Burnham v. Valir Health LLC
Filing
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ORDER granting 19 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 2/6/2012. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BLISS BURNHAM,
Plaintiff,
vs.
VALIR HEALTH, LLC,
Defendant.
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Case No. CIV-11-80-M
ORDER
This case is scheduled for trial on the Court’s March 2012 trial docket.
Before the Court is defendant’s Motion for Summary Judgment, filed January 3, 2012. On
January 23, 2012, plaintiff filed her response, and on January 30, 2012, defendant filed its reply.
Based upon the parties’ submissions, the Court makes its determination.
I.
Introduction
Plaintiff was a Marketing Representative at defendant Valir Health, LLC (“Valir”) in the
Outpatient Services department. As a Marketing Representative, plaintiff was responsible for
marketing to physicians, medical and referral staff, and the community, for Outpatient Physical and
Occupational Therapy and Valir Management and Development Services.
Plaintiff submitted her first request for a medical leave of absence on August 7, 2009.
According to the request, the leave was to last approximately four weeks – from August 17, 2009
until September 21, 2009. Valir granted the request and treated the absence as FMLA qualifying.
On September 10, 2009, shortly before her scheduled return, plaintiff delivered a second
doctor’s certificate stating: “Bliss will not be able to work due to medical reasons until October 19,
2009. She will be able to return to work at that time.” September 10, 2009 letter from The Center
for Counseling and Health Resources Inc., attached as Exhibit 4 to Valir’s Motion for Summary
Judgment. Based upon the doctor’s certificate, Valir extended plaintiff’s leave of absence by
approximately one more month – from September 21, 2009 until October 19, 2009.
On October 27, 2009, plaintiff submitted a third request for leave. Her request states, in
pertinent part:
My doctors did say that with an additional 9 months of medical
treatment and rest they are confident I will be able to return to work
and perform all the essential functions of my position. As a result, I
am officially requesting another 9 months of medical leave as an
accommodation of my disability. The doctors say I will be able to
return to work on August 1, 2010. I will assume this simple
accommodation of my disability is acceptable unless I hear back from
you otherwise.
October 27, 2009 letter from plaintiff, attached as Exhibit 7 to Valir’s Motion for Summary
Judgment. As a follow-up, on October 29, 2009, plaintiff delivered a physician’s statement stating
that she would be able to return to work on August 1, 2010.
In response, Bill Turner, Valir’s Vice President of Human Resources, contacted plaintiff by
phone on October 30, 2009, and advised her that Valir would grant her third request for leave. Mr.
Turner also explained that plaintiff’s FMLA leave would be exhausted on November 10, 2009, at
which time she would transition to general leave. Mr. Turner further explained that he could not
hold her position open past November 10, 2009, but that she could contact him once she is released
to see what Valir has available. Mr. Turner then placed plaintiff on a “General Leave of Absence”
from November 11, 2009 until May 9, 2010.
According to Valir, although it attempted to cover its marketing responsibilities during
plaintiff’s absence, the reduced staff was unable to adequately market to and serve its business
locations. Specifically, Valir alleges that due to the reduced staff in the Marketing Department,
Valir struggled to maintain a marketing presence for its Outpatient Division in particular. Valir
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further alleges that although it attempted to compensate for the short staff by diverting existing
marketing representatives from its Hospital (Inpatient) Division to market for the Outpatient
Division, doing so spread the representatives too thin. Valir contends that these increased burdens
caused marketing staff morale and effectiveness to suffer and that Valir’s volumes, admissions,
patient discharges, patient days, and average daily census were down in the first half of 2010, in
comparison to earlier years. Valir additionally alleges that the limitations and deficiencies caused
by the short-staffed marketing department became even more evident and pronounced when Valir
launched a new workers’ compensation program (WorkSTEPS). Consequently, Valir states that on
April 1, 2010, it hired Joyce Melton to fill plaintiff’s position to bolster Valir’s marketing of the
WorkSTEPS program, in particular, and to recapture the marketing presence lost with the reduced
active staff.
