Sper v. Judson Care Center, Inc.

Filing 25

ORDER granting 16 Motion for Summary Judgment. The complaint is dismissed with prejudice. Signed by Judge Sandra S Beckwith on 7/8/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Ardella Sper,

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) Case No. 1:13-CV-251
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Plaintiff,
vs.
Judson Care Center, Inc.,
Defendant.

ORDER
This matter is before the Court on Defendant Judson Care Center, Inc.’s motion
for summary judgment (Doc. No. 24). For the reasons that follow, Defendant’s motion
for summary judgment is well-taken and is GRANTED.
I. Background
Plaintiff Ardella Sper presents claims against her former employer, Defendant
Judson Care Center, Inc. (“Judson”), alleging that Judson violated the Americans With
Disabilities Act (“ADA”) and the Ohio Civil Rights Act (“OCRA”) by terminating her
employment because of her disability and by not providing a reasonable
accommodation for her disability. Additionally, Plaintiff alleges that Judson interfered
with her rights under the Family Medical Leave Act (“FMLA”) by not granting her leave
to address a serious health condition.
Judson is a nursing and rehabilitation facility that provides long-term care to its
patients. Plaintiff, a registered nurse, began working for Judson in October 2010 as a
charge nurse. As a charge nurse, Plaintiff was responsible for the patients in her unit,
as well as for supervising the State Trained Nursing Assistant’s (“STNA’s”). Plaintiff

testified that her job duties consisted of giving patients their medications, performing
treatments, keeping patients’ family members updated, communicating with doctors and
coordinating patient care with other staff members. Plaint. Dep. (Doc. No. 15), at 43.
Plaintiff was also required to keep accurate records on medications. Id. at 46. At the
relevant time in this case, Plaintiff worked the 7:00 p.m. to 7:00 a.m. shift.
Plaintiff was diagnosed with trigeminal neuralgia (“TN”) in July 2010. Plaint. Dep.
at 25, 193. TN is a condition that produces “[i]nflammation of the trigeminal nerve (the
fifth cranial nerve) that most commonly causes paroxysms of very intense lightning pain
in the areas of the face the nerve supplies -- the lips, eye, nose, scalp, forehead, gums,
cheek, and chin -- on the involved side of the face.” See Definition of Trigeminal
Neuralgia, available at http://www.medterms.com/ script/main/art.asp?articlekey=26023
(visited June 27, 2014). Plaintiff’s diagnosing physician, Dr. Goldenberg, originally
prescribed Tegretol twice a day to control her symptoms. Plaintiff testified that when
she has a flare-up, she is limited in eating, talking, breathing from her mouth, and doing
anything that takes concentration. Plaint. Dep. at 20. Plaintiff also testified, however,
that these flare-ups last for only about 20 minutes, even without medication, and that TN
only caused her to miss four or five days of work in the approximately two years she
was employed by Judson. Plaint. Dep. at 16-17, 20, 23-24. Plaintiff’s deposition
indicates that her TN is well-controlled on medication and that TN does not impose any
significant restrictions on her ability to care for herself or her daughter or on her
activities of daily living. Id. at 17-20. Plaintiff testified that she even discontinued using
Tegretol in December 2010 and throughout 2011 after she used up her prescription but
was no longer having any symptoms. Id. at 197-98.
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In February 2012, suspicions that nurses were diverting drugs caused the Ohio
Pharmacy Board and the Cincinnati Police Department to review Judson’s procedures
for disbursing narcotics. Prior to the review, nurses had a practice of “late entering” the
required information in the medications logs - they would administer the drug to the
patient and complete the paperwork afterwards. After the review, however, Judson
implemented a strict policy which required nurses to complete the Controlled Drug Log
(“CDL”) when they removed a narcotic from the drug cart and then complete the
Medication Administration Record (“MAR”) when the drug was given to the patient.
Weber Aff. (Doc. No. 16-1) ¶¶ 4-7. Additionally, the outgoing and incoming charge
nurses were required to audit the drug cart at the change of a shift to make sure that the
count was correct. Plaint. Dep. at 51-52.
Plaintiff had several disciplinary warnings issued to her while she was employed
by Judson. In August 2011, Plaintiff received a verbal warning for not removing two
NTG patches from a patient. Doc. No. 15-1, at 50. In February 2012, Plaintiff received a
verbal warning for not completing an in-house training program. Doc. No. 15-2, at 1. In
June 2012, Plaintiff received a written warning for improper conduct. Doc. No. 15-2, at
2. Specifically, Plaintiff was cited for permitting aides to leave the assisted living ward
for an extend period of time, which left the unit unattended, and for attending to
personal matters during her shift. Doc. No. 15-2, at 2-3. In July 2012, Plaintiff received
a final written warning for administering medication to a patient without a valid
physician’s order to do so. Doc. No. 15-2, at 7. Plaintiff testified that she understood
that after receiving this last warning, one more infraction would result in her termination.
Plaint. Dep. at 88-89.
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Plaintiff began treating with Dr. Thomas Myers in April or May 2012 for back pain
and anxiety, and possibly for TN. Plaint. Dep. at 127-28. Dr. Myers originally
prescribed Neurontin for back pain and Ativan for anxiety. Plaintiff was not sure
whether Dr. Myers prescribed anything for TN at that time. Id. at 128-29. Dr. Myers
changed Plaintiff’s prescriptions on August 20, 2012. He discontinued Neurontin at
Plaintiff’s request and started her on Tramadol for back pain. Dr. Myers continued
Ativan but started Plaintiff on Tegretol again. Id. at 129-30.
Most of what happened next is not disputed. During her shift on August 22August 23, Plaintiff was impaired at work, although it is not clear whether she arrived at
work impaired or became impaired later in her shift.1 In any event, at around 3 a.m., an
aide in Plaintiff’s unit reported to Nic Nzisabira, a charge nurse on another floor, that
Plaintiff was acting strange and asked him to come over right away. Nzisabira Dep.
(Doc. No. 19), at 35. Nzisabira found that Plaintiff was unsteady on her feet and kept
asking for “Jim.” Contemporaneous incident reports describe Plaintiff as having slurred
speech, being incoherent and disoriented, swaying and staggering, being unable to stay
awake, and having her eyes roll back into her head. Doc. No. 20-1, at 23-31.
Plaintiff told Nzisabira that she was not feeling well and wanted to go home.
Nzisabira started to do a count of the medications in Plaintiff’s cart but she slumped
over and hit her head on the cart. Id. at 35-36. Nzisabira called another nurse to
complete a cart count and they soon discovered discrepancies. They first noticed that

