McKenzie-Nevolas v. Deaconess Holdings LLC
Filing
118
ORDER denying 84 Motion for Partial Summary Judgment; granting 106 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 2/7/2014. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SUSAN MCKENZIE-NEVOLAS,
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Plaintiff,
v.
DEACONESS HOLDINGS LLC.,
Defendant.
Case No. CIV-12-570-D
ORDER
Plaintiff has filed a motion for partial summary judgment [Doc. No. 84] on her
disability and retaliation claims. Defendant has responded to that motion [Doc. No. 89] and
Plaintiff has filed a reply [Doc. No. 103]. Defendant has filed a motion for summary
judgment [Doc. No. 106] to which Plaintiff has filed a response [Doc. No. 114] and
Defendant has filed a reply [Doc. No. 117].
In her Complaint, Plaintiff alleges that she suffers from serious medical conditions and
disabilities. Complaint at ¶ 6. She alleges that she was employed by Defendant as a medical
assistant from March 1, 2010 until she was terminated on January 25, 2011. Id. at ¶¶ 5 and
16. She alleges that her disability and medical leave usage were motivating factors in
Defendant’s decision to terminate her employment. Id. at ¶ 18. Plaintiff alleges that leave
and accommodation in the form of periodic absences so that she could attend doctors’
appointments were requested by her and that such leave was protected by the ADA. Id. at
¶ 7. However, she does not allege that she was denied such accommodation.
Summary judgment is appropriate if the pleadings, affidavits and depositions “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 movant need only point out that there is an
absence of evidence to support an essential element of the non-moving party’s case. Celotex
Corp. v. Catrett, 477 U. S. 317, 325 (1986). Then, the non-moving part must go beyond the
pleadings and set forth specific facts demonstrating that there is a triable issue. Id. at 323.
On a motion for summary judgment, the Court must “view the evidence and draw any
inferences in a light most favorable to the party opposing summary judgment.” Aramburu
v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).
The parties agree on the essential elements of a disability discrimination prima facie
case. Those elements are: 1) that the plaintiff is disabled within the meaning of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; 2) that the plaintiff is
qualified, with or without reasonable accommodation, to perform the essential functions of
the job held; and 3) that the plaintiff was discriminated against because of her disability. See
Mason v. Avaya Communications, Inc., 357 F.3d 114, 1118 (10th Cir. 2004). In support of
her motion for partial summary judgment, Plaintiff asserts that there are no genuine issues
of material fact as to the existence of all three elements. With regard to the third essential
element, Plaintiff asserts that she meets that element because Defendant failed to provide
medical leave as part of its duty to accommodate and failed to engage in the ADA-required
interactive process. Defendant in its response to Plaintiff’s motion and in support of its own
motion asserts that Plaintiff has failed to show and cannot show that she was disabled while
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employed by Defendant. Moreover, it asserts that Plaintiff was not qualified to perform the
essential functions of her position, with or without accommodation. Finally, Defendant
asserts that Plaintiff has failed to show and cannot show causation, i.e., that she was
discriminated against because of her disability. Defendant makes other arguments as well
in support of its own motion but those arguments, except those pertaining to Plaintiff’s
retaliation claim, addressed infra, are not relevant to the Court’s disposition of these motions.
Disability
Disability cases are now governed by the terms of the ADA Amendments Act of 2008
(ADAAA), which became effective January 1, 2009. See 110 P.L. 325, 122 Stat. 3553, 3559
§§ 1, 8. Under the ADAAA,”[t]he definition of disability in this [Act] shall be construed in
favor of broad coverage of individuals under this [Act], to the maximum extent permitted by
the terms of this [Act].” 42 U.S.C. § 12102(4)(A). Under the ADAAA, a “disability” is “a
physical or mental condition that substantially limits one or more major life activities” of an
individual. 42 U.S.C. § 12102(1)(A). However, now a “major life activity” for purposes of
§ 12102(1) “includes the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive functions.”
42 U.S.C.
§ 12102(2)(B). “An impairment that is episodic or in remission is a disability if it would
substantially limit a major activity when active.”
42 U.S.C. § 12102(4)(D).
“The
determination of whether an impairment substantially limits a major activity is to be made
without regard to the ameliorative effects of mitigating measures” such as medication. 42
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U.S.C.§ 12102(4)(E)(i). There is authority, however, that mitigating measures as referenced
in the statute are only those which mitigate symptoms and not treatment that alleviates the
condition in its entirety. See Lewis v. Florida Default Law Group, P.L., 2011 WL 4527456
at *5 (M.D. Fla. Sept. 16, 2011).
