Brohm v. JH Properties, Inc.

• Decision Date: 24 July 1998
• Docket Number: No. 97-5112,97-5112
• Citation: 149 F.3d 517
• Parties: 74 Empl. Prac. Dec. P 45,577, 4 Wage & Hour Cas.2d (BNA) 1359, 8 A.D. Cases 511, 13 NDLR P 131 Charles M. BROHM, M.D., Plaintiff-Appellant, v. JH PROPERTIES, INC., doing business as Jewish Hospital of Shelbyville, Kentucky, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 517

149 F.3d 517

74 Empl. Prac. Dec. P 45,577, 4 Wage & Hour

Cas.2d (BNA) 1359,

8 A.D. Cases 511, 13 NDLR P 131

Charles M. BROHM, M.D., Plaintiff-Appellant, v. JH PROPERTIES, INC., doing business as Jewish Hospital of Shelbyville, Kentucky, Defendant-Appellee.

No. 97-5112.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1998.

Decided July 24, 1998.

Rebecca R. Barnes (briefed), Oliver H. Barber, Jr. (argued and briefed), Gittleman & Barber, Louisville, KY, for Plaintiff-Appellant.

Caroline Miller Oyler (briefed), Wyatt, Tarrant & Combs, Jon L. Fleischaker (argued and briefed), Dinsmore & Shohl, Louisville, KY, for Defendant-Appellee.

Before: GUY, GILMAN, and GODBOLD, ^* Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Dr. Charles M. Brohm, an anesthesiologist, appeals from a grant of summary judgment dismissing his disability discrimination suit against the Jewish Hospital of Shelbyville. He claims that the hospital violated the Kentucky Civil Rights Act, Ky.Rev.Stat. § 344.010, et seq., and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., when it discharged him for sleeping during surgical procedures. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

The hospital hired Brohm as Director of Anesthesiology in January of 1994. A three-year contract provided that Brohm could be terminated without cause upon the giving of 120-days written notice. On June 23, 1995, Timothy L. Jarm, the hospital's President and CEO, and Terri Graham, the hospital's Vice President of Professional Affairs, met with Brohm. In this meeting, Jarm notified Brohm that he was being suspended because Wanda Moore, the hospital's Operating Room Manager, filed a complaint alleging that Brohm had physically intimidated her and that a "verbal confrontation" ensued.

On June 27, 1995, Jarm presented Brohm with reports that Brohm was sleeping during surgical procedures while administering anesthetics. Brohm denied these reports and claimed that his colleagues may have perceived him to be snoring because of problems that often caused him to clear his sinuses. Jarm informed Brohm that the hospital was lifting Brohm's suspension from June 23, 1995, but was exercising its contractual right to terminate his employment with 120-days written notice. This meant that Brohm's termination would be effective on October 24, 1995.

On August 31, 1995, Jarm told Brohm that three doctors and a nurse had filed written complaints to the effect that Brohm had slept during four surgical procedures, at times "slack-jawed" and snoring. These complaints were filed in late August, with the last being filed on August 30, 1995. Brohm responded by telling Jarm that he was going to seek medical consultation regarding the possibility that he was suffering from chronic sleep deprivation caused by sleep apnea. This was the first time Brohm had ever mentioned that he might have a medical problem regarding his sleepiness.

Brohm asked that he be allowed to perform other tasks in the interim, such as conducting preoperative and postoperative rounds, helping operating-room staff manage the surgery schedule, and administering obstetrical anesthetics. Jarm, however, rejected this request and told Brohm that he was being suspended immediately. Brohm cautioned Jarm that because of the limited availability of doctors presently on duty, no one would be left to manage several patients then receiving epidural anesthetics. Jarm relented and allowed Brohm to remain for several hours until another doctor became available to take over for him. Brohm was officially terminated the next day, on September 1, 1995, rather than the previously stated date of October 24, 1995.

