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Miles v. American Red Cross

United States District Court, N.D. Oklahoma

September 29, 2017

ASHAWNA D. MILES, Plaintiff,
v.
AMERICAN RED CROSS, a/k/a AMERICAN RED CROSS SOUTHWEST BLOOD SERVICES REGION, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         Before the Court is defendant American Red Cross's (“ARC”) Motion for Summary Judgment and Brief in Support (Doc. 67), which plaintiff Ashawna D. Miles has opposed (Doc. 91). ARC contemporaneously filed an opposed Motion for Partial Judgment on the Pleadings and Brief in Support (Doc. 68). Shortly after ARC filed its motions, plaintiff filed an opposed Motion to Strike Unpled Affirmative Defenses in Defendant's Motion for Summary Judgment (Doc. 76). ARC thereafter filed an opposed Motion for Leave to Amend its Answer and Brief in Support (Doc. 77).

         ARC's Affirmative Defenses

         The Court will first address the parties' arguments regarding ARC's affirmative defenses. Plaintiff's argument in its Motion to Strike and in its Response to ARC's Motion for Leave to Amend is that ARC waived the defenses of business necessity, undue hardship, failure to exhaust administrative remedies, and direct threat by failing to assert them in its Answer. (Doc. 76 at 1-2; Doc. 79 at 1).[1]

         ARC responds that it did not rely on the business necessity defense in its Motion for Summary Judgment, contending that “it would not make sense” for ARC to do so because that defense applies only to disparate impact claims-which Miles has not asserted. (Doc. 78 at 3). If ARC did not intend to raise this defense in its Motion for Summary Judgment, then there is nothing to strike and no reason for Defendant to now add this defense to its Answer.

         The Court also denies plaintiff's Motion to Strike and defendant's Motion for Leave to Amend as to the affirmative defense of undue hardship. As noted by defendant, the undue hardship defense is relevant to whether accommodations proposed by the employee are reasonable. (Doc. 78 at 7). “[I]f the employee presents a facially reasonable accommodation, the burden of production then shifts to the employer to present evidence of its inability to accommodate. . . . The employer must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1267 (10th Cir. 2015) (internal quotations and citations omitted). Because the Court finds below that Miles has failed to present facially reasonable accommodations, consideration of any undue hardship defense is now unnecessary.

         Plaintiff also seeks to strike defendant's arguments related to failure to exhaust administrative remedies. The Tenth Circuit has previously held that the “[e]xhaustion of administrative remedies under the Americans with Disabilities Act . . . is a jurisdictional prerequisite to suit.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002). More recently, this characterization has been called into question, but not resolved. See Wickware v. Manville, 676 Fed. App'x 753, 767 n.4.

         “If exhaustion is a jurisdictional requirement, the district court must always dismiss if there has been a failure to exhaust.” McQueen ex rel. McQueen v. Colo. Springs School Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007). Waiver is not an issue, because the defense of lack of subject matter jurisdiction cannot be waived. Fed.R.Civ.P. 12(h)(3).

         Assuming exhaustion is not a jurisdictional requirement, this Court finds it appropriate to allow ARC to constructively amend its Answer to include this defense. While “the best procedure is to plead an affirmative defense in an answer or amended answer, ” the Tenth Circuit has held that a defendant may “‘constructively'” amend the answer by means of the summary-judgment motion.” Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006) (holding the district court properly considered qualified immunity defense that was first raised in defendant's motion for summary judgment). Amendment may be denied on grounds including prejudice to the plaintiff, undue delay, bad faith, or dilatory motive. Id.