Congress has said that “persons with minor, trivial impairments such as a simple
infected finger are not impaired in a major life activity, and consequently those who had such
minor and trivial impairments would not be covered by the ADA.” H.R. Rep. No. 110-730,
pt. 2, at 30 (2008). Major life activities are now “defined to include the operation of major
bodily functions, thus better addressing chronic impairments that can be substantially
limiting.” 29 C.F.R. § 1630(2)(i) (quoting 2008 Senate Statement of Managers at 8). While
an impairment need not prevent or even severely restrict an individual from performing a
major life activity to be considered substantially limiting, “not every impairment will
constitute a disability. . . .” 29 C.F.R. § 1630.2(j)(1)(ii). Thus, case law recognizes that
temporary, short-term or non-severe conditions do not satisfy the definition of disability
under the “actual” prong. See Bush v. Donahoe, __ F. Supp.2d __, 2013 WL 4045785 (W.D.
Pa. Aug. 8, 2013) (collecting cases). See also Butler v. BTC Foods, Inc., 2012 WL 5200189
(E.D. Pa. Oct. 19, 2012) (plaintiff not disabled by one-time occurrence of a hernia); SamSekur v. Whitmore Group, Ltd., 2012 WL 2244325 (E.D.N.Y. June 15, 2012) (plaintiff failed
to qualify as disabled under the ADAAA as a result of her breast cancer scare,
appendectomy, infection from an IUD and infected oral implant); Gray v. Walmart Stores,
2011 WL 1831780 (E.D. N.C. May 12, 2011) (brief descriptions of back and shoulder injury,
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and right shoulder pain insufficient to allege disability). In Wanamaker v. Westport Board
of Education, 899 F. Supp. 2d 193, 211 (D. Conn. 2012), the court specifically held that
“even under the ADAAA’s broadened definition of disability short term impairments would
still not render a person disabled within the meaning of the statute.”
In this case, Plaintiff had recurrent cellulitis of the left breast and infectious mastitis.
See Plaintiff’s Motion at p.10. She contends that this condition was a significant impairment
to the functioning of her skin, connective tissue, and internal organs, id., and her circulatory
system. Id. at p. 12.
Plaintiff’s primary treating physician, Farhan Qureshi, M.D. testified that cellulitis of
the breast is called mastitis. Qureshi Deposition (Exhibit 26 to Defendant’s Motion) at p. 27.
He testified that mastitis is the inflammation or infection of the soft tissue in the breast which
may be bacterial or viral. Id. at 26. He stated that the symptoms of mastitis are erythema,
that is, redness, increased temperature, pain and sometimes fever. Id. He said that cellulitis,
a soft tissue infection anywhere in the body, id. at 27, and mastitis are treated by antibiotics,
pain medications, anti-inflammation medications, and sometimes local treatments like
pressure, heat or ice packs. Id. at pp.28-29. In a declaration dated March 28, 2013 submitted
with Plaintiff’s motion, Dr. Qureshi attested as follows:
4.
Mastitis is the inflammation of tissue in one or both mammary
glands inside the breast caused by a bacterial infection.
5.
Infectious mastitis is very rare. While it is treatable, it is
important to receive treatment immediately to prevent
complications, such as abscess in the breast which requires
surgical draining.
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6.
In its active and untreated form, mastitis causes the infected to
experience the following symptoms: pain, inflammation and
redness around the affected area, burning sensation in the breast,
chills, elevated body temperature, fatigue, aches and pain,
shivering and anxiety. Infectious mastitis has similar symptoms
of inflammatory breast cancer (a rare form of breast cancer). In
some cases, a biopsy may be necessary to rule out breast cancer.
7.
Cellulitis is the inflammation of the soft or connective tissue, in
which a thin, watery exudate (a cellular waste product) spreads
through the cleavage planes of interstitial and tissue spaces
(spaces between the cells of structure or parts of an organ); it
may lead to ulceration and abscess.
8.
Cellulitis is treatable, but can be serious, painful and lead to
other potentially life threatening complications if it is not
recognized and treated promptly. Depending on the level of
infection, treatment can range from oral antibiotics and rest at
home to treatment in a hospital with antibiotics that go right into
the bloodstream. In the case of Ms. McKenzie-Nevolas the
required treatment involved both antibiotics, pain management,
appointments and follow-up. Her disease was recurrent and
requires regular monitoring.
9.
