United States District Court, N.D. Oklahoma
ASHAWNA D. MILES, Plaintiff,
AMERICAN RED CROSS, a/k/a AMERICAN RED CROSS SOUTHWEST BLOOD SERVICES REGION, Defendant.
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
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).
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
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.
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.
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.
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.
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.
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.
remaining issue before the Court is whether ARC's
assertion of the direct threat defense,  which was raised
in its Motion for Leave to Amend its Answer and Brief in
Support (Doc. 77), is permissible.
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
above-stated reasons, plaintiff's Motion to Strike is
denied and defendant's Motion for Leave
to Amend is granted in part.
Motion for Summary Judgment
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).
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.).
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).
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
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).
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]).
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]).
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.
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.
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.
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.
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). 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
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.
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).
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.
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).
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
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
Plaintiff as a Qualified ...