Kowitz v. Trinity Health
| Decision Date | 17 October 2016 |
| Docket Number | No. 15–1584,15–1584 |
| Citation | 33 A.D. Cases 1,839 F.3d 742 |
| Parties | Roberta Kowitz, Plaintiff–Appellant, v. Trinity Health; Douglas Reinertson; Mark Waldera, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who represented the appellant was Mark V. Larson, of Minot, ND. Also appearing on appellant's brief was Lori Broker of Phoenixville, PA.
Counsel who represented the appellees was Sarah Andrews Herman, of Fargo, ND. Also appearing on appellees' brief Kevin Ha of Minneapolis, MN.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
KELLY
, Circuit Judge.
Roberta Kowitz appeals the district court's adverse grant of summary judgment on her claims that her former employer, Trinity Health, and former supervisors, Douglas Reinertson and Mark Waldera, violated her rights under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act. The district court concluded that Kowitz failed to show she was capable of performing the essential functions of her position, and that Trinity did not have a duty to reassign Kowitz to an alternate position. Because we conclude that Kowitz produced evidence that she could have performed the essential functions of her position with reasonable accommodation, we reverse.
Kowitz began working for Trinity Health in 2007 as a respiratory therapist in the cardiopulmonary department. She later assumed additional duties as a lead technician in the blood gas laboratory. Her direct supervisor was Reinertson, and Reinertson's direct supervisor was Waldera.
Kowitz had cervical spinal stenosis
, a degenerative disease of the spine. On July 21, 2010, Kowitz requested leave under the Family and Medical Leave Act (FMLA) to have corrective neck surgery. Trinity approved her request to take leave from July 27, 2010 through September 10, 2010. On September 7, 2010, Kowitz's doctor determined she could not return to work until October 18, 2010. Kowitz requested an extension of her leave time until October 19, 2010. Trinity granted this request. After the extension, Kowitz had used all of the leave time available to her under the FMLA.
When she returned to work, Kowitz provided Trinity with a Return to Work Form, in which her doctor outlined her physical restrictions. The form stated that up until November 29, 2010, Kowitz would be restricted to working eight-hour shifts, and lifting, carrying, pulling, or pushing no more than ten pounds, among other restrictions. Kowitz also verbally informed Reinertson that she would be unable to work twelve-hour shifts until approved to do so by her doctor. Trinity assigned Kowitz to eight-hour shifts, rather than twelve-hour shifts, though Reinertson informed her that Trinity would not be able to accommodate the eight-hour shifts indefinitely.
On November 19, 2010, Reinertson posted a memorandum in the cardiopulmonary department's communication book directing department employees to provide updated copies of their basic life support certifications by November 26, 2010. The memorandum stated, “If you are not up to date on your BLS you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BLS class.” Several respiratory therapists, including Kowitz, did not have up-to-date basic life support certifications.
On December 2, 2010, Kowitz's doctor determined that she would need to complete at least four additional months of physical therapy before she would be able to complete the physical portion of the basic life support certification. Immediately after the appointment, Kowitz left Reinertson a voicemail message relaying her doctor's instructions. On December 3, 2010, Reinertson and Waldera informed Kowitz that her employment was terminated because she was unable to perform basic life support.
Kowitz brought suit against Trinity, Reinertson, and Waldera, alleging, among other things, that she was unlawfully terminated on the basis of her disability. The district court granted summary judgment in favor of the defendants, concluding that Kowitz was not qualified to perform the essential functions of either of her positions because she was not certified to provide basic life support. The district court additionally concluded that because Kowitz never requested a transfer to another position within Trinity, Trinity was under no obligation to reassign her to a position that did not require basic life support certification.
The ADA and the North Dakota Human Rights Act prohibit employers from discriminating against employees on the basis of disability. 42 U.S.C. § 12112(a)
; N.D. Cent. Code § 14–02.4–03(1). Because North Dakota courts look to case law interpreting the ADA for guidance in interpreting the state statute, see Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D. 1993), we will consider the claims together.
To establish a prima facie case of discrimination on the basis of a disability, a plaintiff must show that she “(1) has a ‘disability’ within the meaning of the ADA, (2) is a ‘qualified individual’ under the ADA, and (3) ‘suffered an adverse employment action as a result of the disability.’ ” Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003)
(quoting Duty v. Norton–Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002) ). For an employee to be a qualified individual under the ADA, she must “(1) possess the requisite skill, education, experience, and training for h[er] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” Id. at 712 (quoting Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir. 2001) ).
Trinity argues that Kowitz was not a qualified individual under the ADA, because performing basic life support was an essential function of both of her positions. Essential functions “are the fundamental duties of the job, but not its marginal functions.” Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012)
. In determining whether a job function is essential, we consider several factors, including “what functions the employer thinks are essential, written job descriptions, how much time an employee spends on the job performing the function, the consequences of not having the employee perform the function, and whether other current employees in similar jobs perform the function.” Scruggs v. Pulaski Cty., 817 F.3d 1087, 1092 (8th Cir. 2016).
The job description for Kowitz's position as lead technician in the blood gas laboratory states that basic life support certification is required. For the respiratory therapist position, Kowitz produced one job description that states basic life support certification is “preferred, but not required.” The defendants, on the other hand, submitted other versions of the job description, which state that basic life support certification is required, or would be required within 30 days of hiring. Additionally, Reinertson and Waldera both testified that certification was necessary for respiratory therapists to ensure the safety of their critically ill patients.
There is some dispute as to how often respiratory therapists might be required to perform chest compressions. Another respiratory therapist testified that she was required to perform basic life support independently up to five times per year, and as part of a team up to ten times per year. She testified that, depending on how many employees were assisting in administering basic life support, respiratory therapists could be required to perform chest compressions and airway management. Waldera, on the other hand, testified that he was unaware of any respiratory therapist performing chest compressions during his twelve years at Trinity. Nonetheless, Waldera testified that regardless of how frequently it was required, respiratory therapists were expected to perform basic life support independently when necessary to save a patient's life. Finally, even though several respiratory therapists' certifications had lapsed at the time Reinertson posted his memorandum, every respiratory therapist except for Kowitz obtained an updated certification by the November 26, 2010 deadline. Given this evidence, there was no genuine issue of material fact as to whether the certification was an essential function of both of Kowitz's positions.
The question, then, is whether Kowitz could have performed this essential function with an accommodation, and if so, whether Trinity failed to reasonably accommodate her. According to Kowitz, Trinity should have allowed her additional time to complete her basic life support certification, or reassigned her to another position that did not require the certification. The district court rejected this argument, concluding that Kowitz produced no evidence that she ever requested an accommodation for her inability to perform basic...
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