Opinion
Case No. 8:01CV3070
May 17, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment filed by the Defendant, Concord Neighborhood Corp., d/b/a Holiday Inn ("Concord") (Filing No. 25). Evidence was submitted in support of and in opposition to the Motion. (Filing Nos. 26, 31.) Briefs have been submitted.
FACTUAL BACKGROUND
The Plaintiff, Reba Breiner, a/k/a Reba Sorensen, was hired by Concord on March 26, 1998, to work at the Holiday Inn in York, Nebraska, as a banquet server, and "banquet set-up and houseperson." (Filing No. 26, Ex. 4, ¶ B(1).) On September 7, 1998, Breiner was promoted to a management position at the Holiday Inn, and she received a copy of the company's management policy handbook. ( Id., ¶ B(2).) The handbook stated that managers were required to work at least 55-60 hours per week. ( Id., ¶ B(4).) Managers did not have written job descriptions. ( Id., Ex. 5, Breiner Dep., 64:13-14.) Breiner was a manager at the Holiday Inn from September 7, 1998, until November 18, 1999. ( Id., Ex. 4, ¶ B(18).) As assistant general manager, Breiner testified that her duties included meeting with clients to plan banquets, and facilitating the banquets. (Breiner Dep., 22:14-19.) Breiner was paid a base annual salary of $25,000. ( Id., Ex. 4, ¶ B(19).) Breiner's January 7, 1999, performance evaluation rated her "excellent," "good" or "satisfactory" in all areas. ( Id., Ex. 3, Attachment 16.)
Hereinafter, the Breiner Deposition appearing as Exhibit 5 to Filing No. 26 will be cited as "Breiner Dep." Excerpts from Breiner's Deposition also appear at Filing No. 31, and those excerpts will be cited accordingly.
On February 12, 1999, Breiner injured her knee at work when she carried a skillet, slipped on some water, and landed on her right kneecap. (Filing No. 38 (Order on Final Pretrial Conference), ¶ 5.) Breiner reported the injury to General Manager Lorie Askren, a/k/a Lori Askren, Lorie Asken. (Filing No. 26, Ex. 4, ¶¶ B(6), B(7).) Breiner's treating physician allowed her to return to work on February 23, 1999. Breiner was restricted to two to three hours' work per day, and to "paperwork only." ( Id., Ex. 3, Attachment 18.) On March 23, 1999, Breiner was allowed to work up to six hours per day doing "office/sedentary work." ( Id., Attachment 19.)
From the date of her injury until April 5, 1999, Concord continued to pay Breiner's full salary of $961.54 biweekly, although Breiner worked only part-time. ( Id., Ex. 4, ¶ B(55).) On April 5, 1999, Breiner's pay was reduced to $8.74 per hour because she was restricted to six hours' work per day. Concord arrived at the figure by using her $25,000 annual salary based on a fifty-five hour week. ( Id., Ex. 3, Attachment 20.)
In May 1999, Breiner's work restrictions included not working more than four hours daily, lifting no more than ten pounds, and no standing, stooping, squatting, pulling, or pushing. ( Id., Attachment 23.) Concord's physician examined Breiner and agreed with those restrictions. ( Id., Attachment 24.) On June 15, 1999, Breiner's physician continued the same restrictions, but also ordered that Breiner use a stationary bicycle at work. ( Id., Attachment 25.) Also on June 15, 1999, Concord wrote the following in a letter "To Whom It May Concern":
We will do everything we can to help Reba Sorensen work an 8 hour day. If possible, she can work in the Sales Department for 4 to 8 hours as needed. If she only works for 4 hours in the Sales Department we can move her to the Front Desk area to be trained on the Front Desk System.
After every 3 hours of work, Reba may use our Fitness Center in order to work on her knee. We have a bicycle, Stair Stepper and Treadmill, all of which Reba will be allowed to use at her expense. Everyday [sic] she works in the Fitness Center, we will let her allow up [sic] her time as is recommended by physicians.
( Id., Attachment 26.)