1

Plaintiff thinks she arrived at worked impaired; Judson contends that she
was not impaired until later on. The actual time Plaintiff became impaired, however, is
not crucial to the disposition of Judson’s motion.
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even though it was 3:00 a.m., Plaintiff had signed out some medications that were not
supposed to be administered until 6:00 a.m. Additionally, they found one unaccountedfor pill each of Oxycodone, Hydrocodone, Tramadol, Clonazepam, and Morphine.
Weber Dep. at 110-11, Weber Dep. Ex. 54. Plaintiff conceded in her deposition that
she did not follow the established protocol for distributing these drugs and that she does
not know whether she gave these drugs to the appropriate patient, whether she took
them herself, or whether she misplaced them. Plaint. Dep. at 109-110, 137-38, 140.
Nzisabira called Bridgid Weber, the director of nursing, for instructions when they
discovered the discrepancies in Plaintiff’s cart. Nzisabira Dep. at 38-40. Weber told
Nzisabira to call 911 so Plaintiff could be taken to the hospital and also to make sure the
hospital gave Plaintiff a drug test. Nzisabira Dep. at 47-48 Plaintiff, however, became
agitated when she learned that Nzisabira called 911 and refused to be transported to
the hospital by the emergency medical technicians. Id. Plaintiff testified that she did not
want to be taken to the hospital by the emergency squad because she did not want to
pay for the cost of an ambulance run. Weber Dep. at 108-09, 119-20; Weber Dep. Ex.
53. Plaintiff requested instead that Nzisabira call her mother to pick her up. Nzisabira
called Plaintiff’s mother and, when she arrived, told her that she needed to take Plaintiff
to the hospital and that she needed to take a drug test. Id. Plaintiff’s mother, however,
took her home instead. Plaint. Dep. at 110.
Weber spoke to Plaintiff on the phone on the afternoon of August 23 and
instructed her to go to the hospital for a drug test. During the conversation, Plaintiff told
Weber that the incident was caused by a reaction to a new drug she had been
prescribed. Weber Dep. at 128.
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Plaintiff attributed her impairment at work to taking her prescriptions for Ativan,
Tramadol, and Tegretol at the same time two hours before her shift began. Plaint. Dep.
at 92; Doc. No. 15-2, at 11. Plaintiff also provided Judson with a note from Dr. Myers
which stated that her reaction that night “could have been” caused by effects of a new
prescription. Doc. No. 15-2, at 9. The results of Plaintiff’s drug test showed Ativan,
Tramadol, Tegretol , and Doxylamine, an over-the-counter antihistamine. Plaint. Dep.
at 134-35. Other than Tramadol, however, for which she had a prescription, Plaintiff did
not test positive for any of the other missing drugs. Id. at 134. Despite the severe
reaction that Plaintiff had on the evening of August 22-23, she continued to take the
same three medications until she saw Dr. Myers again on August 29. Plaint. Dep. at
119-20. Plaintiff also testified that she has no memory of any of the events that
occurred on the night in question.
On September 6, 2012, Judson terminated Plaintiff for violating its policy
concerning documenting the distribution of narcotics. Doc. No. 15-2, at 10.
Plaintiff filed a timely complaint of disability discrimination with the EEOC and
received a right-to-sue letter in February 2013. Plaintiff filed the instant lawsuit in April
2013 alleging that Judson discriminated against her on the basis of disability in violation
of the federal Americans With Disabilities Act and the Ohio Civil Rights Act. She also
alleges that Judson interfered with her rights under the Family Medical Leave Act.
Following the close of discovery, Judson filed a motion for summary judgment on each
of Plaintiff’s claims which is now ripe for disposition.
II. Summary Judgment Standard of Review

