Opinion
No. 3-03-CV-1660-BD (P).
October 19, 2004
MEMORANDUM OPINION AND ORDER
Defendant Colonial Manor Nursing Center has filed a motion for summary judgment in this case brought under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. For the reasons stated herein, the motion is granted in part and denied in part.
I.
In January 1997, Plaintiff Stanley Vore went to work as a charge nurse at Colonial Manor Nursing Center in Cleburne, Texas. (Plf. Supp. App. at 001, ¶ 2). He was later promoted to Medicare Manager/TILE Nurse Assessor. ( Id.). Although his new job was primarily administrative, plaintiff was required to cover shifts on the floor as needed. ( Id.). Shortly after his promotion, plaintiff began to experience serious medical complications secondary to diabetes, including: (1) frequent dialysis treatments for end-stage renal disease beginning in August 1998; (2) triple bypass heart surgery in January 1999; (3) a kidney transplant in December 1999; and (4) treatment for a diabetic ulcer on his right big toe in April 2001. ( Id. at 001-02, ¶¶ 2-4 8). At first, defendant accommodated plaintiff's medical needs. ( Id.). However, starting in the summer of 2001, plaintiff perceived a change in defendant's attitude toward his condition.
Plaintiff was diagnosed with insulin-dependent diabetes in 1978. ( See Plf.Supp.App. at 001, ¶ 2; Def. App. 075-77).
During the week of June 18, 2001, Kate Jennings, the recently hired Director of Nursing, informed plaintiff that she needed advance notice of all his medical appointments. ( Id. at 002, ¶ 9). When plaintiff asked how much notice she required, Jennings responded, "ideally a year." ( Id.). Jennings also instructed plaintiff to schedule all his appointments for one day a week in order to reduce his absences from work. ( Id.). Around the same time, plaintiff's immediate supervisor, Patricia Wilcox, assigned him to cover shifts on the floor with increasing frequency. ( Id. at 002, ¶ 10). Plaintiff protested that he could not work the floor due to his ulcerated toe and provided a note from his podiatrist restricting him to a wheelchair for his entire shift "to prevent further ulceration and to allow [the] current ulcer to heal." ( Id.; Def. App. at 217). Despite the fact that plaintiff was immunosuppressed and that his toe was not healing, Wilcox frequently assigned plaintiff to work the floor from his wheelchair. (Plf. Supp. App. at 002-03, ¶¶ 11-13). On at least one occasion, plaintiff was required to work the floor while running a high fever. ( Id. at 003, ¶ 14).
On August 6, 2001, plaintiff was diagnosed with a toe infection and referred to his transplant surgeon for treatment. ( Id.). Plaintiff told Jennings that he expected to be hospitalized as a result of the infection. ( Id. at 003, ¶ 15). Jennings suggested that plaintiff take leave under defendant's Family Medical Leave Act ("FMLA") policy and apply for disability. As predicted, plaintiff was admitted to the hospital on August 8, 2001. ( Id. at 003, ¶ 16). His toe was amputated the next day. ( Id. at 004, ¶ 17). Upon his discharge from the hospital, plaintiff was instructed not to return to work until further notice. (Def. App. at 003, ¶ 8 218). Effective August 22, 2001, plaintiff was granted leave under defendant's FMLA policy. (Def. App. at 003, ¶ 9 143-45). He remained on medical leave for the next 180 days. Because plaintiff was unable to return to work after exhausting his FMLA leave, he was terminated on February 22, 2002. ( Id. at 003, ¶ 10).
Plaintiff applied for social security disability benefits and was found totally disabled as of August 9, 2001. (Def. App. at 224).
On December 12, 2001, plaintiff, through his attorney, demanded benefits under defendant's Occupational Injury Benefit Plan (the "Plan"). ( Id. at 228-32). Under this Plan, which qualifies as an employee welfare benefit plan under ERISA, participants who sustain occupational injuries while in the course and scope of their employment are entitled to recover "non-fringe wage continuation, impairment income, supplemental income, death, dismemberment, and medical benefits[.]" ( See id. at 004, ¶ 11 Exh. 2). In his demand letter, counsel wrote:
In July 2001[,] Colonial Manor disregarded Mr. Vore's disability and medical condition by pulling him from an office job to work as a floor nurse, having full knowledge that work on the floor was against his doctor's advice concerning his ulcerated toe. In August 2001[,] Director of Nursing Jennings continued disregarding Mr. Vore's worsening medical condition. Colonial Manor forced him to work as a floor nurse in a wheelchair while he had a fever which resulted in the amputation of his toe.
