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Crane v. AHC of Glendale, LLC

United States District Court, D. Arizona

September 24, 2016

Tracy Crane, Plaintiff,
v.
AHC of Glendale, LLC, dba Advanced Healthcare of Glendale; and John Doe 1-10, Defendants.

          ORDER AND OPINION [RE: MOTION AT DOCKET 26]

          JOHN W. SEDWICK SENIOR JUDGE

         I. MOTION PRESENTED

         At docket 26, Defendant AHC of Glendale, LLC (“AHC”) moves for summary judgment on all claims brought by Plaintiff Tracy Crane (“Plaintiff”). Plaintiff responds at docket 33. AHC replies at docket 34. The parties filed statements of supporting facts and responses to those statements at dockets 28-1, 32, 35, and 36. Oral argument was not requested and would not be of additional assistance to the court.

         II. BACKGROUND

         Plaintiff began working for AHC on October 11, 2011, as a Certified Physical Therapist Assistant (“CPTA”). On September 4, 2012, Plaintiff was involved in an incident at work. Based on the incident, Plaintiff pursued a workers' compensation claim for an injury to her back and right shoulder. While the claim was pending, a doctor placed Plaintiff on restricted work status. The restrictions prevented her from lifting, pushing, or pulling more than thirty pounds without assistance, and prevented her from reaching overhead with her right arm.[1] During her recovery, AHC provided additional staff members to assist Plaintiff with her duties. AHC also allowed her to audit charts and do paperwork. Her work limitations became more restrictive over time: her thirty-pound weight limitation was lowered to ten pounds, and she was also told to avoid repetitive stooping and bending and to avoid any twisting, turning or awkward positioning.[2] In mid-May of 2013, Plaintiff's workers' compensation case was closed based in part on an independent medical exam that concluded Plaintiff did not show signs of permanent impairment or the need for ongoing pain management or work restrictions in relation to the work-place incident. In light of the workers' compensation decision, AHC concluded that Plaintiff's physical injuries were not a result of the work incident and that it would no longer accommodate her work restrictions. AHC administrators told Plaintiff that in order to be placed back on the schedule, she would need to provide a doctor's clearance to work without restrictions. She did not obtain the clearance. Instead, her work restrictions became more prohibitive: her weight limitation for activities that involved lifting, pushing, or pulling was reduced again from ten pounds to five pounds, and she was not allowed to engage in any repetitive stooping, bending, or kneeling or to use her right upper arm.[3] She has not been placed back on the schedule and her insurance was terminated.

         Plaintiff filed a complaint against AHC. Her complaint alleges that AHC violated the Americans with Disabilities Act (“ADA”) when it refused to continue to accommodate her disability because it believed that her physical limitations were not a result of a work-related injury but, rather, just a personal medical condition.[4] She seeks damages for emotional distress, pain, suffering, anxiety, loss of enjoyment of life, and lost wages. She also seeks punitive damages. Her complaint also alleges that AHC violated the Family and Medical Leave Act (“FMLA”). She alleges that she was eligible for and entitled to take leave under FMLA and that AHC knew as much, but nonetheless failed to advise her of her rights and terminated her employment without allowing her to take FMLA leave. She states that the AHC's actions constitute unlawful interference with her rights under FMLA. AHC moves for summary judgment on both the ADA and the FMLA claim.

         III. STANDARD OF REVIEW

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[5] The materiality requirement ensures that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[6] Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[7] However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”[8]

         The moving party has the burden of showing that there is no genuine dispute as to any material fact.[9] Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.[10] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.[11] All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.[12] However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.[13]

         IV. DISCUSSION

         A. ADA

         An ADA claim is subject to the familiar burden-shifting framework derived from McDonnell Douglas Corp. v. Green.[14] A plaintiff must first establish a prima facie case of discrimination on account of disability. A prima facie case in context of the ADA requires a plaintiff to put forth evidence to show that she: (1) is “disabled” within the meaning of the ADA; (2) is a “qualified individual” able to perform the essential functions of the job with or without reasonable accommodation; and (3) suffered an adverse employment action because of her disability.[15] If she does so, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action.[16] If the employer does so, the presumption of discrimination disappears, but the plaintiff can prove discrimination by offering evidence to demonstrate that the employer's explanation is pretexual.[17]

