Opinion
Case No. 02-4024-JAR
May 28, 2003.
MEMORANDUM ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Board of County Commissioners of Shawnee County, Kansas, filed a Motion for Summary Judgment (Doc. 25) under Rule 56(e) of the Federal Rules of Civil Procedure on all of Plaintiff Brenda A. Johnson's claims. Johnson filed a response (Doc. 27) and Defendant filed a reply (Doc. 28). Johnson claims that she was discriminated against on the basis of her race and because she sought accommodation of her disability, and that Defendant failed to accommodate her disability, all in violation of Title VII of the Civil Rights Act of 1964, the Kansas Act Against Discrimination (KAAD) and the Americans with Disabilities Act of 1990 ("ADA"). For the reasons set forth below, the Court grants Defendant's motion with respect to all of Plaintiff's claims.
42 U.S.C. § 2000e et seq.
Kan. Stat. Ann. §§ 44-1001 et seq.
42 U.S.C. § 12101 et seq.
I. Findings of Fact
The following facts are either uncontroverted or, if controverted, construed in the light most favorable to the nonmovant Plaintiff. Immaterial facts and factual averments not properly supported by the record are omitted.
Plaintiff Johnson is an African American woman, who worked as a registered nurse for Defendant. In May 1998, Johnson and Defendant entered into a settlement agreement "to resolve their differences and to preserve the employer/employee relationship." This agreement was in settlement of a lawsuit Johnson had filed against Defendant concerning accommodations she wanted in light of her claimed disability. In their settlement, Defendant agreed to transfer Johnson from her position as a registered nurse at the Shawnee County Jail, to a registered nurse position at the Shawnee County Youth Center, a juvenile detention facility. The parties further agreed that:
Although Johnson now claims that her disability included lifting and sitting restrictions, her request for accommodation in 1998 only sought a work schedule of five days on and two days off.
4. The Health Agency anticipates that the nursing needs at the new Shawnee County Youth Center may include "on call" and weekend duties in the future; if that is the case, the Health Agency agrees to provide Ms. Johnson advance notice and details of employer expectations about being "on call" and working weekends.
7. The Health Agency agrees to provide reasonable accommodation to the known disabilities of Ms. Johnson, other than those which would cause the Health Agency to have undue hardship, and to be fully in compliance with applicable Kansas and Federal laws, including the American with Disabilities Act (ADA), in regards to Ms. Johnson's employment.
7a. It is the intent of the parties that Ms. Johnson request accommodation and that the Health Agency make reasonable accommodations to her known disabilities that would not cause it undue hardship.
7b. The parties understand that Ms. Johnson will be submitting to the Health Agency specific requests for accommodation with corresponding supporting medical documentation. The Health Agency agrees to review these requests for accommodation and advise Ms. Johnson whether the requests for accommodation can be implemented, and if not, the exact reasons why the accommodations should not be implemented, before making the final determination on whether or not the requested accommodations can be implemented.
7e. If the Health Agency determines it may not accommodate a specific request for accommodation based on the information available to it at that time, it agrees to notify Ms. Johnson of any need on the Health Agency's part for any additional medical clarification. Ms. Johnson on her part agrees to provide the supporting medical documentation from treating physicians clarifying her conditions and how her requests for accommodations relate to the essential job functions of the position at issue.
Since 1983, Johnson has had a seizure disorder, for which she took medication. Prior to 1998, she had not requested an accommodation from Defendant concerning her seizure disorder. In 1996 or 1997, Johnson was diagnosed with fibromyalgia, which caused her fatigue, among other symptoms. As part of the settlement agreement, Johnson requested an accommodation that she be scheduled to work no more than five days in a row, such that she worked five days on and two days off, a 40-hour work week. Johnson provided medical documentation justifying her request, and Defendant granted her request for accommodation. This medical documentation evidenced that Johnson's seizure disorder was controlled with medication.
From the May 1998 settlement agreement until May 2000, Defendant scheduled Johnson's work hours in conformance with her requested accommodation. There were times that she was "on call" during her two days off, but she did not file a written complaint or seek further accommodation. Johnson testified that when she was called in on her off days, she complained but showed up for work.
