Pomerantz v. The Methodist Hospital
MEMORANDUM AND ORDER GRANTED 27 MOTION for Summary Judgment (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CIVIL ACTION NO. H-12-3479
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 27] filed by Defendant Houston Methodist Hospital (“Methodist”), to which
Plaintiff Judy Pomerantz filed a Response [Doc. # 32], and Methodist filed a Reply
[Doc. # 34]. Having considered the full record and applicable legal authorities, the
Court grants Methodist's Motion.
Plaintiff is a Registered Nurse who was diagnosed with Multiple Sclerosis
(“MS”) in 2002. She was hired by Methodist in 2008 as a “floater” Case Manager,
working in different units as needed. In November 2009, Plaintiff was assigned as a
Case Manager to the Transplant Unit, where she worked for several months.
In April 2010, Plaintiff was assigned as a Case Manager to the
Medical/Teaching Unit. On April 30, 2010, Plaintiff asked to be moved back to the
Transplant Unit because she could “not work with Margaret [Goodrich] and her
unprofessional behavior.” See April 30, 2010, Email from Plaintiff, Exh. J to Motion.
Department Director Anoma Mullegama, Plaintiff's Manager Alma Villanueva, and
Human Resources Representative Kathryn Materre scheduled a meeting with Plaintiff
to discuss the request, but Plaintiff cancelled the meeting. See Communication
Record, Exh. I to Motion.
In connection with her annual performance review in June 2010, Plaintiff
identified transferring out of the Medical/Teaching Unit as her highest priority for the
In July 2010, Plaintiff first provided a written request for an accommodation for
the fatigue caused by her MS.1
At a meeting to discuss the request for an
accommodation, Plaintiff presented a letter from her physician, Dr. George Hutton.
Dr. Hutton recommended that Plaintiff “maintain a forty hour work week, with
occasional nine hour work days.” Methodist personnel at the meeting agreed to the
Plaintiff alleges that she notified her supervisor orally that she had MS and
resulting fatigue in April 2010.
accommodation recommended by Dr. Hutton, and reiterated to Plaintiff that she was
not required to work more than 40 hours per week.
Also in July 2010, Methodist promoted the Case Manager assigned to the
Orthopedics Unit, Audra White, to a management position. Before White assumed
her management responsibilities, a recently-hired Case Manager was assigned to the
Orthopedics Unit to train with her. Plaintiff was not reassigned to the Orthopedics
On August 4, 2010, Plaintiff emailed her supervisor asking to be reassigned to
a different unit. At a meeting to discuss her request, Plaintiff stated that she was fine
and that she wanted to know when Methodist was going to hire an extra person to
work with her. Methodist personnel explained that they were in the process of hiring
someone and, indeed, a second Case Manager was assigned to the Medical/Teaching
Unit later that month.
Plaintiff began a period of leave under the Family and Medical Leave Act
(“FMLA”) on September 8, 2010. While on FMLA leave, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and
the Texas Workforce Commission - Civil Rights Division.
Prior to Plaintiff's return to work following her FMLA leave, she provided a
letter from Dr. Hutton recommending a number of areas for accommodation. Dr.
Hutton did not include a recommendation that Plaintiff be reassigned to a different
unit. Plaintiff's counsel explained that the primary accommodation was that she not
be required to work more than 8 hours per day, and complained that failure to reassign
Plaintiff to the Orthopedics Unit was discrimination under the ADA. Plaintiff
returned to work in a floater Case Manager position on January 25, 2011.
On March 18, 2011, Plaintiff resigned from Methodist because she “heard about
an opening at a home health agency.”
Plaintiff filed this lawsuit in November 2012, alleging disability discrimination
and failure-to-accommodate. After discovery was completed, Defendant moved for
summary judgment. The Motion has been fully briefed and is ripe for decision.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex,
477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (holding that unverified pleadings
do not “constitute competent summary judgment evidence”). Likewise, “conclusory
allegations” or “unsubstantiated assertions” do not meet the non-movant’s burden.
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present specific facts which show “the
existence of a genuine issue concerning every essential component of its case.” Am.
Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003)
(citation and internal quotation marks omitted). In the absence of any proof, the court
will not assume that the non-movant could or would prove the necessary facts. Little,
37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
Disability Discrimination Claim
The ADA prohibits discrimination against a qualified individual with a
disability. Munoz v. Seton Healthcare, Inc., 557 F. App’x 314, 318 (5th Cir. Feb. 18,
2014) (citing 42 U.S.C. § 12112(a); 12112(b)(5)(A)). To establish a prima facie case
of ADA discrimination, Plaintiff must demonstrate (1) that she has a disability;
(2) that she was qualified for her job, (3) that she suffered an adverse employment
action because of her disability, and (4) she was replaced by or treated less favorably
than a non-disabled employee. See id. (citing EEOC v. Chevron Phillips Chemical
Co., LP, 570 F.3d 606, 615 (5th Cir. 2009)).
Plaintiff alleges that Methodist violated her rights under the ADA when it
declined to transfer her to the Orthopedics Department. It is undisputed that the
position in the Orthopedics Department involved the same pay, benefits, and
responsibilities. Such a purely lateral transfer, whether required or denied, is not an
adverse employment action under the ADA.
See id. (citing Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 771 n.8 (5th Cir. 2001)). As a result, Defendant
is entitled to summary judgment on Plaintiff's disability discrimination claim based
on the failure to transfer her to the Orthopedics Department.
The ADA prohibits an employer from failing to make “reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship.” Feist v. Louisiana, Dept. of
Justice, Office of the Attorney General, 730 F.3d 450, 452 (5th Cir. 2013) (quoting 42
U.S.C. § 12112(b)(5)(A)).
To avoid summary judgment on her "failure-to-
accommodate” claim, Plaintiff must present evidence that raises a genuine issue of
material fact that: (1) she is a “qualified individual with a disability;” (2) her employer
knew about Plaintiff’s disability and its limitations; and (3) her employer failed to
make “reasonable accommodations” for Plaintiff's known limitations. Id.
Plaintiff argues that “to the extent that Methodist could not determine the
appropriate accommodation, it is required to engage in the interactive process and
discuss the situation with the employee.” Response, p. 25. The regulations, however,
provide that “[t]o determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive process with the
individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3)
(emphasis added). “Of course, that which ‘may be’ necessary is not universally
required.” Picard v. St. Tammany Parish Hosp., 423 F. App’x 467, 470 (5th Cir. Apr.
28, 2011). The requirement that the parties engage in an interactive process “is not
an end in itself – it is a means to the end of forging reasonable accommodations.” See
Silva v. City of Hidalgo, Tex., __ F. App'x __, 2014 WL 3511685, *3 (5th Cir. July 17,
2014) (quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)).
Only when the employer’s failure to engage in the interactive process results in a
failure to accommodate the employee's limitations does a violation of the ADA occur.
Id. (citing Loulseged, 178 F.3d at 736). As a result, the failure to engage in the
interactive process, without more, does not violate the ADA.
Plaintiff argues also that when she sought an accommodation, “Methodist
should have granted her that accommodation.” See Response, p. 25. The ADA,
however, does not provide the employee with the right to choose her preferred
accommodation. See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir.
2009). Similarly, the ADA does not provide the employee the right to choose what
job assignment she receives. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315
(5th Cir. 2007). The Fifth Circuit does not “read the ADA as requiring affirmative
action in favor of individuals with disabilities, in the sense of requiring disabled
persons be given priority in hiring or reassignment over those who are not disabled.”
See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (quoting
Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995)).
Plaintiff complained that she was suffering from fatigue and first requested that
she not be required to work more than 40 hours per week. In support of this requested
accommodation, Plaintiff presented a letter from her physician, Dr. George Hutton.
He recommended that Plaintiff “maintain a forty hour work week, with occasional
nine hour work days.” See Hutton Letter, Exh. N to Motion. Methodist granted this
request, reiterating to Plaintiff that she was not required to work more than 40 hours
per week. Indeed, Plaintiff concedes that no Methodist employee ever informed her
that she needed to work more than 40 hours per week or told her that she was not
allowed to leave at the end of the day.
Plaintiff also requested that an additional case manager be assigned to her unit.