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The court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). An assertion of a undisputed fact must be
supported by citations to particular parts of the record, including depositions, affidavits,
admissions, and interrogatory answers. The party opposing a properly supported
summary judgment motion “‘may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that there is a genuine issue for
trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation
omitted).
The Court is not duty bound to search the entire record in an effort to establish a
lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.
1992). Rather, the burden is on the non-moving party to “present affirmative evidence
to defeat a properly supported motion for summary judgment,” Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute.
Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court construes the evidence
presented in the light most favorable to the non-movant and draws all justifiable
inferences in the non-movant’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).
The court’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S.
at 249. The court must assess “whether there is the need for trial — whether, in other
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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.” Id. at
250. “If the evidence is merely colorable, . . . or is not significantly probative, . . . the
court may grant judgment.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. Disability Discrimination
1. Disparate Treatment
As already stated, Plaintiff alleges that Judson violated the Americans With
Disabilities Act and the Ohio Civil Rights Act by discharging her because of her
disability, by not accommodating her disability, and by not engaging in the interactive
process to find an accommodation for her disability. The Court first notes that disability
discrimination claims under the ADA and OCRA can be analyzed together because they
use the same evidentiary standards. Brenneman v. MedCentral Health Sys., 366 F.3d
412, 418 (6th Cir. 2004). The alleged discriminatory acts in this case occurred after
January 1, 2009; therefore the ADA Act Amendments Act of 2008 (“ADAAA”) applies in
this case. Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 566-67 (6th Cir.
2009).
In order to establish a claim for disability discrimination, the plaintifff must first
establish that she is “disabled” within the meaning of the Act. McKay v. Toyota Motor
Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997).
Under the ADAAA, “disability” means:
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
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(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in
paragraph (3)).
42 U.S.C. § 12102(1).
Once the plaintiff establishes that she is disabled under the Act, she can prove a
disability discrimination claim through direct or circumstantial evidence. Rorrer v. City of
Stow, 743 F.3d 1025, 1038 (6th Cir. 2014) (direct evidence); Gantt v. Wilson Sporting
Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (circumstantial evidence). “[D]irect
evidence of discrimination does not require a factfinder to draw any inferences in order
to conclude that the challenged employment action was motivated at least in part by
prejudice against members of the protected group.” Johnson v. Kroger Co., 319 F.3d
858, 865 (6th Cir. 2003). An ADA plaintiff must prove that she would not have been
terminated “but for” the employer’s reliance on her disability. Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) (en banc)
If the plaintiff has direct evidence that the employer relied on his or her disability
in making an adverse employment decision, or the employer admits it relied on the
plaintiff’s disability, then a burden-shifting analysis applies. Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1186 (6th Cir. 1996), abrogated on other grounds by Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 315–16 (6th Cir. 2012) (en banc). First, the
plaintiff must establish a prima facie case by showing that she is disabled and otherwise
qualified for the position, either with or without reasonable accommodation. Keith v.
County. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). Once the plaintiff has
established a prima facie case of discrimination, the burden shifts to the defendant to
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show that accommodating the plaintiff would impose an undue hardship on the
operation of its business. Id.
Plaintiff contends that she has direct evidence that Judson terminated her
because of her disability. Plaintiff’s argument proceeds as along these lines. First, in
considering whether a person is disabled under the ADA, the district court must
consider the negative side effects of any medications the plaintiff is taking. Cf. Sutton v.
United Air Lines, Inc., 527 U.S. 471, 484 (1999), overruled in part by 42 U.S.C. §
12102(4)(E). Second, Plaintiff notes that the record shows that she was impaired on
the night of August 22-23 due to the side effects of the medication she takes for TN and
that her failure to properly document the distribution of narcotics was caused by her
medication. Third, Judson admits it terminated her because she failed to properly
document the distribution of narcotics. Fourth, because her failure to document the
distribution of narcotics was caused by the side effects of her medication, her conduct
and her disability cannot be separated. Fifth, therefore, according to Plaintiff, she has
direct evidence of disability discrimination because Judson admits that it terminated her
for conduct related to her disability. In other words, Plaintiff contends that firing an
employee because of misconduct related to her disability is terminating an employee