( Id. at 231). Counsel also wrote the EEOC on April 24, 2002, complaining that plaintiff had been the victim of disability discrimination under the ADA and the Texas Commission on Human Rights Act ("TCHRA"). (Plf. App. at 017-20). A verified charge of discrimination was filed with the agency on October 28, 2002. ( Id. at 011). When the EEOC failed to act within 180 days, plaintiff requested and obtained notice of his right to sue. ( Id. at 010). This suit was filed in federal district court on July 22, 2003.
In his most recent complaint, plaintiff alleges that: (1) defendant violated the ADA by failing to accommodate his disability; (2) he was harassed by defendant because of his medical condition; and (3) he is entitled to benefits under the Occupational Injury Benefit Plan. ( See Plf. First Am. Compl. at 6-8, ¶¶ 24-28 8-10, ¶¶ 29-34). Defendant now moves for summary judgment. The issues have been fully briefed by the parties and the motion is ripe for determination.
Plaintiff also alleges that defendant violated the ADA by failing to continue his medical leave and by terminating his employment. ( See Plf. First Am. Compl. at 7-8, ¶¶ 23 27). However, as defendant correctly points out in its motion, an employer is not required to keep an employee who cannot perform the essential functions of his job on indefinite medical leave. See Rogers v. International Marine Terminals, 87 F.3d 755, 759-60 (5th Cir. 1996) ("Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect."). Nor could plaintiff, who was found totally disabled as of August 9, 2001, perform the essential functions of his job at the time of his termination on February 22, 2002. See 42 U.S.C. § 12111(8) ("qualified individual" under ADA is one who can perform essential functions of his job with or without reasonable accommodation). Plaintiff tacitly concedes these arguments by failing to address them in his response. Accordingly, defendant is entitled to summary judgment with respect to these claims.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial need only point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Conversely, a movant who bears the burden of proof at trial must submit evidence to establish every essential element of its claim or affirmative defense. See Webb v. City of Dallas, Texas, 2001 WL 1338348 at *2 (N.D. Tex. Oct. 17, 2001), aff'd, 314 F.3d 787 (5th Cir. 2002). The parties may satisfy their respective summary judgment burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993); Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986).
III.
Defendant maintains that summary judgment is proper with respect to plaintiff's ADA claim because: (1) plaintiff did not timely file a charge of discrimination with the EEOC; and (2) defendant reasonably accommodated plaintiff's known medical limitations. The court will address these arguments in turn.
It is not clear whether defendant seeks summary judgment with respect to plaintiff's claim that he was harassed because of his medical condition. However, in a footnote buried on page 13 of its brief, defendant suggests that plaintiff cannot maintain a harassment claim based solely on Jennings' recommendation that he apply for leave under the FMLA. ( See Def. MSJ Br. at 13, n. 32). Assuming this argument is properly raised in a footnote, plaintiff also alleges that his supervisors harassed him by disregarding his medical condition and by assigning him to work on the floor when they knew he had an ulcerated toe and was required to limit the time spent on his feet. ( See Plf. First Am. Compl. at 7, ¶ 25). The court therefore determines plaintiff's entire harassment claim survives summary judgment.
A.
