Opinion
Case No. 14-cv-5055 (WMW/FLN)
08-29-2016
Ericka Rojas CHINO, Plaintiff, v. LIFESPACE COMMUNITIES, INC., Defendant.
Cody Blades, J. Ashwin Madia, Joshua A. Newville, Madia Law LLC, Minneapolis, MN, for Plaintiff. Kerry L. Middleton, Tessa K. Mlsna, Littler Mendelson, PA, Minneapolis, MN, for Defendant.
Cody Blades, J. Ashwin Madia, Joshua A. Newville, Madia Law LLC, Minneapolis, MN, for Plaintiff.
Kerry L. Middleton, Tessa K. Mlsna, Littler Mendelson, PA, Minneapolis, MN, for Defendant.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Wilhelmina M. Wright, United States District Judge
Defendant Lifespace Communities, Inc., d/b/a Friendship Village of Bloomington ("Friendship Village") has moved for summary judgment on the claims of its former employee, Plaintiff Ericka Rojas Chino ("Rojas Chino"), who alleges that it violated the Minnesota Human Rights Act ("MHRA") by discriminating against her because of her pregnancy and disability. See Minn. Stat. § 363A.08. Because Rojas Chino has not introduced sufficient evidence for a reasonable jury to conclude that Friendship Village treated non-pregnant employees with lifting restrictions more favorably than it treated her, the Court grants summary judgment on her pregnancy-discrimination claim. But because Rojas Chino raises a genuine issue of material fact regarding whether Friendship Village failed to accommodate her disability, the Court denies summary judgment on her disability-discrimination claim.
BACKGROUND
Defendant Lifespace Communities, Inc. owns and operates not-for-profit retirement communities in seven states, including Friendship Village in Bloomington, Minnesota. Lifespace provides what it calls "life care," which means it serves its residents who range from those living independently to those requiring 24-hour medical assistance.
Plaintiff Ericka Rojas Chino worked as a nursing assistant at Friendship Village from 2009 to 2013. She worked in the skilled care unit, which serves residents in need of 24-hour medical assistance. According to her job description, nursing assistants help residents care for themselves and meet their needs regarding "hydration, nutrition, elimination, exercise, [and] activities," among others. Primarily, this work involves following a "care plan" that Friendship Village staff establishes for each resident. Care plans direct the staff on how to care for each resident, including the resident's degree of independence and how to move the resident if assistance is needed. According to Rojas Chino, some care plans instruct staff to use electronic lifts or transfer belts to move the resident, others direct staff to use wheelchairs, and others specify the number of staff required to help each time a resident is moved. Nobody—including Rojas Chino—disputes that the individualized care plans are paramount in guiding how staff assists each resident.
A key point of contention here is whether a nursing assistant must be able to lift 75 pounds to perform the nursing assistant duties. Rojas Chino's job description provides that a physical requirement of the job is "[r]epetitive lifting up to 75 pounds throughout shift." Although Rojas Chino asserts the lifting requirement does not accurately reflect her job duties, Friendship Village argues that the lifting requirement is a common one in nursing. Evidence in the record explains the need for such a requirement. For example, Director of Nursing Carolyn Ulrich and Assistant Director of Nursing Paula DeJong-Jackson testified that nursing assistants need to be able to lift up to 75 pounds in case a resident falls, to ensure that the nursing assistant can lower the resident to the ground. Director of Human Resources Ray Richason emphasized that the nursing assistant job is an "extremely physically demanding position." He said nursing assistants lift patients, transfer them from wheelchairs to beds, assist them in walking, catch them if they lose their balance, and lift them off the floor if they fall. Friendship Village argues that nursing assistants never need to be able to lift a resident's entire body weight, but rather need to use their own body mechanics with assistance from the resident to do their jobs.
Accordingly, Friendship Village has policies in place regarding what to do when a nursing assistant has a lifting restriction that prevents the assistant from being able to lift up to 75 pounds. Regardless of the reason for the restriction, every nursing assistant with a lifting restriction is immediately removed from the position. If the nursing assistant was injured on the job, Friendship Village generally places the nursing assistant on light duty under its workers' compensation policy "where possible and practical." For example, Rojas Chino once hurt her arm on the job and was assigned to light duty for a few weeks under this policy.
It is less clear whether Friendship Village has an across-the-board policy when the nursing assistant's lifting restriction does not stem from an on-the-job injury. In at least some cases, Friendship Village provides nursing assistants with 12 weeks of leave—available under the Family and Medical Leave Act ("FMLA")—as an accommodation. See 29 U.S.C. § 2612. In those cases, after the 12 weeks of FMLA leave expires, Friendship Village considers on a case-by-case basis whether a few additional weeks of leave would be a reasonable accommodation. But in other circumstances, when an employee could not return to work after a few additional weeks of leave, Friendship Village terminates the employee. Friendship Village's policy manual also provides that employees who are "unable to work due to a non-work related injury or illness" may be eligible for short-term disability benefits.
Friendship Village asserts that these policies also apply to pregnant women. At the time of Ulrich's deposition, Ulrich testified that Friendship Village had a nursing assistant who was working while pregnant and that pregnant nursing assistants without lifting restrictions are allowed to work until they can no longer perform the job. Ulrich testified that because the pregnant nursing assistant had not provided a note from a doctor containing a lifting restriction, she continued to work.