because of her disability. Cf. Teahan v. Metro-North Commuter R. Co., 951 F.2d 511,
516-17 (2nd Cir. 1991).
Assuming that she is disabled under the ADA - a point which Judson disputes the problem with Plaintiff’s syllogism is that it has been squarely rejected by the Sixth
Circuit. So long as the employee’s misconduct is related to the performance of her job,
an employer may discipline or terminate the employee even if her misconduct was
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caused by her disability. Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 366
(6th Cir. 2007) abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681
F.3d 312, 315–16 (6th Cir. 2012) (en banc); Brohm v. JR Prop., Inc., 149 F.3d 517, 521
(6th Cir. 1998); Maddox v. University of Tenn., 62 F.3d 843, 847 (6th Cir. 1995)
abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312,
315–16 (6th Cir. 2012) (en banc); Chandler v. Specialty Tires of Am. (Tenn.), Inc., 134
Fed. Appx. 921, 928-29 (6th Cir. 2005).
In this case, assuming that Plaintiff’s failure to follow the established narcotics
distribution protocol was caused by the side effects of her medication, and hence was
caused by her disability, this misconduct was clearly related to the performance of her
job. Plaintiff admitted in her deposition that she was impaired at work, was in no
condition to treat patients, and has no idea what happened to the medication. Plaint.
Dep. at 106, 176 Indeed, as mentioned above, Plaintiff has no idea whether she gave
the medication to the right patients or not. It hardly needs to be said that someone in
Plaintiff’s condition that night would be disqualified from safely performing her job as a
nurse.
Brohm is instructive and is materially indistinguishable from this case. Brohm
involved an anesthesiologist whose obstructive sleep apnea caused chronic sleep
deprivation which in turn caused him to fall asleep during surgical procedures. Brohm,
149 F.3d at 519. The hospital administration decided to terminate the plaintiff’s
employment contract when it learned that he was sleeping during procedures. The
plaintiff informed the hospital that he thought his problem was caused by sleep apnea
and set up a sleep study before his scheduled termination date. The hospital eventually
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terminated the plaintiff before the scheduled date. The sleep study confirmed that the
plaintiff had obstructive sleep apnea but that it was controlled and would not interfere
with his job performance if he used a CPAP mask during sleep. Id. at 519-20.
The plaintiff later sued the hospital for disability discrimination, arguing that he
was fired because of his sleeping impairment. As in this case, the plaintiff argued that
the hospital fired him “because of” his disability when it fired him for misconduct that
was caused by his disability. Id. at 521. The Court, however, rejected the plaintiff’s
argument, noting that prior precedent had established that an employer may terminate
an employee for job-related misconduct that was related to the employee’s disability. Id.
With respect to the particular facts of the plaintiff’s case, the panel commented that:
Brohm’s conduct of sleeping while administering anesthetics severely diminished
his ability to perform his job. . . . [N]o reasonable inference may be made from
the record in the present case that the hospital unfairly presumed that Brohm’s
disability would render him unqualified. Rather, the hospital had direct evidence
that Brohm had been sleeping on the job, conduct which rendered him
unqualified to perform his duties as an anesthesiologist.
Id.
Similarly, in this case, Plaintiff’s medications caused her to be unfit to treat
patients on the night at issue. Moreover, similar to the hospital in Brohm, Judson had
direct evidence that Plaintiff failed to comply with its directives for the safe and
controlled distribution of medications to patients, a job duty that Plaintiff admitted was a
critical aspect of her job. Plaint. Dep. at 46; 49, 52-53; 61. Thus, like the
anesthesiologist in Brohm, Plaintiff’s impaired condition and her failure or inability to
comply with the procedures to properly distribute controlled substances made her
unqualified to perform her job. Moreover, Plaintiff’s violation of Judson’s documentation
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policy came on the heels of a previous disciplinary action which she understood to be a
final warning before she was terminated. Consequently, the record is clear that Judson
appropriately terminated Plaintiff for job-related misconduct related to her disability but
not “because of” her disability. In other words, Plaintiff has not adduced direct evidence
that Judson terminated her because of her disability.
Moreover, Plaintiff’s impairment on August 22-23 arguably was not caused solely
because of the side effects of Tegretol, and therefore, her misconduct was not caused
by her disability. Prior to August 22, 2012, Plaintiff apparently took Tegretol for her TN
without experiencing side effects which adversely affected her job performance. On the
night in question, however, Plaintiff took a combination of Tegretol, Ativan (Lorazepam),
and Tramadol, each of which alone can cause dizziness, sedation, and/or somnolence
according to Physician’s Desk Reference, but the side affects of these drugs would be
exacerbated when combined with other drugs that affect the central nervous system.2
Plaintiff was taking Ativan for anxiety and Tramadol for pain; however, she does not
claim any impairment based on anxiety and back pain. Therefore, the most reasonable
conclusion is that Plaintiff’s misconduct on August 22-23, 2012 was not caused by her
disability but rather by her ill-advised and dangerous decision to take these three drugs
at the same time.

