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
September 29, 2017, this Court granted Defendant's Motion
for Summary Judgment as to Plaintiff's
failure-to-accommodate and retaliation claims under the ADA,
as well as her claims of intentional infliction of emotional
distress, violation of her personal rights pursuant to
Okla. Stat. tit. 76, § 6, and negligent
training, hiring, and supervision. (Doc. 135 at 29). The
Court denied summary judgment as to Plaintiff's wrongful
termination claim. (Id.). Now before the Court are
Plaintiff's Motion for New Trial (Doc. 138) and
Defendant's Motion for Reconsideration (Doc. 142).
Plaintiff is asking the Court to reconsider its decision on
her failure-to-accommodate and retaliation claims, whereas
Defendant is asking the Court to reconsider its decision in
regard to Plaintiff's wrongful termination claim.
Fed.R.Civ.P. 54(b), “any order or other decision,
however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” The Court has considered the
parties' motions and their arguments to revise the
Court's summary judgment order, but finds no
justification for such a revision.
Opinion and Order addressing Defendant's Motion for
Summary Judgment, this Court held that Plaintiff had carried
her burden in establishing a genuine dispute as to whether
her employer's actions were pretextual. (Doc. 135 at 17).
The Court based this holding on a determination that a
reasonable jury could find that Plaintiff met her
responsibilities under Defendant's “Return to
Work” policy, and, therefore, Defendant's decision
to terminate her based on a failure to return the so-called
“ADA questionnaire” was inconsistent with that
policy. (Id.). The Defendant now asks for a
reconsideration of this holding, suggesting that the Court
misapprehended the law. (Doc. 142 at 2). Upon review of
Defendant's Motion for Reconsideration, the Court finds
no reason to disturb its original conclusion that Plaintiff
carried her burden in showing pretext.
plaintiff may . . . show pretext by demonstrating ‘the
defendant acted contrary to a written company policy, '
an unwritten company policy, or a company practice
‘when making the adverse employment decision affecting
the plaintiff.” DePaula v. Easter Seals El
Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (quoting
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1230 (10th Cir. 2000). However, “[t]he mere fact
that an employer failed to follow its own internal procedures
does not necessarily suggest that the substantive reasons
given by the employer for its employment decision were
pretextual.” Cox v. Lockheed Martin Corp., 545
Fed.Appx. 766, 773 (10th Cir. 2013) (quoting Berry v.
T-Mobile USA, Inc., 490 F.3d 1211, 1222 (10th Cir.
2007)). Instead, “[t]he determinative question is
whether ‘a reasonable factfinder could rationally find
[the employer's rationale] unworthy of credence and hence
infer that the employer did not act for the asserted
nondiscriminatory reasons.'” Dewitt v. Sw. Bell
Tel. Co., 845 F.3d 1299, 1308 (10th Cir. 2017)
(alteration in original) (quoting Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1196 (10th Cir. 2011)).
Under the “honest-belief doctrine, ” the
court's role is not to ask “whether the
employer's decision was wise, fair or correct, but
whether it honestly believed the legitimate,
nondiscriminatory reasons it gave for its conduct and acted
in good faith on those beliefs.” Id. at 1307
(internal brackets and quotation marks omitted) (quoting
Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211
(10th Cir. 2010)).
Court finds that Plaintiff presented evidence from which a
reasonable jury could infer that Defendant did not honestly
believe the legitimate, nondiscriminatory reason it gave for
terminating her. In other words, a reasonable jury could find
that Defendant used the questionnaire as pretext.
noted in this Court's summary judgment order, Plaintiff
presents evidence that she made efforts to keep Defendant
informed regarding her medical situation. She turned in her
Work Activity Status Reports, which included information from
each doctor appointment (Doc. 91-12 at 3 [Dep., p. 66]), she
called several American Red Cross employees while she was on
leave from work (id. at 10 [Dep., p. 234]), and she
filled out a medical release form so that the organization
could contact her doctor directly (Doc. 91-14 at 16 [Dep., p.
evidence, viewed in the light most favorable to
Plaintiff's position, further supports a reasonable
inference of pretext. Plaintiff stated in her deposition that
her supervisor, Mr. Stephens, had instructed her in the past
to work on creating a “paper trail” for other
employees with restrictions that Mr. Stephens no longer
wanted to accommodate. (Doc. 91-29 at 6 [Dep., p. 114])
(“But whenever it came time and he had accommodated . .
