Serednyj v. Beverly Healthcare Llc

• Citation: 113 Fair Empl.Prac.Cas. (BNA) 104,94 Empl. Prac. Dec. P 44271,43 NDLR P 253,656 F.3d 540,25 A.D. Cases 103
• Decision Date: 26 August 2011
• Docket Number: No. 10–2201.,10–2201.
• Parties: Victoria SEREDNYJ, Plaintiff–Appellant,v.BEVERLY HEALTHCARE, LLC, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

656 F.3d 540

113 Fair Empl.Prac.Cas. (BNA) 104

94 Empl. Prac. Dec. P 44,271

25 A.D. Cases 103

43 NDLR P 253

Victoria SEREDNYJ, Plaintiff–Appellant,

v.BEVERLY HEALTHCARE, LLC, Defendant–Appellee.

No. 10–2201.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2011.Decided Aug. 26, 2011.

Anna M. Hearn (argued), Attorney, Valparaiso, IN, for Plaintiff–Appellant.Michael S. Glassman (argued), Charles M. Roesch, Attorneys, Dinsmore & Shohl LLP, Cincinnati, OH, for Defendant–Appellee.Before EASTERBROOK, Chief Judge, BAUER, Circuit Judge, and YOUNG, District Judge.^*YOUNG, District Judge.

Beverly Healthcare, LLC (“Beverly”), employed Victoria Serednyj as an Activity Director in Beverly's Golden Living nursing home in Valparaiso, Indiana, from August 2006 to March 2007. In early January 2007, Serednyj learned she was pregnant, and, at the end of February 2007, she began to experience pregnancy-related complications. Her doctor placed her on bed rest for two weeks, and, at the end of this two-week period, her doctor placed her on light duty restrictions. Serednyj asked to be accommodated, and Beverly denied her request under its modified work policy. Because Serednyj also did not qualify for leave under the Family Medical Leave Act (“FMLA”), Beverly terminated her employment. Serednyj then filed suit against Beverly, alleging gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), pregnancy discrimination under Title VII, as amended by the Pregnancy Discrimination Act (“PDA”), disability discrimination under the Americans with Disabilities Act (“ADA”), and retaliation. Beverly moved for summary judgment, which the district court granted. Serednyj now appeals. For the reasons set forth below, we affirm.

I. Background

A. The Activity Director Position

On August 11, 2006, Serednyj was hired as an Activity Director by Dawn Mount, the Executive Director of Beverly's Golden Living nursing home in Valparaiso, Indiana. Prior to that time, Serednyj worked at Beverly two distinct times as a certified nursing assistant (“CNA”), and both times, she voluntarily quit the position.

The duties of an Activity Director are to plan, implement, and participate in morning and/or afternoon activities for the residents at the nursing home facility. During Serednyj's term as Activity Director, she attended morning meetings, conducted exercise classes, developed a monthly calendar, shopped for activities, set up and prepared for activities, assisted residents to and from activities, and planned activities, including bingo, arts and crafts, cooking, and excursions outside the facility. In addition, Serednyj supervised the Assistant Activity Director, who assisted Serednyj with all of her job functions, conducted evening activities, and worked on Serednyj's off days.

The execution of Serednyj's duties entailed some physically strenuous functions. These included: (1) transporting residents to activities in either wheelchairs or much heavier “geri chairs”; (2) rearranging dining room tables for specific activities, and later setting them back into place; (3) shopping for supplies for use in the activities, including bingo prizes, snacks, and drinks, which required her to lift and transport heavy shopping bags; and (4) setting up and maintaining the rather large monthly activity calendar, which required her to stand on a stool and staple the calendar to corkboard mounted on a wall. Other Beverly employees voluntarily assisted her with these functions, including Eric Christe, a physical therapy assistant, other members of the physical therapy department, and other CNAs.

The job description for the position of Activity Director includes an “Essential Functions” heading, a “Qualifications” heading, and an “Other Job Functions” heading. Underneath the “Other Job Functions” heading is a section entitled “Physical and Sensory Requirements.” These requirements include: “[w]alking, reaching, climbing, bending, lifting, grasping, fine hand coordination, pushing and pulling, ability to read and write, ability to communicate with residents and personnel, and ability to remain calm in emergency situations and when handling multiple tasks.”

B. Serednyj's Pregnancy Complications

On December 14, 2006, Serednyj learned she was pregnant, but she suffered a miscarriage days later. On January 7, 2007, she learned she was pregnant again.¹ Shortly after learning of the second pregnancy, she informed Mount, her supervisor, and others at Beverly that she was pregnant. Mount congratulated Serednyj, and Serednyj continued to perform all of her required duties and to work her regular schedule throughout January and February 2007.