2

See Drug Summary Tegretol, available at http://www.pdr.net/drugsummary/tegretol?druglabelid=2485&id=946 (visited July 2, 2014); Drug Summary
Ativan Tablets, available at http://www.pdr.net/drug-summary/ ativan-tablets?
druglabelid=2135 (visited July 2, 2014); Drug Summary Ultram (Tramadol
Hydrochloride), available at http://www.pdr.net/drug-summary/ultram?druglabelid=
950&id=1013 (visited July 2, 2014).
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Plaintiff also asserts that she can establish her claim of disability discrimination
through circumstantial evidence. In order to establish a prima facie case of disability
discrimination circumstantially, the plaintiff must adduce sufficient evidence on the
following elements: (1) that she is disabled; (2) that she is otherwise qualified for the
job, with or without reasonable accommodation; (3) that she suffered an adverse
employment action; (4) that her employer knew or had reason to know of her disability,
and; (5) that, following the adverse employment action, either she was replaced by a
non-disabled person or her position remained open or by showing that similarly situated
non-protected employees were treated more favorably. Jones v. Potter, 488 F.3d 397,
404 (6th Cir. 2007).
If the plaintiff satisfies these elements, the employer has an opportunity to offer a
legitimate, non-discriminatory reason for its adverse action. If the employer meets this
burden of production, the plaintiff must to prove that the employer’s reason is pretextual,
generally by showing that the reason has no basis in fact, did not actually motivate the
employer’s decision, or was insufficient to motivate the employer’s decision. Id. at 40506.
In this case, assuming without deciding that Plaintiff can establish a prima facie
case of disability discrimination circumstantially, Judson has offered a legitimate nondiscriminatory reason terminating her employment, namely her poor disciplinary record
which culminated with her violation of the policy on distributing controlled drugs.
Plaintiff, however, has not adduced evidence that Judson’s reason for
terminating her is a pretext for disability discrimination. The only evidence of pretext
that Plaintiff points to is her own testimony that some nurses at Judson distributed
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controlled drugs without signing them out or by completing the necessary paperwork
later without being disciplined or terminated. She also points out that Judson’s
pharmacist, Therese Njoka, testified that nurses fail to properly sign out medication
more than they should and that compliance generally only runs about 70%. As Judson
correctly argues in reply, however, Plaintiff has not identified any nurse at Judson who
failed to follow the drug distribution policy after Judson tightened up the controls who
was not disciplined. Plaintiff admitted in fact that she was unaware of any other nurse
who had not complied with the new policy and was not disciplined. Plaint. Dep. at 151.
Additionally, Plaintiff takes Njoka’s testimony out of context. Njoka - who is
actually an outside reviewer/consultant - did not testify that Judson only experienced a
70% compliance rate with its drug distribution policy. Njoka testified, rather, that she
observed a 70% compliance rate with nurses “in general.” Njoka Dep. (Doc. No. 22), at
13-14. Njoka also testified, however, that nurses are typically reprimanded when they
fail to sign out drugs properly. Id. at 12-13. Njoka also testified that late entry of the
drug can be permissible if the nurse can confirm that the drug was given. Id. at 13.
Rather than show pretext, Njoka’s testimony actually demonstrates that Judson’s
reason for terminating Plaintiff is not pretextual. First, Njoka’s testimony that only 70%
of nurses comply with proper drug distribution policies is of no consequence because
her testimony is not specific to Judson. Second, however, Njoka’s testimony that
nurses typically are reprimanded for not following the policy supports Judson’s rationale
for terminating Plaintiff. Third, and finally, Njoka testimony that nurses can be permitted
to “late entry” drugs when they can confirm the drugs were given refutes Plaintiff’s