On June 7, 2010, Mr. Turner wrote to plaintiff and advised her that although she had been
on a “General Leave of Absence” since the FMLA period had expired on November 10, 2009, and
although a “General Leave of Absence” at Valir is limited to 60 days unless otherwise approved,
he had nonetheless approved the leave through June 17, 2010. Mr. Turner also explained that
plaintiff would need to submit a written request for an extension of the General Leave of Absence,
and he provided a form for her to do so. Mr. Turner also explained that since plaintiff had exhausted
her 12 weeks of eligible Family Medical Leave, she would only be permitted to return to work in
an open position for which she possesses the minimum qualifications to perform.
On June 14, 2010, plaintiff responded to Mr. Turner’s letter, stating, in pertinent part:
I appreciate the accommodations Valir has afforded me regarding my
ADA disability up to this point. . . . However, please note that I am
asking for an extension of my medical leave for my ADA disability,
not a “General Leave of Absence.”
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My doctor did say that with an additional 41 business days of rest and
treatment she is confident I will be able to return to work and perform
all the essential functions of my position. As a result, I am officially
requesting another 41 business days of medical leave as an
accommodation of my ADA disability. The doctor says I will be able
to return to work on August 2, 2010. I will assume this simple
accommodation of my disability is acceptable unless I hear back from
you otherwise.
June 14, 2010 letter from plaintiff, attached as Exhibit 12 to Valir’s Motion for Summary Judgment.
On June 24, 2010, Mr. Turner responded to plaintiff’s letter as follows:
Valir has approved your request for additional leave, until August 2,
2010, based upon your doctor’s certification that you will be able to
return to work at that time.
When you come to Valir on the morning of August 2, 2010, please
come to my office with your completed medical release/return to
work certification in hand. At that time, we will review the release,
and we will determine which if any jobs are available that you are
qualified to perform. Next, we will arrange a return-to-work physical
screen with Kristi Cox, as required by our company’s policies.
Should you have any questions in the next few months, feel free to
contact me. . . . Otherwise, I will see you on August 2nd.
June 24, 2010 letter from Mr. Turner, attached as Exhibit 13 to Valir’s Motion for Summary
Judgment.
On August 2, 2010, plaintiff returned to Valir with a full-duty release. Plaintiff met with Mr.
Turner, and they reviewed a complete listing of any open positions with Valir; however, there were
no vacant positions in the Marketing Department, or elsewhere, for plaintiff to perform. As a result,
Mr. Turner agreed to contact plaintiff if such a position came open. Mr. Turner also agreed that
plaintiff would have priority over other applications for any position that came open within the next
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month. Finally, Mr. Turner explained that plaintiff’s status would remain “inactive” for the time
being, since there was no available position.
On January 27, 2011, plaintiff filed the instant action, alleging violations of the Americans
with Disabilities Act (“ADA”) and the Oklahoma Anti-Discrimination Act based upon Valir’s
failure to accommodate, discrimination based upon plaintiff’s disability, and retaliation. Valir now
moves for summary judgment on all of plaintiff’s claims.1
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
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In her response, plaintiff concedes that summary judgment is appropriate on her retaliation
claim.
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Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
A.
Failure to accommodate claim
Under the ADA, an employer can unlawfully discriminate against an employee by failing
to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an . . . employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the operation of the
business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). “The statute thus establishes a cause
of action for disabled employees whose employers fail to reasonably accommodate them.” E.E.O.C.
v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir. 2011) (internal quotations and citation
omitted).
Courts have held that in order to defeat an employer’s motion for summary judgment, an
employee need only show that an “accommodation” seems reasonable on its face, i.e., ordinarily or
in the run of cases. See US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). Once the employee
has made this showing, the employer then must show special, typically case-specific, circumstances
that demonstrate undue hardship in the particular circumstances. Id. at 402. “Undue hardship”
means an action requiring significant difficulty or expense when considered in light of various
factors, such as the nature and cost of the accommodation and the impact of the accommodation
upon the operation of the company. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 (10th
Cir. 1999).
