Opinion
Case No. 99-72207.
June 5, 2000.
OPINION ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants' motion for summary judgment. Plaintiff alleges discrimination and retaliation based on her disability and discrimination based on her sex. She also alleges the intentional infliction of emotional distress and loss of consortium. For the reasons discussed below, the motion for summary judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED with respect to Plaintiff's claims for state law disability discrimination, sex discrimination, retaliation, and intentional infliction of emotional distress. The motion is DENIED with respect to her claim under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. and her claim for loss of consortium.
I. Facts
A. Parties
Plaintiff, Dr. Susan Roubal, is a pediatric radiologist who was diagnosed with rheum arthritis in the fall of 1995. She was formerly employed by Defendant Dr. L Associates, P.C. ("Defendant Reynolds" or "Reynolds"). Defendant Reynolds is a professional services corporation that provides radiological services to various hospitals in Michigan, including Children's Hospital. Defendant Thomas Slovis, also a pediatric radiologist, was Dr. Roubal's immediate supervisor at Reynolds. Defendant Dr. George Kling was the President of Reynolds during Dr. Roubal's employment.
B. Fellowship
After completing medical school and her residency, Dr. Roubal was hired by Reynolds as a non-shareholder "fellow" in August of 1992. Her assignment in this capacity was to work at Children's Hospital of Michigan. As a fellow, Dr. Roubal was exposed to every aspect of a radiologist's practice, including but not limited to, body imaging, neuro-radiology, fluoroscopy, and ultrasound. Following her hire as a fellow, Dr. Roubal completed rotations in each of these areas of radiology practice.
Radiologists who perform body imaging read x-rays of MRI's and CT scans of areas below the neck. Radiologists specializing in neuro-radiology read x-rays of MRI's and CT scans of the areas above the neck. Neuro-radiology, or "CT/MR" and body imaging, or "Body" are two of the most difficult areas of radiology. Slovis Dep. at 90.
C. Dr. Roubal's Staff Position
Following her fellowship, Dr. Roubal was offered and accepted a staff radiologist position at Reynolds. Defendant Slovis testified in his deposition that there is no written job description for this position, but indicated that a radiologist's assignment is something he determines. Slovis Dep. at 42-43. It is understood that each radiologist have a primary and secondary field of radiology, and new hires are recruited based on their skill level in a particular discipline. Slovis Dep. at 30-31.
When Dr. Roubal started her staff position, her primary area of concentration was body imaging, which focuses on the review of MRIs and CT Scans of areas below the neck. Dr. Roubal testified that she had no special training in this area, but that there was an understanding that she would "start developing in that area." Roubal Dep. at 36. As her secondary field, Dr. Roubal was assigned to perform neuro-radiology, or "CT/MR," which involves the review of MRIs and CT Scans of the neck and head. Dr. Roubal testified that she was actually the third person in CT/MR and that she was supposed to fill in for Dr. Slovis and Dr. Becker, who also performed CT/MR. Roubal Dep. at 37. She testified in her deposition that CT/MR was not an area in which she wanted to practice as a primary concentration. Roubal Dep. at 37.
Dr. Roubal was the only radiologist ever assigned to both body imaging and CT/MR at the same time. Roubal Dep at 59, Roubal Aff. ¶ 6. Dr. Slovis admitted that these two areas of concentration were two of the most difficult assignments, considering the stress involved and the amount of time it takes a radiologist to perform the task, including time spent with the patients, and consultation with other health professionals. Slovis Dep. at 91-93.
Without citation to the record, Defendants contend that the tasks of the radiologists were not interchangeable. Def.'s Br. at 3. To the contrary, Plaintiff contends there was considerable interchange among various radiologists. For example, Dr. Slovis testified that Dr. Amundson, who was assigned to ultrasound and nuclear medicine, also performed tasks in body imaging and fluoroscopy. Slovis Dep. at 35; Pl.'s Exb. 4; Roubal Aff. at ¶ 7. For the first three months of 1997, for example, Dr. Amundson was assigned to fluoroscopy twenty-eight times out of sixty-two work days and to body imaging twenty-one times. Similarly, there is evidence on the record that Dr. Roubal was frequently assigned to other fields which she was not specifically hired to perform, such as ultrasound and fluoroscopy. Pl.'s Exb. 4; Roubal Aff. at ¶ 8. Even Dr. Slovis performed tasks in fields other than the ones in which he primarily and secondarily specialized. Pl.'s Exb. 4, Roubal Aff at ¶ 9.