A. Rojas Chino's Pregnancy
On November 30, 2012, Rojas Chino learned that she was pregnant after visiting a Certified Nurse Practitioner ("CNP"). Because Rojas Chino had an umbilical hernia, the CNP restricted her from lifting more than 25 pounds and gave her a note stating, "[p]lease excuse Ericka Rojas from heavy lifting >20-25# now pregnant."
When Rojas Chino arrived at work that day, she spoke with Ulrich and DeJong-Jackson and gave them her note. According to Rojas Chino, after she gave Ulrich the note, Ulrich responded, "you know what's going to happen now ... you're going to have to take your 12 weeks, then you'll have your baby, we'll terminate you, you'll come back, re-apply and we'll hire you back." Rojas Chino testified that she told Ulrich that she needed the job and asked whether she could work in a different position. According to Rojas Chino, Ulrich responded that "they don't make accommodations," and reiterated, "[y]ou do the job that you're hired for or you don't work." Rojas Chino testified that she advised Ulrich and DeJong-Jackson that she would be willing to work as a nursing assistant in the memory care unit, assisted living unit or independent living unit. But there was no discussion about other possible accommodations.
After this conversation, DeJong-Jackson sent Richason the following e-mail about Rojas Chino:
Ericka has informed us that she is pregnant and has presented us with a doctors [sic] note that reflects a lifting restriction of 20-25 pounds. We explained that this lifting restriction is something we cannot accommodate in [the nursing assistant] job description, therefore we would have to remove her from the schedule. We directed her to contact HR for further information re: FMLA/short term disability.
One of her questions was if there was any position (ie; HHA/PSP) at FVB that she would be able to do with this type of restriction?
Richason subsequently met with Rojas Chino on December 5, 2012. According to Rojas Chino, Richason told Rojas Chino that taking a 12-week FMLA leave was "the only option" and gave Rojas Chino leave forms to sign. Rojas Chino testified that she asked Richason "if he knew [whether] I could work anywhere else in the company. He said no." She testified that she mentioned the possibility of light duty to Richason, who responded that Friendship Village could only offer "the 12 weeks." Rojas Chino also testified that she kept "begging him for a job," and she offered to work for less pay.
On February 20, 2013, Friendship Village sent an e-mail about a job opening to its employees, but failed to include Rojas Chino. The job posting, which was for a "Housekeeper 1" position, stated that the employee would clean patient rooms and needed to be able to "lift up to 25 pounds and be on feet [sic] for majority of [the] shift." It also provided that employees "[m]ust have successfully completed the 90 day introductory period for [the] current position."
B. Friendship Village Terminates Rojas Chino.
On February 22, 2013, as her FMLA leave was expiring, Rojas Chino again met with Richason. She provided him a new doctor's note, dated February 6, 2013, stating that "Ericka Rojas is pregnant and should not lift over 25 pounds. She is able to perform all other functions of [her] job." Rojas Chino testified that she once again "begged" for her job and said she would work "anywhere they would give me work." She also testified that she asked Richason if she could speak with Ulrich about open positions and that he stated it would not make a difference who Rojas Chino spoke to and he "didn't let me talk to her." That same day, on his copy of Rojas Chino's doctor's note, Richason wrote, "[p]er Friendship Village of Bloomington policy, we are unable to have Ms. Rojas work currently as a Nursing Assistant because the position requires up to 75 pounds of lifting." Three days later, Richason wrote Rojas Chino a letter confirming her termination.
According to Richason, Friendship Village decided to terminate Rojas Chino for the following reasons. He said he considered transferring her to one of the different nursing assistant positions she mentioned, but there were no full-time or part-time openings available "within her qualifications" because all of the nursing assistant positions require employees to be able to lift up to 75 pounds. He considered whether a few extra weeks of unpaid leave would be appropriate, but noted that "[h]er physician slip had an indefinite period of those restrictions of 25 pounds," and that any extra leave beyond one or two weeks would not be possible because "[w]e have services and cares we need to provide to the patients in the nursing home." Richason also testified that he dismissed the idea of having another nursing assistant help Rojas Chino when she needed it, noting that it would not just be occasional assistance. "It's throughout the shift that you're providing these cares [sic] to the resident," he said, "it's not feasible to have another nursing assistant there with Ms. Rojas throughout the [entire] shift." Rojas Chino alleges that from the first date she gave Friendship Village the note with her lifting restrictions, nobody at Friendship Village ever spoke to her about potential accommodations.
Rojas Chino filed this lawsuit against Friendship Village on December 5, 2014.
ANALYSIS
Friendship Village moved for summary judgment on Rojas Chino's claims alleging pregnancy and disability discrimination in violation of the MHRA. Summary judgment is proper when the record before the district court establishes that there is "no genuine dispute as to any material fact" and the moving party is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Courts must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. See Young v. United Parcel Serv., Inc. , ––– U.S. ––––, 135 S.Ct. 1338, 1347, 191 L.Ed.2d 279 (2015). A non-moving party asserting that a fact is genuinely disputed must cite to "particular parts of materials in the record" that support the assertion and may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Fed. R. Civ. P. 56(c)(1)(A) ; Krenik v. Cnty. of Le Sueur , 47 F.3d 953, 957 (8th Cir.1995) (citation omitted) (internal quotation marks omitted).