In May 2000, Defendant had a staffing crisis at the juvenile detention facility where Johnson worked. Defendant's contract with the Department of Corrections required that it provide nursing staffing during the hours of 1:00 a.m. to 10:00 p.m. seven days a week. When its full time weekend nurse resigned, Defendant scrambled to cover the weekend shifts. Defendant required all of its nurses to work a rotating schedule that included weekends. Thus, Defendant, for the first time ever, scheduled Johnson to work more than five days in a row. Defendant scheduled Johnson to work seven days in a row, from May 8 to May 14, 2000. Johnson had been on call May 6 and May 7, 2000, but could not say whether she was actually called in those two days. Johnson objected to the schedule, and advised her supervisor that in accordance with her doctor's order to work no more than five consecutive days, she would not work on May 13 and 14. Johnson did not report for work those days.
Because Johnson had not reported for work on these two scheduled days, Theresa Schwartz, Defendant's nursing program manager, sent a letter to Johnson on May 15, 2000, advising her that the contract required nursing coverage seven days a week, and that
We currently are experiencing a shortage of personnel and are in a crisis situation. We require all nursing staff to participate in a rotating schedule to cover the entire week, 8 a.m. to 10 pm, including weekends. The rotating schedule will periodically include working more than five days in a row. All nursing staff are required to comply.
You were scheduled to work 5/8/00 through 5/14/00. Your absence resulted in a hardship for the program. The County is not able to accommodate your request not to work more than five days in a row during crisis situations like the one this past weekend. Your adherence to the work schedule is an essential function of your job.
Seeking additional information and clarification, Schwartz's May 15, 2000 correspondence further requested that Johnson obtain a medical evaluation from her physician. Under the terms of the settlement agreement, Defendant was precluded from direct contact with Johnson's health care providers. One of Johnson's physicians, Dr. Jacoby, responded in a letter dated May 22, 2000. Dr. Jacoby stated that: (1) Johnson still had occasional seizures, which were aggravated by fatigue; (2) a Dr. Letourneau had diagnosed fibromyalgia syndrome, had seen Johnson in the "recent past" and believed that Johnson had some "as yet undiagnosed connective tissue disease"; (3) he (Dr. Jacoby) had scheduled Johnson for a follow up with a neurologist for her "difficult seizure problem"; and (4) Johnson needed to adhere to a work schedule of five 8-hour shifts in each seven-day period, because working more than this was difficult in light of her fibromyalgia and propensity to have further seizures when overworked.
Despite the May 15, 2000 letter, Defendant did not ask Johnson to work more than five days in a row. In fact, Johnson testified, Defendant did not ask any of its nurses in the facility to work more than five days in a row. This affirms Defendant's statement that the rotating schedule was its temporary response to a staffing crisis.
Johnson deposition p. 103, @ 9-20.
Nevertheless, Schwartz had a conversation with Johnson following up on her May 15, 2000 letter. In this conversation, Johnson advised Schwartz that she had recently had a seizure, that her seizure condition was no longer being controlled by medication, and that her medication had changed. Johnson testified that this should not have been a surprise to Schwartz, because in April 2000, Johnson had reported this recent petit mal seizure to Barbara Fisher, another supervisor. Johnson had the seizure while she was off work, and reported it to Fisher in conjunction with asking for a day off. Johnson testified that neither Schwartz nor Fisher showed any concern or requested any further information at that time.
On June 26, 2000, Johnson and her counsel, and Defendant and its counsel met about Johnson's medical condition. Statements Johnson made at this meeting caused Defendant more concern. Johnson stated that she had recently had a seizure, that she could not tell when a seizure was coming on, and that during a seizure she "spaces out." Defendant was concerned in light of Johnson's nursing duties, which included: handling emergency situations; triage; administering injections with needles; drawing blood samples with needles; and sorting and administering medications to be taken by the patients. Defendant was further concerned because Johnson worked in a detention facility. Because patients are incarcerated, nursing staff is required to be alert and able to exercise professional judgment.
Defendant advised Johnson that it needed medical documentation indicating that her seizures were controlled; and that if she experienced seizures, they would be so minor as to not present a risk to Johnson or her patients. Defendant told Johnson that pending receipt of this medical information, Defendant was placing Johnson on leave immediately.