The ADA does not require an employer to transfer any of the essential job functions
to anyone else. See Robertson v. Neuromedical Ctr., 161 F.3d 292, 295 (5th Cir.
1998). Nonetheless, Methodist assigned an additional case manager to Plaintiff's unit
in late August 2010.
Plaintiff’s primary request was to be transferred out of the Medical/Teaching
Unit. Plaintiff’s first request to be transferred out of the unit was on April 30, 2010
and was based on a conflict with a co-worker. The basis for the request to transfer out
of the unit was not to accommodate any limitations caused by her MS, but because she
“can not work with Margaret [Goodrich].” See Email dated April 30, 2010, Exh. J to
Motion. On May 3, 2010, Plaintiff stated that she and Margaret had talked, everything
was “OK,” and there was “no conflict at this time.” See Communication Record, Exh.
I to Motion. In her annual performance appraisal in July 2010, Plaintiff identified
being reassigned to a different unit as a goal for 2011. She did not identify the goal
to be reassigned as a request for an accommodation for the limitations caused by her
In July 2010, Methodist promoted the Case Manager in the Orthopedics Unit,
Audra White, to a managerial position in the Case Management & Social Work
Department. Methodist did not reassign Plaintiff to the Orthopedics Unit. Instead, a
recently-hired case manager was assigned to the Orthopedics Unit to train under
White before she assumed her management responsibilities.
On August 4, 2010, Plaintiff again requested to be reassigned to a different unit.
At a meeting to address her request, Plaintiff inquired when someone would be
assigned to work with her in the Medical/Training Unit. Methodist management
explained that they were in the process of hiring someone (who, in fact, began work
later that month). Methodist proposed additional accommodations to deal with
Plaintiff's fatigue, such as moving her office closer to the Medical/Teaching Unit.
Plaintiff stated that she was fine and just needed another case manager to work on the
Before Plaintiff returned to work after taking FMLA leave in September 2010,
her attorney provided a letter from Dr. Hutton identifying specific accommodations
that he recommended. Methodist requested clarification, and Plaintiff’s counsel stated
that Plaintiff’s only request was a Case Manager position that allowed her to work no
more than 8 hours per day. Methodist had previously advised Plaintiff that she was
not required to work more than 40 hours per week, and Dr. Hutton had previously
stated that she could work occasional 9-hour days. Consequently, the requested
accommodation had previously been granted in substance.
Plaintiff’s counsel also complained that Plaintiff had not been transferred to the
Orthopedics Unit, which is the focus of Plaintiff's failure-to-accommodate claim. The
uncontroverted record establishes that a new employee was assigned to the
Orthopedics Unit in order to train under Audra White. Plaintiff testified in her
deposition that this decision was not based on Plaintiff's disability. See Plaintiff’s
Deposition, Exh. D to Motion, p. 224. The ADA “does not require an employer to
give an employee with a disability his job of choice especially when there are
qualified individuals who desire the same position.” Allen v. Rapides Parish Sch. Bd.,
204 F.3d 619, 622-23 (5th Cir. 2000). Not only has Plaintiff failed to present
evidence that the decision to assign someone else to the Orthopedics Unit and not to
assign Plaintiff was a violation of the ADA, she has admitted that the decision was not
based on consideration of her disability.
Methodist granted each request for accommodation recommended by Plaintiff’s
physician. Although not legally obligated to do so, Methodist granted Plaintiff’s own
request for a second Case Manager to be assigned to the Medical/Teaching Unit.
Methodist did not grant Plaintiff’s request to transfer to the Orthopedics Unit, but the
ADA does not require an employer to accommodate an employee by allowing her to
select her own assignments.
The Court notes that Dr. Hutton at no point
recommended that Plaintiff be assigned to the Orthopedics Unit. As a result,
Defendant is entitled to summary judgment on Plaintiff’s failure-to-accommodate
CONCLUSION AND ORDER
Plaintiff has failed to present evidence that raises a genuine issue of material
fact in support of her claims against Methodist. As a result, it is hereby
ORDERED that Defendant Houston Methodist Hospital’s Motion for
Summary Judgment [Doc. # 27] is GRANTED. The Court will issue a separate final
SIGNED at Houston, Texas, this 14th day of August, 2014.
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