In its active and untreated form, cellulitis is a substantial
impairment of the function and operation of the skin and organs
infected. It causes the infection site to be warm, red, swollen
and tender, giving the patient fever, chills, and swollen glands.
If left untreated, the bacteria can spread beyond the skin layers
and quickly through the body. Once the infection is below the
skin, the bacteria can spread rapidly, entering the lymph nodes
and blood stream, spreading throughout the body and vital
organs. These complications result in lymphangitis, abscess
formation, sepsis, and even death.
Qureshi Declaration (Exhibit 17 to Plaintiff’s Motion).
The history of Plaintiff’s mastitis as revealed from the record is that on December 3,
2010, Plaintiff saw Dr. Carla Werner complaining of symptoms of sinusitis and tenderness
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in the left breast. See Exhibit 21 to Defendant’s Response Brief. Dr. Werner indicated the
presence of a left lateral breast cystic lesion and referred Plaintiff for a mammogram. Id. On
December 6, 2010, Plaintiff went to the Deaconess Hospital Emergency Room, complaining
of left breast pain and redness at the affected site and a history of local swelling. See Exhibit
22 to Defendant’s Response Brief. Plaintiff’s left breast was noted to be red and swollen and
pain was noted over the left anterior chest wall and ribs. Id. Plaintiff was diagnosed with
cellulitis, given a shot of rocephin, an antibiotic, and a prescription for Keflex, also an
antibiotic. Id. She refused admission to the hospital. Id.
Dr. Qureshi examined Plaintiff on December 15, 2010. See Qureshi Deposition at
p. 48-49. He testified that at that time, Plaintiff’s cellulitis of the breast or mastitis was
completely resolved, id. at 49, except that Plaintiff was still in a lot of pain. Id. at 50.
Because there was a question of whether Plaintiff had a mass in or on the breast, Dr. Qureshi
referred Plaintiff for an MRI to determine if there was an abscess in the breast. See id. at 4953. On December 20, 2010, Plaintiff had a bilateral breast MRI. There were no significant
findings relating to either breast – no masses or abnormalities, no evidence to suggest an
abscess and no suspicious vascularity. See Exhibit 7 to Defendant’s Response Brief and
Exhibit 19 to Defendant’s Motion.
On January 24, 2011, Plaintiff saw Brady S. Hagood, M.D.,a general surgeon, for
evaluation of left-sided chest wall pain. See id. At that time, Dr. Hagood noted that Plaintiff
said that since the time of her original complaint, the mammogram and ultrasound on
December 7, 2010 and the MRI on December 20, 2010, the redness of her breast had
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completely gone and that she currently had no breast pain, fever, chills, nausea or vomiting.
Id. Dr. Hagood’s assessment was no masses in either breast, no lymphadenopathy, some
muscular tenderness along the lateral and posterior left chest, but no skin changes or masses,
and the history of possible left breast abscess appeared to be completely resolved. Id.
Plaintiff’s primary physician admitted that Plaintiff’s cellulitis/mastitis lasted only 2
to 3 weeks. See OESC Medical Statement. (Exhibit 23 to Defendant’s Response Brief) at
p. 2. Although Plaintiff later did have two recurrences of mastitis, they were long after
Plaintiff’s employment was terminated, and no one could have known that she would have
recurrences.
As a result of her mastitis or symptoms, Plaintiff was off work part of December 2 and
December 3, 2010, and all of December 6 through December 10, 2010. See Plaintiff’s
Deposition (Exhibit 1 to Defendant’s Response) at pp. 91, 127-28 and 132.
On
December 15, 2010, Plaintiff took an extended lunch break from 11:30 a.m. to 2:14 p.m. to
see Dr. Qureshi for follow-up. See Exhibit 14 to Defendant’s Motion. On December 20,
2010, Plaintiff left work at 11:11 a.m. for an MRI. See Exhibits 14 and 19 to Defendant’s
Motion.
Subsequent to the resolution of Plaintiff’s mastitis, except for residual pain, Plaintiff
took time off work to see Dr. Qureshi on January 18, 2011, for consultation with Dr. Hagood
on January 24, 2011, and to again see Dr. Qureshi on January 25, 2011 (although Plaintiff
told the Clinic Supervisor that she was going to run some errands).
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It is undisputed that no breast abscess was ever found in Plaintiff’s left breast, that
Plaintiff never required drainage of her breast or a breast biopsy, and that the limited breast
infection did not spread to other parts of Plaintiff’s body. It is also undisputed that neither
Dr. Qureshi nor any other doctor placed any restrictions or limitations on Plaintiff, including
any lifting restriction, as a result of her mastitis or treatment therefor. Dr. Qureshi did sign
a note saying that Plaintiff should be off work from January 18 to January 26 for doctors’
appointments.