As a threshold matter, defendant seeks summary judgment on its affirmative defense of limitations. A plaintiff must exhaust his administrative remedies before bringing a claim under the ADA in federal court. More particularly, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged violation. See Manning v. Chevron Chemical Co., LLC, 332 F.3d 874, 878 (5th Cir. 2003), cert. denied, 124 S.Ct. 1060 (2004) (holding that ADA incorporates procedural requirements of 42 U.S.C. § 2000e-5(e)(1)); Pasley v. City of Dallas, 2004 WL 1205184 at *2 (N.D. Tex. Jun. 1, 2004) (same). A charge must be "in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e5(b). Consistent with the remedial purposes of the ADA, a charge of employment discrimination must be construed with the "utmost liberality." Price v. Southwestern Bell Telephone Co., 687 F.2d 74, 78 (5th Cir. 1982). An unverified letter may constitute a charge if it identifies the parties and describes the alleged discriminatory conduct in enough detail to enable the EEOC to issue an official notice to the employer. Id.; see also Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991); Peterson v. City of Wichita, 888 F.2d 1307, 1308 (10th Cir. 1989), cert. denied, 110 S.Ct. 2173 (1990). A charge may be amended to cure technical defects or omissions, including failure to verify the charge. Such an amendment "relates back" to the date the charge was first received. 29 C.F.R. § 1601.12(b) (1997); see also Edelman v. Lynchburg College, 535 U.S. 106, 121-22, 122 S.Ct. 1145, 1153-54, 152 L.Ed.2d 188 (2002) (unverified but otherwise valid charge may be verified after time for filing charge has expired); EEOC v. I-Sector Corp., 2003 WL 29939 at *4 (N.D. Tex. Jan. 2, 2003) (same).
In his four-page letter to the EEOC dated April 24, 2002, counsel for plaintiff detailed the factual basis of his claim that defendant violated the ADA. Counsel also explained his legal position:
It is Mr. Vore's contention that he was discriminated against under the TCHRA and the ADA because of his disabilities which include diabetes, renal failure and related complications. Colonial Manor failed to provide him with reasonable accommodations. Kate Jennings, the Director of Nursing, made unreasonable requests of Mr. Vore during the week of June 18, 2001 regarding medical appointments. She wanted him to schedule all his appointments including five or more medical specialities on one day a week.
In July 2001, Colonial Manor disregarded Mr. Vore's disability and medical condition by pulling him from an office job to work as a floor nurse, having full knowledge that work on the floor was against his doctor's advice concerning his ulcerated toe. In August 2001, Director of Nursing Jennings continued disregarding Mr. Vore's worsening medical condition. Colonial Manor forced him to work as a floor nurse in a wheelchair while he had a fever which resulted in the amputation of his toe.
On August 7, 2001, Director of Nursing Jennings singled out Mr. Vore for harassment based on his health condition. When Mr. Vore informed Ms. Jennings that his toe was infected and he would be out for a doctor's appointment on August 8, Ms. Jennings recommended an FMLA leave, gave him a copy of the FMLA policy and then suggested that while out on FMLA, he could apply for disability. Ms. Jennings inferred that Mr. Vore's health condition was interfering with his job even though he was still working full time hours and it had not yet been determined that hospitalization was needed.
(Plf. App. at 019-20). This letter, though unverified, provides more than enough information to enable the EEOC to notify defendant of its alleged discriminatory conduct. Plaintiff cured any technical defects by filing a verified charge of discrimination on October 28, 2002. The verified charge does not contain any new facts or claims. Instead, it merely summarizes the allegations set forth in plaintiff's earlier letter. ( See id. at 011). Thus, the October 28, 2002 charge "relates back" to April 24, 2002. See 29 C.F.R. § 1601.12(b); I-Sector Corp., 2003 WL 29939 at *4.
The court concludes that plaintiff may pursue any claims based on discriminatory conduct that occurred after June 28, 2001 — 300 days prior to April 24, 2002. However, claims predicated on events that occurred before June 28, 2001 are barred by limitations. This includes plaintiff's claim that defendant made unreasonable requests and denied him reasonable accommodations with respect to medical appointments during the week of June 18, 2001.
B.
Defendant also moves for summary judgment with respect to plaintiff's reasonable accommodation claim. Under the ADA, an employer must make "a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A). It is incumbent upon an employee with a disability to inform his employer that he needs an accommodation. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 117 S.Ct. 586 (1996), citing 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, "[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability." Id.; see also Porter v. Mesquite Independent School District, 1998 WL 329361 at *7 (N.D. Tex. Jun. 11, 1998), citing Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). An employer may satisfy its obligation to participate in the interactive process in a number of different ways, such as meeting with the employee who requests an accommodation, asking the employee what he or she wants, and offering to discuss available alternatives when the request is too burdensome. See Taylor v. Phoenixville School Dist., 184 F.3d 296, 317 (3d Cir. 1999), citing 29 C.F.R. § 1630.9, App.
