Kocsis v. Multi-Care Management, Inc., MULTI-CARE

• Decision Date: 15 October 1996
• Docket Number: No. 95-3507,MULTI-CARE,95-3507
• Citation: 97 F.3d 876
• Parties: 6 A.D. Cases 442, 18 A.D.D. 17, 8 NDLR P 383 Linda M. KOCSIS, Plaintiff-Appellant, v.MANAGEMENT, INC., d/b/a Bath Manor Special Care Centre, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 876

97 F.3d 876

6 A.D. Cases 442, 18 A.D.D. 17, 8 NDLR P 383

Linda M. KOCSIS, Plaintiff-Appellant, v. MULTI-CARE MANAGEMENT, INC., d/b/a Bath Manor Special Care

Centre, Defendant-Appellee.

No. 95-3507.

United States Court of Appeals,

Sixth Circuit.

Argued June 14, 1996.

Decided Oct. 15, 1996.

John P. Moss (argued and briefed), Tallmadge, OH, for Plaintiff-Appellant.

Lester W. Armstrong (argued and briefed), Belkin & Harrold, Cleveland, OH, for Defendant-Appellee.

Before: BROWN, KENNEDY, and WELLFORD, Circuit Judges.

WELLFORD, Circuit Judge.

Plaintiff Linda M. Kocsis appeals the district court's grant of summary judgment in favor of defendant in this action in which she alleges that defendant discriminated against her because of her disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA").

I. BACKGROUND

Defendant, Bath Manor Special Care Centre ("Bath Manor"), is a 150-bed skilled and intermediate care nursing institution which is operated by Multi-Care Management, Inc. ("Multi-Care"). ¹ The Bath Manor facility is comprised of four units, three intermediate care units and one skilled care unit. Each intermediate care unit is staffed with one licensed practical nurse ("LPN") and a number of nursing assistants. The skilled care unit is staffed with one registered nurse ("RN"), who serves as the unit supervisor, one LPN and several nursing assistants. The nursing supervisor supervises the nursing staff on all four units. Plaintiff Kocsis, an RN, was hired by the defendant for the position of nursing supervisor in August, 1992. In that position, plaintiff initially was paid $16.00 per hour and received family coverage medical insurance. She later received a raise to $16.35 per hour.

When plaintiff began working for Bath Manor, she submitted a copy of her health record, dated July 27, 1992, which indicated that she had a history of fibromyalgia ² but no "serious illnesses." Plaintiff also submitted a supplemental health document, dated August 22, 1992, in which she indicated that the only illness she had was arthritis, and that she had no physical limitations.

Plaintiff subsequently began experiencing health problems. She stated in an affidavit that in December, 1992, and January, 1993, she informed her superiors about her problems and that she suspected that she had multiple sclerosis ("MS"). ³ Plaintiff underwent an MRI on January 26, 1993, but she did not notify defendant of the procedure. On January 28, 1993, her doctor, Dr. Mark Smith, referred her to a neurologist, Dr. Jon I. Weingart. ⁴ Plaintiff submitted a note to defendant from Dr. Weingart, dated February 1, 1993, that ordered "no work for 1 week" without providing the defendant a reason for the absence. ⁵ Suzanne White, then assistant director of nursing, made a notation on the doctor's note stating that "Linda Kocsis will furnish us with reports as soon as tests are completed."

On February 15, 1993, Susan Lozenski was hired as director of nursing. On or about March 29, 1993, Lozenski informed plaintiff that she was to be reassigned to the position of unit RN of the skilled care unit ("unit RN"), effective April 1, 1993. Lozenski told Kocsis that she was being reassigned because of her poor performance as nursing supervisor. In support of the allegation of poor performance, defendant submitted evidence of two performance evaluations and one record of disciplinary warning issued against Kocsis. ⁶ Kocsis claims that the evaluations support her allegation that she was "demoted" because of her physical health condition, noting that her February evaluation states: "Linda has recurring health problems which have affected her performance. The 7-3 shift is physically and mentally demanding and I am not sure Linda can continue to handle this."

As unit RN, Kocsis' rate of pay initially remained the same and was eventually increased to $17.35 per hour. She also continued to receive the same benefits in her new position. Defendant presented evidence that the position of nursing supervisor and unit RN were very similar, differing only in the number of patients and employees for whom each position was responsible. Kocsis testified, however, that the position of unit RN was much more physically demanding than that of nursing supervisor. As a unit RN, her shift was still from 7:00 a.m. to 3:00 p.m and she claims she had to perform more tasks related to resident care, such as lifting and maneuvering residents, in contrast to her duties as nursing supervisor. Kocsis testified that she was able to perform all of the physical demands of a unit RN, and that, consequently, she never asked the defendant for any type of accommodation.

