accommodation from the employer;
b) with an alleged “essential” job requirement eliminated; or
c) with a proposed reasonable accommodation.
Horn v. Knight Facilities Management-GM, Inc., 558 Fed.Appx. 452, 455 (6th Cir. 2014). If the
plaintiff carries her burden, the defendant then bears the burden of proving that “’a challenged
job criterion is essential, and therefore a business necessity,’ or that a proposed accommodation
would impose an undue hardship on its business.” Id., citing Kleiber v. Honda of Am. Mfg., Inc.,
485 F.3d 862, 868-69 (6th Cir. 2007). The ADA defines “undue hardship” as:
An action requiring significant difficulty or expense, when considered in
light of:
(i)
the nature and cost of the accommodation needed under this chapter;
(ii)
the overall financial resources of the facility or facilities involved in
the provision of the reasonable accommodation; the number of
persons employed at such facility; the effect on expenses and
resources, or the impact otherwise of such accommodation upon the
operation of the facility;
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(iii)
the overall financial resources of the covered entity; the overall size
of the business of a covered entity with respect to the number of its
employees; the number, type, and location of its facilities; and
(iv)
the type of operation or operations of the covered entity, including
the composition, structure, and functions of the workforce of such
entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity.
42 U.S.C.A. § 12111(10)(B)(i)-(iv).
Here, the parties have argued their positions assuming that Swank is “disabled” under the
Horn analysis. The Court will do the same. As such, the Court considers whether Swank has met
her burden of establishing that she is “otherwise qualified” for the position without
accommodation from the employer, with an alleged “essential” job requirement eliminated, or
with a proposed reasonable accommodation. The Court finds that Swank has failed to sustain
her burden, and CareSource is entitled to judgment as a matter of law on all claims.
1. Performing as a CMHR without an accommodation.
In her brief in opposition to summary judgment, Swank argues that she could have
performed as a CMHR without an accommodation, acknowledging that her physician said she
would have “difficulty” performing her job functions “but did not suggest that she needed any
accommodations and thus could perform her job duties without accommodation.” Doc. 32-1 at
14. However, this argument is disingenuous and unsupported by the undisputed facts in this
case. Just two sentences after Swank asserts that she could perform the job without an
accommodation, Swank argues that “any concern about driving could be remedied by assigning
Swank members close to her home…,” which is one of the very accommodations that she
requested from CareSource.
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In fact, this litigation was instituted because Swank argues that CareSource unlawfully
terminated her employment when she could have performed her job duties with reasonable
accommodation. She even submitted a request for accommodation from CareSource, arguing
that she need an accommodation in order to perform her job as a CMHR. Furthermore, apart
from the three sentences suggesting that she could perform the CMHR position without
accommodation, the remainder of the 21-page brief is devoted to arguing that Swank was
disabled but could have performed the job with an accommodation, and therefore, her
termination was unlawful.
Given this, no genuine dispute of material fact exists, and Swank cannot sustain her
burden of proof on this element.
2. Driving as an essential function of the job.
Swank next argues that driving was not an essential function of the job. “A job function
is essential if its removal would ‘fundamentally alter’ the position.” Kiphart v. Saturn Corp., 251
F.3d 573, 584 (6th Cir. 2001). Driving was not listed under “Essential Functions” category of the
CMHR job description, but it was included within the “Work Environment / Physical
Requirements” section of the job description.
Work Environment/Physical Requirements:
1. Mobile Worker: Will work at different office locations established by
CareSource and will typically work in established geographical area in
the community; will be exposed to weather conditions typical of the
location and may be required to stand and/or sit for long periods of time.
2. Perform reasonable travel related duties including member home visits,
provider visits, and community based visits as needed to ensure
administration of the program.
Doc. 24-2 at PageID #: 292 (emphasis in text).
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The CareSource contract with ODJFS mandated an in-touch, community-based model,
which would include quarterly visits by the CMHR with members. 1 While other employees
could make face-to-face visits, there were some visits that only registered nurses could make,
and the only registered nurses on the team were CMHRs. In fact, Swank herself understood that
driving was an essential function of the job:
Q. You understood that it would be a requirement that you as the high
risk case manager would have to perform at least some of these inhouse, these in-person visits, right?