At the end of February 2007, Serednyj began to have complications with her pregnancy, including spotting and cramping. She went to the hospital and was seen by Dr. Wallace Sherritt, who was covering for her regular physician, Dr. Kurt Wiese. After conducting several tests, Dr. Sherritt concluded that Serednyj's progesterone levels were low, that she had bleeding behind the placenta, and shearing of the uterus. He informed her that if these complications were not addressed immediately, she would suffer another miscarriage. Dr. Sherritt prescribed progesterone suppositories twice a day and told Serednyj not to perform strenuous activities.

Serednyj explained her situation to Mount. A few days later, Mount asked for further explanation regarding what work duties she could and could not perform. Dr. Sherritt provided a doctor's note, dated February 27, 2007, which reads, in relevant part:

I have seen this patient and have instructed her that she is to limit her activities to no heavy lifting or strenuous activities. She has explained her responsibilities that pertain to her work and she has been advised that she is not to participate in her usual work load. If she cannot perform duties that are of a limited nature then she needs to stay off of work until she can be re-evaluated by Dr. Wiese upon his return next week. Failure to do so could jeopardize her pregnancy.

These restrictions meant that Serednyj could not set up and move tables for activities in the nursing home, push patients in their wheelchairs to those activities, nor decorate and maintain the activity calendar. Serednyj requested to be excused from these activities.

Mount explained Beverly's modified work policy to Serednyj, and informed her that she could not return to work until Dr. Wiese released her back to full duty. The modified work policy, known as HR–305, states: “The Company only provides one type of restricted or limited duty to employees with non-work related injuries or conditions,” which is accommodated duty “as one form of reasonable accommodation under the Americans with Disabilities Act (ADA) or comparable state law, where medically necessary for qualified individuals with disabilities to perform essential functions.” The policy states in bold, “No other restricted or limited duty is permitted for non-work related injuries or conditions.” Mount also informed Serednyj that she had not been employed long enough to qualify for FMLA leave.

On March 1, 2007, Dr. Sherritt faxed another note to Mount, which stated: “After reviewing your form and considering this patient's situation I have decided that in her best interest I cannot give my permission for her to continue working in any capacity.” Dr. Sherritt indicated that Serednyj's physician, Dr. Wiese, would return to work soon, and that he deferred to his judgment regarding her work restrictions.

Serednyj saw Dr. Wiese on March 6, 2007, and he signed a small form entitled “Disability Certificate.” Dr. Wiese reported that Serednyj was totally incapacitated (on bed rest) from March 2, 2007, to March 14, 2007, and was still unable to return to work. Serednyj showed the form to Mount, and informed her she was to see Dr. Wiese again on March 13, 2007. Mount told her that if she could not return to work on March 14, 2007, without restrictions, she would have to “let her go.”

On March 13, 2007, Serednyj saw Dr. Wiese, who wrote a note saying “light duty or unable to work until further notice.” Serednyj gave the note to Mount, who again informed Serednyj that she did not fall within Beverly's modified work policy because her injury was not “work related,” and that she had not worked there long enough to qualify for FMLA leave. Mount terminated her employment.

Serednyj hired an attorney, who drafted a letter to Beverly, dated March 21, 2007, requesting an accommodation pursuant to the ADA and the PDA. Mount informed Serednyj she would look into it again, and contacted the Division Manager of Human Resources, Connie Rebey. After this discussion, Mount called Serednyj on March 26, 2007, to inform her a second time that she was not eligible for light duty work under Beverly's modified work policy.

On April 10, 2007, Beverly filled out an Earning Information Request form for Serednyj for Indiana state welfare. Beverly indicated on the form that Serednyj was “fired” from her job.

In June 2007, Serednyj's physician lifted her restrictions and informed her that she could begin exercising again. Serednyj had a healthy baby boy on September 24, 2007, and began working part-time at Wal–Mart on December 5, 2007, without any restrictions. Serednyj became pregnant again with her second child in January or February 2009, and suffered no complications throughout that pregnancy.

II. Analysis

Summary judgment is appropriate if the record “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). The Court reviews de novo a district court's grant of summary judgment, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hall v. Nalco Co., 534 F.3d 644, 646 (7th Cir.2008). When a summary judgment motion is submitted and supported by evidence as provided in Rule 56...