Opinion
Case No. 5:01-CV-86
June 3, 2003
OPINION
This matter is before the Court on Defendant's Motion for Summary Judgment. (Dkt. #46). On January 23, 2002, the parties consented to proceed before me for all further proceedings, including trial and an order of final judgment. 28 U.S.C. § 636 (c)(1). By Order of Reference, the Honorable Richard Alan Enslen referred this case to me. (Dkt. #21). Oral argument was heard on this motion on April 23, 2003. As articulated herein, the Court grants Defendant's motion.
BACKGROUND
Plaintiff was diagnosed in 1994 as suffering from bi-polar disorder. (Plaintiff's First Amended Complaint, Dkt. #30 at ¶ 9). Plaintiff asserts that her disorder affects "major life activities such as caring for herself, sleeping, and concentration even when [she] is properly medicated." Id. at ¶ 10. On January 2, 2000, Defendant hired Plaintiff with the knowledge (according to Plaintiff) that she suffered from bi-polar disorder. Id. at ¶ 11-13. Plaintiff's disorder caused her to be "tardy" for or absent from work often. Id. at ¶ 14. Plaintiff sought an "accommodation" for her tardiness, a request which, according to Plaintiff, Defendant refused. Id. at ¶ 15-45. The situation deteriorated, as Plaintiff was disciplined (regarding which Plaintiff filed an unsuccessful grievance) and ultimately fired on November 17, 2000. Id.
Plaintiff filed a discrimination claim with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission (EEOC) on January 11, 2001. (Dkt. #24, Exhibit C). The contents of her complaint are as follows:
I began employment with [Sparrow Hospital] on January 2, 2000, and was last employed as Unit Coordinator. I am a qualified individual with a disability.
During August 2000, I requested a reasonable accommodation. Specifically, I requested the attendance policy be modified to accommodate my medical condition. Instead, I was disciplined by the Department Manager for attendance going back to the month I began employment.
On November 17, 2000, I was terminated for attendance by the Department Manager.
Other employees in my department who violated the attendance policy were not disciplined to the degree as I and thus, remain employed.
I believe I was unfairly denied a reasonable accommodation, disciplined, and discharged because of my disability, in violation of the Americans with Disabilities Act of 1990, as amended.
Plaintiff initiated the present action on July 13, 2001, asserting the following claims: (1) a discrimination claim based upon the Americans with Disabilities Act (ADA), (2) a retaliation claim based upon the ADA, (3) a state law discrimination claim, and (4) a state law retaliation claim. (Dkt. #30).
SUMMARY JUDGMENT STANDARD
In reviewing a motion for summary judgment, the Court must confine itself to the narrow questions of whether there exist "no genuine issue[s] as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there exist issues in dispute to be decided in a trial on the merits. See Perez v. Aetna Insurance Co., 96 F.3d 813, 819 (6th Cir. 1996); Aiken v. The City of Memphis, 37 F.3d 1155, 1161 (6th Cir. 1994). The crux of the motion 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also, Terry Barr Sales Agency v. All-Lock Co. Inc., 96 F.3d 813, 819 (6th Cir. 1996) (citing Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)).
A motion for summary judgment requires the Court to view "inferences to be drawn from the underlying facts . . . in the light most favorable to the party opposing the motion." Matsushita Electric md. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also, Terry Barr Sales Agency, 96 F.3d at 819; Schaffer v. A.O. Smith Harvestore Products, Inc., 74 F.3d 722, 727 (6th Cir. 1996). The opponent, however, has the burden to show that a "rational trier of fact [could] find for the non-moving party [or] that there is a `genuine issue for trial.'" Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir. 1989) (quoting Matsushita Electric md. Co., 475 U.S. at 587); see also, Schaffer, 74 F.3d at 727.
As the Sixth Circuit has recognized, recent Supreme Court decisions have encouraged the granting of summary judgments, as such may be "an appropriate avenue for the `just, speedy and inexpensive determination' of a matter." Kutrom v. City of Center Line, 979 F.2d 1171, 1173 (6th Cir. 1992). Consistent with this concern for judicial economy, "the mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient." Anderson, 477 U.S. at 252; see also Bailey v. Floyd Board of Education, 106 F.3d 135, 140 (6th Cir. 1997). Furthermore, mere allegations do not suffice. See Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989) ("the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact").
