United States District Court, W.D. Oklahoma
DIANA C. MORGAN, an individual, Plaintiff,
MIDWEST REGIONAL MEDICAL CENTER, L.L.C., an Oklahoma limited liability company, d/b/a ALLIANCEHEALTH MIDWEST, Defendant.
MEMORANDUM OPINION AND ORDER
J. CUTHRON, UNITED STATES DISTRICT JUDGE.
was employed by Defendant as a registered nurse working in
the behavioral health unit. She began her employment with
Defendant on July 1, 2014, and at that time the behavioral
health unit was located only on the second floor. In 2016 the
unit was expanded to the fourth floor. It became commonly
referred to the GERO floor. As part of the process of keeping
adequate staffing levels, nurses would float between the
second floor and the GERO floor. Floating is a process where
nurses will move to an area other than where they are
routinely assigned in an effort to accommodate a staffing
shortage in the other area. As a nurse in the behavioral
health unit, Plaintiff was expected to float when necessary.
early 2016, Plaintiff and her immediate supervisor at the
time, Judy Anderson, engaged in a dialogue regarding
Plaintiff’s ability to continue to float to the GERO
floor. Plaintiff has been diagnosed with multiple sclerosis.
As a result of the progression of that disease, Plaintiff has
made certain adjustments in her expectations of her abilities
in life, including the type of work she does. In her
conversation with Ms. Anderson, Plaintiff requested that she
not be expected to float to the GERO floor, stating that as a
result of her disability, working on that floor exacerbated
her condition. Ms. Anderson agreed with Plaintiff’s
request and as a result Plaintiff was not asked to float to
the GERO floor.
November of 2016, Ms. Anderson left suddenly, and Ms. Harris
was appointed to supervise Plaintiff and other nurses in her
unit. In February of 2017, other nurses complained to Ms.
Harris that Plaintiff was not floating to the GERO floor. As
a result of the complaints, Ms. Harris and her assistant, Ms.
Yu, called Plaintiff for a meeting. The parties are in
dispute about the content of that meeting. However, it is
undisputed that there was a discussion regarding the reasons
for Plaintiff not floating, that there was an expectation
from her supervisors that floating was necessary absent some
exception and that Plaintiff ultimately elected to resign
following the meeting.
then brought the present action under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq.
(“ADA”), and the Oklahoma Anti-Discrimination
Act, 25 Okla. Stat. §§ 1101, et seq.
(“OADA”), for failing to accommodate her
disability. Defendant filed a Motion for Summary Judgment,
arguing the undisputed material facts entitle it to summary
judgment is appropriate if the pleadings and affidavits show
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). [A] motion for summary judgment should be
granted only when the moving party has established the
absence of any genuine issue as to a material fact.
Mustang Fuel Corp. v. Youngstown Sheet & Tube
Co., 561 F.2d 202, 204 (10th Cir. 1977). The movant
bears the initial burden of demonstrating the absence of
material fact requiring judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper
disposition of the claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the movant carries
this initial burden, the nonmovant must then set forth
specific facts outside the pleadings and admissible into
evidence which would convince a rational trier of fact to
find for the nonmovant. Fed.R.Civ.P. 56(e). These specific
facts may be shown by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves. Celotex, 477 U.S. at 324. Such
evidentiary materials include affidavits, deposition
transcripts, or specific exhibits. Thomas v. Wichita
Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.
1992). The burden is not an onerous one for the nonmoving
party in each case, but does not at any point shift from the
nonmovant to the district court. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All
facts and reasonable inferences therefrom are construed in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
the Court notes the parties are in disagreement over the
proper framework for analyzing Plaintiff’s claims.
Defendant argues that the analysis should proceed under the
burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). However, as
Plaintiff notes, the Tenth Circuit has modified that analysis
in a failure-to-accommodate claim. See Punt v. Kelly
Servs., 862 F.3d 1040, 1050 (10th Cir. 2017). In a
failure-to-accommodate case, “the employee must make an
initial showing that ‘(1) she is disabled; (2) she is
“otherwise qualified”; and (3) she requested a
plausibly reasonable accommodation’” (quoting
Sanchez v. Vilsack, 695 F.3d 1174, 1177 (2012)). Then if
the employee produces evidence to make a prima facie case,
the burden of production shifts to the employer to present
evidence to either (1) conclusively rebut one or more
elements of plaintiff’s prima facie case or (2) to
establish an affirmative defense, such as undue hardship or
one of the other affirmative defenses available to the
employer. Smith v. Midland Brake, Inc., 180 F.3d
1154, 1179 (10th Cir. 1999). If the employer does either of
the above, summary judgment is appropriate unless the
employee can present evidence establishing a genuine dispute
regarding the affirmative defenses or rehabilitates any
challenged elements of her prima facie case. Id.
there is no dispute as to the first two elements. Defendant
has stipulated that Plaintiff is disabled under the ADA and
OADA. Second it seems clear that she is otherwise qualified,
as she was performing her duties satisfactorily up until the
time of her resignation and, indeed, Defendant argues that
there was no intent to discipline or otherwise modify the
conditions of her employment at the time of the meeting.