I. Rojas Chino's Pregnancy-Discrimination Claim
Rojas Chino first brings a disparate treatment pregnancy-discrimination claim, alleging that Friendship Village treated her worse than non-pregnant nursing assistants with lifting restrictions by not providing her with light-duty work during her pregnancy.
The MHRA provides that it is an unfair employment practice for an employer to "discriminate" against an employee because of her sex, which is defined to include pregnancy and disabilities related to pregnancy. Minn. Stat. § 363A.03, subd. 42. It also is an unfair employment practice for an employer "not to treat women affected by pregnancy ... or disabilities related to pregnancy ... the same as other persons who are not so affected but who are similar in their ability or inability to work, including a duty to make reasonable accommodations." Minn. Stat. § 363A.08, subd. 5.
A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state. Winthrop Res. Corp. v. Stanley Works, 259 F.3d 901, 904 (8th Cir.2001).
For her pregnancy-discrimination claim to survive summary judgment, Rojas Chino must present sufficient evidence for a reasonable jury to find that her pregnancy "actually motivated" the employer's decision to terminate her. See LaPoint v. Family Orthodontics, P.A. , 872 N.W.2d 889, 892 (Minn.Ct.App.2015) (citation omitted). There are two methods by which she can present this evidence: the direct method of proof or the burden-shifting method articulated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Goins v. W. Grp. , 635 N.W.2d 717, 722–24 (Minn.2001) (contrasting the two methods of proof). Rojas Chino argues that her pregnancy-discrimination claim should survive summary judgment under both methods.
A. Direct Evidence of Discrimination
Direct evidence of discrimination is evidence that clearly shows "a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." McCullough v. Univ. of Ark. for Med. Scis. , 559 F.3d 855, 860 (8th Cir.2009) (quoting Russell v. City of Kansas City , 414 F.3d 863, 866 (8th Cir.2005) ).
See Sigurdson v. Isanti Cnty., 386 N.W.2d 715, 719 (Minn.1986) (noting that in cases under the MHRA, principles developed in litigation of federal civil rights acts often apply due to substantial similarities).
Rojas Chino asserts that she has direct evidence of discrimination because Friendship Village accommodates non-pregnant employees with lifting restrictions resulting from work-related injuries but does not do so for employees with pregnancy-related lifting restrictions. In Reeves v. Swift Transportation Co. , Inc. , the United States Court of Appeals for the Sixth Circuit rejected an argument almost identical to Rojas Chino's while interpreting the Pregnancy Discrimination Act ("PDA"), the federal equivalent of the MHRA's pregnancy-discrimination provisions. 446 F.3d 637, 641 (6th Cir.2006), abrogated on unrelated grounds by Young , ––– U.S. ––––, 135 S.Ct. 1338, 191 L.Ed.2d 279. The employee argued that she had direct evidence of discrimination because her employer's policy of providing light-duty work only to employees who had sustained on-the-job injuries was a "per se violation" of the PDA. Id. at 640.
The Reeves court disagreed, observing that the light-duty policy was "indisputably pregnancy-blind" because it determined whether to give light duty "on the non pregnancy-related basis of whether there has been a work-related injury or condition." Id. at 641. The court reasoned that "[p]regnancy-blind policies of course can be tools of discrimination," but concluded that "challenging them as tools of discrimination requires evidence and inference beyond such policies' express terms. [The company's] pregnancy-blind policy, therefore, cannot serve as direct evidence" of discrimination. Id. ; see also Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540, 548 (7th Cir.2011) (concluding that an employer's modified work policy was not direct evidence when it treated "nonpregnant employees the same as pregnant employees—both are denied an accommodation of light duty work for non-work-related injuries"), abrogated on unrelated grounds by Young , ––– U.S. ––––, 135 S.Ct. 1338, 191 L.Ed.2d 279.
Here, no evidence in the record supports Rojas Chino's assertion that she has direct evidence of pregnancy discrimination. Friendship Village admittedly provides light-duty work to employees who are injured on the job, but Rojas Chino has not provided any evidence that a pregnant employee with an on-the-job injury would not be entitled to light-duty work under Friendship Village's policy. On its face, the policy focuses on whether the injury occurred while engaged in work, not on whether the employee is pregnant. Rojas Chino also does not provide any legal support for her assertion that a policy allowing those injured on the job to perform available light-duty work constitutes direct evidence of pregnancy discrimination. As in Reeves and Serednyj , the policy is, at least on its face, pregnancy blind. See Reeves , 446 F.3d at 641 ; Serednyj , 656 F.3d at 548. The policy "simply does not grant or deny light work on the basis of pregnancy, childbirth, or related medical conditions." See Reeves , 446 F.3d at 641. Rojas Chino introduced no evidence to suggest otherwise.