On approximately June 10, 1999, Breiner's job was changed from assistant general manager to catering manager. Breiner testified that her duties remained the same as in her position as assistant general manager, except that as catering manager she was not required to "finish up" in the banquet area. (Breiner Dep., 22:4-23:10.) Breiner characterized the duties she was expected to perform as "office type work." (Breiner Dep., 23:11-12.) Breiner's pay remained the same. (Breiner Dep., 23:15-16.) Breiner never complained to anyone that she was dissatisfied with the catering manager job. (Breiner Dep., 23:19-21.)
Breiner explained that the only true difference between the two positions was that as assistant general manager she was eventually to learn more of the "hotel part." (Breiner Dep., 23:2-4.)
Later in the same deposition, however, Breiner stated that she considered the change in job to catering manager discriminatory and retaliatory. Breiner reasoned that she was required to work in the banquet room. She stated that the banquet area floors were slick, and therefore the catering manager job was not compatible with her medical restrictions. (Breiner Dep., 52:23-53:5.)
On July 13, 1999, Breiner's physician ordered that she work no more than six hours daily, with no kneeling or squatting. (Filing No. 26, Attachment 27.) In July 1999, Breiner was asked to provide Concord with a more specific work status report detailing her work limitations. ( Id., Ex. 4, ¶ B(13).) Breiner was asked by supervisors Donna Paulsen (Vice President of Corporate Operations), Stan Ziemba (Vice President), and Chuck Anderson (General Manager) to provide clarification of the general work restrictions ordered by her physician, and Breiner was asked to leave the hotel premises until she provided the requested clarifications. ( Id., ¶ B(16); Breiner Dep., 63:16-64:8.) Paulsen testified that obtaining clarification of medical restrictions is normal procedure, and Concord was trying to obtain clarification of the restrictions to ensure that it was complying with them and to avoid further injury to Breiner. (Filing No. 31, Paulsen Dep., 82:6-13.)
Donna Paulsen's Deposition at Filing No. 31 will hereinafter be cited as "Paulsen Dep."
On August 3, 1999, Breiner's restrictions included "office type work" for six hours per day, with additional hours if tolerated, a lifting limit of twenty pounds, and no kneeling or squatting. (Filing No. 26, Attachment 30.)
In situations such as Breiner's, Concord regularly uses a form captioned "Understanding of Return to Work," which states:
Concord will not require you to perform any tasks beyond your doctor's restrictions. If you are asked to do so by any of you [sic] co-workers, please speak to your manager. They may not be aware of your restrictions. If you are having any difficulties working with your doctor's restrictions, inform your manager.
By signing below, you agree and verify that you will not do anything beyond the noted restrictions, either at work or away from work (at home or recreation), until such time as the authorized treating Physician has released the restrictions and we have been notified in writing to that effect.
( Id., Attachment 31.)
Breiner refused to sign the "Understanding of Return to Work" form, which was intended to seek clarification of Breiner's medical restrictions. ( Id., Ex. 4, ¶ B(72); Paulsen Dep., 81:8-9.)
On October 20, 1999, Breiner reported a second on-the-job knee injury to General Manager Tim Colwell. ( Id., ¶ B(8).) Breiner re-injured her knee by straightening chairs and tables, setting up televisions and glasses, and by walking, twisting, and turning. She testified that she performed these duties because two trainees/employees did not report to work. (Breiner Dep., 26:1-27:3; 27:19-25.) Breiner admitted that she was working outside of her medical restrictions when she incurred the second injury, arguing that she had to work outside her restrictions in order to perform the job that was supposed to be completed by the absent trainees/employees. (Filing No. 26, Ex. 4, ¶ B(21); Breiner Dep., 28:1-6.) Breiner was told to call her physician and then contact Concord regarding her return to work. (Filing No. 26, Ex. 4, ¶ B(22).) On November 2, 1999, Breiner was released to work eight hours per day, or "prior to injury hours," and she was allowed to do "sedentary/office work." Her restrictions further included a twenty-pound lifting restriction and no kneeling or twisting. ( Id., Ex. 3, Attachment 36.) The parties agree that Breiner's eventual diagnosis was an "avulsion fracture inferior pole patella right knee." (Filing No. 38, ¶ 3.)