I. Plaintiff's Discrimination Claim
The ADA prohibits covered employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a).
Under the ADA, discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or 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). A "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 1211 (8).
Employment discrimination claims under the ADA are analyzed pursuant to the burden-shifting standard established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Roh v. Lakeshore Estates, Inc., 241 F.3d 491, 497-98 (6th Cir. 2001); Brown v. Chase Brass Copper Co., Inc., 2001 WL 814931 at *4 (6th Cir., July 10, 2001).
Pursuant to this standard, claimants must first articulate a prima facie case of discrimination. See Chase Brass, 2001 WL 814931 at *4 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). To establish a prima facie case of discrimination under the ADA, Plaintiff must establish the following: (1) she is a disabled person as defined by the ADA, (2) she is qualified to perform the essential functions of her job with or without reasonable accommodation, and (3) she suffered an adverse employment decision because of her disability. See Chase Brass, 2001 WL 814931 at *4 (quoting Gilday v. Mecosta County, 124 F.3d 760, 761 (6th Cir. 1997)). With respect to the second element, if the parties dispute whether a particular job function is "essential," the burden rests with the employer to establish that the challenged job criterion is "essential, and therefore a business necessity," or that elimination of the challenged job criterion "will impose an undue hardship upon the employer." Hamlin v. Charter Township of Flint, 165 F.3d 426, 429 (6th Cir. 1999) (quoting Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)).
If Plaintiff establishes a prima facie case of discrimination, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for undertaking the adverse employment action against Plaintiff. See Chase Brass, 2001 WL 814931 at *4 (quoting Burdine, 450 U.S. at 253-54). If Defendant produces evidence of a legitimate, non-discriminatory reason for undertaking such action, the burden shifts back to Plaintiff to introduce evidence that the proffered reason is merely a pretext for improper discrimination. See Roh, 241 F.3d at 498.
A. Plaintiff Cannot Establish a Prima Facie Case of Discrimination
Defendant does not dispute (at least for purposes of the present motion) that Plaintiff suffers from a disability within the meaning of the ADA. As Plaintiff asserts, among other things, her disability prevents her from reporting to work in a timely fashion. It was for this reason, Defendant alleges, that Plaintiff was terminated from her position as a Health Unit Coordinator. Accordingly, to establish a prima facie case of discrimination Plaintiff must establish that she is qualified to perform the essential functions of her job, with or without reasonable accommodation. Because Plaintiff cannot make this showing, her discrimination claim must fail.
There is no question that Plaintiff performed her job duties in a very satisfactory manner except for absences and tardiness. Defendant asserts that it terminated Plaintiff because of her repeated violations of its written attendance policy. While Plaintiff disputes the veracity of Defendant's stated motive, there is no dispute that Plaintiff was unable to conform to Defendant's attendance policy. For example, Plaintiff admitted that between January 2000 and September 2000, she was tardy 30 times. (Plaintiffs Deposition, Exhibit D to Sparrow's Motion, pages 357-72). Plaintiff also acknowledged that on many occasions she was absent from work altogether. (Id. at 360-61). Defendant further asserts that punctuality and regular attendance are essential functions of the position of Health Unit Coordinator. Plaintiff counters that punctuality and regular attendance are not properly considered essential functions of her position.
The relevant regulations provide that the term "essential functions" refers to "the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2 (n)(1). The term "essential functions" does not, however, include "the marginal functions of the position." Id. A job function may be considered essential for any of several reasons, including the following:
(i) the function may be essential because the reason the position exists is to perform that function;
(ii) the function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) the function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform that particular function.29 C.F.R. § 1630.2 (n)(2).
The regulations further provide that evidence of whether a particular function is essential includes the following:
(i) the employer's judgment as to which functions are essential;
(ii) written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) the amount of time spent on the job performing the function;
(iv) the consequences of not requiring the incumbent to perform the function;
(v) the terms of a collective bargaining agreement;
(vi) the work experience of past incumbents in the job; and/or
(vii) the current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2 (n)(3).