         District courts in this circuit have allowed amendment at the summary judgment stage and declined to find prejudice where the plaintiff has challenged the newly raised defenses on the merits. See, e.g., ROC ASAP, L.L.C. v. Starnet Ins. Co., No. CIV-12-461-D, 2014 WL 667833, at *5 (W.D. Okla. Feb. 20, 2014) (allowing statute of limitations defense at summary judgment where there was no prejudice to plaintiff, who had “adequate opportunity to address the defense”); Ford v. Justice Alma Wilson Seeworth Acad., No. CIV-08-1015-D, 2010 WL 545871, at *2 (W.D. Okla. Feb. 9, 2010) (finding no waiver of qualified immunity defense where plaintiff opposed the defense in his response to motion for summary judgment); Dopp v. Jones, No. CIV-06-842-D, 2009 WL 3157353, at *2 (W.D. Okla. Sept. 29, 2009) (finding no waiver of defenses where plaintiff opposed them on the merits). Here, plaintiff rebutted ARC's failure to exhaust arguments as to both her failure-to-accommodate claim and her retaliation claim. (Doc. 91 at 30-33). For this reason, and because the Court has found no evidence of undue delay, bad faith, or dilatory motive, the Court will consider this defense in its assessment of defendant's Motion for Summary Judgment.

         The remaining issue before the Court is whether ARC's assertion of the direct threat defense, [2] which was raised in its Motion for Leave to Amend its Answer and Brief in Support (Doc. 77), is permissible.

         Plaintiff did not directly rebut the direct threat defense in her Response to ARC's summary judgment motion. However, evidence submitted by plaintiff reflects that she was put on notice of the direct threat defense. Specifically, an email from Mr. Stephens dated December 29, 2014, provides: “At this point, with zero lifting, pulling, and pushing [restrictions, ] this would put her and us at risk.” (Doc. 91-12 at 37). Plaintiff also stated in her deposition that Rashan Stephens, her supervisor, “said he didn't want to have injured workers because it was more of a liability than it was an asset to have them at work.” (Doc. 91-29 at 2 [Dep., p. 231]). Furthermore, since this case has been moved to the March 2018 trial docket, plaintiff has considerable time to prepare for this defense. Under the circumstances presented, the Court concludes that ARC may amend its Answer to include the direct threat defense.

         For the above-stated reasons, plaintiff's Motion to Strike is denied and defendant's Motion for Leave to Amend is granted in part.

         ARC's Motion for Summary Judgment

         I. Factual Background

         The following facts are drawn in favor of the plaintiff. Plaintiff was employed by ARC from July 7, 2007, until her termination on February 13, 2015. (Doc. 67 at 7, ¶ 1). At the time of her discharge, she was a Team Supervisor. (Id.). The job description of a Team Supervisor includes supervision of blood drives “to ensure an efficient, effective and compliant process.” (Doc. 67-1). The physical requirements for Team Supervisors “may include the ability to lift” and “push or pull heavy weights up and down ramps and stairs.” (Doc. 67-1 at 3).

         On June 9, 2014, plaintiff injured her left shoulder while she was “helping unload a bed off of a cargo vehicle” at a blood drive. (Doc. 67-2 at 13 [Dep., p. 59]). Rashan Stephens, plaintiff's direct supervisor, allowed plaintiff to return to work while she was subject to ten-pound and twenty-pound lifting restrictions imposed by her physician. (Doc. 91-8 at 8, ¶ 3). Plaintiff's physician reduced her lifting restriction to one pound on September 3, 2014. (Doc. 67-2 at 15-16 [Dep., pp. 61-62]). That same day, Mr. Stephens directed plaintiff to go home because she “probably wouldn't be able to help much out at the mobile.” (Id.).

         Plaintiff did not return to work after September 3, 2014. That month, plaintiff began receiving temporary total disability benefits. (Doc. 67-2 at 5 [Dep., p. 13]). ARC contends that plaintiff was on a leave of absence for more than 23 weeks (Doc. 67 at 9, ¶ 11), while plaintiff asserts she was working from home for some of that time (Doc. 91 at 22).

         In December 2014, plaintiff underwent surgery. Plaintiff's surgeon, Dr. Robert Nebergall, thereafter restricted her from lifting, pushing, or pulling more than zero pounds, and from reaching above her shoulders. (Doc. 67-2 at 17-18 [Dep., pp. 68-69]; Doc. 67-7). Dr. Nebergall increased plaintiff's lifting, pushing, and pulling restrictions to one pound on January 21, 2015. (Doc. 67- 8). ARC contends that the one-pound restriction rendered plaintiff incapable of performing many of the essential functions of the Team Supervisor position. (Doc. 67 at 13). Plaintiff asserts that the physical requirements of her position were not essential functions and argues that her restriction could be accommodated because it was limited to her left arm. (Doc. 91 at 20-25).