Breiner testified that on October 8, 1999 she complained to Susan Dentler, Food and Beverage Director, that she was physically unable to train setup personnel. Breiner testified that Dentler told her that her medical restrictions were understood, and that Breiner was not required to perform the physical, training function part of her job. (Filing No. 31, Breiner Dep., 54:10-22.)
On November 17, 1999, Breiner met with Paulsen and Colwell. (Filing No. 26, Ex. 4, ¶¶ B(24), B(81).) Breiner again admitted that she was working beyond her restrictions when she reinjured herself. ( Id., ¶ B(83).) Paulsen and Colwell told Breiner that she was being placed in a night auditor position because no other jobs were available that would fit her restrictions. Breiner was told that she would not receive further bonus pay. (Breiner Dep., 31:21-32:17.) Colwell described Breiner's new duties as generally sedentary. (Filing No. 26, Ex. 9, Colwell Dep., 64:24-65:11.) Breiner, however, testified that the job was not sedentary and demanded long periods of standing, walking, using stairs, and delivering items such as rollaway beds up and down the stairs. (Breiner Dep., 49:1-16.) Paulsen also explained that Breiner's rate of pay, as well as the portion of her salary paid by Concord and the workers' compensation carrier, would not change. (Filing No. 26, Ex. 4, ¶ B(88).) Breiner testified that she never told her supervisors that she could not do the job because of her restrictions. (Breiner Dep., 49:18-21.) Breiner also testified that, although she could not accept the night job because she was the single parent of a sixteen-year-old daughter, she never told anyone at Concord of her situation. (Breiner Dep., 41:15-20; 48:2-16.) Breiner testified as follows with regard to how the meeting ended:
Hereinafter, the Colwell Deposition will be cited as "Colwell Dep."
Breiner's social security application stated that she resided with seven other people, including her mother. The application also stated that the other persons performed all of the major household chores. The application did not mention child care. (Filing No. 26, Ex. 6, at 75.)
So you never accepted the position?
A. I never accepted the position. [Paulsen] said, "Did you have any questions?" and I said, "No."
Q. Okay. But at that time when you met did you say "I don't want this position"?
A. No, I did not.
Q. And by — Okay.
A. I did not, because I didn't — I couldn't even comprehend the whole thing.
Q. Did you ever ask, "Okay, when do I start there?"
A. I did ask [Colwell], "When do you want me to start? And they said he would schedule training and give me a call, I think the next day.
Q. Okay. And by saying "When do you want me to start?" aren't you — that isn't saying "I've accepted this position"?
A. Well, maybe in a sense, but, you know, like I said, at the time I'm just trying to comprehend what was gong on, because I didn't — Well, first of all, I was very intimidated. May I say this? I was very intimidated about the meeting.
(Breiner Dep., 100:5-25.)
Breiner testified that she intended only to obtain information at the meeting and then consult with her attorney. (Breiner Dep., 46:8-9.) Breiner stated that she felt intimidated at the meeting. (Filing No. 26, Ex. 4, ¶ B(85).) Despite her deposition testimony, Breiner denied in her Response to Requests for Admissions that she was told when Colwell would call her about her schedule. ( Id., ¶ B(32), B(33).)
Breiner testified to the followup telephone conversation between her and Colwell:
A. I told him "Please do not schedule me for training. I need to consult an attorney and I need to talk to Lisa Ledo at work comp." He said fine, that I should tell [Paulsen], and I told him that that should be his responsibility.
. . . .
Q. [Y]ou didn't contact Donna, did you?
A. No, I — Tim did.
Q. How do you know that? He said he would.
Q. I thought he said to you to contact —
A. He told me to contact Donna. I told him he should do it, and he said okay. So I knew Donna was being contacted. Because I told him — At that point is when I told him that I needed — was consulting an attorney.
(Breiner Dep., 46:13-47:9 Filing No. 26, Ex. 4, ¶ B(91).)