On June 28, 2000, Johnson submitted a written request for accommodation, asking for the five days on, two days off schedule; that she not be scheduled for "on call"; and that she be reassigned to some other open nursing position in primary care. Johnson did not submit any medical documentation with this request, and further stated that she did not ". . . authorize Dr. Jacoby and Dr. Wade Welch to discuss my medical condition and appropriate job accommodations" unless she was ". . . included in the phone call or meeting." Defendant responded to Johnson's counsel in a letter dated June 28, 2000, stating:
In order for us to reassign Ms. Johnson to direct patient care duty, we require additional medical evidence that Ms. Johnson's seizure disorder is under control. Furthermore, we require a medical assurance that if she experienced a seizure on the job, it would be minor so as not to pose a direct threat of harm to herself or others.
Thereafter, Johnson submitted medical documentation from two of her physicians, neither of which addressed the specific concerns articulated by Defendant. Neither physician indicated that her seizures were under control and neither indicated that her seizures were so minor that there would be no direct threat of harm to Johnson or others. A July 26, 2000 letter authored by a Dr. Miyawaki merely stated that "Ms. Johnson is able to return to work." And, a July 19, 2000 EEG report authored by Dr. Welch stated that Johnson is now having "staring episodes, face becomes pale, eyes roll back, lasting 10-15 seconds . . . states she has had three seizures in the last three months. Last episode in April." Johnson also saw Dr. Letourneau in June 2000, whose notes stated "seizure disorder with worsening control." Johnson did not provide this record to Defendant.
Johnson never provided any further medical documentation. Her Family and Medical Leave Act leave expired in October 2000. On February 20, 2001, Defendant sent Johnson a letter terminating her employment, stating:
In June 2000 you were directed to provide a written release from your physician stating that your seizure disorder is under control and assuring us that if you experienced a seizure on the job, it would be so minor as not to pose a direct threat of harm to yourself or others. . . . Since you have not provided the requested documentation, and as such you have not demonstrated that you are able to perform the essential functions of your position, with or without reasonable accommodations; and since your leave has expired, your employment is terminated. . . .
Johnson compares her situation to that of two white female registered nurses who worked at the juvenile detention facility with her. Carrie VanDruff, a diabetic, had passed out while at work, when her blood sugar level dropped. This occurred after Defendant had terminated Johnson, and Johnson had no personal knowledge of this. Nor did Johnson have any personal or secondhand knowledge of whether VanDruff requested any accommodation or Defendant's response to the VanDruff situation. Defendant, which has such personal knowledge, stated that VanDruff complied with Defendant's request for specific medical documentation, and that it determined that VanDruff could tell when she was experiencing low blood sugar and could take precautionary measures to prevent adverse physical symptoms.
Johnson also compares her situation with Catherine Smith, another registered nurse. Johnson worked with Smith, and claims to have personal knowledge that Smith had a seizure disorder, multiple sclerosis, and a mental disorder. But, Johnson has no personal knowledge of whether Smith received more favorable treatment than she did. Defendant has personal knowledge and stated that Smith had recurring seizures that were not being controlled by medication. Defendant placed Smith on Family Medical Leave pending receipt of medical documentation it requested from Smith. Defendant asked for documentation that Smith's seizures were being controlled by medication and that she did not pose a significant risk of injury to herself or others in the performance of her duties. Like Johnson, Smith did not provide the requested medical information. Like Johnson, Defendant terminated Smith upon expiration of her family medical leave.
Since her termination, Johnson has held several nursing positions that could accommodate her restrictions of five days on and two days off, as well as the sitting and lifting restrictions she has described.
II. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." There is a "genuine" issue of material fact if a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Id. at 251-52.
The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. This may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party properly supports its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party. Summary judgments "should seldom be used in employment discrimination cases." Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate to settle an issue like intent. Even so, summary judgment is not "per se improper," and may be useful in weeding out claims and cases obviously lacking in merit.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1995).
O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)).
Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526, 530 (10th Cir. 1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)).
Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir. 1992).
Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
III. Analysis
A. ADA Claim
The ADA protects qualified individuals with disabilities from discrimination by certain employers if the discrimination is based on their disability. For the purposes of the ADA, a "qualified individual" is one, "who, with or without reasonable accommodation, can perform the essential functions of the employment position." When considering a claim brought under the ADA, the court is guided by the McDonnell Douglas v. Green analytical framework. To have a viable claim under the ADA, Johnson must establish: (1) that she is a disabled person within the meaning of the ADA; (2) that she is qualified, that is, with or without reasonable accommodation (which she must describe) she is able to perform the essential functions of the job; and (3) that she suffered adverse employment action because of the disability. Disability
See Sutton v. United Airlines, Inc., 527 U.S. 471, 475, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (construing 42 U.S.C. § 12112(a)).
42 U.S.C. § 12111(8); see Poindexter v. Atchison, Topeka, and Santa Fe Railway Co., 168 F.3d 1228, 1230 (10th Cir. 1999).
411 U.S. 792 (1973); see Williams v. Widnall, 79 F.3d 1003, 1005 n. 3 (10th Cir. 1996) (explaining application of the analysis in cases under the ADA).
White v. York Intern. Corp., 45 F.3d 357, 360-61 (10th Cir. 1995).
A person is considered to have an ADA disability if that individual (a) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (b) has a record of such an impairment, or (c) is regarded by the employer as having such an impairment.
42 U.S.C. § 12102(2); See Poindexter, 168 F.3d at 1230; Wicks v. Riley County Bd. of County Com'rs., 125 F. Supp.2d 1282, 1289 (D.Kan. 2000).
The court uses a three-step procedure to determine if an individual has a disability under the ADA. The court must first determine if a plaintiff suffers from a physical impairment. Next, the court identifies the life activities affected by the impairment and determines whether they are major life activities under the ADA. Finally, the court determines whether the impairment "substantially limits" the major life activities identified in the previous step.
See Poindexter, 168 F.3d at 1230 (citing Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Wicks, 125 F. Supp.2d. at 1289 (citing Bragdon, 524 U.S. at 631-641).
Id.
Id.
Id.
Johnson claims that her seizure disorder is a physical impairment. But, "[m]erely having an impairment does not make one disabled for purposes of the ADA." Johnson must show that she is substantially limited in a major life activity. Johnson claims that she is substantially limited in working more than a 40-hour work week. The ADA does not define what constitutes a "major life activity." In Doyal v. Oklahoma Heart, Inc., the Tenth Circuit held that work is a "major life activity"; later, in Sutton v. United Airlines, Inc., the Supreme Court suggested that work might not be a major life activity.
Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 193 (2002).
Id.
213 F.3d 492, 495-96 (10th Cir. 2000).
527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).
Assuming for purposes of this motion that work is a major life activity, Johnson cannot show that her impairment "substantially limits" her work, as the ADA requires. Johnson can work as a registered nurse, as long as she works no more than five days consecutively and then has two days off. Since her termination, Johnson has continued to work as a registered nurse in jobs that have such schedules.
Johnson argues, in the alternative, that even if she does not meet the test of disabled under the ADA, Defendant regarded her as having such a disability. This would be an erroneous perception on Defendant's part, but the ADA considers disabled, someone whose employer perceives them that way. "Where the recognition of plaintiff's limitations is not an erroneous perception, but is instead a recognition of fact, a finding that plaintiff was regarded as disabled is inappropriate." Conversely, where the recognition of plaintiff's limitation is erroneous, the court may find that the employer regarded her as disabled.
Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001); see also Yeske v. King Soopers, Inc., 2001 WL 744953 *1 (10th Cir. 2001) (evidence that employer had put employee on medical leave of absence pending identification of position he could perform with restrictions is not evidence that plaintiff was regarded as disabled).
There are two ways a plaintiff can fall within this classification: (1) the covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities; or (2) a covered entity mistakenly believes that an actual, non-limiting impairment is a substantially limiting impairment. Based on Defendant's concerns that Johnson's condition might pose a serious or direct threat of harm to herself or her patients, the Court will assume that Defendant regarded Johnson as impaired.
Sutton, 527 U.S. at 2149-2150.