The summary judgment evidence shows that plaintiff asked Kate Jennings and Patricia Wilcox to be relieved of floor duty because of his ulcerated toe. ( See Def. App. at 101). Having made this request, defendant was required to engage in a "flexible, interactive process" with plaintiff to fashion a reasonable accommodation for his disability. Taylor, 93 F.3d at 165. Defendant does not point to any evidence suggesting that anyone ever met with plaintiff to discuss his request or explore alternative accommodations. Instead, defendant argues that plaintiff failed to submit medical documentation supporting his request to be relieved from floor duty. ( See Def. MSJ. Br. at 16). This argument misses the mark. Where, as here, the need for some kind of an accommodation is obvious, the employee need not provide a prescription or other medical proof before the employer is obligated to participate in the interactive process. The employee need only request an accommodation and identify the nature of his disability. See, e.g. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc); Hines v. Chrysler Corp., 231 F.Supp.2d 1027, 1040 (D. Colo. 2002); Schmidt v. Safeway, Inc., 864 F.Supp. 991, 997 (D. Or. 1994). It is abundantly clear from the record that defendant was aware of plaintiff's ulcerated toe and the limitations resulting therefrom. The fact that defendant was never told by a doctor that plaintiff could not perform floor duties is not dispositive of this claim. Nor is it relevant that defendant "bent over backwards" in the past to accommodate plaintiff's other disabilities. Consequently, this claim survives summary judgment.
A different rule may apply where the disability, resulting limitations, and necessary reasonable accommodations are not open, obvious, and apparent to the employer, such as when mental disabilities are involved. In such cases, an employer may require the employee with a disability to provide documentation of the need for an accommodation. See Taylor, 93 F.3d at 166, quoting 29 C.F.R. § 1630.9, App.
C.
Finally, defendant seeks summary judgment with respect to plaintiff's claim for benefits under the Occupational Injury Benefit Plan. The ERISA statute authorizes judicial review of the denial of benefits by a plan administrator. See 29 U.S.C. § 1132(a)(1)(B). However, such review is limited to the administrative record. Meditrust Financial Services Corp. v. Sterling Chemicals, Inc., 168 F.3d 211, 215 (5th Cir. 1999); Southern Farm Bureau Life Insurance Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993). Where the administrator is vested with discretionary authority to interpret the plan and determine eligibility for benefits, the court reviews the resulting decision for abuse of discretion. See Vercher v. Alexander Alexander Inc., 379 F.3d 222, 226 (5th Cir. 2004); MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003), cert. denied, 124 S.Ct. 2413 (2004). Such is the case here. The Occupational Injury Benefits Plan provides, in pertinent part, that the administrator shall have "discretionary and final authority to interpret and implement the provisions of the Plan, including, but not limited to, making all factual and legal determinations, . . . and making any and all determinations that may impact a claim for benefits hereunder." (Def. App. at 42). This language is sufficient to vest the administrator with discretionary authority to interpret the Plan. See MacLachlan, 350 F.3d at 476 (holding that substantially similar language vested administrator with discretionary authority); Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir. 1997).
Plaintiff counters that the abuse of discretion standard does not apply where there is a conflict of interest between the insurer and the claims administrator. See MacLachlan, 350 F.3d at 478; Vega v. National Life Insurance Services, Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en banc). According to plaintiff, a conflict exists in this case because "the employer directly puts funds into the bank account of Barron Risk Management, the third party administrator, who pays the claims out of employer assets" and is paid a consulting fee for its services. (Plf. MSJ Resp. at 15). Once the employee establishes an apparent conflict of interest, the court must apply a "sliding scale" standard in determining whether the administrator abused its discretion. Gooden v. Provident Life Accident Insurance Co., 250 F.3d 329, 333 (5th Cir. 2001); Vega, 188 F.3d at 297. Under the "sliding scale" standard, the court still applies the abuse of discretion standard, but gives less deference to the administrator in proportion to the apparent conflict. As the Fifth Circuit stated in Vega:
The existence of a conflict is a factor to be considered in determining whether the administrator abused its discretion in denying a claim. The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be. Having said that, . . . our review of the administrator's decision need not be particularly complex or technical; it need only assure that the administrator's decision fall somewhere on a continuum of reasonableness — even if on the low end.Vega, 188 F.3d at 297.