Colwell's version of the same telephone conversation also fails to answer the question as to who was to take the next step:
Q. What did you tell Ms. Breiner?
A. That she was scheduled in that evening.
Q. Which evening?
A. 17th.
Q. Okay. What did Ms. Breiner say to you?
A. She said she couldn't come in before she talked to her attorney.
Q. What did you say to her then?
A. I said I have her on the schedule.
. . . .
Q. You just said, `I have you scheduled." You didn't say, "Okay. Well, get back to me as soon as you can"?
A. No.
Q. Well, in your statement, it indicates, "She told me she would not be coming to work until after she spoke to her lawyer. I asked her to please call me as soon as possible, since we had two weeks of training scheduled."
A. Yeah.
Q. Is that what you said?
A. Uh-huh.
(Colwell Dep., 50:13-21; 58:7-18.)
Breiner did not come back to work. Concord considered Breiner's failure to appear on November 18-21 and 24-28, 1999, a "voluntary quit." (Colwell Dep., 65:12-15.) On December 5, 1999, Breiner received a November 30, 1999, letter written by Paulsen. (Breiner Dep., 51:8-9; Ex. 3, Attachment 39.) The letter stated: "The purpose of this letter is to inform you that due to your failure to appear for your scheduled shifts on November 18-21 and November 24-28, Concord Neighborhood Corporation considers you have voluntarily terminated your employment at the Holiday Inn in York, Nebraska, without notice." (Filing No. 26, Ex. 3, Attachment 39.) Regarding her separation, Breiner argues that Concord: required her to work beyond her restrictions; and terminated her due to her disability without allowing her the opportunity to explore other options after the reassignment to the night auditor job. ( Id., Ex. 4, ¶ B(37).)
The Nebraska Department of Labor Unemployment Insurance Division recognized Breiner's termination as a voluntary separation. (Filing No. 26, Ex. 4, ¶ B(39).)
On February 15, 2000, Breiner filed an employment discrimination charge with the Nebraska Equal Opportunity Commission ("NEOC"). ( Id., Ex. 3, Attachment 41.) Paulsen, on behalf of Concord, submitted Concord's position statement in response to Breiner's NEOC charge. ( Id., Ex. 8, Attachment 29, at 10-18.) On December 20, 2000, the NEOC issued its determination of no reasonable cause for Breiner's charge, stating that the evidence was insufficient to support Breiner's allegations of discrimination. The NEOC determined that Breiner voluntarily terminated her employment. ( Id., Ex. 3, Attachment 44.)
Breiner applied for Social Security benefits in January 2001. (Breiner Dep., 250:10-12.) In her application, Breiner represented to the Social Security Administration ("SSA") that she was "disabled" and "unable to work because of [her] disabling condition" since "October 17, 1999." (Filing No. 26, Ex. 6, at 39.) The SSA determined that Breiner was not "disabled" for social security purposes. ( Id., at 99.) Breiner did not appeal the Social Security determination. (Breiner Dep., 258:13-14.)
During the summer of 2000, Breiner worked for the Trading Post, a consignment business, for six hours, three days per week in exchange for goods from the store. Breiner's duty was tagging clothes. (Breiner Dep., 11:11-12:24.) After recovering from her January 2001 knee surgery, during the summer months of 2001 Breiner worked at the Yorkshire Motel as a manager. (Breiner Dep., 8:20.) Breiner left the motel job because she was unable to perform her duties due to her medical restrictions. (Breiner Dep., 8:23-25.) On September 10, 2001, Breiner began working for Sentinel Industries, a wholesale company, working a forty-hour week and some overtime. (Breiner Dep., 4:24-6:12.) Including overtime, Breiner has worked up to forty-five hours per week at Sentinel. (Breiner Dep., 6:18-22.) Breiner described her permanent restrictions as lifting no more than twenty pounds, and no bending, squatting, or twisting. (Breiner Dep., 11:2-4.)
The Defendant filed its Motion for Summary Judgment. (Filing No. 25).