A. Correct.
Q. What was the purpose of the in-person visits, do you know/
A. Just to check to make sure that the patient had everything that they
needed, that they were safe, in a safe environment, that they had a roof
over their head. Sometimes it’s hard to assess a patient without
actually seeing them, if there’s issues.
Q. If it was your understanding that you could assign the in-person visits
to a navigator…or a social worker, why was it that you were concerned
about the driving associated with this position?
A. Because sometimes an RN would need to go out to see a patient.
Q. So you knew then that you were going to have to make some of
those drives?
A. Correct.
Q.
A:
Q:
A:
Q:
A:
Q:
A:
Can you describe for me the transition going from case manager to high risk case
manager?
Well, they restricted the job responsibilities.
Do you know why?
A little understanding.
Okay. What was your understanding?
That we just needed to change the ways that we were doing things.
In what way?
All of a sudden the nurses had to become, I guess all of them were going to be telephonic.
They were going to be working at home but they were still going to have to be mobile.
Doc. 24-148
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Doc. 24-1 at 58-59 (emphasis added); see also Doc. 24-1at 166-167.
Q. Did you have any understanding as to what percentage of the job
description required that the high risk case manager be mobile and just
so we are clear, by mobile we mean traveling to see the patients at their
homes?
A. They determined that it might, could have been up to 50 percent of
the time.
Doc. 24-1 at 52 (emphasis added).
As admitted by Swank, driving was indeed an “essential function” as defined by Kiphart.
In fact, Swank acknowledged that the very reason for the re-structuring is that the contract with
ODJFS required a CMHR to be mobile and perform face-to-fact visits. Doc. 24-1at 50 (Q. So
it’s your understanding that the structural changes in CareSource were being driven by ODJFS,
correct? A. Correct).
Swank’s attempt to conflate the legal requirements of an “essential job function” with a
lay company’s use of the heading “Essential Function,” ignores: 1) the remainder of the
requirements outlined on the job description; and 2) the very substance of Swank’s argument that
she needed an accommodation because driving and mobility were required and “essential” by the
CMHR position.
Given this, there is no genuine issue of fact that driving is an essential function of the
CMHR position. Swank cannot sustain her burden of proof on this element.
3. Proposed accommodations.
Swank next argues that CareSource discriminated against her because it did not grant her
accommodation request. Swank now argues that CareSource could have required other
employees and registered nurses to take over her driving responsibilities as an accommodation.
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However, CareSource was not required to assign other employees to assume her duties. An
employer is “not required to assign existing employees or hire new employees to perform” an
employee’s essential job functions. Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999).
“Elimination of essential job functions is not required as a form of reasonable accommodation.”
Dabney v. Ohio Dep’t of Admin. Servs., 18 Am. Disabilities Cas. (BNA) 54 (S.D. Ohio 2006).
Furthermore, an employee claiming that she could have performed a job with an
accommodation “has the initial burden or having proposed an accommodation and showing that
the accommodation is objectively reasonable…[A] plaintiff may not rely on accommodations
that he did not request.” Manigan v. Southwest Ohio Reg’l Transit Auth., 385 Fed. Appx. 472,
478, n.5 (6th Cir. 2010) (emphasis added); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183
(6th Cir. 1996), abrogated on other grounds, (“[T]he disabled individual bears the initial burden
of proposing an accommodation and showing that that accommodation is objectively
reasonable.” (emphasis in text)). In her accommodation request, Swank did not identify what
specific accommodation she sought. In conversations with supervisors, Swank discussed being
assigned members who were close to her home so that her driving would be limited. She never
articulated this in her actual request for accommodation.
Even assuming that CareSource had an obligation to suggest an accommodation and
assign her members living close to her home, this would still require her to drive and spend
considerable time sitting still. As such, Swank admits that there was no accommodation that
CareSource could have provided to address her difficulty driving:
Q. And you understood that [being assigned] patients closer to home
didn’t necessarily mean you wouldn’t be required to sit or stand for
long periods of time, right?