Rojas Chino seems to rely on Young to buttress her assertion that the policy is direct evidence of discrimination. But Young involved the McDonnell Douglas burden-shifting framework and does not conclude that a policy giving light-duty work to those injured on the job is direct evidence of discrimination. See 135 S.Ct. at 1353–54.
B. The Burden-Shifting Method of Proof
In the absence of direct evidence of discrimination, Rojas Chino can rely on the McDonnell Douglas burden-shifting method of proof to survive summary judgment. Under this analysis, a plaintiff must initially establish a prima facie case of discrimination, which creates a presumption that the employer acted unlawfully. Sigurdson v. Isanti Cnty. , 386 N.W.2d 715, 719–20 (Minn.1986) ; see also Kiel v. Select Artificials, Inc. , 169 F.3d 1131, 1134–35 (8th Cir.1999). The burden of production then shifts to the employer, which must provide legitimate, non-discriminatory reasons for the adverse employment action. Id. If the employer meets this requirement, the burden returns to the plaintiff to show that the employer's explanation is pretextual and that the real reason for the adverse employment action was intentional discrimination. Id.
The Supreme Court of Minnesota has adopted the McDonnell Douglas analysis for disparate-treatment claims brought under the MHRA. Bergstrom – Ek v. Best Oil Co., 153 F.3d 851, 857 (8th Cir.1998) (citing Sigurdson v. Isanti Cnty., 386 N.W.2d 715, 719–20 (Minn.1986) ).
Here, the Court does not need to consider whether Rojas Chino can make a prima facie case. Even assuming such a showing, Rojas Chino's claim fails because she cannot establish that Friendship Village's proffered reason for denying her light duty is a mere pretext for discrimination. See Wagner v. Gallup, Inc. , 788 F.3d 877, 886 (8th Cir.2015) (assuming employee could establish prima facie case yet finding employee could not show employer's reason for terminating employee was a pretext for discrimination). Friendship Village asserts that it did not give Rojas Chino light duty because its policy limits modified work to those injured on the job, and the company otherwise did not have any light-duty positions available. See Raytheon Co. v. Hernandez , 540 U.S. 44, 51–52, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (application of neutral policies constitutes legitimate, nondiscriminatory reasons under disparate-treatment claims).
Although Friendship Village does not articulate a reason for its policy to allow those with on-the-job injuries to receive light duty, these policies are common across the case law in this area. This is because, as Justice Alito observed in his concurrence in Young, "[i]f these employees [injured on the job] had not been permitted to work at all, it appears that they would have been eligible for workers' compensation benefits." See 135 S.Ct. at 1360 (Alito, J., concurring).
--------
To survive summary judgment, Rojas Chino must present evidence of some additional facts that would allow a jury to find that Friendship Village's reasons are pretextual and the real reason for its actions was intentional discrimination. Krenik , 47 F.3d at 958. A plaintiff may show pretext, for example, by showing that an employer failed to follow its own policies, treated similarly-situated employees in a different manner, or shifted its explanation of the employment decision. Gibson v. Am. Greetings Corp. , 670 F.3d 844, 854 (8th Cir.2012).
Rojas Chino does not present any evidence that calls into question Friendship Village's motives for not offering her light-duty work. She does not cite a single example of Friendship Village failing to follow its own policies, nor does she suggest it ever "shifted its explanation of the employment decision." See id. (citation omitted) (internal quotation marks omitted). As to whether Friendship Village treated similarly situated employees in a disparate manner, Rojas Chino alleges that Friendship Village admits that it does not accommodate women with pregnancy-related lifting restrictions but "provides light duty work to people in the exact same situation as Plaintiff in every respect but pregnancy." This misstates the record. The portions of the deposition transcripts to which Rojas Chino cites contain no such admissions. Rather, Friendship Village's employees admit only that those injured on the job are given light duty, that Rojas Chino received light duty when she was injured at work, and that nursing assistants in the past have occasionally had injuries from activities outside of work. The Court's review of the deposition transcripts also has identified no evidence of any such admissions.
Further, should Rojas Chino rely on similarly situated employees to establish pretext, she would need to present evidence that employees who were similarly situated in all relevant respects were treated better than she was. In doing so, she would need to provide evidence that a non-pregnant employee with an outside-of-work injury was offered light duty when Rojas Chino was not. See Fiero v. CSG Sys., Inc. , 759 F.3d 874, 879–80 (8th Cir.2014). But Rojas Chino does not identify a single non-pregnant employee with an outside-of-work injury who was given light-duty work at Friendship Village.
Finally, Rojas Chino argues that the Supreme Court's recent decision in Young mandates the denial of summary judgment on her disparate-treatment pregnancy discrimination claim. Even if the Court were to determine that the Supreme Court of Minnesota would apply Young in these circumstances, this argument is unavailing.
The plaintiff in Young worked as a part-time driver for UPS, which required her to be able to lift up to 70 pounds. 135 S.Ct. at 1344. After she became pregnant, her doctor directed her not to lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds during the remainder of her pregnancy because of medical complications. Id. UPS had several employee policies that regulated when employees were entitled to light-duty work, including a policy that provided light-duty assignments to drivers who were injured at work. Id. UPS did not, however, accommodate the plaintiff. Id. Instead, she stayed home without pay for most of her pregnancy. Id.