DISCUSSION Summary Judgment Standard
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. Oct. 18, 2002). However, summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
Finally, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D.Ill. 1994).
Americans With Disabilities Act ("ADA")
The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a) (2001). The United States Court of Appeals for the Eighth Circuit has held that to establish a claim under the ADA, a plaintiff must show (1) that she is disabled within the meaning of the Act; (2) that she is qualified to perform the essential functions of the job either with or without accommodation; and (3) that she has suffered adverse employment because of the disability. Fjellestad v. Pizza Hut of America, 188 F.3d 944, 948 (8th Cir. 1999) (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). More recently, however, the Eighth Circuit Court has held that under the third prong of a prima facie case, the plaintiff must only prove that he or she suffered an adverse employment action "under circumstances which give rise to an inference of unlawful discrimination," Allen v. Interior Constr. Servs., Ltd., 214 F.3d 978, 981 (8th Cir. 2000), applying the "burden shifting framework" of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under McDonnell Douglas, once a plaintiff has met his or her showing of a prima facie case, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. Once such a reason is articulated, the burden is again on the plaintiff to demonstrate that the proffered non-discriminatory reason is a mere pretext for intentional discrimination. Allen, 214 F.3d at 981 (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999)).
For Concord to prevail on its motion for summary judgment under the ADA, therefore, it must either (1) demonstrate that there is no genuine issue of material fact as to one or more of the three elements of Breiner's prima facie case and that such element or elements must be resolved in Concord's favor, or (2) articulate a legitimate, non-discriminatory reason for any adverse employment action taken against Breiner, which reason Breiner fails to rebut. As noted in the discussion of "Summary Judgment Standard," above, once Concord makes its showing, it is Breiner's burden to come forward with specific facts demonstrating that there is a genuine issue for trial.
Whether Breiner is "Disabled"
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 an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (2001). "Major life activities" include "caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working. 29 C.F.R. § 1630.2(i) (2002). An impairment is "substantially limiting" if it renders one "[u]nable to perform a major life activity that the average person in the general population can perform," or if it "[s]ignificantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition. manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (2002). The following factors are considered in determining whether a person is substantially limited in a major life activity: the nature and severity of the impairment; the duration or anticipated duration of the impairment; and the permanent or long-term impact, or expected permanent or long-term impact of the impairment. 29 C.F.R. § 1630.2(j)(2)(i)-(iii) (2002). Finally, the determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948-49 (8th Cir. 1999).
Breiner argues that she is "disabled" because she has a serious knee injury and is "substantially limited" in major life activities such as walking and working. Finding that Breiner is "substantially limited" in her ability to work requires a showing that her "overall employment opportunities are limited." Id. at 949.
Breiner has raised an issue of material fact as to whether her overall employment opportunities are limited, and in particular whether her impairment has significantly restricted the "condition, manner, or duration in which she can work as compared to the general population." Id. at 949-50 (citing 29 C.F.R. § 1630.2(j)(1)(i)-(ii)). Breiner's case is similar to Fjellestad, in which the Eighth Circuit reversed the district court's decision that Fjellestad was not disabled. The Eighth Circuit determined that Fjellestad's medical restrictions created an issue of material fact as to whether her impairments significantly restricted the condition, manner, or duration in which she can work as compared to an average person in the general population. Id.
In Breiner's case, while she works now, she has not worked consistently since she left Concord. She underwent knee surgery after leaving Concord. She had to leave her job at the Yorkshire Motel because she could not perform her duties. She is under medical restrictions that include, according to Breiner, not lifting more than twenty pounds, and no bending, squatting or twisting. The Court recognizes a genuine issue of material fact as to whether Breiner is disabled within the meaning of the ADA.
Whether Breiner Was Qualified to Perform Essential Functions
A "`qualified individual with a disability'" is one "`with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.'" Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 949 (8th Cir. 1999) (quoting Webb v. Mercy Hosp., 102 F.3d 958, 959 (8th Cir. 1996) (citing 42 U.S.C. § 12111(8))).