A. Correct.
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Q. Because you might be driving in traffic, you could be in the car for a
long period of time even if the patients were closer to [your] home,
right?
A. Yes.
Q. And there was nothing anybody could do to keep you from
experiencing changes in the weather, right?
A. Right.
Q. And one of the things you told CareSource was that you were unable to
tolerate being exposed to changes in the weather, right?
A. Correct.
Q. So there was really no accommodation for that, was there?
A. No.
Doc. 24-1 At 175:16-176:21 (emphasis added).
Given this, Swank did not meet her obligation to suggest a specific accommodation at the
time she submitted her request for accommodation. Even if she had suggested a specific
accommodation (including assignment of patients near her home), her own testimony establishes
that there was no accommodation that CareSource could have provided that would have
eliminated the difficulty with driving. Instead, the only accommodation to mitigate the concerns
with driving would be to assign the face-to-face visits to another employee, which as
demonstrated above, would have fundamentally altered the purpose of re-structuring and voided
the ODJFS mandate for registered nurses (i.e., CMHRs) to meet with the patients. The law does
not require CareSource to have altered the position, hired others to perform this portion of the
job, or assign existing employees to perform this essential function of the CMHR position.
4. Other CareSource Positions.
Swank’s final argument is that she was discriminated against because she was not offered
a position at other CareSource offices. Other positions also required significant travel and inperson visits with members and/or healthcare providers. Doc. 24-5 at 17-18, 37-39; Doc. 24-3 at
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40-41. The only other open telephonic positions were located at an office in Dayton. Swank was
told this. Doc. 24-1 at 163. She then indicated that she was not willing to relocate.
Q. Did you yourself look to see if there were job vacancies that
Katy Swank could perform?
A. Yes.
Q. All right. What did you do to look for job vacancies?
A. […] I discussed different roles and responsibilities with clinical
staff that might be vacate, let me know if this position is vacate.
Unfortunately, due to the geographical location of where Katy
lived, the options were very limited.
Q. Did you ask Katy if she was willing to relocate?
A. I did not. No, I did not ask her. I believe her leadership asked
her and said, you know, if you would be interested in these roles
it would require you to relocate, and it was shared with me that
she was not open to relocation.
Doc. 33-1 at 54-55. Swank has made no argument or suggestion that she was willing to move to
Dayton to work for CareSource or that she was able to make the long communicate between
northeast Ohio and Dayton. As such, there is no genuine issue of material fact that CareSource
did not engage in disability discrimination by failing to offer Swank a telephonic job in Dayton,
Ohio.
B. Retaliation
Swank argues that she was subject to retaliation for pursuing a reasonable
accommodation based on her disability. Doc. 32-1. A prima facie case of retaliation has four
elements: 1) the plaintiff engaged in legally protected activity; 2) the defendant knew about the
plaintiff's exercise of this right; 3) the defendant then took an employment action adverse to the
plaintiff; and 4) the protected activity and the adverse employment action are causally connected.
Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001).
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Swank argues that she was treated differently than other CMHRs by not receiving certain
equipment (such as a lap top and cell phone), being left out of daily training and team meetings,
not having her cell phone number published on the phone list, and by her eventual termination.
Doc. 32-1 at 19-20. An adverse employment action is defined as a “materially adverse change in
the terms or conditions of employment.” See Kocsis v. Multi-Care Management, Inc., 97 F.c3d
876, 885 (6th Cir. 1996).
In determining whether an action is “materially adverse,” courts consider whether the
action resulted in “termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.” Id. at 886. The
change must be more disruptive than “a mere inconvenience or an alteration of job
responsibilities.” Id.
In looking at Swank’s claims, apart from termination, she suffered no other “adverse
actions.” While CareSource processed Swank’s request for accommodation, it temporarily
relieved her of the travel obligations pending the outcome of her request. Doc. 24-1 162-63.