During Dr. Roubal's tenure at Reynolds, the radiology department at Children's was understaffed. In 1997, Dr. Slovis obtained approval from the board to have nine radiologists on staff, although there were frequently only seven. Slovis Dep. at 53-54, 67, 70, 80.
D. Dr. Roubal's Medical Problems, Work Load, and Termination
In the fall of 1995, Dr. Roubal was diagnosed with rheumatoid arthritis. Initially, Plaintiff was able to perform her job, but as her symptoms gradually worsened, her doctor recommended that she limit her work hours. Roubal Dep. at 74-75; Mosley Dep at 51-52. In March of 1996, Plaintiff took her first medical leave of absence. Dr. Angelia Mosley testified that the leave of absence was necessary because the stress of Dr. Roubal's work had exacerbated her condition. Mosley Dep. at 13-14; Roubal Dep. at 16-17, 23-24.
Dr. Roubal returned to work on a part-time basis in October of 1996. By December of that year, she was working full-time. Throughout 1997, Dr. Roubal contends that her workload intensified. In the six months preceding her first leave of absence, Dr. Roubal was scheduled for CT/MR an average of only four work days per month, an amount consistent with her assignment as third person in CT/MR. However, after her return from medical leave, she was assigned to CT/MR an average of eight work days per month. Roubal Aff. at ¶ 9; Pl.'s Exb. 6; Pl.'s Exb. 4.
During the fourteen months following Plaintiff's return to work after her first medical leave of absence, Dr. Roubal worked the most CT/MR shifts in six of those fourteen months, and tied for first in one month. Pl.'s Exb. 7; Roubal Aff. at ¶ 6. Overall, Roubal worked in CT/MR 120 days out of a total of 297 work days during this period, or 40% of the assignments. In only one of those fourteen months did Dr. Roubal have the lowest number of assignments in this area, as one would expect the "third" person in this field to be assigned. Id.
Additionally, Dr. Roubal commonly had CT/MR shifts at the same time she was assigned body imaging, another of the most difficult assignments. During the fourteen month period discussed above, Dr. Roubal was assigned to Body Imaging 45% of the time. Roubal Aff. at ¶ 6.
Plaintiff continued to work throughout 1997, but her condition caused her to take another leave of absence in January 1998. Dr. Roubal contends that her increased workload and stressful working conditions caused her arthritis to become much worse, which, in turn, caused her to have to take the second medical leave. Her treating physician's opinion corroborates her theory. Mosley Dep. at 25.
From January of 1998 until June of that year, Plaintiff did not indicate to her employer whether or not she would be able to return to work. On June 25, 1998, Dr. Roubal was fired. Defendant contends that she was fired pursuant to the Professional Employment Agreement which she signed when she was hired on as a staff radiologist June 10, 1993. A provision of that contract pertains to termination based on disability. It provides:
If, in the opinion of the Board, the Doctor has been unable to render professional services because of illness or any other reason not voluntary with him/her, for a period of six consecutive months, the Doctor's employment shall terminate at the end of the six month period. A period of inability to render professional services shall be treated as the continuation of a prior period of disability to render professional services if in the opinion of the Board, separate periods should be combined for the purpose of determining the expiration of the six-month period.
Def.'s Exb. G at 2.
On June 25, 1998, when Plaintiff was terminated pursuant to this provision, she had been absent from work for a total of eleven months.
E. Requests for Accommodations
When she returned from her first medical leave, Dr. Roubal began to request accommodations for her medical condition. Specifically, she requested relief from what she perceived to be her extra workload. "I remember specifically almost verbatim saying, "I'm not asking for special exemption to work less than anybody else, but I don't think I should have to work more than anybody else." Roubal Dep. at 92. She consistently asked for accommodation so that she could obtain a "more equitable work assignment." For example, Dr. Roubal specifically asked Dr. Slovis to (1) either break up CT/MR into two departments, or (2) not assign her both CT/MR and body imaging at the same time. Roubal Aff. at ¶ 10.