Initially, the Court will address the inconsistency between Breiner's statements to the SSA that she was "disabled" and "unable to work," and her assertions in this case that she is qualified to perform her former job as an assistant general manager.
Resolving a circuit split, the Supreme Court in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999), decided the effect on an ADA suit of an application for, or receipt of, social security benefits. Id. at 800. The Court addressed the conflict presented when, during the process of applying for social security benefits, an individual represents to the SSA that she is disabled, and then in her ADA suit claims that she is a "qualified" individual. The Court determined that, "despite the appearance of conflict," such statements are not necessarily contrary. The Court also indicated that the described inconsistency "is of the sort normally tolerated by our legal system" in a situation involving an application for social security disability benefits. Id. at 805. The Court reasoned that the ADA defines a "qualified" individual to include a disabled person who can perform her job "with reasonable accommodation." Id. at 803. The Social Security Act, however, does not consider reasonable accommodations. Id. The Court stated:
[I]n some cases an earlier [social security disability] claim may turn out genuinely to conflict with an ADA claim. . . . An ADA plaintiff bears the burden of proving she is a "`qualified individual with a disability'" — that is, a person "`who, with or without reasonable accommodation, can perform the essential functions'" of her job. 42 U.S.C. § 12111(8). And a plaintiff's sworn assertion in an application for disability benefits that she is, for example, "`unable to work'" will appear to negate an essential element of her ADA case — at least if she does not offer a sufficient explanation. For that reason, we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation.
. . . . To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless "`perform the essential functions'" of her job, with or without "`reasonable accommodation.'"Id. at 805-07 (citations omitted).
On November 2, 1999, Breiner was released to work eight hours per day, or "prior to injury hours." She was allowed to do "sedentary/office work," and her restrictions also included a twenty-pound lifting restriction and no kneeling or twisting. (Filing No. 26, Ex. 3, Ex. 36.) Breiner argues that she could perform her job as assistant general manager, but that after her injury Concord changed her job to catering manager, a job that Breiner could not perform. Plaintiff's Brief in Response to Motion for Summary Judgment at 9-10. Yet, Breiner testified that her duties as a catering manager were the same as in the assistant general manager job, except as catering manager she was not expected to "finish up" the banquet area, and not as likely to learn about the "hotel part" of the business. Breiner acknowledged that she undertook physical tasks that caused her re-injury because two other employees did not report to work and she felt that she needed to perform those responsibilities. The record does not indicate if Breiner asked for help; if so, of whom; and whether help was offered or refused.
Related to Breiner's ability to perform her job duties is the issue of to whether Concord provided reasonable accommodations. A "reasonable accommodation" is defined as:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.42 U.S.C. § 12111(9)(A)-(B) (2001).
Breiner is required to make a facial showing that a reasonable accommodation is possible. If this showing is made, the burden shifts to Concord to show that it cannot accommodate Breiner. Fjellestad, 188 F.3d at 950.
Regulations implementing the ADA state: "To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3) (2002). The EEOC's interpretive guidelines also state: " Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability." 29 C.F.R. § 1630, App. § 1630.9 (2002) (emphasis added), quoted in Fjellestad, 188 F.3d at 951. These principles have been interpreted in the Eighth Circuit to mean that once an employee requests an accommodation, an employer must engage in an interactive process to determine whether reasonable accommodations are possible.