The Young Court addressed the same circumstances presented here. When an employer has policies that treat employees with similar physical limitations differently because of non-pregnancy related criteria (such as whether the injury was on the job), how can a court tell at the summary judgment stage whether the policies impermissibly treat pregnant women differently than other workers? Id. at 1348–49. At oral argument, Rojas Chino asserted that, under Young , "if you accommodate anyone that's similar in that situation at all, you have to accommodate pregnant individuals." (Emphasis added). But Young expressly rejected this proposition, observing that such an approach "seems to say that the statute grants pregnant workers a ‘most-favored-nation’ status," and would require:
As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer's need to keep them working, their ages, or any other criteria.
Id. at 1349. The Court rejected this interpretation: "We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status." Id. at 1350.
Instead, Young reasoned that, at the pretext stage of the McDonnell Douglas analysis, a plaintiff could survive summary judgment by "providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination." Id. at 1354. Notably, the Young Court took no position on whether the policies in Young met this standard, a holding that suggests, without more, the existence of facially neutral policies that offer some workers better treatment than others does not establish discrimination, as Rojas Chino asserts. See id. at 1356.
Rojas Chino has presented no evidence that Friendship Village's policies "impose a significant burden on pregnant workers," and that Friendship Village's " ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden." See id. In fact, Rojas Chino points to nothing outside of her own experience. Without more, Rojas Chino's disparate-treatment pregnancy-discrimination claim cannot survive under Young .
II. Plaintiff's Disability-Discrimination Claim
Friendship Village next argues that it is entitled to summary judgment on Rojas Chino's disability-discrimination claim because she was not a "qualified disabled person" entitled to the MHRA's protections; and even if she were, Friendship Village provided her a reasonable accommodation in the form of FMLA leave. Rojas Chino responds that the 75-pound lifting restriction did not affect an essential function of her job. And she argues that even if the ability to lift 75 pounds were an essential function, Friendship Village should have provided at the outset a less restrictive accommodation than FMLA leave and Friendship Village should have provided her a reasonable accommodation instead of terminating her when her leave expired.
Under the MHRA, an employer commits unlawful discrimination when it does not make reasonable accommodations to the known physical or mental limitations of a qualified disabled person. Minn. Stat. § 363A.08, subd. 6. A "qualified disabled person" is a disabled person who, "with reasonable accommodation, can perform the essential functions required of all applicants for the job in question." Minn. Stat. § 363A.03, subd. 36(1). If an employer contends that the person is not a "qualified disabled person," it is the employer's burden to prove "that it was reasonable to conclude the disabled person, with reasonable accommodation, could not have met the requirements of the job." Id. , subd. 36(2).
The traditional McDonnell Douglas analysis does not apply to a failure-to-accommodate claim because the claim does not turn on an employer's intent or motive. See Peebles v. Potter , 354 F.3d 761, 766–67 (8th Cir.2004). Rather, to avoid summary judgment, a qualified disabled person who claims that her employer failed to accommodate her need only produce competent evidence that (1) she had a disability, (2) her employer knew of the disability, and (3) her employer failed to make a reasonable accommodation for that disability. Hoover v. Norwest Private Mortg. Banking , 632 N.W.2d 534, 547 (Minn.2001). Because Friendship Village does not dispute for summary judgment purposes that Rojas Chino had a disability or that it knew of her disability, the remaining issues for the Court are whether she was a qualified disabled person entitled to the statute's protections and whether Friendship Village erred by not accommodating her disability. See id.
A. Essential Functions of the Job
Because Friendship Village asserts Rojas Chino is not a "qualified disabled person" entitled to the MHRA's protections, to survive summary judgment, Rojas Chino must show there is at least a genuine issue of material fact regarding whether she could perform the essential functions of her job while under a 25-pound lifting restriction. See Fed. R. Civ. P. 56(a) ; Minn. Stat. § 363A.03, subd. 36(1).
"Essential functions of the job are ‘fundamental job duties,’ and the employer's judgment in this regard is considered ‘highly probative.’ " Kammueller v. Loomis, Fargo & Co. , 383 F.3d 779, 786 (8th Cir.2004) (citation omitted). The amount of time an employee spends performing a function is relevant to determining which functions are essential. Id. An employer bears the burden of showing that a particular function is essential. See Benson v. Nw. Airlines, Inc. , 62 F.3d 1108, 1113–14 (8th Cir.1995).
In Kammueller , a case that Rojas Chino relies on heavily, the Eighth Circuit held that a plaintiff had raised a genuine issue of material fact regarding whether lifting more than 40 pounds was an essential function of the job. 383 F.3d at 787. The court noted that Eighth Circuit cases "generally give deference to the employer's judgment of essential job functions," yet the court still found that the plaintiff alleged sufficient facts to survive summary judgment. Id. at 786–87. The plaintiff introduced evidence that he had been performing his job with accommodations for several years before the position had been restructured and for several months after restructuring before the employer changed its mind. Yet the employer decided to terminate him anyway. One of the plaintiff's supervisors also testified that the plaintiff's disability could have been accommodated. Id. at 783 ; see also Duty v. Norton – Alcoa Proppants , 293 F.3d 481, 492–93 (8th Cir.2002) (reasonable jury could find plaintiff could perform his job when plaintiff testified he was "capable of lifting" heavy weights, there were available positions he could have performed within his restrictions, and other employees had returned to work when they were less than 100 percent capable of performing their jobs).