Plaintiff testified in her deposition that prior to the commencement of her second medical leave of absence, that she consistently tried to suggest things that could be done so that the job was not so stressful. Roubal Dep. at 90-91. She routinely raised the issue of her work schedule during staff meetings. During the calendar year 1997, she testified that she "became a broken record at the staff meetings because my concerns were always the same about the Neuro service, it was too busy and I couldn't — it was too difficult to do it in a combined format." Roubal Dep. at 139. She made several suggestions about ways in which the work could be broken up:
There was quite a few — I worked out lots of different ways of breaking up the department which I think some of which I've already talked about here. Breaking Neuro services into a Neuro CT and Neuro MR which could be physically separated on two different floors as far as loading the cases on alternators and that would make — CT Neuro is a much — kind of a quicker faster interpretation. The images are limited. You have two sheets of film rather than six or eight, so the cases tended to be a little less complicated and I thought that that would be a good way of breaking up the department . . . the person that's down in MR could devote more time which is needed on interpreting the more complicated cases, but would still be available then, freed up some from checking all those cases, handling all those sedated patients and interruptions that are all associated with that as well as the consultations from staff . . . So I though that would be a really good thing to do and it would free up combining services like that MR person could then even more easily take care of the ER which had been added at that point as a different service.
Roubal Dep. at 106.
Dr. Slovis testified in his deposition that he recalled Dr. Roubal having approached him about her concerns with respect to her workload and its effect on her physical condition. Slovis Dep. at 106.
F. Defendants' Response to Requests to Accommodate
In response to Dr. Roubal's requests, Defendants made some alterations. However, they never complied with the primary requests she made which was to split neuro or to not assign her neuro and body at the same time. She also requested that her intensified workload in neuro be cut back, as she was supposed to be the third person working in that field. Roubal Dep. at 95. Dr. Roubal testified that her requests were met with curt responses from Dr. Slovis: "We can't — that's just not possible." Roubal Dep. at 95. Defendants also declined Roubal's request not to be assigned CT/MR and body at the same time. Roubal Aff. at ¶ 11. With respect to her request that CT/MR be split into two areas, Dr. Slovis testified that "[m]y response is that I was always willing to try new things but this thing was impractical because I didn't have another person to throw at the other aspect of Neuro because everybody was assigned to other things. So I didn't have the staff to do it." Slovis Dep. at 109. Further, with respect to not assigning Roubal to both CT/MR and body at the same time, Slovis stated that he told Roubal he would "certainly try" but that "there were no guarantees." Slovis Dep. at 111-12. Plaintiff's exhibit 7 shows no decrease in CT/MR and Body assignments on the same day. Thus it appears that his attempts were not successful. Pl.'s Exb. 7. Dr. Slovis never performed any type of study or analysis of job functions in order to determine if Plaintiff's request for splitting up CT/MR may be feasible. Slovis Dep. at 112; Kling Dep. at 40-41; Dep. of Lyngklip at 23.
With respect to Dr. Slovis' contention that he did not have the staff to accommodate Plaintiff's request, it is interesting to note that as early as the last quarter of 1997, Dr. Slovis had been authorized to hire an additional radiologist, but simply had not done it yet. Slovis Dep. at 50-51. Toward the end of 1997 or early 1998, there were three open radiologist positions which needed to be filled. Slovis Dep. at 80. Defendants hired two new radiologists in February of 1998, Dr. Dockery and Dr. Bloom. Pl.'s Exb. 10; Slovis Dep. at 80-81. Dr. Bloom did not start working until June of 1998. Slovis Dep. at 81. Slovis testified that Dockery was hired to fill the available ninth position. Slovis Dep. at 70. Plaintiff contends Bloom was hired to fill Roubal's position. Dr. Bloom was hired to perform body imaging as his primary concentration. Slovis Dep. at 82; Pl.'s Exb. 11. Defendants began looking for a radiologist with "expertise in Neuroradiology (CT/MR) and Body Imaging" as early as October of 1997. Id. This was before Plaintiff went on her second medical leave.
Defendants did make certain accommodations for Dr. Roubal. First of all, they offered her part-time work. Defs' Exb. E. However, Plaintiff was not interested in part-time work due to the attendant decrease in pay. Roubal Dep. at 81-82. Roubal requested and Reynolds provided two alternators to help with her workload. The alternators allowed Plaintiff to view several films simultaneously and prevented constant reloading of films. Roubal Dep. at 140. This allowed Plaintiff to work for longer periods of time. Also, Roubal requested and Defendants provided a computer console in the radiologists' work area. This prevented Roubal from having to go to a different floor in order to read radiology reports online. Defendants also allowed Roubal to avoid fluoroscopy work because she was unable to wear the protective gear. Adjustments were also made by the file room. Roubal Dep. at 140-43; Becker Aff. at ¶ 4.
II. Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The central 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."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). after adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has an initial burden of showing "the absence of a genuine issue of material fact." Celotex, 477 U.S. 317, 323. Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a "scintilla of evidence" is insufficient. Liberty Lobby, 477 U.S. at 252.
The court must believe the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. Liberty Lobby, 477 U.S. at 255. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentiary standard could "reasonably find for either the plaintiff or the defendant."Liberty Lobby, 477 U.S. at 255.
III. Analysis
A. Americans with Disabilities Act
Plaintiff claims that Defendants failed to reasonably accommodate her disability under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA'), by failing to restructure the radiological functions of CT/MR and body and by failing to bring her workload in line with the workload of other radiologists.
The ADA prohibits discrimination in employment based on an individual's disability. The Act provides, "[n]o covered entity shall discriminate 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 and conditions, and privileges of employment." 42 U.S.C. § 12112. The statute places the duty on employers of "making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship. . . ." 42 U.S.C. § 12112(b)(5)(A).
In order to prevail on a failure to accommodate claim, Plaintiff must show that (1) she has a disability; (2) she was capable of performing all essential functions of the employment position that she holds or desires, with or without reasonable accommodation; and (3) that she was denied a reasonable accommodation for her disability. Penny v. United Parcel Service, 128 F.3d 408, 414 (6th Cir. 1997); Wohler v. Toledo Stamping Mfg. Co., 125 F.3d 856 (6th Cir. 1997) (unpublished); Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996). The parties here do not dispute that Plaintiff has satisfied the first prong.
1. Qualified Individual
a. Termination
Plaintiff must show that she was capable of performing all the essential functions of her position as a radiologist either with or without a reasonable accommodation. Penny, 128 F.3d at 414. The determination of whether an employee is qualified is made at the time of the employment decision. Gaul v. Lucent Tech. Inc., 134 F.3d 576, 580 (3d Cir. 1998). Plaintiff was terminated in June of 1998. In her deposition, Plaintiff admitted that she was totally disabled and unable to work at this time. Roubal Dep. at 133. Her deposition states:
Q: Would it be correct to say that in your own view from the time you left late January, first of February of '98 through the date of this letter which is November 12 you had been during that entire time fully disabled from working as a pediatric radiologist?
A: Well, I had one month where I felt pretty good, but overall early on I was sick enough that I could not work a full-time job. . . .
Q: Dr. Roubal, at any since you received a letter from Reynolds notifying you that your employment was terminated, have you sought employment?
A. No.
Q: Why not?
A: At this point basically I guess I do consider myself fully disabled and to look for full-time work somewhere else where they're not familiar with my condition as they were at Children's, I can't promise them that I am going to be able to be there because the nature of RA is unpredictable. . . . don't like having to say I'm fully disabled and that I can't work. It's [a] very difficult thing for me to handle, but I am fully disabled. I can't work now.
And the problem is — I mean I guess my point is is that I don't think I would have been this way had — when I came back from my first disability had [Dr. Slovis] taken any of my suggestions or any or all of those suggestions and made some accommodations so that I didn't come back to just exactly the same job. I came back to the same job and it got worse, so —
Q: Just so we're clear, you believe you're fully disabled now and that has been your condition, hasn't it, since you departed on leave late January or early February of 1998?
A: Yes, if you look at it month by month, yes.
Roubal Dep. at 133-35 (emphasis added).
Based on this testimony, Plaintiff cannot establish that she is a qualified individual with a disability for the purposes of her termination. She testified in her deposition that she has been unable to work as a pediatric radiologist since the time she left on her second medical leave in January of 1998. The decision to terminate her employment was made in June of 1998, and there is nothing in the record to suggest that she was able to work full-time as a pediatric radiologist at that time.
b. Failure to Accommodate
Plaintiff argues that she is entitled to the protection of the Act, however, with respect to the question of whether she could perform the essential functions of her employment position when she returned from her first medical leave in December of 1996. It is from this time until January of 1998, when Plaintiff took her second medical leave of absence, that she claims that Defendant failed to reasonably accommodate her. The Court finds that there are genuine issues of material fact with respect to this issue.
