Morrissey v. Laurel Health Care Co.

• Citation: 946 F.3d 292
• Decision Date: 23 December 2019
• Docket Number: No. 18-1704,18-1704
• Parties: Rita MORRISSEY, an individual, Plaintiff-Appellant, v. LAUREL HEALTH CARE COMPANY, a Foreign Profit Corporation; Oak Health Care Investors of Coldwater, Inc., a Domestic profit corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

946 F.3d 292

Rita MORRISSEY, an individual, Plaintiff-Appellant,

v.LAUREL HEALTH CARE COMPANY, a Foreign Profit Corporation; Oak Health Care Investors of Coldwater, Inc., a Domestic profit corporation, Defendants-Appellees.

No. 18-1704

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2019

Decided and Filed: December 23, 2019

ARGUED: Sarah S. Prescott, SALVATORE PRESCOTT & PORTER, PLLC, Northville, Michigan, for Appellant. Christina A. Ginter, KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK, Detroit, Michigan, for Appellees. ON BRIEF: Sarah S. Prescott, SALVATORE PRESCOTT & PORTER, PLLC, Northville, Michigan, for Appellant. Christina A. Ginter, Karen B. Berkery, KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK, Detroit, Michigan, for Appellees.

Before: DONALD and STRANCH, Circuit Judges^*

AMENDED OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Rita Morrissey is a licensed practical nurse who worked for The Laurels of Coldwater ("Coldwater"), a skilled nursing and rehabilitation center, from 2001 until she quit in 2016. Morrissey alleges that she was under a twelve-hour work restriction due to a disability from 2012 onward, and Coldwater forced her to work beyond that restriction, compelling her to quit.

She sued Coldwater under the Americans with Disabilities Act for discrimination, failure to accommodate, and retaliation. At summary judgment, Morrissey supported her claims with evidence that: (1) she was disabled, (2) Coldwater had a blanket policy of denying all requests for accommodation that were not work-related, (3) Coldwater forced Morrissey to work beyond her medical restrictions, and (4) Coldwater targeted Morrissey after she complained. The district court granted summary judgment to Coldwater on all of Morrissey’s claims. Because there are numerous material factual issues in dispute, we REVERSE and REMAND for trial.

I.

The pertinent facts underlying Morrissey’s claims begin in 2012, when she informed Coldwater that, due to physically disabling issues with her back, she could not work more than twelve hours per shift. In support, she submitted a note from her primary care physician, Doctor Terry Shipe.¹ Morrissey’s file also contained two notes written by nurse practitioner, V. Jean Bradley. The first is dated February 9, 2012, and it, too, states that Morrissey could not work for more than twelve hours. The next note, dated February 23, 2012, provides the same restriction, but it also states Morrissey is only restricted until her next office visit. The record contains no further notes from Bradley. Morrissey’s position is that the absence of another note means that she remained under a twelve-hour work restriction. Coldwater believes it means the opposite. Thus, this fact is in dispute.

In a February 2012 meeting, Coldwater management informed staff that Coldwater would not provide accommodations for any medical condition unless the condition stemmed from a work-related injury.² Morrissey asserts that management went so far as to tell the staff that they must have any current restrictions lifted and that their jobs depended on it. Morrissey even submitted a transcript of surreptitiously-recorded audio of the meeting and the affidavits of three former Coldwater employees who corroborated this claim. Coldwater, relying on the depositions of Regional Director Jeff Shepard and Administrator Erin Tuttle, denies there was such a policy in place. That denial is belied by emails between Tuttle and ADA Coordinator Hal Nottingham, in which they both state that it was Coldwater’s policy to honor only those work restrictions that were based on work-related injuries. Thus, at best, it is a disputed fact whether Coldwater had a blanket policy of denying all requested accommodations that were not based on a work-related injury.

In July 2015, Morrissey took leave under the Family Medical Leave Act so that she could undergo carpal tunnel

surgery. When Morrissey was ready to return to work, she alleges that she was informed by Coldwater management that they did not allow staff to work with medical restrictions. Morrissey informed management that she did not have a restriction due to the surgery performed on her hands, but she reiterated that she still had a twelve-hour restriction due to her back. Morrissey testified that management told her that they were not sure whether they would honor her previous accommodation. On August 15, 2015, Morrissey submitted a note from her hand surgeon that stated that she "did not have any medical restrictions," and she returned to work in late September. This is the final medical note in Morrissey’s personnel file. Therefore, it is a disputed fact whether Morrissey was still under a twelve-hour work restriction.