On February 22, 1993, prior to her reassignment, plaintiff applied for a corporate nursing position with Multi-Care. Plaintiff sent her application in response to a job advertisement which stated:

Full-time corporate position for R.N. with the following qualifications: long-term care & acute care exp., Train the Trainer certification, organized & self-starter, interest in teaching a professional and non-professional staff, willing to travel within Northeast Ohio area. Please submit resume to: Multi-Care Management, 3659 Green Rd., Suite 320, Beachwood, Ohio 44122.

(Emphasis added). At the time of her application, Kocsis was not "Train the Trainer" certified. She claims, however, that Suzanne White, nevertheless, encouraged her to apply for the position despite the fact that she was not certified. Plaintiff did not receive the corporate nursing position.

Further, Kocsis asserts that Lozenski frequently called Kocsis into her office and subjected Kocsis to unprofessional, hostile, and humiliating treatment. ⁷ On March 30, 1993, the day after Kocsis was told about her reassignment, she filed a charge of discrimination with the Ohio Civil Rights Commission ("OCRC"), alleging that she had been denied a promotion and that she had been demoted because of her disability. In her charge, Kocsis indicated that she was afflicted with arthritis and MS. Dr. Weingart, however, submitted a document to the OCRC indicating that plaintiff had no disabilities or restrictions.

The defendant submitted two handwritten notes by Lozenski which indicated that Lozenski had twice asked Kocsis to provide a statement from her physician regarding Kocsis' condition. The first note, dated April 14, 1993, states: "I asked Linda Kocsis for a statement from her physician stating what diagnosis she has, when the diagnosis was made and if there are any restrictions connected with the diagnosis. She said she would provide this information." The second note, dated two days later, states: "I once again asked Linda for the above stated information. She said she would get it soon. I told her we need this information as soon as possible."

In response, Kocsis submitted two letters from her doctors. The first, dated April 14, 1993, was written by Dr. Andrew C. Raynor, who stated that Kocsis was "followed by [Dr. Raynor] for a diagnosis of fibromyalgia," and that she had no work restrictions at that time. The second, dated April 15, 1993, was from Dr. Weingart and it stated that "Linda Kocsis had a diagnosis of multiple sclerosis." Dr. Weingart also placed no specific restrictions upon Kocsis. The submission of those letters was the first written diagnosis of MS that Kocsis ever gave to the defendant. Later, on November 24, 1994, Dr. Weingart issued another report reiterating his MS diagnosis "with no specific job restrictions."

On May 17, 1993, while still employed with Bath Manor, plaintiff submitted an application at Bridgepark Center for Rehabilitation and Nursing Services. A few days later, Kocsis resigned her employment at Bath Manor and began working at Bridgepark in the position of unit manager at a lesser hourly rate than she had received from defendant. ⁸

On May 24, 1994, plaintiff filed the complaint below, alleging violations of the ADA; the Rehabilitation Act, 29 U.S.C. § 790, et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff alleged that Multi-Care denied her a promotion, demoted her, failed to accommodate her, and that it constructively discharged her because of her disability. The district court dismissed most of these claims and entered judgment for defendant. ⁹ The district court found it "questionable" whether Kocsis had pleaded a claim under the Rehabilitation Act of 1973 and did not address that claim. Finally, the district court granted summary judgment as to the remaining claims under the ADA. This timely appeal followed. Although plaintiff's notice of appeal indicates that she is appealing the entire district court judgment, she raises only the dismissal of her ADA claims in her brief on appeal. Accordingly, plaintiff has waived all other arguments. Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992). We consider on appeal only the ADA and constructive discharge claims.

II. DISTRICT COURT'S OPINION

The district court first construed Kocsis' somewhat confusing complaint as setting forth one count of disability discrimination manifested in three employment actions--failure to promote, demotion, and failure to accommodate--, and one count of constructive discharge. ¹⁰ The district court began by granting summary judgment on Kocsis' "failure to promote" claim. The court reasoned that Kocsis could not establish a prima facie case in that regard, because she admitted in her deposition that she did not have a "Train the Trainer" certificate and, thus, was not qualified for the position which she had sought. The fact that Suzanne White had encouraged her to apply, even if true, did not create a genuine issue of material fact as to whether the "Train the Trainer" certificate was required for...