         Before her termination, plaintiff contacted several members of ARC to ask about accommodations. (Doc. 91-12 at 5-6, 9 [Dep., pp. 71-72, 125], Doc. 91-10 at 8). Mary Ann Dodson, a Human Resources Advisor, told plaintiff on December 3, 2014, that ARC needed her physician to complete a medical questionnaire regarding what accommodations would enable plaintiff to perform her job functions. (Doc. 67-9). According to plaintiff, Dr. Nebergall refused to complete the questionnaire. (Doc. 67-2 at 48 [Dep., p. 127]). On December 15, 2014, Christine Hinnerichs, an Absence Management/Compliance Advisor, informed plaintiff that ARC's main concern was knowing how much additional time plaintiff's physician believed she required off from work. (Doc. 67-11).

         On January 7, 2015, Ms. Dodson sent plaintiff a letter stating that ARC was unable to accommodate her zero-pound work restrictions. (Doc. 67-12). The letter further stated:

We strongly encourage your physician to complete the accommodation paperwork. We would like to know if there are any workplace accommodations we could provide you that would allow you to return to work, and if those are not possible, provide the amount of time your physician advises you remain off of work.

(Id.). Ms. Hinnerichs spoke with plaintiff on January 9, 2015, and told her that ARC needed her physician's opinion regarding workplace accommodations or, if no such accommodations were available, how much additional time plaintiff needed off from work. (Doc. 67-13). ARC asserts that as of February 13, 2015, plaintiff had failed to provide any physician-approved workplace accommodations or a physician's opinion regarding her return to work. (Doc. 67 at 10, ¶ 18). Plaintiff did, however, provide ARC with physician work status reports following each of her doctor's appointments and also suggested accommodations herself. (Doc. 91 at 16; Doc. 91-14 at 16 [Dep., 143]).

         Plaintiff was terminated on February 13, 2015. Plaintiff's termination letter reflects that she was terminated as a result of her failure to provide ARC with information related to accommodations and a return date. (Doc. 67-14). Plaintiff continued to receive temporary total disability benefits through March 2016, with the exception of several months in 2015. (Doc. 67-2 at 5 [Dep., p. 13]).

         II. Legal Standard

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There is no genuine issue of material fact “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The district court thus must determine “whether the evidence presents a sufficient disagreement [about that material fact] to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The non-movant's evidence should be taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255.

         “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment. . . .” Id. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

         III. Discussion

         Plaintiff's Complaint asserts disability discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; intentional infliction of emotional distress; violation of her personal rights pursuant to Okla. Stat. tit. 76, § 6; and negligent training, hiring, and supervision. ARC has moved for summary judgment on all of plaintiff's claims.

         The ADA prohibits employers from discriminating against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Because discrimination under the ADA can give rise to distinct claims, this Court “must first determine what type of ADA claim is at issue in this case.” See Punt v. Kelly, 862 F.3d 1040, 1047 (10th Cir. 2017). Miles appears to be asserting three different ADA claims, although she does not list these claims as separate counts in her Complaint. (Doc. 2 at 6-8). ARC, in its Motion for Summary Judgment and Brief in Support (Doc. 67), treats Miles's Complaint as raising a wrongful termination claim, a failure-to-accommodate claim, and a retaliation claim. This Court will do the same and will address each in turn.

         A. Wrongful Termination

         Where, as here, there is no direct evidence of discrimination, the Court applies the three-step, burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[3] Under this framework, plaintiff must first establish a prima facie case of discrimination. See Mason, 357 F.3d at 1118. If the plaintiff establishes her prima facie case, the burden of production then shifts to defendant “to offer a legitimate nondiscriminatory reason for its employment decision.” Morgan v. Hilti, 108 F.3d 1319, 1324 (10th Cir. 1997). “[T]he burden then reverts to the plaintiff to show that ‘there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual-i.e., unworthy of belief.'” Id.