Reasonable Accommodation
Assuming that Johnson suffered from a disability protected by the ADA, there is no evidence that Defendant failed to reasonably accommodate her disability. Under the ADA, discrimination is defined to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." The statute thus establishes a cause of action for disabled employees whose employers fail to reasonably accommodate them. However, an employer is not required to always provide the employee with the best possible accommodations or in the specific manner the employee requested. It has broad discretion in determining which alternative accommodation should be provided. Under the ADA, reasonable accommodations may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, and other similar accommodations.
See, e.g., Templeton v. Neodata Services, Inc., 162 F.3d 617 (10th Cir. 1998) (assessing employee's claim that employer failed to reasonably accommodate her).
See 29 C.F.R. § 1630.9.
Defendant accommodated Johnson's disability in 1998, when in accordance with the settlement agreement, Johnson submitted a request, supported by appropriate medical documentation, that she not work more than five days in a row and have two days off. The settlement agreement acknowledged that Johnson might nevertheless have to work "on call" and weekends, and further acknowledged that Defendant would make reasonable accommodations subject to it not causing Defendant undue hardship. From May 1998 to May 2000, Johnson was periodically "on call" during her days off. Johnson did not like this, but did not complain in writing, nor seek further accommodation.
In May 2000, a critical staffing shortage arose after the nurse who worked weekends left. This placed Defendant in a position of "undue hardship," because the weekends had to be staffed as well. Defendant turned to its employees to cover the weekends until it could hire someone else. Johnson nevertheless refused to work the scheduled weekend. Defendant in effect accommodated Johnson; Defendant did not make Johnson work that weekend. Defendant never requested Johnson to work weekends again. The crisis abated, the situation was temporary, and Defendant did not have to ask any of its employees to cover the weekend position.
But, with respect to Johnson's refusal to work on May 13 and 14, 2000, Defendant responded in accordance with the settlement agreement, giving Johnson written notice that Defendant was in a time of staffing crisis and Johnson's failure to work that weekend had caused Defendant undue hardship. In a meeting that followed, Defendant's posture was also in accordance with the settlement agreement. If Johnson was going to now seek accommodation irrespective of staffing crises or undue hardship, Defendant wanted additional medical documentation justifying why Johnson could never work a weekend or more than five days in a row. The settlement agreement contemplated that additional or more liberal accommodations required additional medical information.
If the Health Agency determines it may not accommodate a specific request for accommodation based on the information available to it at that time, it agrees to notify Ms. Johnson of any need on the Health Agency's part for any additional medical clarification.
At this meeting, Johnson clarified that she did seek an accommodation that was without exception and irrespective of any "undue hardship" to Defendant. Johnson articulated that her disability was worsening: she had recently had a seizure; her seizure condition was no longer being controlled by medication; and her medication had changed. Under the terms of the settlement agreement, Defendant had the right, and did ask for documentation from Johnson's medical providers. More important, Defendant wanted assurance that Johnson's condition in its current state did not pose a risk to Johnson or her patients. Upon such a request for medical documentation, the settlement agreement stated:
Ms. Johnson on her part agrees to provide the supporting medical documentation from treating physicians clarifying her conditions and how her requests for accommodations relate to the essential job functions of the position at issue.
Johnson never provided the medical documentation Defendant requested. Johnson provided a terse statement from one doctor that she could return to work. Johnson also provided a statement from Dr. Jacoby, which did not assure Defendant that Johnson posed no risk. Rather, Dr. Jacoby made statements that caused Defendant even more concern: that her seizure condition was difficult, that she was being referred to a neurologist, and that fatigue aggravated her condition. It is important to note that Johnson had been working five days on and two days off at this point; in fact, Johnson never worked a weekend. It should also be noted that Johnson testified that she cannot recall with certainty if she was ever called in while in "on call" status. Thus, the record does not show that Johnson was working more than five days in a row. Yet, her doctor attributed her worsening condition to her fatigue.
The medical documentation provided by Johnson did nothing to assure Defendant that Johnson's condition was not posing a risk of harm. On the contrary, it could have reasonably caused greater concern by Defendant. And, in a meeting in June, Johnson made statements that undoubtedly caused Defendant even greater concern: that she "spaced out" during a seizure and that she could not tell when a seizure was coming on. Medical documentation Johnson provided after this meeting also caused greater, not lesser concern. Dr. Letourneau stated that her seizure condition was "worsening"; Dr. Welch stated that her seizure episodes lasted 10-15 seconds.