Although defendant funds the benefit plan and the administrator is paid a consulting fee for its services, such evidence, without more, does not establish an actual conflict of interest. There is no evidence that the administrator's performance reviews or level of compensation were linked to the denial of benefits or that the provision of benefits had a significant economic impact on the company administering the plan. See Fought v. Unum Life Insurance Co. of America, 379 F.3d 997, 1005 (10th Cir. 2004) (listing factors to be considered in determining whether conflict of interest exists). Without more compelling evidence of a conflict, the court will give only slightly less deference to the administrator's decision denying plaintiff's claim for benefits.
Even if the court were inclined to more closely scrutinize the administrator's decision, plaintiff has failed to show that the administrator abused its discretion. The Occupational Injury Benefit Plan provides benefits to covered employees for any "injury" incurred in the course and scope of their employment and during their participation in the Plan. (Def. App. at 031). The term "injury" means "damage or harm to the physical structure of the body caused solely as the result of either (i) an Accident, (ii) Cumulative Trauma, or (iii) an Occupational Disease." ( Id. at 022, § 1.24). An "Occupational Disease" is defined as:
[A]ny abnormal condition or disorder caused by and arising out of exposure to conditions of a Participant's Course and Scope of Employment and which causes damage or harm to the physical structure of the body. It includes acute and chronic illnesses or diseases caused by exposure, inhalation, absorption, ingestion, or direct contact to disease producing agents present in the Participant's Course and Scope of Employment. It also includes other diseases or infections that naturally result from the work-related disease. Occupational Disease does not include ordinary diseases of life to which the general public is exposed outside of a Participant's Course and Scope of Employment.
( Id. at 028, § 1.31). In order to receive benefits under the Plan, the employee must notify his supervisor of the injury due to occupational disease within 24 hours after being medically diagnosed or within 30 days after the employee should have known of the injury, whichever is earlier. ( Id. at 036-37, § 5.1). Any medical care or treatment must be furnished by an approved provider. ( Id. at 037-38, § 5.2).
The administrative record shows that plaintiff first demanded benefits under the Plan by letter dated December 12, 2001 — more than four months after his last day of work at Colonial Manor. ( Id. at 228-32). Counsel for defendant responded to this letter on January 14, 2002, advising plaintiff to "follow Plan procedures so that he does not inadvertently lose any benefits to which he may be entitled." ( Id. at 233). Neither defendant nor the Plan administrator had any further contact with plaintiff until they received a second demand letter or or about December 10, 2002. ( Id. at 241-46). On January 16, 2003, Chuck Eastwood, Claims Administrator, formally denied plaintiff's claim for benefits. In his letter to counsel, Eastwood explained:
Neither Mr. Vore nor you, as his representative, provided notification of an injury due to an accident or known exposure to an occupational disease within the required timeframe. Based on the fact that Mr. Vore did not follow the notification requirements, none of his medical treatment has been at the direction of an approved medical provider. Mr. Vore's condition does not meet the definition of "occupational disease," as diabetes and the complications associated with diabetes are ordinary diseases of life to which the general public is exposed. Mr. Vore's condition was pre-existing and the pre-existing condition was a major contributing cause to any alleged on the job injury. Your correspondence states that Mr. Vore was no longer an active employee at Colonial Manor as of August 15, 2001. He did not develop the MRSA infection until February 13, 2002. First of all, the onset of the MRSA infection occurred six months after Mr. Vore worked for Colonial Manor, long after any possible exposure at Colonial Manor could have caused the development of MRSA in Mr. Vore. Secondly, current medical research indicates that the development of MRSA infection is due to the overuse of antibiotics and Mr. Vore was under extensive antibiotic therapy prior to his development of MRSA.
( Id. at 253). The decision to deny plaintiff's claim for benefits is amply supported by the administrative record and can be upheld at any point on the "continuum of reasonableness." Vega, 188 F.3d at 297. Consequently, defendant is entitled to judgment as a matter of law.
CONCLUSION
Defendant's motion for summary judgment is granted in part and denied in part. The motion is granted with respect to: (1) plaintiff's ADA claim based on events that occurred prior to June 28, 2001; (2) plaintiff's claim that defendant violated the ADA by failing to continue his medical leave and by terminating his employment; and (3) plaintiff's claim for benefits under the Occupational Injury Benefit Plan. In all other respects, the motion is denied. The court will set the remaining claims for trial by separate order.
SO ORDERED.