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contention that late entry of drugs was tolerated by Judson because she admitted that
she does not know what happened to the drugs she signed out.
Plaintiff also contends that Judson cannot prove that she was a direct threat to
patient safety, and thus, that it was justified in terminating her on those grounds. As
Judson correctly argues, however, the “direct threat” affirmative defense is not at issue
in this case. The “direct threat” affirmative defense, codified at 42 U.S.C. § 12113(b),
applies when the employer believes that the employee’s impairment presents a
prospective health or safety threat to others. It does not apply, however, to safety
threats that have already actually materialized. See, e.g., Sista v. CDC Ixis North Am.,
Inc., 445 F.3d 161, 170-71 (2nd Cir. 2006) (“The poses a direct threat defense is not
applicable when an employee actually makes a threat[.]”) (emphasis in original);
Goonewardena v. New York, 475 F. Supp.2d 310, 327 (S.D.N.Y. 2007)(“While the direct
threat exception may permit an employer to discharge an employee prior to the making
of an actual threat, physical or otherwise, once an actual threat has been made the
exception is not applicable.”). In this case, as Judson points out in its reply brief, it did
not terminate Plaintiff because it believed that she presented a future safety risk to its
patients due to her impairment. Judson, rather, terminated Plaintiff for past misconduct
which posed an actual safety threat to its patients. This section simply is not applicable
in this case.
In summary, the record affirmatively establishes that Judson lawfully terminated
Plaintiff for misconduct related to her disability. No reasonable juror could find that
Judson terminated Plaintiff “because of” her disability. Therefore, Judson is entitled to
summary judgment on Plaintiff’s disparate treatment discrimination claim.
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2. Failure to Accommodate
Plaintiff also alleges that Judson failed to accommodate her disability and,
relatedly, failed to fulfill its duty under the implementing regulations to engage in an
“interactive process” with her to find a reasonable accommodation for her disability. An
employer’s failure to provide an accommodation to a disabled employee is a form of
disability discrimination if a reasonable accommodation would have permitted the
employee to perform all of the essential functions of her job. Keith v. County of
Oakland, 703 F.3d 918, 923 (6th Cir. 2013).
Among other requirements, in order to prevail on a failure to accommodate claim,
the plaintiff bears the initial burden of requesting an accommodation for her disability
and showing that it is objectively reasonable. Talley v. Family Dollar Stores of Ohio,
Inc., 542 F.3d 1099, 1108 (6th Cir. 2008). “The employer is not required to speculate as
to the extent of the employee’s disability or the employee’s need or desire for an
accommodation.” Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47
6th Cir. 1998). If the employee proposes a reasonable accommodation, the employer
has a mandatory duty to engage in an “interactive process” with the employee to
attempt to agree on a suitable accommodation. See Rorrer v. City of Stow, 743 F.3d
1025, 1041 (6th Cir. 2014). The employer, however, will not be liable for not engaging
in the interactive process if the plaintiff fails to propose a reasonable accommodation.
Id. In this case, Judson argues, and the Court agrees, that Plaintiff’s failure to
accommodate claim fails because Judson actually accommodated her claimed disability
and because Plaintiff never requested any other reasonable accommodation.