By February 2001, Johnson still had not provided any medical documentation that her seizure disorder was under control and so minor as not to pose a risk. Defendant was well within its rights to terminate her. Defendant had reasonably accommodated Johnson. While Johnson provided medical documentation that she could return to work, and that she should not work more than five days in a row, she did not provide the medical documentation Defendant requested. Defendant's request for documentation that her seizure disorder was under control and so minor as not to pose a risk was a reasonable request, given Johnson's duties, responsibilities, and work environment. Finally, although Johnson suffered termination, an adverse employment action, it was not because of her disability, but because she had failed to give appropriate medical documentation that her condition did not compromise her ability to work without risking harm to herself and her patients.
B. Title VII Race Discrimination
Johnson contends that Defendant discriminated against her on the basis of her race, African-American, in its disparate treatment of her. To show disparate treatment Johnson has the burden to prove that Defendant intentionally discriminated against her. She offers no direct evidence of intentional discrimination. Therefore, the Court once again examines Johnson's claim of discrimination under the burden shifting framework set forth in McDonnell Douglas Corp. v. Green.
Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1166 (10th Cir. 2000) (citation omitted).
411 U.S. at 792.
Johnson must establish a prima facie case of disparate treatment by showing she is a member of a protected class, that she suffered adverse employment action, and that Defendant treated similarly situated employees differently. The first two elements are not at issue. Johnson contends that Defendant treated her differently than it treated similarly situated white nurses who had disabilities. But, one of the nurses was not similarly situated; the other nurse was very similarly situated and was also terminated. Although the Court must view the evidence in the light most favorable to Johnson, she admits that she has no personal knowledge as to the nature and ramifications of one Carrie VanDruff's medical condition, and no personal knowledge as to the Defendant's accommodation of or actions against either of the nurses.
Trujillo v. University of Colorado Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998).
Id.
Id.
One of the nurses, Carrie VanDruff, passed out at work when her blood sugar level dropped. Her situation is dissimilar, however, because VanDruff complied with Defendant's request for medical documentation. Based on the medical documentation, Defendant is assured that VanDruff is now able to tell when she is having an episode, in time to take precautionary measures. Thus, her condition poses no risk to her or patients, from Defendant's standpoint.
The other nurse, Catherine Smith, also suffered from a seizure disorder. According to Johnson, Smith also had MS and a mental health issue. In a remarkably similar situation, Defendant became aware that Smith was having recurring seizures that were not being controlled by medication. Defendant asked Smith to provide medical documentation that her seizures were being controlled by medication and that her condition did not pose a significant risk of injury to herself and her patients. When Smith had not provided medical documentation with these assurances by the time Smith's medical leave expired, Defendant terminated Smith. In light of this evidence of Defendant's consistent treatment of two very similar situations, Johnson cannot make a prima facie case of race discrimination by disparate treatment.
C. Retaliation
Johnson contends that Defendant terminated her in retaliation for her making a claim under the ADA. As with Johnson's other claims, the Court is guided by the McDonnell Douglas framework. Johnson must establish a prima facie case raising a rebuttable presumption of retaliatory intent by showing: (1) that she engaged in protected activity; (2) that she suffered adverse employment action; and (3) that a causal connection existed between her protected activity and the adverse employment action. It is the third element that is at issue; is there a causal connection between Johnson's engaging in protected activity, in this case requesting reasonable accommodation, and Defendant's termination of her.
411 U.S. at 792.
Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000); Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
The temporal proximity between the protected activity and the retaliatory conduct must be very close or Johnson must offer additional evidence to establish causation. For example, a one and one-half month period between the protected activity and the adverse action, may by itself, establish causation, but a three-month period, standing alone, is insufficient to establish causation. In this case, there certainly is no strong temporal evidence of a causal connection. In May 2000, Johnson in effect sought further accommodation: that irrespective of Defendant's needs and undue hardship, she would never have to work more than five days in a row. Johnson and Defendant communicated about this request from about May to July 2000. Defendant did not terminate Johnson until February, some eight months later.