Breiner attempts to offer, by way of explanation of her conflicting statements to the SSA and in her ADA suit, that she was required to work beyond her restrictions. Her explanation falls short of the response expected under Cleveland, 526 U.S. 805-07. The evidence shows that Concord offered Breiner several accommodations, including telling her she was not to work beyond her restrictions. The record does not reveal any request for accommodation made by Breiner and denied by Concord. Instead, it reveals multiple attempts by Concord to accommodate Breiner's disabilities and Breiner's failure to participate in an interactive process to define and evaluate the success of the accommodations. Breiner refused to sign the "Understanding of Return to Work Form" proffered by Concord, in which Breiner was directed to limit her activities according to her doctor's restrictions, and to contact her manager if faced with a situation where she was asked by any co-worker to work beyond her restrictions. Instead, Breiner engaged in activity beyond her doctor's restrictions, re-injuring her knee. Under such circumstances, it was reasonable for Concord to conclude that Breiner should be assigned to a sedentary job. While Breiner's assertion that she is "disabled" and "unable to work" in her SSA application is not fatal to her ADA action, Breiner has not demonstrated any genuine issue of material fact relating to whether she was "qualified" to perform the essential functions of the job of assistant general manager or catering manager, with or without reasonable accommodations. The record shows that the job of catering manager comprised fewer duties than the job of assistant general manager, and, while functioning as a catering manager, Breiner refused to follow the clear directives of her employer and refused to abide by her doctor's restrictions, thereby re-injuring herself while on the job. She made no suggestions for accommodations in any job capacity which were denied by Concord. An employee who refuses to follow the safety directives of her employer and who refuses to abide by her doctor's restrictions is inherently not "qualified" to serve in a position where the employee may be at risk of injury.
Adverse Employment Action With "Inference" of Discrimination
When Breiner first injured her knee, Concord accommodated her disability by allowing her time off with pay, by reducing her hours, changing her work station and providing her with access to exercise equipment. Concord specifically inquired about Breiner's limitations and clearly directed her not to work beyond her doctor's restrictions. When Breiner re-injured her knee when working beyond her doctor's restrictions, Concord accommodated her disability by offering her a sedentary job with the same pay and benefits, but without the opportunity to receive "bonus pay." The record shows that Breiner did not object to her initial reassignment from assistant general manager to catering manager, or to the last-offered accommodation of a night auditor position, although she did state that she would consult with her attorney regarding the night auditor position. After being offered the night auditor position, Breiner failed to appear for training or for work. Breiner took little if any initiative to communicate with Concord regarding her work restrictions or any suggestions she may have had for "reasonable accommodation" in any job position. She informed no one at Concord that the night auditor position was an unsatisfactory option for her due to the fact that she was a single mother of a 16-year-old daughter. Instead, she simply failed to appear for training or work for two weeks. Concord reasonably construed her failure to appear as a "voluntary quit."
The Court concludes that Breiner has failed to demonstrate a genuine issue of material fact as to whether she suffered an adverse employment action under circumstances which give rise to an inference of discrimination.
Legitimate, Non-discriminatory Reason for Adverse Employment Action
Even if this Court were to find genuine issues of material fact with respect to each of the three elements of the Plaintiff's prima facie case, above, Concord has proffered legitimate, non-discriminatory reasons for the employment actions it took with respect to Breiner following the injuries to her knee. Concord's initial actions of reducing Breiner's hours, changing her job duties, and changing her job assignments were made in an effort to accommodate her disabilities. Its final action of terminating her employment was due to Breiner's failure to appear for training or work for two weeks. Concord interpreted the failure to appear as a "voluntary quit." Breiner has offered no rebuttal of the proffered reasons with any evidence that such reasons were mere pretext for intentional discrimination due to her alleged disability.
CONCLUSION
The Court finds that while there is a genuine issue of material fact regarding whether Breiner is "disabled" under the ADA, Concord has demonstrated the absence of genuine issues of material fact regarding whether Breiner was qualified to perform essential job functions with reasonable accommodation, and as to whether she suffered adverse employment action due to her disability. Breiner has not met her burden of coming forward with specific facts showing that there are genuine issues for trial on those two elements of her prima facie case. The Court further finds that Concord has articulated legitimate, non-discriminatory reasons for its employment actions with respect to Breiner, and that Breiner has not rebutted the proffered reasons with any evidence that such reasons were mere pretext for intentional discrimination due to her alleged disability. For the reasons discussed, the Defendant's Motion for Summary Judgment will be granted.
IT IS ORDERED that the Defendant's Motion for Summary Judgment (Filing No. 25) is granted.
JUDGMENT
In accordance with the Memorandum and Order issued on this date,
IT IS ORDERED that the Defendant's Motion for Summary Judgment (Filing No. 25) is granted.