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Plaintiff testified in her deposition that the only accommodation she needed for
her TN was an occasional day off work, which she admitted she received whenever she
asked. Plaint. Dep. at 209-10. Plaintiff also admitted that she never asked Judson for
any other accommodation for her disability. Id. Plaintiff contends now, however, that
the accommodation she needed was some additional time off work after the August 2223 incident in order to adjust to her medications. She also contends that she was too
disoriented at the time to ask for additional time off and that Judson should have
realized she needed an accommodation. In other words, Plaintiff argues that her need
for an accommodation was so obvious that she did not have to ask for one.
Unfortunately for Plaintiff, however, that is not the law in this circuit. As already
stated, an employer is not required to speculate whether an employee needs an
accommodation. The principal case Plaintiff cites in support of her argument, Brown v.
Chase Brass & Copper Co., Inc., 14 Fed. Appx. 482, 487 n.2 (6th Cir. 2001), is contrary
to Gantt. In any event, to the extent that Brown supports the proposition that the
employer must initiate the interactive process if it is apparent that the employee’s
disability renders him or her unable to request an accommodation, its discussion on this
question is dicta inasmuch as the Court in that case noted that the plaintiff’s disability
did not impede his ability to request an accommodation. See id. Moreover, even if
Plaintiff was too disoriented to request a leave of absence on the night in question, as
Judson accurately points out, Plaintiff never asked for a leave of absence in any of the
days immediately following the incident when she apparently would have been able to
do so. See, e.g. Plaint. Dep. at 123 (testifying that she was able to care for her
daughter by herself between August 23 and August 29, when she discontinued taking
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all three medications). To be sure, Plaintiff was unable to request a leave of absence
on the night in question, but she has not shown that she was unable to request a leave
of absence within a reasonable time afterwards.
Moreover, Judson also persuasively argues that it was not obvious that Plaintiff’s
behavior on August 22-23 was a caused by her disability, as opposed to, for instance, a
discrete incident involving a potential drug overdose. The record shows that Plaintiff did
not have any problems at work when she was taking Tegretol alone and she admitted in
her deposition that she had not informed anyone at Judson before her shift started that
night that she had changed medications. Plaint. Dep. at 97. Plaintiff also conceded that
she had never informed any of her direct supervisors that she has TN. Id. It would
have, therefore, taken extraordinary percipience by management and staff at Judson to
understand that Plaintiff’s behavior that night was caused by a disability that needed
accommodating. Accordingly, even if in some circumstances the employer has a duty
to propose an accommodation to the employee, as Plaintiff contends, those
circumstances were not present in this case.
What Plaintiff really wants as a reasonable accommodation, without expressly
saying so, is to have Judson excuse her misconduct in failing to follow the drug
distribution policy. An employer, however, is not required to tolerate or excuse
disability-related misconduct as a reasonable accommodation to the plaintiff. Parsons
v. Auto Club Group, __ Fed. Appx.__, No. 13-2204, 2014 WL 1717025, at *3 (6th Cir.
May 2, 2014 McElwee v. County of Orange, 700 F.3d 635, 645-56 (2nd Cir. 2012).
Accordingly, Judson is entitled to summary judgment on Plaintiff’s failure to
accommodate claim.
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B. FMLA Interference Claim
Finally, Plaintiff alleges that Judson interfered with her rights under the FMLA by
not granting her leave to address a serious medical condition. This claim fails, however,
because Plaintiff never provided notice to Judson that she required FMLA leave.
Additionally, as discussed extensively with respect to her disability discrimination claim,
Judson terminated Plaintiff for a legitimate reason which was not related the exercise of
her rights under the FMLA. Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir.
2006); Brohm, 149 F.3d at 523.
Accordingly, Judson is entitled to summary judgment on Plaintiff’s FMLA
interference claim.
Conclusion
For the reasons stated above, Defendant Judson Care Center, Inc.’s motion for
summary judgment is well-taken and is GRANTED. The complaint is DISMISSED
WITH PREJUDICE. THIS CASE IS CLOSED.

IT IS SO ORDERED

Date July 8, 2014

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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