Thus, the question is whether Plaintiff requested a plausibly
reasonable accommodation. It is on this point that the
parties are in dispute. Defendant argues that at the meeting
Ms. Harris asked Plaintiff why she was not floating, and
Plaintiff offered her explanation of exacerbation of her
multiple sclerosis when working on the GERO floor. According
to Defendant, Ms. Harris then stated that she would need a
doctor’s note and that in the absence of a
doctor’s note that Plaintiff would be required to
float. Plaintiff’s recollection of the meeting is
drastically different. She asserts that Ms. Harris was
adamant that she be required to float and that if she refused
to float then she must resign. Plaintiff states that she
offered to provide a doctor’s note outlining the
reasons why floating would exacerbate her condition and Ms.
Harris refused, stating again that her only options were to
either float or resign. Clearly, resolution of this dispute
raises a question of fact which cannot be resolved at this
stage. Indeed, a reasonable juror could find in favor of
either party based on the evidence presented before the
attempts to bolster its position, arguing that Plaintiff had
prior experience with disciplinary proceedings and should
have recognized that the meeting with Ms. Harris in February
of 2017 was not a disciplinary hearing. While the evidence
Defendant offers in support may well persuade the jury in its
favor, it does not establish the absence of a dispute of
argues that Plaintiff never requested an accommodation in the
meeting, even in light of Ms. Harris’s suggestion that
she obtain a doctor’s note. As noted above,
Plaintiff’s recollection of the meeting is different,
and she asserts that she offered to provide a doctor’s
note. Defendant suggests that even this was insufficient to
have requested an accommodation. However, the Tenth Circuit
has made clear that “[t]here is no requirement that an
employee use ‘magic words’ like ‘ADA’
or ‘reasonable accommodation’ when making a
request, the employee must only make clear that ‘the
employee wants assistance for his or her
disability.’” Mestas v. Town of
Evansville, Wyo., ___ F. App’x ___, No. 17-8092,
2019 WL 4233198, *3 (10th Cir. Sept. 6, 2019) (quoting
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1049
(10th Cir. 2011)). At this stage, the Court must view the
facts in the light most favorable to Plaintiff as the
non-moving party. In that view, Plaintiff requested a
plausibly reasonable accommodation which was denied. Thus,
Plaintiff has established a prima facie case.
undertaking its burden of production to either rebut
Plaintiff’s prima facie case or establish an
affirmative defense, Defendant argues Plaintiff cannot
prevail as she cannot demonstrate an adverse employment
action. On this point, Defendant argues that even if
Plaintiff’s version of the meeting is accepted, and
there was an ultimatum given to her in that meeting,
resignation was not her only option. Thus, Defendant asserts,
Plaintiff was not constructively discharged. Constructive
discharge occurs “‘when “the employer by
its illegal discriminatory acts has made working conditions
so difficult that a reasonable person in the employee’s
position would feel compelled to resign.”’”
Garrett v. Hewlett-Packard Co, 305 F.3d 1210, 1221
(10th Cir. 2002) (quoting Sanchez v. Denver Public
Schs., 164 F.3d 527, 534 (10th Cir. 1998)). Indeed, the
Tenth Circuit has noted, “[t]he bar is quite high in
such cases: a plaintiff must show he had no other choice but
to quit.” Id.
suggests a number of options were available to Plaintiff
other than resignation. However, each of the options outlined
by Defendant are dependent upon an acceptance of
Defendant’s position that a decision did not have to be
made at that meeting. When viewed from Plaintiff’s
perspective, Ms. Harris had required a decision immediately
in the meeting. Thus, the other alternatives offered by
Defendant were not available to Plaintiff. The question of
whether or not an employee was constructively discharged
cannot be made solely from the viewpoint of the Plaintiff.
See Ulrich v. K-Mart Corp., 858 F.Supp. 1087 (D.
Kan. 1994), aff’d70 F.3d 1282 (10th Cir.
1995). Rather, the test must be made from an objective
viewpoint. Cockrell v. Boise Cascade Corp., 781 F.2d
173 (10th Cir. 1986), is instructive. There the Circuit noted
that the Plaintiff had been given an ultimatum – to
either go back to running a facility which he had stated he
had no interest in running and which would have altered the
conditions of his employment, or quit. The Tenth Circuit held
that whether that ultimatum amounted to constructive
discharge was a question for the jury. Id. at 178.
Here, Plaintiff’s testimony is that she was given an
ultimatum to either return to floating on the GERO floor as
needed or resign. Thus, the Court finds that a question of
fact exists as to whether ...