By contrast, in Dropinski v. Douglas County, Nebraska , the Eighth Circuit determined that an injured equipment operator did not present enough evidence to create a genuine issue of material fact as to whether a particular function was an "essential function" of the job. 298 F.3d 704, 708–09 (8th Cir.2002). In Dropinski , when the employer presented extensive evidence that the plaintiff's restrictions on frequent bending, twisting, squatting, and lifting more than forty pounds prevented him from performing the essential functions of the job. Id. at 709. The plaintiff testified that he "almost never" had to perform the duties the employer pointed to, and that he had "never" performed some of the duties during his five years of employment. Id. at 708. The Dropinski court was not persuaded, however, because the equipment-operator job involved duties that were varied and hard to predict. The court reasoned that:
[Plaintiff] may be required on any given day to move tree branches, adjust tailgates, move culverts, maneuver snow plows, haul and dump dirt or rock from one job site to another, and mount a sander on a truck.... [Plaintiff's] specific personal experience is of no consequence in the essential functions equation. Instead, it is the written job description, the employer's judgment, and the experience and expectations of [employees in his job position] generally which establish the essential functions of the job.
Id. at 709.
Here, Friendship Village has introduced significant evidence in support of its contention that Rojas Chino's lifting restriction prevented her from performing the essential functions of her nursing assistant job. First, the job description for nursing assistants explicitly provides that the physical demands of the job require "[r]epetitive lifting and frequent bending, twisting and stretching," and "[r]epetitive lifting up to 75 pounds throughout [the] shift." And the "Essential Job Functions" listed on the same job description provide that nursing assistants need to "assist residents with basic and specialized personal care under the monitoring of a nurse and direction of an RN e.g. hydration, nutrition, elimination, exercise, activities, etc."
Second, several witnesses testified that the ability to lift 75 pounds was critical to performing these essential duties. Ulrich testified that being able to lift 75 pounds was essential "[b]ecause there needs to be an ability to help the resident[s] in case they should fall, in case their legs give out on them." DeJong-Jackson testified that it was essential because "[o]n a given day, it could be ... a resident starting to lose their balance, falling. In the process of transferring someone, that amount of weight may be apparent." Richason testified that nursing assistants need to be able to lift 75 pounds when caring for a patient, "such as toileting a resident; repositioning a resident; ambulating a resident; transferring them from wheelchair to bed; bed to wheelchair; taking them to programs; if they suddenly fall being able to catch them; being able to lift them off the floor," and "that 75 pounds is made up in those duties."
Rojas Chino, on the other hand, testified that the lifting requirement does not accurately reflect her job requirements. When asked whether there was a portion of her job description that did not accurately reflect her job duties, she said simply: "Where it says lifting, repetitive lifting frequently, 75 pounds." She also relies on testimony indicating that none of the Friendship Village witnesses knew who added the 75-pound requirement to the nursing assistant job description, written in 2006. She argues that Friendship Village never required her to prove she could lift 75 pounds and the lifting restriction was unfounded because she "was not a power lifter" and "her job was not to lift weights."
Given the deference with which courts must consider an employer's assertions about essential job duties, the Court concludes that Rojas Chino has not introduced sufficient evidence to establish a genuine issue of material fact regarding whether the ability to lift more than 25 pounds is required for a nursing assistant at Friendship Village to be able to perform the essential functions of the job. Copious testimony in the record demonstrates why lifting more than 25 pounds is essential to performing job functions designed to keep vulnerable Friendship Village residents safe. Rojas Chino has not produced any evidence indicating otherwise, other than her own conclusory assertion that she does not need to lift more than 25 pounds to perform her job. See Krenik , 47 F.3d at 957 (party may not rest on mere allegations to avoid summary judgment).
Rojas Chino introduces none of the other kinds of evidence that courts have relied on when concluding there is a genuine issue of material fact on this issue. In Kammueller , the plaintiff introduced evidence he had performed his job with reasonable accommodations for several years before the employer restructured his job and for several months afterwards, and his supervisor testified that the plaintiff could have continued to do his job. See 383 F.3d at 787–88. In Duty , the plaintiff provided a plethora of evidence that he could perform the essential functions of his job. The Duty court considered that he testified "he was capable of lifting" heavy weights, he had only done heavier lifting four or five times in his eighteen years on the job, a variety of lifting devices were available to do any necessary heavy lifting, positions that he could have performed within his restrictions were available and other employees had returned to work when they were less than 100 percent capable of performing their essential job functions. 293 F.3d at 492–93. Rojas Chino provides no such evidence. And even if Rojas Chino is correct that she rarely had to lift up to 75 pounds, she does not dispute that on any given day she may be required to help a falling resident in an emergency. As the court noted in Dropinski , in cases where employees may have to perform duties requiring heavy lifting "on any given day," a plaintiff's "specific personal experience is of no consequence in the essential functions equation." 298 F.3d at 709.
