7 F.3d 465 (6th Cir. 1993), 92-5954, Tuck v. HCA Health Services of Tennessee, Inc.

Docket Nº:92-5954.
Citation:7 F.3d 465
Party Name:Mary TUCK, Plaintiff-Appellee, v. HCA HEALTH SERVICES OF TENNESSEE, INC., d/b/a Donelson Hospital, Defendant-Appellant.
Case Date:October 05, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 465

7 F.3d 465 (6th Cir. 1993)

Mary TUCK, Plaintiff-Appellee,

v.

HCA HEALTH SERVICES OF TENNESSEE, INC., d/b/a Donelson

Hospital, Defendant-Appellant.

No. 92-5954.

United States Court of Appeals, Sixth Circuit

October 5, 1993

Argued Aug. 3, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 19, 1993.

Page 466

Frank Steiner (argued and briefed) and Ann Buntin Steiner (briefed), Steiner & Steiner, Nashville, TN, for plaintiff-appellee.

Page 467

Robert E. Boston (briefed), Stephen W. Grace (briefed), Waller, Lansden, Dortch & Davis, and Mark E. Edwards (argued), Nashville, TN, for defendant-appellant.

Before: KEITH and KENNEDY, Circuit Judges; and CONTIE, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant-appellant, HCA Health Services of Tennessee, Inc. (hereafter, "defendant Hospital"), appeals the district court's denial of its motion for a judgment as a matter of law in a jury trial on its state claim under the Tennessee Human Rights Act and in a bench trial under the Rehabilitation Act of 1973, 29 U.S.C. § 794.

I.

On March 27, 1991, plaintiff-appellee Tuck sued defendant Hospital, claiming defendant illegally discharged her because of her back disability. She claimed violations of 42 U.S.C. § 1983, 1 section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Tennessee Human Rights Act, Tenn.Code Ann. §§ 8-50-103 and 4-21-101 et seq. 2

On January 18, 1992, defendant Hospital filed a motion for summary judgment which the court took under advisement. The Tennessee Human Rights Act claim was tried before a jury on February 4-7, 1992. When Tuck closed her case in chief, the district court denied the Hospital's motion for judgment as a matter of law as to all of Tuck's remaining claims. On February 7, 1992, the jury found for plaintiff Tuck, and against defendant Hospital, on plaintiff's state claim. The entry of judgment was deferred until June 3, 1992 when the district court entered a memorandum opinion in favor of plaintiff Tuck in regard to her section 504, Rehabilitation Act claim tried before the bench without a jury.

The jury awarded Tuck $26,755.00 on her state claim. The district court further ordered defendant Hospital to reinstate Tuck, to pay her reasonable attorney fees and costs, and ordered the entry of the jury's award of damages.

On June 18, 1992, the district court denied defendant's motion for judgment as a matter of law. On July 16, 1992, the Hospital filed a timely notice of appeal.

In 1979, plaintiff Tuck began working for defendant Hospital as a registered nurse. She worked as both a staff nurse and a charge nurse for various wards at the hospital. As a charge nurse for the orthopedic ward, she took reports concerning patients, made rounds with doctors, and assigned tasks and supervised the other nurses on the ward.

Defendant Hospital made yearly evaluations of its employees. From 1979 to 1988, Tuck's supervisors ranked her work from "good" to "very good" to "outstanding." For September 1985, she was employee of the month.

On February 16, 1989, Tuck injured her back at work, having done so previously. Both times, she was assisting in lifting a patient who had fallen out of bed. Following the February 16, 1989 injury, she went to her doctor who referred her to Dr. Don Gaines. Dr. Gaines allowed her to return to work under light duty restrictions. She returned to her position as charge nurse on the orthopedic ward, mostly a managerial and supervisory position.

On March 14, 1989, having determined that surgery was required, Dr. Gaines performed extensive surgery on Tuck's back. 3 Following surgery, Tuck had to wear a back brace at all times, except to bathe. Starting December 5, 1989, she had to wear the brace only when on a car trip or involved in an activity that jeopardized her back.

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Dr. Gaines determined that plaintiff Tuck suffered a 15% permanent impairment to her body as a whole because of her back. For purposes of her permanent partial disability claim, Tuck agreed that she suffered a 37 1/2 permanent partial disability to her body as a whole.