Determination of whether a particular job function is essential is "highly fact specific," Hoskins v. Oakland County Sheriff's Dept., 227 F.3d 719, 726 (6th Cir. 2000), and "should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved." Hall v. United States Postal Service, 857 F.2d 1073, 1079 (6th Cir. 1988). The necessary factual inquiry, however, "need be no more extensive than the facts of the case demand." Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994).
Here, the question is whether regular attendance and punctuality are essential functions of Plaintiff's prior position. Plaintiff was employed by Defendant as a Health Unit Coordinator in the Cardiac Progressive Care (CPC) Unit. (Kim Green Deposition at 6; Jennifer David Affidavit at ¶ 9). Defendant's Cardiac Progressive Care Unit "is part of Sparrow's critical care service line." (David Affidavit at ¶ 4). The patients receiving treatment in the CPC Unit are "more stable than those in intensive care," but are nonetheless still "acutely ill." Id.
The facts regarding the nature of Plaintiff's job are not disputed.
Health Unit Coordinators provide "administrative support for the doctors, nurses, and other medical staff in the Unit." (David Affidavit at ¶ 5). For example, one of the "important duties" a Health Unit Coordinator must perform is to "receive and process physician orders." The Health Unit Coordinator must enter the physician orders into the hospital's computer system and then coordinate with various other departments within the hospital to "schedule testing and treatment for [CPC Unit] patients." Id.
The Cardiac Progressive Care Unit is "extremely busy." (David Affidavit at ¶ 4). At any given time, the CPC Unit is responsible for treating more than 40 patients. The Unit also experiences a significant amount of patient turnover. On an average day, the CPC Unit discharges ten patients and assumes treatment responsibility for ten new patients. Id. During each work shift the Health Unit Coordinator will be required to process "at least one physician order per patient." (David Affidavit at ¶ 6). Moreover, a single physician order "might involve twenty entries into the computer system and contact with several other departments at the hospital to schedule testing and treatment." Id.
Not surprisingly, the work performed by a Health Unit Coordinator is critical and must be accomplished "in a very consistent, timely fashion." (Green Deposition at 15; David Affidavit at ¶ 5; see also Plaintiff's Deposition at pages 212-13). As Plaintiff's immediate supervisor testified, physician orders must be processed within 15 minutes, with the exception of those orders relating to emergent, life-threatening" conditions which must be processed "immediately." (Green Deposition at 15). Green further testified that if a Health Unit Coordinator fails to timely report for duty, any physician orders for which she was responsible "would probably sit," unnecessarily delaying their processing, or be assigned to another staff member. (Green Deposition at 16-17). Obviously, any delay in the processing of physicians' orders has "the potential to compromise the quality of patient care." (David Affidavit at ¶ 5). In other words, a delay in processing a physician's order may increase that particular patient's risk of death or other adverse consequence. Considering the already precarious health of the patients in the CPC Unit, this concern is very real and the margin of error within which the hospital operates must be minimal. Sparrow recognizes the importance of timeliness. Sparrow's attendance and punctuality standards for hourly employees in relevant part are as follows:
Whenever possible, time off should be scheduled in advance. Regular attendance and punctuality are essential for the efficient operation of Sparrow. Excessive absenteeism or failing to be punctual adversely affects the quality of patient care, the workload of co-workers, and the individual's work record.
Human Resources Policy 650, Exhibit G to Sparrow's Motion
If an employee is not present at the work location "he is usually unable to perform his job." Jovanovic v. In-Sink-Erator Division of Emerson Electric Co., 201 F.3d 894, 899-900 (7th Cir. 2000). This observation alone, however, does not resolve the question as to whether punctuality and regular attendance are properly considered essential functions of any particular job. Instead, the "requisite levels of attendance and regularity depend upon the circumstances of each employment position." Carlson v. Inacom Corp., 885 F. Supp. 1314, 1320 (D. Neb. 1995).