. for what he deemed to be long enough, Shan [Stephens] has
said to me on several occasions, I want them to go on your
team because I know that you'll do a paper trail and
I'll just use your paper trail . . . .”). Later,
when Plaintiff herself was injured, Mr. Stephens helped make
the decision to fire her days before her next doctor's
appointment, despite advice from a member of Defendant's
Safety Department to “wait to see if there is some
improvement at [Plaintiff's] next office visit
2-18-2015.” (Doc. 91-19 at 3, 6-7). Construing this
evidence in favor of Plaintiff, a reasonable factfinder could
find Defendant's rationale for firing Plaintiff
“unworthy of credence.”
Failure to Accommodate
Motion and Supporting Brief, Plaintiff contends that the
Court erred in finding a lack of genuine dispute as to the
existence of reasonable accommodations. (Doc. 138). First,
Plaintiff points to the “Collection Mobile Staff Task
List for Restricted Duty Guideline” (Doc. 91-27 at 2-3)
as evidence of reasonable accommodations. However, this Task
List does not identify any accommodations that would enable
Plaintiff to perform the job functions at issue-i.e.,
performing phlebotomies, setting up blood drives, and taking
donor health histories. In fact, it lists “Site Set-up
and Breakdown, ” “Perform Phlebotomy, ” and
“Health History - Set-up/Work” as suggested tasks
for employees with lifting restrictions. (See Doc.
91-27 at 2). These are not accommodations to enable Plaintiff
to perform certain job functions, these are the job functions
Task List and the deposition testimony of Mr. Stephens and
Ms. Kellum identify some alternative tasks that Plaintiff may
have been able to perform, such as making cool cloths
(id. at 2) and running errands for the mobile blood
drive units (id. at 11 [Dep., p. 97]). However,
these alternative tasks are also not reasonable
accommodations. If performing phlebotomies, setting up blood
drives, and taking donor health histories are deemed to be
essential functions of Plaintiff's job, the law does not
require Defendant to relieve Plaintiff of those functions by
assigning her other tasks. As stated in the Court's
summary judgment order, the Tenth Circuit has made clear that
“an employee's request to be relieved from an
essential function of her position is not, as a matter of
law, a reasonable or even plausible accommodation.”
Mason v. Avaya Commc'ns., 357 F.3d 1114, 1122
(10th Cir. 2004). “Accommodation does not require the
employer to create a new job.” Mathews v. Denver
Post, 263 F.3d 1164, 1169 (10th Cir. 2001).
Plaintiff asserts that she provided sufficient evidence to
establish a prima facie case for her retaliation claim. (Doc.
138 at 6). The Court disagrees. Even if some of
Plaintiff's requests for accommodations occurred closer
to her termination date than the Court recognized in its
prior order, the Court still finds that no reasonable jury
could infer retaliatory intent from the evidence presented.
Instead of giving rise to a reasonable inference that
Defendant terminated Plaintiff in retaliation for requesting
accommodations, the evidence provided by Plaintiff shows
American Red Cross employees asking Plaintiff to provide them
with potential accommodations. In a letter sent to Plaintiff
on January 7, Ms. Dodson and Ms. Hinnerichs state that
“[w]e would like to know if there are any workplace
accommodations we could provide you that would allow you to
return to work . . . .” (Doc. 91-17 at 2). On January
9, in an email from Ms. Hinnerichs to other American Red
Cross employees, Ms. Hinnerichs states that she told
Plaintiff that “what we really need right now is . . .
if there are any workplace accommodations we could consider
providing her that would allow her to return to work.”