In order to determine whether Plaintiff could perform the essential functions of her job, the Court must determine what the essential functions of her job actually were. The term "essential functions" is defined as "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 "does not include marginal functions of the position." Id.
Job functions are essential for any of the following reasons: "(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 the particular function." 29 C.F.R. § 1630.2(n)(2)(i)-(iii). This list is not exhaustive. 29 C.F.R. § 1630.2(n)(2).
The Court may look to several sources of evidence in determining whether a particular function is essential: "(i) [t]he employer's judgment as to which functions are essential; (ii) (w]ritten job descriptions prepared before advertising or interviewing applicants for the job; (iii) [t]he amount of time spent on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work experience of past incumbents in the job; and/or (vii) [t]he current work experience of incumbents in other jobs. 29 C.F.R. § 1630.2(n)(3).
The outcome of this case rests on whether the Court views her position as requiring that she perform CT/MR and body imaging as essential functions, or whether the Court views her position as requiring that she perform the duties of a radiologist in a more general sense. Defendants contend that the essential functions of her position were that she perform CT/MR and body. While there is evidence on the record to support their position, evidence set forth by Plaintiff rebuts this theory. For example, Plaintiff was initially hired as a fellow, in which position she rotated throughout all the radiological services. When she was hired after her fellowship, she was hired as a staff radiologist. In this position, she was primarily assigned body imaging and secondarily assigned to cover CT/MR. When hired, she was the third person covering CT/MR. Although these were her areas of concentration, there is evidence that radiologists were routinely assigned to perform tasks in areas in which they did not specialize. Slovis Dep. at 35; Pl.'s Exb. 4; Roubal Aff. at ¶ 7. Taking the evidence in the light most favorable to the Plaintiff, a reasonable jury could find that the essential functions of her job required her to perform radiological services.
Considering the factors above, there are genuine issues of fact with respect to what the essential functions of Plaintiff's position were. First of all, it cannot be said as a matter of law that CT/MR and body were essential functions of the employment position "because the reason the position exists is to perform those functions." Reynolds had funding or space for between seven and nine staff radiologists. The positions themselves did not necessarily exist for the specific purpose of fulfilling specific fields. Rather, Dr. Slovis testified that he would discuss with the radiologists their preferences and that the preferences, coupled with their skill level or aptitude in a particular area often dictated which areas they would be assigned. Slovis Dep. at 30-32. There is also some evidence on the record that Reynolds recruits for skill in a particular discipline. Slovis Dep. at 31. However, with respect to Roubal's position, she had no substantial experience in either neuro or body imaging when hired. Roubal Dep. at 36.
Second, CT/MR and body imaging cannot, as a matter of law, be considered essential functions "because of the limited number of employees available among whom the performance of that job function can be distributed." Plaintiff developed a specialty in the areas in which she was assigned, however, there is evidence that other radiologists were assigned to cover these areas, even though they did not have a specialty in those fields. Also, there is evidence that the radiologists were overburdened with work because they were short-staffed. However, Reynolds had authorized the hire of new radiologists, but the positions had not yet been filled. When they finally did hire people, they hired at least one person, Dr. Bloom, to perform body as his primary function.
Finally, the Court must consider whether CT/MR and body imaging are essential functions because they are "highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function." There can be little dispute that these areas of radiology are highly specialized. However, Dr. Roubal testified that when hired she did not posses any particularized knowledge in these areas, but rather, that she was expected to develop in those areas. Roubal Dep. at 36. Taking the evidence in the light most favorable to the Plaintiff, there are genuine issue of material fact with respect to what the Plaintiff's essential job functions actually were.
2. Reasonable Accommodation
There are also genuine issues of material fact with respect to whether Defendants failed to reasonably accommodate Plaintiff when she returned from her first medical leave. The reasonableness of the proposed accommodations is a function of what the essential job functions actually were. If, for example, CT/MR and body imaging are considered essential functions of the position, then splitting the duties up, or requiring that other employees perform them would not be reasonable. Bratten v. SSI Services, Inc., 185 F.3d 625, 632-33 (6th Cir. 1999).