On January 18, 1990, Dr. Gaines told Tuck that she could return to work, restricted to light duty for a few months according to plaintiff Tuck; for two months, according to defendant Hospital. 4 Dr. Gaines added no other restrictions to the release.

Although Dr. Gaines had allowed her to return to work as of January 18th, she did not begin to work again for defendant Hospital until February 5, 1990. She had given the hospital Dr. Gaines' release, and stated she could do no extensive labor (pushing, bending, heavy lifting, or pulling). The hospital assigned her as a staff nurse in the Progressive Care Unit (PCU) working a twelve hour shift, because her position as a charge nurse on an eight hour shift had been filled in orthopedics. 5 The Chief Nursing Executive, Ms. Cathy Parrish, and the clinical coordinator, Ms. Ruth Harkreader, determined that PCU would be the best position for Tuck. The PCU ward had shorter hallways, the nurse's station was centralized, and the ward had only fourteen beds with at least three nurses working the ward. Ms. Parrish thought the other nurses in PCU would be most accepting of helping plaintiff Tuck. In return, Tuck was to help do less strenuous tasks for the other nurses on PCU. The shift was a 12 hour one, however, compared to the eight hour one on orthopedics.

When Tuck sought to return to work, the Hospital had several positions advertised as available, including some having eight-hour shifts. However, Ms. Cathy Parrish testified that these positions were not open, and that it was common practice for the hospital to run advertisements regardless of whether the positions were open.

On March 23, 1990, plaintiff Tuck, Nurse Nell Sergeant, and a third nurse were to work on the 7:00 p.m. to 7:00 a.m. shift. The third nurse called in sick, leaving Tuck and Nurse Sergeant to care for fourteen patients. The shift coordinator, Ms. Charlene Reagan, was unable to call in help. Ms. Reagan assisted as well as she could, given her hospital-wide responsibilities. Apparently, plaintiff Tuck called her supervisors during this shift to complain about the working condition and her limited ability to work because of her back. However, Tuck completed her work receiving no complaints from her supervisors.

While working on PCU, plaintiff Tuck never received any complaints from co-workers or her supervisors about either her work performance or her part of the arrangement to receive help from the other nurses on the ward. No written counseling forms appear in her personnel file, nor do any complaints from co-workers appear in it. The Hospital contends that the other nurses on the ward complained that Tuck was not fulfilling her part of the bargain by helping them with their light tasks, in exchange for their helping her with her lifting.

Throughout this time, Tuck endured pain in her right hip, radiating into her right leg and foot, and numbness in her left foot. She could not lift patients, push patients in a stretcher, bend over patients, nor help patients into or out of a bathtub. This prompted Ms. Parrish to accept the clinical coordinator's recommendation to terminate Appellee Tuck's position within PCU even though she had not completed eight weeks in the restricted duty program as recommended by her doctor. Having found no other positions available for which Tuck was qualified, Ms. Parrish terminated plaintiff on March 27, 1990 following Tuck's completion of her 12 hour evening shift on the PCU ward. According to the termination interview form, plaintiff Tuck was "unable to perform expected

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staff nurse duties on progressive care due to her inability to do any lifting or pushing or to walk the length of the hall 'due to pain in her leg.' ".

Within four months of being terminated, plaintiff Tuck secured a job with Cloverbottom Developmental Center in a supervisory capacity, a position that allegedly requires as much or more manual labor than required on the PCU ward. She has performed these tasks "competently and adequately."

II.

Defendant Hospital first contends that the district court erred by submitting Tuck's state claim to the jury because she did not establish a prima facie case under the Tennessee Human Rights Act. Defendant Hospital questioned the propriety of the district court's sending the state claim to the jury and filed a motion for judgment as a matter of law. An appellate court's standard of review of a motion for judgment as a matter of law is the same as the standard the district court uses. Hunt v. Coynes Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992), citing King v. Love, 766 F.2d 962, 967 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). A district court considers the evidence in a light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences. Id., citing Lewis v. Irvine, 899 F.2d 451, 454-55 (6th Cir.1990). A motion for a judgment as a matter of law should be granted whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ. Id., citing Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987).

Defendant Hospital contends that Appellee Tuck failed to establish a prima facie case under Tenn.Code Ann. § 8-50-103. The code reads in part:

[t]here shall be no discrimination in the ... firing ... by any private employer against any applicant for employment based solely upon any physical handicap of the applicant, unless such handicap to some degree prevents the...

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