         In order to establish a prima facie case of discrimination, an ADA plaintiff must show: (1) she is disabled within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job; and (3) she was discriminated against because of her disability. Osborne, 798 F.3d at 1266. A plaintiff's burden at the prima facie stage is “not onerous.” Hawkins v. Schwan's Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015) (quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)).

         ARC does not challenge the first element, plaintiff's status as a disabled individual under the ADA. However, ARC argues that plaintiff cannot prove she was qualified to perform the essential functions of her job with or without accommodations. (Doc. 67 at 11).

         1. Judicial Estoppel

         First, ARC cites Supreme Court authority for the proposition that plaintiff's acceptance of workers' compensation temporary total disability (“TTD”) benefits estops her from pursuing an ADA claim. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). In Cleveland, the Supreme Court held that an applicant's application for and receipt of Social Security Disability Insurance (“SSDI”) benefits do not automatically judicially estop a subsequent ADA claim if the plaintiff is able to sufficiently explain any inconsistency in her positions. Id. at 807.

         Plaintiff responds that Cleveland is distinguishable because plaintiff never applied for SSDI benefits nor did she claim a complete inability to work. (Doc. 91 at 13). While the Tenth Circuit has not addressed whether Cleveland is limited to SSDI claims, numerous federal courts have determined that the Supreme Court's reasoning in Cleveland is applicable to workers' compensation claims. See, e.g., Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 7 (2d Cir. 1999); Hansen v. Jerome Joint Sch. Dist. No. 261, No. 1:11-cv-00073-CWD, 2012 WL 1599915, at *7 (D. Idaho May 7, 2012); McDonald v. Mt. Perry Foods, Inc., No. C2:09-CV-0779, 2011 WL 3321470, at *12 (S.D. Ohio Aug. 2, 2011); Desmond v. Yale-New Haven Hosp., Inc., 738 F.Supp.2d 331, 345 (D. Conn. 2010); Rogers v. Wal-Mart Stores E., L.P., No. 1:06-cv-84, 2008 WL 552841, at *10 (E.D. Tenn. Feb. 26, 2008); Nodelman v. Gruner & Jahr USA Pub., No. 98 CIV. 1231(LMM), 2000 WL 502858, at *8 n.4 (S.D.N.Y. Apr. 26, 2000).

         Nonetheless, ARC's argument that plaintiff's ADA claim is estopped solely by virtue of her application and receipt of TTD benefits ignores the Supreme Court's rejection of a presumption of estoppel based upon a plaintiff's application and receipt of disability benefits. To be clear, the Supreme Court determined that the SSDI and ADA claims did “not inherently conflict to the point where courts should apply a special negative presumption, ” and instead directed courts to engage in a fact-intensive inquiry to determine whether a genuine conflict exists between the plaintiff's alleged contrary positions. Cleveland, 526 U.S. at 802-03. “When faced with a plaintiff's previous sworn statement asserting ‘total disability' or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim.” Id. at 807. Cleveland requires the plaintiff's explanation to be “sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions' of her job, with or without ‘reasonable accommodation'” in order for the ADA claim to proceed. Id.

         Plaintiff left work on September 3, 2014 and accepted temporary total disability benefits from September 3, 2014 through March 2016, with the exception of several months in 2015 following her termination. (Doc. 67-2 at 5 [Dep., p. 13]). In Cleveland, the Court found that a genuine conflict existed because the plaintiff made several affirmative representations to the Social Security Administration that she was disabled and unable to work for the period of time corresponding to the same period of time covered by her ADA claim. Cleveland, 526 U.S. at 807. By contrast, ARC has not pointed to any representations or legal positions on plaintiff's part that conflict with her ADA claim-ARC simply argues that plaintiff's receipt of TTD benefits is “facially inconsistent” with her ADA claim. (Doc. 67 at 12). Under Cleveland, this is not enough. While it may be possible that plaintiff's position in her workers' compensation lawsuit is contradictory to her present position in this case, the Court finds no evidence in the record to support such an inference. In the absence of any genuine conflict in plaintiff's positions or statements, plaintiff is not required to provide any explanation under Cleveland, and her ADA claim is not estopped.

         2. Plaintiff as a Qualified ...


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