The ADA requires job restructuring as a reasonable accommodation in appropriate circumstances. 42 U.S.C. § 12111 (9)(B); 29 C.F.R. § 1630.2(o)(2)(ii). "`[J]ob restructuring' within the meaning of the ADA only pertains to the restructuring of non-essential duties or marginal functions of a job." Bratten, 185 F.3d at 632; see also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995) (reallocating essential functions of a job to other employees is not a "reasonable accommodation" under the ADA); Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991) (employee's requested accommodation of having co-workers perform essential lifting tasks of job is not "reasonable"). Cf. Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988). If, on the other hand, CT/MR and body imaging are not essential functions, then it may have been reasonable for Defendants to have considered splitting up CT/MR, or at least to have considered not assigning Plaintiff both CT/MR and body imaging at the same time. There is evidence that radiologists filled in in many different areas, not just in the areas in which they were primarily and secondarily assigned. Because the reasonableness of the accommodation is predicated upon Plaintiff's essential job functions, and there are factual questions about her essential job functions, there are attendant questions of fact with respect to the reasonableness of Plaintiff's request for accommodations, and Defendants' response to them.
3. Undue Burden
The Defendants have set forth some evidence that it would have been an undue burden for them to split up CT/MR into two departments. Slovis Dep. at 109-112. However, they offer little if any evidence to suggest that it was an undue burden for Defendants to consider not assigning Plaintiff to both CT/MR and body imaging. Slovis did testify that he lacked the staff to do this, but it is undisputed that he was understaffed and had authorization to hire between two and three more radiologists.
Defendant's motion for summary judgment is DENIED with respect to Plaintiff's ADA claim.
B. Persons with Disabilities Civil Rights Act
The Court looks to federal civil rights precedent in interpreting Michigan's Persons with Disabilities Civil Rights Act, Mich. Comp. Law Ann. § 37.1101, et. seq., as amended March 12, 1998 (formerly known as the "Michigan Handicappers' Civil Rights Act"). Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998) (Michigan handicap and discrimination law tracks federal law, and generally, resolution of federal claims will resolve state claims); Hamlin v. Charter Twp. of Flint, 942 F. Supp. 1129 (E.D. Mich. 1996); Fritz v. Mascotech Automotive Systems Group, Inc., 914 F. Supp. 1481 (E.D. Mich. 1996). See also Stevens v. Inland Waters, Inc., 220 Mich. App. 212, 559 N.W.2d 61 (1996), appeal den., 568 N.W.2d 682.
The ADA defines "reasonable accommodations" more broadly than Michigan law defines them. Under the Michigan law, reasonable accommodations are limited to three types: (1) the repair and purchase of equipment and devices; (2) the hiring of readers or interpreters; and (3) the restructuring of jobs and the altering of schedules for minor infrequent duties. Mich. Comp. Laws Ann. § 37.1210 (14)-(16). The Act specifically states that "[a] person who employs fewer than 15 employees is not required to restructure a job or alter the schedule of employees as an accommodation under this article." Mich. Comp. Laws Ann. § 37.1210 (14). Under this section, Reynolds, which had at most nine radiologists, was not required to accommodate Plaintiff in the manner in which she suggested. The Defendant's motion for summary judgment on Plaintiff's state law claim for disability discrimination is GRANTED.
C. Retaliation
Plaintiff claims she was retaliated against based on her disability because when she returned from her first medical leave of absence, her assignments in CT/MR were increased. In order to state a claim for retaliation based on her disability, Plaintiff must show: (1) she was engaged in protective activity; (2) the employer knew about the activity; (3) the employer took action that was adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Penny v. United Postal Service, 128 F.3d 408, 417 (6th Cir. 1997); Polk v. Yellow Freight Systems, Inc., 876 F.2d 527, 531 (6th Cir. 1989). If the plaintiff establishes a prima facie case, the burden shifts to the employer to establish a "legitimate, nondiscriminatory reason for the adverse employment action." Penny, 128 F.3d at 417. Plaintiff "bears the ultimate burden of proving that the proffered reason for the action was merely a pretext for discrimination." Id., see also Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir.), cert. denied, 498 U.S. 984 (1990).
Plaintiff asserts that following her first medical leave of absence, she was engaged in the protected activity of asking for reasonable accommodations, and that Dr. Slovis retaliated against her by adding more and more CT/MR assignments to her schedule. When asked what actions Defendants took against her by way of retaliation, Plaintiff testified in her deposition as follows:
A: . . . I think it was in general that when I came back to work after the first disability it was known that I had RA. If anyone hadn't known anything about it, then it was known that I had it and I was concerned about the workload and I had suggestions that I had made and none of them were taken . . . it was my feeling that instead of accommodating and helping me to still be able to work because I still was a very valuable staff member that it actually just got worse and worse and it was kind of like why is [Dr. Slovis] doing this, why am I getting more and more and he won't listen to me when I request for a reduction in the number of assignments and so on.