         The issues raised in AHC's motion deal only with Plaintiff's prima facie case. It argues that Plaintiff does not have evidence to show she is “disabled” under the ADA nor the evidence to show she can perform the essential functions of her job with reasonable accommodations. The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”[18] AHC argues that Plaintiff has not adequately alleged an impairment that limits a major life activity nor has she provided evidence sufficient to defeat a summary judgment motion. In response, Plaintiff points to her EEOC intake questionnaire where she asserts that her condition limits her ability to walk, stand, or sit for long periods of time and her ability to lift, carry, push, pull, or bend.[19] In her follow-up EEOC questionnaire she states that her injury prevents her from being able to be a CPTA and that she has a hard time sleeping and breathing in addition to her other physical restrictions.[20] She also testified in her deposition that she is unable to walk or stand for extended periods of time and has difficulty holding things.[21] Her supporting documentation also includes some medical records to detail her injuries.[22] In reply, AHC asserts that the medical records were not previously produced and should be excluded. However, rather than move to exclude the evidence, AHC concedes that these records likely create an issue of fact as to Plaintiff's disability status. The court agrees that Plaintiff's testimony and medical records are sufficient to raise a question of fact on the issue of her disability status.[23]

         AHC argues that even assuming Plaintiff is disabled in accordance with the terms of the ADA; she nonetheless has no evidence to show she is qualified for the position. An individual is qualified if she can perform the essential functions of the job with or without accommodations. Essential functions are “fundamental job duties of the employment position . . . not includ[ing] the marginal functions of the position.”[24] “If a disabled person cannot perform a job's ‘essential functions' (even with a reasonable accommodation), then the ADA's employment protections do not apply.”[25] “If, on the other hand, a person can perform a job's essential functions, and therefore is a qualified individual, then the ADA prohibits discrimination” with respect to employment actions.[26] While the plaintiff retains the “ultimate burden of persuading the fact finder that [she] can perform the job's essential functions, ” the employer has the initial burden of production to come forward with evidence of what duties are essential to the position at issue.[27]

         AHC contends that the essential functions of the job include “[using] push and pull equipment, . . . lifting 10-290 pounds with one, two or more assistants or assistance of hydraulic equipment as indicated, . . . walking, reaching, bending, lifting, grasping, find hand coordination, pushing, [and] pulling . . . .”[28] In support, AHC cites to the job description for the position of rehabilitation therapist.[29] Plaintiff argues that the job description has not been properly authenticated and is therefore not admissible evidence. However, an inquiry into authenticity concerns the genuineness of an item of evidence, and documents may be authenticated by review of their contents if they appear to be sufficiently genuine.[30] Indeed, the authenticity of the document does not appear to be genuinely in dispute. That is, Plaintiff concedes that the document properly sets forth the physical requirements of the job, [31] and she does not otherwise suggest that Exhibit 1 is not an official job description from AHC or that her signature and date on the document have been falsified. The characteristics of the document itself, in terms of its appearance, contents, and substance lead the court to conclude that the document has been authenticated by its distinctive characteristics and that it is what it appears to be: an official job description.[32]

         A job description prepared before hiring is relevant to determine what the position's essential functions are. A job description alone does not automatically establish that the listed duties on that description are essential when the evidence conflicts over what is truly an essential function of a position.[33] Here, however, Plaintiff does not point to evidence to show a conflict over what the truly essential functions of the position are. She disputes the accuracy of the job description by pointing to the fact that it lists duties she was not allowed to perform as only an assistant to a rehabilitation therapist, but she does not otherwise dispute that her job as a CPTA is physical in nature and has physical requirements such as lifting, pushing, pulling, bending, walking, and reaching. In her EEOC questionnaire that she submitted in support of her opposition, she admitted that the “manual skills” were “necessary to perform [her] job.”[34]She stated: “As a Physical Therapist Assistant at [AHC] my job requires frequent bending, stooping, walking, carrying oxygen tanks, pushing heavy objects or people, lifting heavy patients several times from various positions . . . throughout the day, every Monday through Friday.”[35] Therefore, the undisputed evidence shows that physical duties were not merely a marginal part of her CPTA position, and Plaintiff does not point to any evidence showing a dispute as to whether the essential duties of Plaintiff's job at AHC required physical activities.