Consequently, Swank admitted that she did not need the mobile equipment, including the laptop
and cell phone, to perform the job duties she had at the time:
Q. But you weren’t working as a mobile worker at that time, you were
working at home, so you didn’t really need the cell phone or the laptop,
did you?
A. No, I guess not.
Doc. 24-1 at 228.
Q.
A.
Q.
A.
But you did have a computer at home, right?
Yes.
You had a phone at home, right?
Correct.
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Q. And you were able to perform the duties that you had during the first
quarter of 2012, right?
A. Correct.
Doc. 24-1 at 97-98.
Since Swank acknowledges that she did not need a cell phone to perform her duties at the
time, she likewise would not have had a cell phone number to publish on the phone list. Further,
Swank was told by a CareSource supervisor that she could participate in the training meetings
but “didn’t need to” attend them since she was not performing the duties of the CMHR position
at that time. Doc. 24-1 at 102. The same is true with CPR training, which Swank admitted she
“could have attended” but “thought why even bother” when her supervisor confirmed that she
was not required to attend. Doc. 24-1 at 238.
The only remaining “adverse action” is Swank’s termination; however, Swank cannot
show a genuine issue of material fact as to her termination being causally connected to her
request for accommodation. Rather, as discussed above, Swank’s termination was not a result of
requesting an accommodation, but a recognition that Swank was unable to perform the mobility
and driving requirements, which are essential functions of the CMHR position. Therefore,
Swank was not qualified for the position:
Q. Ms. Swank, tell me about your termination from CareSource, how did
you find out?
A. They called me on the phone.
* * *
Q. Okay. What did she say?
A. She called me up and she just introduced herself and she told me that
the other two girls were on the phone. And then she asked me if I
was able to do my job duties and responsibilities with or without an
accommodation.
Q. What did you say?
A. I said no.
Doc. 24-1 At 220-221 (emphasis added).
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At deposition, Swank stated that she answered this question believing it was directed at
another type of position. However, Swank admits that, immediately after the conversation, she
“didn’t call anybody back and say there’s been a big misunderstanding.” Doc. 24-1at 225. Since
Swank failed to correct any misunderstanding known to her, CareSource was certainly
reasonable to rely on Swank’s statements that she was unable to perform the job duties and
responsibilities of a CMHR with or without an accommodation.
Considering the requirements of the new contract with ODJFS, the mandatory mobility
and travel requirements as essential job functions, Swank’s statement that she could not perform
those job duties with or without a reasonable accommodation, along with the other testimony
described above, no genuine issue of material fact exists as to Swank’s claim for retaliation.
CareSource is entitled to judgment as a matter of law.
C. Interactive process claims.
In her brief in opposition, Swank raises an independent claim for failing to engage in a
good faith interactive process. Doc. 32-1 at 16. However, Swank failed to allege this claim in
her Complaint, and the Court declines to consider here.
D. State-law claims for discrimination and retaliation.
Swank has acknowledged that courts may generally apply federal precedent to
employment discrimination claims under Ohio law. Jakubowski v. The Christ Hospital, 627 F.3d
195, 201 (6th Cir. 2010) (“…analysis of claims made pursuant to the American with disabilities
Act applies to claims made pursuant to Ohio Revised Code §4112.02…”). Swank has made
discrimination claims under the Ohio Revised Code, but defers to the analysis of the federal
claims to resolve the state-law causes of action. Likewise the Court will do the same. Because
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this Court finds that no genuine issues of material fact exist as to Swank’s federal claims for
discrimination and retaliation, the Court also finds that no genuine disputes of material fact exist
as to the state-law claims. Thus, CareSource is entitled to summary judgment on all of Swank’s
state-law claims.
IV.
CONCLUSION
Reviewing the facts in a light most favorable to the Plaintiff Katherina Swank, no
genuine dispute of material fact exists on any claim against Defendant CareSource. Thus, a jury
could only reach one conclusion – that is, CareSource did not discriminate against Swank based
upon her disability. Therefore, CareSource is entitled to judgment as a matter of law, and its
motion for summary judgment is GRANTED.
IT IS SO ORDERED.
Dated: 09/30/2015
/s/John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
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