Q: Did [Dr. Slovis] ever say anything to you which caused you to conclude that he was increasing your work because you had gone on disability?
A: No, he never came [out] and said that, but like I said, it was kind of like what else, what else would be reasonable to assume because there were other people that could do those jobs that were getting assigned to me and that could help out and their schedule was such that they could do the job, but he didn't assign it to them, he assigned it to me.
Roubal Dep. at 156-59.
In order to show a causal connection between the Defendants' actions and Plaintiff's engagement in protected activity, Plaintiff "must produce evidence from which an inference can be drawn that the adverse action would not have been taken had the plaintiff not [engaged in the protected activity.]" Allen v. Michiqan Department of Corrections, 165 F.3d 405, 413 (6th Cir. 1999). "Although no one factor is dispositive in establishing a causal connection, evidence that the defendant treated the plaintiff differently from identically situated employees or that the adverse action was taken shortly after the plaintiffs exercise of protected rights is relevant to causation." Id.; see also Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987). The burden of establishing a prima facie case is "not onerous, but one easily met." Allen, 165 F.3d at 413 (citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)).
In response to Defendants' argument that she has failed to demonstrate a causal connection between the Defendants' action and her protected activity, Plaintiff relies solely on the temporal proximity of her return from her first medical leave, and Defendants' increase in her CT/MR assignments. The Sixth Circuit recognizes that "the proximity in time between protected activity and adverse employment action may give rise to an inference of causal connection." Moon, 836 F.2d at 229. However, "temporal proximity alone will not support an inference in the face of compelling evidence" that the defendant company encouraged the exercise of the protected activity. Id.
There is no compelling evidence on this record to suggest that Defendants encouraged individuals to seek reasonable accommodations, however, there is also not any evidence that there were other employees at this small company who were in need of accommodation. There is evidence here that Defendants did a number of things to accommodate her disability. They offered her part-time work, provided her with two alternators and a computer console. They also allowed her to avoid fluoroscopy work because of her inability to wear the required protective gear. Accordingly, there is evidence that Defendants did a number of things to aid Plaintiff in the performance of her job and that they were not hostile toward her condition. Thus, the temporal proximity here does not necessarily support a finding of a causal connection.
Nonetheless, the Court will assume that the temporal proximity Plaintiff alleges is enough to sustain her burden of establishing a causal connection. See Love v. Re/Max of America. Inc., 738 F.2d 383, 386 (10th Cir. 1984) (employee fired two hours after the employee requested pay raise pursuant to Equal Pay Act);Summers v. Allis Chalmers, 568 F. Supp. 33, 37 (N.D.Ill. 1983) (plaintiff discharged twelve days after filing EEOC claim; court held that on summary judgment close connection in time between filing of suit and discharge may raise a question of fact as to the causal connection); Burrows v. Chemed Corp., 567 F. Supp. 978, 986 (E.D.Mo. 1983), aff'd, 743 F.2d 612 (8th Cir. 1984), 567 F. Supp. at 986 (prima facie case established by showing that discrimination charges were filed with the EEOC, defendants were aware of the lawsuit, plaintiff was demoted, and the transfer followed the protected activity, thus raising an inference of retaliatory motive); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324-25 (D.Mass.),aff'd, 545 F.2d 222 (1st Cir. 1976) (to establish a prima facie case, plaintiff must show that her discharge followed her protected activities within such period of time that court can infer retaliatory motive; plaintiffs discharge six months after EEOC settlement satisfies the causation requirement).
Having made out a prima facie case, the burden then shifts to Defendants to proffer some legitimate, nondiscriminatory reason for the action taken. Penny, 128 F.3d at 417. Here, Defendants must offer some justification for their allegedly having increased Plaintiff's CT/MR workload. Defendants respond by claiming that Plaintiff's workload was not more onerous than other radiologist's workloads. See Def.'s Exb. J. Exhibit J shows the total number of films read by the following radiologists for the calendar years 1996 and 1997.