Prior to September 1, 1995, Brohm made an appointment to see Dr. David H. Winslow, Jr. On September 7, 1995, after his termination, Brohm underwent a sleep study conducted by Dr. Winslow. This study revealed that Brohm suffered from severe chronic sleep deprivation secondary to obstructive sleep apnea. According to Dr. Winslow, Brohm is now dealing with his condition by wearing a Continuous Positive Airway Pressure (CPAP) nasal mask during sleep. Dr. Winslow said in his deposition that "we feel like his ... problem with sleepiness has been eliminated" and that Brohm would not have any problem continuing his employment duties so long as he uses the CPAP mask.

Brohm sued the hospital under the Kentucky Civil Rights Act, Ky.Rev.Stat. § 344.010, et seq., and under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. The district court granted summary judgment in favor of the hospital, finding that Brohm had put forth no evidence to support his allegation that he was fired because he had a disability, as opposed to being fired because he had slept during surgical procedures. Brohm now appeals this ruling.

II. ANALYSIS

A. Summary Judgment Standard

This court reviews a grant of summary judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996). Summary judgment must be rendered pursuant to FED. R. CIV. P. 56(c) if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence and inferences must be construed in a light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

B. Disability Discrimination

The key issue before us is whether the hospital fired Brohm because of his disability. Under the Kentucky Civil Rights Act, Ky.Rev.Stat. § 344.040(1), it is unlawful for an employer to

discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, ... because the person is a qualified individual with a disability....

As the district court explained, the language of the Kentucky Civil Rights Act mirrors the language of both the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. Both acts forbid discrimination on the basis of disability. See Maddox v. University of Tennessee, 62 F.3d 843, 846 n.2 (1995) (noting that the ADA parallels the protection of the Rehabilitation Act, and holding that the district court's reasoning with respect to the Rehabilitation Act claim applied with equal force to the ADA claim.). We will therefore analyze this case by reference to the ADA.

The ADA provides in pertinent part as follows:

§ 12112. Discrimination

(a) General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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 (emphasis added).

To establish a prima facie case under the ADA, a plaintiff must show: (1) that he has a disability; (2) that he was otherwise qualified for his position; and (3) that the employer subjected him to discriminatory treatment solely by reason of his disability. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir.1996). If an employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for firing him. Maddox, 62 F.3d at 846. Assuming that such a reason is given, the burden then shifts back to the employee to offer evidence that the proffered reason was in fact a pretext designed to mask discriminatory intent. Id.

The hospital concedes that Brohm has come forth with sufficient evidence to establish that he is disabled and "otherwise qualified." The hospital challenges, however, whether Brohm can prove that he was terminated "solely by reason of" his disability. Brohm argues that we should apply the Second Circuit's approach of allowing an employee to establish that he was fired solely by reason of his disability if he can show that he was fired for conduct that is "causally related" to his disability. See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 516-17 (2d Cir.1991) (claim brought under the Rehabilitation Act). In Teahan, the employer fired an employee who was an alcoholic because of his excessive absenteeism. The district court granted summary judgment in favor of the employer, holding that the employee was terminated because of his conduct, not because of his disability.

The Second Circuit reversed and remanded, holding that termination based on a factor closely related to a disability constitutes discrimination based solely on the disability. Teahan, 951 F.2d at 516. The court analogized the case to that of a hypothetical employee whose limp causes him to make a "thump" noise when walking. The court stated that the limping individual's employer should not be allowed to escape liability simply by articulating that he was fired because of his noisy "thump" rather than his limp. Id. The court noted, however, that termination on the basis of the "thump" would not constitute unlawful discrimination if the conduct rendered the employee unqualified. Id.

The district court properly rejected the Teahan approach in the present case. This circuit's decision in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir.1995), is the controlling precedent. In Maddox, a former assistant football coach for the University of Tennessee was fired after being arrested for driving under the influence of alcohol. The coach sued the University of Tennessee under the ADA and the Rehabilitation Act, alleging that his termination amounted to disability discrimination because driving while intoxicated was a "causally connected manifestation of the disability of alcoholism." Id. at 846. The district court granted summary judgment in favor of the...