Based upon this record, the Court finds that there is no genuine issue of material fact
that Plaintiff did have a physical impairment, mastitis, that affected the operation of a major
bodily function, the skin and soft tissue. However, the impairment was an infection that was
limited to the skin and soft tissue of the left breast. In addition, the infection was of short
duration, either 2 to 3 weeks at most or from December 2, 2010 to December 15, 2010, at the
least. Because Plaintiff’s infection (impairment) was limited to one part of her body and was
not chronic but temporary and of short duration, the Court finds that there is no genuine issue
of material fact regarding disability, and that Plaintiff did not have a disability which
substantially limited one or more major life activities, i.e., which substantially limited the
operation of Plaintiff’s skin and soft tissue. Reasonable jurors could not find that Plaintiff
had a “disability” within the meaning of the ADAAA. Moreover, there is no genuine issue
of material fact that at the time of her termination on January 25, 2011, Plaintiff did not have
a “disability” within the meaning of the ADAAA. At that juncture, Plaintiff had only some
muscle tenderness and intermittent pain on the left side which she has not shown
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substantially limited one or more of her major life activities, inclusive of the operation of a
major bodily function. Indeed, Plaintiff’s treating doctor testified that after the two or three
week period when Plaintiff had mastitis, her ability to do life activities was not substantially
affected. See Qureshi Deposition (Exhibit 26 to Defendant’s Motion) at pp. 118-120.
Qualified, With or Without Reasonable Accommodation
Whether an individual is “qualified” within the meaning of the ADA is determined
by a two-part analysis: First, whether the individual can perform the essential functions of
the job; and second, if the individual is unable to perform the essential functions of the job,
whether any reasonable accommodation by the employer would enable her to perform those
functions. See Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).
Plaintiff has the burden of showing that she was able to perform the essential functions of her
job. Id. at 1119 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002)). “Essential
functions” are “the fundamental job duties of the employment position the individual with
a disability holds or desires.” 29 C.F.R. §1630.2(n)(1).
Plaintiff’s job duties as a Medical Assistant included such things as “work[ing] up
patients and assist[ing] physicians with patient exams and procedures, and perform[ing]
procedures and C.L.I.A-waived lab tests as directed by physicians.” See Job Description
(Exhibit 4 to Defendant’s Response). Inherent in those duties is the requirement of physical
presence or attendance. Moreover, Defendant’s policy regarding Discipline and Termination
of Employment provides that excessive absenteeism or tardiness may result in disciplinary
action, up to and including termination. See Policy B.7 (Exhibit 19 to Defendant’s Response)
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at p. 4. Defendant also has an Attendance Policy which provides that “if an employee
accumulates seven or more ‘Incidents of Absence’ or ‘Tardy’ in a rolling 12-month period
for any reason except an approved leave of absence, the employee will be subject to
termination.” See Policy 2 (Exhibit 19 to Defendant’s Response) at p. 20. The Attendance
Policy also provides as follows with respect to “Repeated Absenteeism”:
It must be recognized that there may be instances in which an
employee’s absence due to illness or injury, even though
excused and not the fault of the employee, becomes as excessive
or repetitive as to render continued employment inappropriate.
Id.
From March 2010 through November 2010, Plaintiff took off work to attend doctors’
appointments on 7 occasions. During that same period, Plaintiff either left work early or was
off work the entire day on 16 occasions due to Plaintiff’s being sick or caring for a sick
family member. Plaintiff’s absences during December of 2010 and January of 2011 are
described above.
On August 11, 2010, Plaintiff received an Employee Disciplinary Action Notice of
a verbal warning for excessive absences. Exhibit 12 to Defendant’s Response. The
explanation of Plaintiff’s offense in that notice stated that “Susan has not worked the
requirements to maintain a full time status medical assistant position” and that “[s]he has had
excessive absences in the last 2½ months causing a hardship on the clinic and other
coworkers.” Id. The notice indicated that Plaintiff’s supervisor discussed with Plaintiff the
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importance of being at the clinic and working her hours and it was agreed that Plaintiff must
stay through Dr. Winzenread’s work schedule. Id.