With respect to certain jobs, punctuality and attendance, while important, are not "essential" because either the job can be performed at an alternative location (e.g., at home) or involves tasks in which timely performance is not necessarily required. See, e.g., Jovanovic, 201 F.3d at 899-900 (indicating that punctuality and attendance may not be essential if the employee can perform her duties at an alternative location); Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 36-37 (1st Cir. 2000) (indicating that punctuality and attendance may not be essential if the employee's duties are not time sensitive in nature).
The duties of a Health Unit Coordinator cannot be so characterized. There is no evidence that Plaintiff's duties could have been performed at an alternative location. More importantly, as discussed above the evidence clearly reveals that failure by a Health Unit Coordinator to timely perform her duties can jeopardize patients' lives. Plaintiff has not disputed this. Therefore, it seems that no reasonable person can dispute that punctuality and regular attendance are "essential functions" of the job of Health Unit Coordinator. See, e.g., Jovanovic, 201 F.3d at 899-900 (punctuality and attendance is essential where "the work must be done on the employer's premises"); Earl v. Mervyns, Inc., 207 F.3d 1361, 1365-66 (11th Cir. 2000) (where employee's tasks must be completed at a specific time, punctuality constitutes an "essential function" of her job). Plaintiff has introduced no evidence creating a genuine issue of material fact as to the time sensitive nature of the Health Unit Coordinator's employment tasks.
The question then becomes whether the adoption of a reasonable accommodation will enable Plaintiff to perform the essential functions of her position. Plaintiff requested that Defendant permit her to work pursuant to a flexible or open-ended schedule to accommodate her alleged inability to arrive at work at her regularly scheduled time. It also appears that Plaintiff at one point suggested that she be permitted to arrive 15 minutes late, in return for which she would work an additional 15 minutes at the end of her shift.
However, since Plaintiff was tardy two hours on at least one occasion, such an accommodation may have been of no consequence.
As discussed above, if a Health Unit Coordinator fails to report for duty on time, those physician orders for which she is responsible for processing will either "sit," delaying patient care, or be assigned to another hospital staff member. The Court concludes, therefore, that Plaintiff's requested accommodation is not reasonable under all of the circumstances. See, e.g., Hoskins v. Oakland County Sheriff's Dept., 227 F.3d 719, 729 (6th Cir. 2000) ("the ADA does not require employers to accommodate individuals by shifting an essential job function onto others"); Brickers v. Cleveland Board of Education, 145 F.3d 846, 850 (6th Cir. 1998) ("the ADA does not demand that an employer exempt a disabled employee from an essential function of the job as an accommodation"); Chase Brass, 2001 WL 814931 at *5 (where employee's requested accommodation "would have significantly redistributed tasks" among his co-workers, the requested accommodation "was unreasonable as a matter of law"); Earl, 207 F.3d at 1367 ("a request to arrive at work at any time, without reprimand, would in essence require [the employer] to change the essential functions of [the employee's] job, and thus is not a request for a reasonable accommodation"); Waggoner v. Olin Corp, 169 F.3d 481, 485 (7th Cir. 1999) (the ADA does not obligate employers "to tolerate erratic, unreliable attendance"); Ward, 209 F.3d at 37 (nurse's requested accommodation of a modified work schedule constituted an "unreasonable burden on hospital because her duties would have to be reassigned") (citation omitted).
Certainly, a flexible schedule under some circumstances may be a reasonable accommodation. For example, if Plaintiff was a billing clerk, where tasks are not as time sensitive, such may be the case. However, an employee who is responsible for communicating physicians' orders in an acute care hospital ward is a very different circumstance. Plaintiff's duties were both critical and time sensitive. Plaintiff's proposed accommodation is akin to permitting an ambulance dispatcher to have a "flexible schedule." The consequences of the dispatcher's late arrival coinciding with a patient emergency would be grave indeed. Such is no less the case in the present circumstance.
As Plaintiff's requested accommodation is unreasonable, she is not properly considered a "qualified individual with a disability," as defined by the ADA. Accordingly, Defendant is entitled to summary judgment as to Plaintiff's claim that she was discriminated against in violation of the ADA.
II. Plaintiff's Retaliation Claim
Federal law provides that "no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA]." 42 U.S.C. § 12203 (a).