         It is also undisputed that Plaintiff could not perform these physical activities unassisted. She acknowledges that she could not continue her career as CPTA because her injuries prevented her from “perform[ing] the manual skills necessary to perform [her] job.”[36]

         The remaining question as to Plaintiff's prima facie case is whether she could nonetheless perform her essential job duties with reasonable accommodation. Plaintiff sets forth two accommodations that she believes reasonably allow her to perform her job: (a) assigning an additional employee to perform the physical duties associated with her job; or (2) assigning her lighter, non-physical duties such as auditing charts and doing intake forms.[37]

         Neither of Plaintiff's proposed accommodations can be deemed reasonable. Reasonable accommodations can include some job restructuring, but does not require elimination of any of the job's essential duties. That is, the ADA does not require an employer “to reallocate job duties in order to change the essential function of a job.”[38]Plaintiff's request to perform only non-physical tasks such as chart auditing is clearly a request to eliminate the physical tasks, which were admittedly not marginal aspects of her job, and to reallocate those duties to someone else. The suggestion that other employees could do or assist with Plaintiff's essential tasks effectively eliminates those tasks from her job description and reallocates those duties to another employee. Indeed, courts have consistently held that it is not reasonable to require an employer to allocate other employees to complete the essential duties of another employee's work.[39]

         She stresses that the job description recognizes the potential for assistance from others or from hydraulic equipment when lifting and therefore suggests that the description itself acknowledges the reasonableness of using assistance. However, as noted by AHC, even if the job description acknowledges that an employee may need assistance in lifting patients, it also states that the position requires being able to use push and pull equipment, walk, reach, bend, push, and pull. There is no mention of using a team of people to perform all physical tasks. Plaintiff also argues that the fact that AHC had provided such an arrangement during the pending workers' compensation claim provides an inference of reasonableness, but, as discussed above, that arrangement clearly “exceeded what the law requires.” Its decision to cease providing an accommodation that exceeded what the law requires does not somehow make that decision a violation of the ADA.[40]

         B. FMLA

         AHC argues that it should be granted summary judgment as to Plaintiff's FMLA claim. The FMLA makes it “unlawful for any employer to interfere with, retain, or deny the exercise of or the attempt to exercise, ” the rights conferred to employees under the act.[41] AHC argues that Plaintiff's FMLA claim is misplaced to the extent it seeks to enforce her right to a work-place accommodation. Indeed, the FMLA does not address the right to accommodation for disabled employees but, rather, protects an employee's right to use a certain amount of unpaid leave for his or her own serious illness or to care for family members and to return to the same or an equivalent job after using protected leave.[42] However, Plaintiff's FMLA claim is not focused on accommodations but, rather, does in fact address Plaintiff's right to take leave. She alleges that she was eligible for FMLA leave, but that AHC failed to advise her of her right to take leave and terminated her rather than allow her to take the required leave. AHC argues that her claim must nonetheless fail because she did not actually request to take FMLA leave and because AHC in fact gave Plaintiff leave until such time as she was able to provide a doctor's clearance. The court agrees that Plaintiff has not made a showing of interference. Plaintiff does not even allege, much less point to evidence to show, that she provided notice of her intent to take FMLA leave.[43] Nor is there anything in the record to show that AHC subsequently denied her FMLA request; rather, it is undisputed that Plaintiff was told she could be put back on the schedule when she had a doctor's unrestricted clearance to work.[44] Indeed, Plaintiff does not necessarily disagree. Rather, Plaintiff responds that “[t]his case does not present [a] traditional f act pattern” and asserts that her claim is based on the fact that AHC “essentially forced [her] to take a leave of absence that she had not requested and that she did not need.”[45] As AHC points out, however, Plaintiff's response is directly contrary to the allegations in her complaint. As noted above, in the complaint she alleges she was denied FMLA leave. “Factual assertions in pleading and pretrial orders, unless amended, are considered judicial admissions conclusively binding of the party who made them.”[46] Plaintiff therefore cannot now assert that she was forced to take leave.

         Regardless, even removing the pleading issue, Plaintiff has not set forth a viable interference claim. “Forced or involuntary leave is not, . . . in and of itself, actionable under the FMLA.”[47] An interference claim could arise from an allegation that an employer forced the employee to take leave that she did not request or need if the employee can show she was forced to take leave even though she did not have a serious health condition that precluded her from working.[48] That is not the situation alleged here. Moreover, such an interference claim only ripens “when and if the employee seeks FMLA leave at a later date, ...


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