Plaintiff also received another Employee Disciplinary Action Notice on December 13,
2010, of a written warning for excessive absenteeism and failure to comply with Hospital
Policy. See Exhibit 17 to Defendant’s Response. In her explanation of the offense,
Plaintiff’s supervisor wrote that she “discussed that absenteeism, whether excused or
unexcused, interferes with healthcare delivery, is detrimental to patient care and often causes
hardship on co-workers” and that she informed “[Plaintiff] that an employee cannot exceed
6 incidents of absence in a 12 month period and that she had already exceeded this.” Id. The
Defendant’s Human Resources generalist testified at the OESC hearing that Plaintiff was told
at the time of her written warning on December 13, 2010, that if she missed any other work
she would be terminated. See Transcript of Administrative Hearing of the Oklahoma
Employment Security Commission (Exhibit 1 to Plaintiff’s Motion) at pp. 21-22.
Nevertheless, all of Plaintiff’s absences for sickness and doctors’ appointments in
December of 2010 and January of 2011 were apparently excused except that on January 25,
2011, when Plaintiff left work at approximately 11:35 a.m. and did not return until
approximately 1:35 p.m., after clinic had resumed at 1:00 p.m., telling the clinic supervisor
she was going to run errands while she went to see Dr. Qureshi. On that occasion Plaintiff
did not clock back in. On that day, Plaintiff was given the option of resigning or being
terminated due to excessive absenteeism, failing to clock-in in violation of Defendant’s
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policy, and failing to advise her employer until that day that per Dr. Qureshi’s note, she was
supposed to be off work “for Dr. appts.” from January 18 to January 26, 2011.
It is obvious from the description of Plaintiff’s job duties, Defendant’s attendance and
disciplinary policies, and the notices of disciplinary action Plaintiff received, that an essential
function of Plaintiff’s position was physical presence or attendance during clinic hours to
assist the physicians in the delivery of healthcare. Indeed, “[a]ttendance is generally an
‘essential’ function of any job.” Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000).
See Mason v. Avaya Communications, Inc., 357 F.3d at 1119 (“Other circuits have
recognized physical attendance in the workplace is itself an essential function of most jobs.”).
See also Murphy v. Samson Resources Co., 525 F. App’x 703, 705-07 (10th Cir. 2013)
(because attendance was an essential function of the plaintiff’s position, the plaintiff was not
a qualified individual within the meaning of the ADA); Valdez v. McGill, 462 F. App’x 814,
817-19 (10th Cir. 2012) (same). Because of Plaintiff’s excessive absences, there is no
genuine issue of material fact that she was not qualified for her position within the meaning
of the ADA. Reasonable jurors could not find otherwise.
Retaliation
Both parties seek summary judgment on Plaintiff’s retaliation claim. Defendant seeks
summary judgment on this claim on the ground that Plaintiff failed to exhaust her
administrative remedies as to that claim. Plaintiff did not check the box for “retaliation” on
her Charge of Discrimination, checking only the box labeled “disability.” See EEOC Charge
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of Discrimination (Exhibit 47 to Defendant’s Motion). In the “particulars” section of the
Charge, Plaintiff stated that she requested and was denied accommodation for her medical
condition and that she was later terminated, but nowhere does she allege she was terminated
because she requested a reasonable accommodation or because she protested the failure to
accommodate her. Id. In fact, Plaintiff summarized her claim by stating “I believe that I
have been subjected to disparate treatment due to my disability or being regarded as having
a disability in violation of the Americans with Disabilities Act of 1990, as amended.” Id.
The EEOC’s right-to-sue letter indicates that it did not investigate Plaintiff’s claim as one for
retaliation. Id.
The Court concludes that no reasonable person would read Plaintiff’s Charge of
Discrimination as including a claim for retaliation. There is no genuine issue of material fact
that Plaintiff failed to exhaust her administrative remedies for an ADA retaliation claim,
leaving the Court without jurisdiction to entertain such a claim. See Self v. I Have A Dream
Foundation-Colorado, ___F. App’x ___, No. 13-1090, 2013 WL 6698079 at *4 -*5 (10th Cir.
Dec. 20, 2013) (failure to include ADA retaliation claim in EEOC charge resulted in lack of
administrative exhaustion and deprived district court of jurisdiction) (citing Jones v. UPS,
Inc., 502 F.3d 1176, 1186 (10th Cir. 2007)).
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Conclusion
In light of the foregoing, the Court finds it unnecessary to address other issues raised
in the parties’ motions. Plaintiff’s motion for partial summary judgment [Doc. No. 84] is
DENIED, and Defendant’s motion for summary judgment [Doc. No. 106] is GRANTED.
IT IS SO ORDERED this 7th day of February, 2014.
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