Rojas Chino makes a series of unpersuasive arguments that attempt to minimize the significance of this issue. For example, she argues that she "was not a power lifter; her job was not to lift weights," or that "Defendants [sic] have not identified a single item weighing over 26 [pounds] that Plaintiff was truly required to lift in order to do her job." Although the job description may not be artfully worded, Friendship Village clearly articulates that nursing assistants need the ability to lift up to 75 pounds to safely perform their essential job duties of helping residents. Friendship Village has never suggested that Rojas Chino would be required to "lift weights" or that she would need to lift a resident's entire body weight. Rather, the testimony clearly establishes that nursing assistants are trained to use their own body mechanics to help residents.
Therefore, the Court concludes that Rojas Chino has not established that there is a genuine issue of material fact regarding whether the ability to lift 75 pounds is an essential function of the nursing assistant position.
B. Reasonable Accommodation
The Court next considers whether Rojas Chino could have performed the essential functions of her job with a reasonable accommodation. Friendship Village argues that Rojas Chino's claim fails because it provided a reasonable accommodation in the form of a three-month leave of absence and because there were no other reasonable accommodations available at the time of her discharge. Rojas Chino counters that she could have performed her job if Friendship Village had provided an accommodation other than FMLA leave when she told Friendship Village she was pregnant, and that she should not have been terminated when her FMLA leave expired because other reasonable accommodations were available.
A reasonable accommodation may include but is not limited to, "nor does it necessarily require: (1) making facilities readily accessible to and usable by disabled persons; and (2) job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of employment or devices, and the provision of aides on a temporary or periodic basis." Minn. Stat. § 363A.08, subd. 6(a). But the obligation to provide a reasonable accommodation does not require an employer to hire additional employees, redistribute essential functions to other employees, or make an overall change in its manner of conducting business. Heaser v. Toro Co. , 247 F.3d 826, 832 (8th Cir.2001), abrogated on other grounds by Torgerson v. City of Rochester , 643 F.3d 1031 (8th Cir.2011). Ultimately, to survive summary judgment a plaintiff must make a facial showing that an accommodation is possible and, with that accommodation, the plaintiff can perform the essential functions of the job. Burchett v. Target Corp. , 340 F.3d 510, 517 (8th Cir.2003).
First, Rojas Chino has not raised a genuine issue of material fact regarding her claim that she should have been provided an accommodation other than FMLA leave at the outset of her pregnancy. Although she argues that Friendship Village did not provide her with a reasonable accommodation, a leave of absence can be a reasonable accommodation for a disabled employee. See Anderson v. City of Coon Rapids , 88 F.Supp.3d 977, 983 (D.Minn.2015) ; Breiland v. Advance Circuits, Inc. , 976 F.Supp. 858, 865 (D.Minn.1997). Moreover, an employer is not obligated to provide the accommodation an employee requests or prefers. Cravens v. Blue Cross & Blue Shield of Kansas City , 214 F.3d 1011, 1019 (8th Cir.2000).
Rojas Chino argues, however, that Friendship Village had a duty to consider an alternative that is "less restrictive" than FMLA leave when she notified Friendship Village that she was pregnant. See Minn. Stat. § 363A.08, subd. 6(b)(5) (an employer's "good faith efforts to explore less restrictive ... alternatives" is one factor for the Court to consider in analyzing reasonable accommodations). But Rojas Chino has not identified a single reasonable accommodation other than FMLA leave that would have been available to her in November when she notified Friendship Village of her lifting restriction. See Fjellestad v. Pizza Hut of Am., Inc. , 188 F.3d 944, 952 (8th Cir.1999) (employer not per se liable under the [Americans with Disabilities Act] for failing to engage in an interactive process if no reasonable accommodation was possible). Rojas Chino's brief and deposition testimony point to several accommodations she says Friendship Village could have granted her: transfer to a different nursing assistant position, allowing co-workers to help her with lifting, allowing her to use electronic lifts with patients, hiring temporary employees to help her and light duty. But each potential accommodation can be readily dismissed as a matter of law.
Reasonable accommodations, first and foremost, must allow an employee to perform the essential functions of her job. Transferring Rojas Chino to another nursing assistant position is not a reasonable accommodation because, as discussed earlier, Rojas Chino could not perform the essential functions of those jobs either. See Burchett , 340 F.3d at 517–18. The nursing assistant positions at Friendship Village all required an employee who could lift more than 25 pounds. Friendship Village was not required to hire temporary employees to help Rojas Chino. See Heaser , 247 F.3d at 832. Nor was it required to assign her to a light-duty position that she admits would have been created for her. See Reed v. Home Depot, U.S.A., Inc. , No. Civ. 01–1274, 2002 WL 1906034, at *3 (D.Minn. Aug. 16, 2002) ("Home Depot had no obligation to create a light duty position for Plaintiff."), aff'd in part and rev'd in part on unrelated grounds by Reed v. Home Depot USA, Inc. , No. 02–3339 (8th Cir.2003). Nor was Friendship Village required to ask other nursing assistants to help Rojas Chino with her duties as the obligation to provide a reasonable accommodation does not require an employer to reallocate the essential functions of her job to other employees. See Heaser , 247 F.3d at 832.