To establish a claim of retaliation, Plaintiff must first establish: (1) that she engaged in protected conduct; (2) that she suffered an adverse employment action; and (3) that there exists a causal connection between the adverse action and the protected conduct. See Sullivan v. River Valley School District, 197 F.3d 804, 814 (6th Cir. 1999). If Plaintiff makes this showing, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for taking the adverse employment action. See Penny v. United Parcel Service, 128 F.3d 408, 417 (6th Cir. 1997). Finally, Plaintiff bears the burden of establishing that Defendant's proferred reason was merely a pretext for discrimination. Id.
To establish the requisite causal link, Plaintiff "must present evidence sufficient to raise the inference that [her] protected activity was the likely reason for the adverse action." Chase Brass, 2001 WL. 814931 at *7 (quoting Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th Cir. 1982)). However, "the mere fact that an adverse employment action occurs subsequent to the protected activity does not, standing alone, support an inference of retaliation." Chase Brass, 2001 WL 814931 at *7 (citing Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986)). Otherwise, an employer could never discipline or discharge an employee once the employee had engaged in any type of protected activity.
In support of her claim, Plaintiff offers no evidence from which a reasonable person could infer that Defendant retaliated against Plaintiff. Aside from unsupported conclusions and speculation, Plaintiff relies on the fact that she was terminated after she began engaging in protected conduct. Such meager "evidence" fails to establish a prima facie case of retaliation. See Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (in the absence of additional evidence, "loose temporal proximity is insufficient to create a triable issue"); Cooper, 795 F.2d at 1272-73 (the temporal proximity between the adverse action and the protected activity, "standing alone . . . do[es] not establish a prima facie case of retaliatory discharge"); Chase Brass, 2001 WL 814931 at *7 (same) (citations omitted).
Because Plaintiff has introduced no evidence to show a causal connection between her termination and the protected conduct in which she engaged, Defendant is entitled to summary judgment as to this claim.
III. Plaintiff's Claim of Disparate Treatment
Plaintiff also alleges that Sparrow's attendance policy was disparately applied to her. To make out a prima facie case of disparate treatment, a plaintiff must show that the defendant treated her worse than similarly situated individuals outside the protected class. Mitchell v. Toledo Hospital, 964 F.2d 577, 582-83 (6th Cir. 1992).
To satisfy the element of being similarly situated, Plaintiff must show that the individuals to whom she compares herself are similarly situated in all relevant respects. Id. at 583; Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001). The employees with whom Plaintiff seeks to compare herself must have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish the conduct or the employer's treatment of them for it. Mitchell, 964 F.2d at 583. For example, regarding the issue at hand, attendance. Plaintiff must present evidence that her coworkers' attendance was comparable to hers, but they were not disciplined as severely. Clemons v. Ford Motor Co., 57 F. Supp.2d 469, 478 (M.D. Tenn. 1998). Here, Ms. Rocker has presented no evidence to show the frequency of her coworkers' alleged absences or late arrivals, or the status of any disciplinary records for them. As noted by Plaintiff, Assistant Department Manager Kim Green's deposition testimony does indeed state that nobody else in the Cardiac Progressive Care Unit has been discharged for attendance problems during the relevant period. However, Plaintiff ignores Ms. Green's testimony that coworkers were disciplined for attendance problems during the relevant period, and at times during the relevant period, Ms. Flocker herself was not disciplined for being absent or tardy. (Green Deposition at 28-29). Moreover, there is no evidence that any other employee under the supervision of Department Manager Jennifer David had ever been absent or late to the same extent as Ms. Flocker. (Exhibit E to Sparrow's Motion, Affidavit of Jennifer David at ¶ 29). Thus, Plaintiff has failed to make out a prima facie case of disparate treatment discrimination because she has not shown that her treatment by Sparrow was different from any similarly situated employee.
CONCLUSION
For the reasons stated herein, Plaintiff's claims cannot survive Defendant's motion. Defendant's Motion for Summary Judgment (Dkt. #46) is granted.
A Judgment consistent with this Opinion will enter.
JUDGMENT
Consistent with this Opinion entered this day, Defendant's Motion for Summary Judgment (Dkt. #46) is GRANTED, and Plaintiff's claims are DISMISSED with prejudice.