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In the case at bar, plaintiff asserts that a 12-month leave of absence coupled with allowing
her job to remain vacant during her absence was a reasonable accommodation for her disability.
Having carefully reviewed the parties’ submissions, and viewing the evidence in the light most
favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor, the Court finds that
plaintiff has not shown that her requested accommodation seems reasonable on its face. While “[a]n
allowance of time for medical care or treatment may constitute a reasonable accommodation”,
Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999) (internal quotations and citation
omitted), and while the Court finds that a 12-month leave of absence seems reasonable on its face,
the Court finds that a 12-month leave of absence coupled with allowing the job to remain vacant
during the 12-month leave of absence certainly does not seem reasonable on its face. Plaintiff has
made absolutely no showing that such a leave of absence coupled with a job remaining vacant is
ordinary, in the run of cases.
Additionally, even if plaintiff could show that her requested accommodation seems
reasonable on its face, the Court finds that Valir has shown special circumstances that demonstrate
undue hardship in the particular circumstances of this case. Specifically, Valir has presented
admissible evidence that during the period of time that plaintiff’s position remained vacant, Valir
was unable to maintain its market presence, unable to adequately market its new WorkSTEPS
program, and suffered morale and effectiveness issues in its marketing department. Additionally,
Valir has presented admissible evidence that its volumes, admissions, patient discharges, patient
days, and average daily census suffered while plaintiff’s former position was vacant. Plaintiff has
presented absolutely no evidence to dispute Valir’s evidence of undue hardship.
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Accordingly, the Court finds that Valir is entitled to summary judgment as to plaintiff’s
reasonable accommodation claim.
B.
Disability discrimination claim
In order to establish a prima facie case of disability discrimination under the ADA, a plaintiff
must demonstrate that he (1) is a disabled person as defined by the ADA; (2) is qualified, with or
without reasonable accommodation, to perform the essential functions of the job held or desired, and
(3) suffered discrimination by an employer or prospective employer on the basis of that disability.
See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011). For purposes of this
order, the Court will assume that plaintiff can establish a prima facie case of disability
discrimination.
Once the plaintiff makes a prima facie case, the burden shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for its actions. Id. at 1038. Valir asserts that because it was
an undue hardship to keep plaintiff’s job vacant, Valir had to fill plaintiff’s job and, consequently,
had to place plaintiff in inactive status when she returned to work because there were no available
jobs for her. The Court finds Valir has met its burden to produce a legitimate, non-discriminatory
reason for its employment action.
“If the defendant proffers such a [legitimate, nondiscriminatory] reason, the burden then
shifts back to the plaintiff to show that the defendant’s stated reasons are merely ‘pretextual.’” Id.
“[A] plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory
explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude [they are] unworthy of belief.” Id. at 1038-39 (internal quotations and
citations omitted). The Court has carefully reviewed the parties’ briefs and evidentiary submissions.
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Viewing the evidence in the light most favorable to plaintiff and viewing all reasonable inferences
in plaintiff’s favor, the Court finds plaintiff has not presented sufficient evidence to create a genuine
issue of material fact as to whether Valir’s reason for its employment action is pretextual. As set
forth above, plaintiff has presented no evidence to dispute Valir’s evidence of undue hardship.
Plaintiff has also presented no evidence to dispute that there were no available jobs for her when she
came back to work. Finally, the Court finds that plaintiff has not presented any evidence indicating
that Valir’s reason for its employment action is pretextual.
Accordingly, the Court finds that Valir is entitled to summary judgment as to plaintiff’s
disability discrimination claim.
IV.
Conclusion
For the reasons set forth above, the Court GRANTS defendant’s Motion for Summary
Judgment [docket no. 19].
IT IS SO ORDERED this 6th day of February, 2012.
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