Rojas Chino also argues that Friendship Village could have accommodated her by allowing her to use mechanical lifts and other assistive devices with patients or to solicit her coworkers' help. But no reasonable jury could find that either of these options is appropriate under the circumstances. Friendship Village witnesses testified at length that residents are cared for only in accordance with their care plans, which are written to ensure that residents are as independent as possible, and that the use of a mechanical lift on a resident who does not need it would be highly inappropriate. Rojas Chino also acknowledged in her deposition that the care plans determine whether nursing assistants can use a lift and whether they can receive help from their coworkers.
Friendship Village's duty to consider reasonable accommodations for Rojas Chino did not end once it provided her 12 weeks of FMLA leave, however. The FMLA and the MHRA impose different duties on employers, and satisfying the requirements of one statute does not satisfy the requirements of the other. See 29 U.S.C. § 2612(a)(1)(D) (entitling employees to 12 weeks of leave "[b]ecause of a serious health condition"); Minn. Stat. § 363A.08, subd. 6 (in the absence of an undue hardship on the business, not making a reasonable accommodation to the known disability of an employee is an "unfair employment practice"). When Rojas Chino's FMLA leave ended, Friendship Village still had a duty to investigate whether it could provide her with a reasonable accommodation that would have allowed her to perform the essential functions of her job. If, for example, an employee whose FMLA leave has expired notifies an employer that she is ready to return to work but can no longer perform the essential functions of her position, "[u]nder the FMLA, the employer could terminate [her] employment, but under the ADA the employer must consider whether the employee could perform the essential functions with reasonable accommodation." See U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act , Notice 915.002, Question No. 21 (Oct. 17, 2002).
Friendship Village argues that it also had no duty to provide Rojas Chino with a reasonable accommodation in February because none existed. But Rojas Chino identifies two potential reasonable accommodations in the record that may have allowed her to keep her job at Friendship Village after her FMLA leave expired—working in the open housekeeping job that was advertised before Rojas Chino spoke with Richason for the final time or extending her leave of absence.
Regarding the housekeeping position, the MHRA provides that a reasonable accommodation "may include but is not limited to ... reassignment to a vacant position." Minn. Stat. § 363A.08, subd. 6(a) ; see also Cravens , 214 F.3d at 1019. When an employee requests reassignment, the employee must be "qualified" for the reassignment position. Id. (citations omitted).
Friendship Village does not address this job opening in either of its briefs, nor did it address it at oral argument. Rather, Friendship Village simply said Rojas Chino was not qualified to fill any of the positions that were open when she was on leave because each position required "either (1) lifting over 25 pounds; (2) licensure or certification Plaintiff did not hold; or (3) specific work experience that Plaintiff did not have." But it does not appear that these disqualifications apply to the housekeeping position, which only requires the ability to lift "up to 25 pounds." The job posting also does not identify any necessary license or certification that Rojas Chino would have to hold, nor does it appear that the housekeeping position requires any specific work experience.
Regarding the potential of extending her leave, Rojas Chino relies on evidence that Friendship Village had other nursing assistants pick up her shifts during her FMLA leave along with the fact that Friendship Village knew her lifting restrictions were probably temporary. But Richason testified that such an accommodation would not have been possible because the company needed to ensure it had adequate staffing to care for its residents and could not hold the position open indefinitely. Sorting through the conflicting evidence about these material facts is not a task for the Court when considering a summary judgment motion.
Friendship Village contends that it did not need to consider these accommodations because Rojas Chino never asked for them. But this argument invokes consideration of Friendship Village's alleged failure to engage in an interactive process with Rojas Chino. If Rojas Chino is correct that no one addressed other potential accommodations (a claim that Richason readily admits), Rojas Chino could not have known about these potential accommodations when her employment was terminated. In her deposition, Rojas Chino alleged that she had no way to know about internal job postings that were posted for employees while she was on leave. And had Friendship Village spoken to Rojas Chino about the length of her restrictions, it could have determined whether an extension of Rojas Chino's leave through the duration of her pregnancy was feasible. See Minn. Stat. § 363A.08, subd. 6(5) (in determining whether a reasonable accommodation would impose an undue hardship on the operation of a business or organization, factors to be considered include, among other things, "documented good faith efforts to explore less restrictive or less expensive alternatives, including consultation with the disabled person").
Because genuine issues of material fact exist regarding whether Friendship Village discriminated against Rojas Chino because of her disability, the Court denies Friendship Village's motion for summary judgment on Rojas Chino's disability-discrimination claim.
ORDER
Based on the foregoing analysis, and all the files, records and proceedings herein, IT IS HEREBY ORDERED:
1. Friendship Village's motion for summary judgment, (Dkt. 14), is GRANTED with respect to Rojas Chino's claim for pregnancy discrimination, and that claim is DISMISSED with prejudice.
2. Friendship Village's motion for summary judgment is DENIED with respect to Rojas Chino's claim for disability discrimination.
LET JUDGMENT BE ENTERED ACCORDINGLY.