Around this time, Coldwater was considering whether it should transition its nurses to twelve-hour shifts. Morrissey was aware of the possible change and testified that she spoke with Director of Nursing Jeanine Hayes about it. Morrissey purportedly asked whether she could be transferred to a unit that was not going to be converted to twelve-hour shifts, or whether Morrissey could go to "casual status," which would have allowed her to avoid being mandated to work longer than twelve hours. According to Morrissey, Hayes said that Morrissey could not transfer and that Morrissey would not have wanted to go to casual status because Coldwater was phasing out its casual-status nurses, and casual-status nurses did not receive guaranteed hours. Morrissey asserts that this constitutes a denial of a requested accommodation.

In December 2015, Coldwater transitioned two of its three nursing units, including Morrissey’s, to twelve-hour shifts.³ Morrissey was concerned about this transition because Coldwater would mandate its nurses to work more than twelve hours when the next shift was not fully staffed. Before a nurse was mandated to stay for more than twelve hours, Coldwater management would call around to see if they could get the shift covered voluntarily. If they could not, a nurse that was currently working that shift had to stay. To determine which nurse’s turn it was to be mandated, Coldwater followed an unwritten procedure. Management maintained a list that kept track of which nurse had been mandated most recently. That nurse was moved to the back of the list and so forth.

In the case of a tie, the selection was alphabetical.

According to Morrissey’s time records, from July 2012 through January 30, 2016, she worked more than twelve hours on eight occasions, but there is no evidence that she was mandated to do so in any of those instances. Indeed, she clocked out within fifteen minutes of her twelve-hour shift ending each time.

Things indisputably changed on January 31, 2016, however, when Morrissey was mandated by Coldwater to stay and work a 13.5-hour shift. Morrissey testified that, upon learning that she would have to work more than twelve hours, she told her manager that she had a twelve-hour work restriction that had to be honored under the ADA, but the manager responded that she was unaware of Morrissey’s restriction and that the manager had "no control" over the situation. The next day, Morrissey averred that she spoke with the Michigan EEOC and left a message with a Coldwater corporate officer. A Coldwater operations manager called Morrissey back and left a voice message, but Morrissey did not call him back.

Five days later, the situation deteriorated further. During Morrissey’s February 4, 2016 shift, she was informed that she was going to be mandated to work sixteen hours because a replacement nurse had called off from work. Morrissey testified that it was not her turn to be mandated; in fact, it was Nurse Marci Farmer’s turn. Farmer corroborated that it was her turn to be mandated in her affidavit. In the middle of the shift, Morrissey went to speak with Hayes about being mandated, but Hayes, purportedly, told Morrissey that there was nothing Hayes could do. Morrissey left prior to her shift ending and never returned to Coldwater.

At summary judgment, the district court ruled in favor of Coldwater, finding that Morrissey had not established that she was disabled, that she had not suffered an adverse employment action, that Coldwater had not failed to accommodate her, and that Coldwater did not retaliate against her. We disagree on each point.

II.

We review a district court’s grant of summary judgment de novo. Moore v. Lafayette Life Ins. Co. , 458 F.3d 416, 431 (6th Cir. 2006). "The court shall grant summary judgment if the movant 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). All evidence must be viewed in the light most favorable to the nonmovant. Bormuth v. Cty. of Jackson , 870 F.3d 494, 503 (6th Cir. 2017) (en banc).

We first address Morrissey’s claim for disability discrimination, which includes an analysis of her claim for failure to accommodate. We conclude by analyzing her retaliation claim.

The ADA prohibits an employer from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). ADA discrimination claims are analyzed under two different rubrics, depending on whether the plaintiff relies on "direct" or "indirect" evidence of discrimination. See Ferrari v. Ford Motor Co. , 826 F.3d 885, 891-92 (6th Cir. 2016). This court has explained the logic behind this distinction as follows:

When an "employer acknowledges that it relied upon the plaintiff’s handicap in making its employment decision[,] the McDonnell Douglas burden shifting approach is unnecessary because the issue of the employer’s intent, the issue for which McDonnell Douglas was designed, has been admitted by the defendant[ ] and the plaintiff has direct evidence of discrimination on the

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