O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
Because there is no strong temporal connection, Johnson must offer other evidence showing a causal connection. But, the only thing she offers is that the Defendant treated two white nurses, with similar situations, more beneficially than her. Johnson relies on the same facts that Johnson asserts in her disparate treatment claim, which the Court rejects in this claim as well. For the reasons set out in the Court's discussion of Johnson's disparate treatment claim, the Court finds that Johnson offers no evidence that establishes a causal connection.
Even if Johnson had established a prima facie case of retaliation, the Court would grant Defendant's motion for summary judgment on this claim. Defendant has satisfied its burden to articulate "a legitimate, nondiscriminatory reason" for its action. Defendant does so in articulating its concern that Johnson's seizure condition was a direct threat to the health and safety of Plaintiff and others, including those in her care. As a registered nurse, Johnson was required to administer medications in the proper dosages, and to give injections with needles. Because of Defendant's staffing situation, the registered nurse needed to be able to do her work, without another nurse's eyewitness oversight. These duties certainly seemed compromised by someone, who in her own words, has seizures that make her "space out" for 10 to 15 seconds, and who cannot tell in advance that a seizure is coming on. Defendant further articulates that the patient population, inmates, requires a nurse who is also alert and capable of exercising professional judgment. Someone who loses control of her faculties for even 10 to 15 seconds, is clearly at a disadvantage in these respects. Defendant terminated Johnson, after her medical leave had expired, because in that eight-month period, she never provided what Defendant had asked for: medical documentation that her seizure disorder was under control or that it was so minor that it would not pose a risk of harm to Johnson or her patients.
Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir. 1995).
With this stated reasonable and legitimate business justification, Johnson must answer with clear and convincing evidence that Defendant's reason was a pretext for retaliation for exercising her rights to seek accommodation under the ADA. While Johnson can rely on evidence she relied on to prove a prima facie case, the Court rejects Johnson's evidence that Defendant treated her less favorably than two similarly situated white nurses. The only other evidence Johnson asserts concerning Defendant's motive is the fact that in April 2000, Defendant took no action in response to Johnson's notice that she had a seizure. Johnson argues that if Defendant was truly concerned about her safety or her patient's safety, Defendant would have taken precautionary measures in April when Johnson called in and told her supervisor that she had suffered a seizure.
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir. 2001) (quotation omitted).
The evidence, viewed in the light most favorable to Johnson, does not raise an inference of retaliatory motive or intent. In April, Johnson called her supervisor and asked to take a day off because she had a seizure. There is no evidence in the record that Johnson disclosed any other details or facts to Defendant at that time. There is no evidence that in April, Johnson made the revelations she made in May and June: that her seizure disorder was worsening; that she could not tell when a seizure was coming on; and that she "spaced out" during her seizures. There is nothing in the record to suggest that Defendant should have followed up this conversation with a request for medical information. Defendant knew that Johnson had seizures; the fact that she asked for a day off because she had a seizure did not necessarily mean that an employer with honest and nondiscriminatory motives would have taken action at that time. Thus, the Court finds nothing ominous in Defendant's not taking action in April, based on the nonspecific information Johnson chose to communicate. Defendant knew that Johnson had been able to work, had not had seizures at work, and that the accommodations in the settlement agreement were apparently successful.
Johnson also seems to argue that pretext is shown by the fact that Defendant did not hire her for several nursing positions within Defendant's penumbra, that would not have required more than 40 hour work weeks. But, this is speculative; Johnson does not establish that these positions would have been able to accommodate her request.
D. KAAD
With respect to Johnson's parallel claims of disparate treatment and retaliation under the KAAD, Defendant contends that nothing in the record shows that Johnson administratively exhausted her KAAD claim, and thus the Court lacks jurisdiction to consider the same. An October 11, 2001 letter to Johnson's counsel from the Kansas Human Rights Commission states that while that agency was making a determination of no probable cause, Johnson had a right to request EEOC review. Nothing in the record shows that Johnson did this.
In any event, the Court notes that Title VII and the KAAD are analogous. While not controlling, federal decisions applying Title VII are persuasive authority in KAAD claims. Thus, for the same reasons outlined above, the Court will grant Defendant summary judgment on Johnson's KAAD claims.
Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1479 (10th Cir. 1991).
IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment is GRANTED with respect to all of Plaintiff's claims.
IT IS SO ORDERED