1996 1997
Crowley 9,898 10,307
Roubal 3,260 (medical leave June-Sept) 10,825
Slovis 17,726 12,192
Kottamatsu 9,455 13,122
Eggleston 10,642 13,083
Amundson 10,531 12,129
With the exception of Dr. Slovis, whose number decreased, all of the radiologists read substantially more slides in 1997 than they did in 1996. The attendant increase in workload appears to have been an increase for everyone, not just Dr. Roubal. Where Plaintiff cannot demonstrate that she was treated any differently than other radiologists, she cannot establish her claim for retaliation. As noted above, Plaintiff must offer some evidence "from which an inference can be drawn that the adverse action would not have been taken had the plaintiff not [engaged in protected activity]." Allen, 165 F.3d at 413. It appears that the workload of all radiologists was increased in 1997 when Plaintiff returned to work. This cannot support an inference that Plaintiff's increased workload was due to her disability or her attempts to obtain reasonable accommodations for her condition. Summary judgment is GRANTED on this claim.
Defendants' Exhibit I sets forth what is entitled a report on "Productivity," or a Full Time Equivalent Report. It does not state what year or time period the report covers. The numbers indicate that Dr. Roubal's productivity was in line with the other radiologist's performance. (However, its probative value is questionable). The report states the following percentages for each radiologist:
Amundson 129.7%
Becker 103%
Crowley 107.2%
Eggleston 115%
Kottamasu 104%
Peters 139.2%
Roubal 130%
Slovis 156.4%
D. Sex Discrimination
Defendants move for summary judgment on Plaintiff's state and federal sex discrimination claims. Plaintiff has abandoned these claims. The motion for summary judgment is GRANTED on these theories.
E. Intentional Infliction of Emotional Distress
In order to establish a claim for the intentional infliction of emotional distress, Plaintiff must show: (1) extreme and outrageous conduct, (2) which intentionally or recklessly, (3) causes, (4) extreme emotional distress. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905, 908 (1985). Liability is established only where "the conduct has been so outrageous in character . . . as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 908-09 (quoting Restatement (Second) of Torts § 46, comment d (1965)). Whether Defendants' conduct meets this standard is a matter for the Court, not a question of fact for the jury. Roberts, at 909-10. Plaintiff has not provided this Court with evidence that meets the threshold requirement for submission of this claim to the jury because Plaintiff has set forth no evidence that Defendants' conduct was extreme and outrageous, or that she suffered extreme emotional distress because of it. Summary judgment is GRANTED on this claim.
F. Loss of Consortium
Michigan recognizes damages for loss of consortium. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). Loss of consortium "technically means the loss of conjugal fellowship."Washington v. Jones, 386 Mich. 466, 472, 192 N.W.2d 234 (1971). However, it also includes "loss of society, companionship, service, and all other incidents of the marriage relationship."Id. As with any other element of damages, "loss of consortium must be proved by a preponderance of the evidence and the plaintiff is required to carry the burden of proof." Id., see also Moyer v. Shampo, 357 Mich. 391, 98 N.W.2d 631 (1959). Plaintiff's husband, Dennis Roubal, claims loss of consortium based on Defendants' termination of Plaintiff. The Court has reviewed the record on this point. See Roubal Dep. at 166-73. Plaintiffs testimony establishes that her relationship with her husband deteriorated greatly as a result of her medical condition. Mr. Roubal became responsible for running the household and caring for their child. Their intimate relationship also suffered. There is evidence of conjugal loss.
As Defendants point out in their brief, a claim for loss of consortium is a derivative claim, i.e., it survives to the extent that at least one of Plaintiff's substantive counts survives.Long v. Chelsea Community Hosp., 219 Mich. App. 578, 589, 557 N.W.2d 157 (1996); Moss v. Pacquinq, 183 Mich. App. 574, 583; 455 N.W.2d 339 (1990). Because Plaintiff's ADA claim survives this motion, the motion for summary judgment is DENIED on the claim for loss of consortium.
IV. Conclusion
Being fully advised in the premises, having read the pleadings, and for the reasons set forth above, the Court hereby orders as follows:
Defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
The motion is GRANTED with respect to Plaintiff's claims of retaliation, sex discrimination, the intentional infliction of emotional distress, and the state law claim for disability discrimination.
The motion is DENIED with respect to the Plaintiff's ADA claim and the claim for loss of consortium.
SO ORDERED.
Dated: June 5, 2000.