Equal Emp't Opportunity Comm'n v. Aurora Health Care, Inc.
| Decision Date | 14 May 2015 |
| Docket Number | Case No. 12-CV-984-JPS |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. AURORA HEALTH CARE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
The Equal Employment Opportunity Commission ("EEOC") filed this case against Aurora Health Care, Inc. ("Aurora"), on September 26, 2012. (Docket #1). The EEOC alleges that Aurora violated various provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., in discriminating against Kelly Beckwith1 by rescinding an offer of employment to her after learning that she was diagnosed with multiple sclerosis ("MS"). (Docket #1).
The case was originally assigned to Magistrate Judge William Callahan, and the parties consented to proceed before him. (Docket #2, #6). The parties filed cross-motions for summary judgment on November 3, 2014. (Docket #71). They fully briefed those motions (Docket #72, #79, #89, #98, #109, #114), but Magistrate Judge Callahan did not address them before relinquishing his case assignments in anticipation of retirement. Upon Magistrate Judge Callahan's relinquishment of this case, Aurora refused to proceed before Magistrate Judge William Duffin. (Docket #123). The casewas, thus, randomly re-assigned to this Court. The motions for summary judgment being fully briefed, the Court turns to decide them.
The Court begins with a discussion of the factual background. The parties largely disagree as to the facts, and the Court will note such instances. Unless otherwise indicated, the parties agree as to the Court's references to the facts. "As with any summary judgment motion, [the Court] review[s] cross-motions for summary judgment 'construing all facts and drawing all reasonable inferences from those facts, in favor of the non-moving party.'" Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013) (quoting Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008)). See also United States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014).
Aurora operates the Aurora Visiting Nurse Association ("AVNA"). (Aurora PFF ¶ 1; EEOC PFF ¶ 1).2 AVNA provides home care and hospiceservices to patients. (Aurora PFF ¶ 1). To accomplish this, Aurora hires nurses to work unsupervised in the homes of patients. (Aurora PFF ¶ 3).3
After receiving an offer of employment, prospective employees (including prospective AVNA nurses) were required to pass a physical examination. (Aurora PFF ¶ 10). One purpose of this pre-employment physical is to determine whether prospective employees will need any accommodations to perform their jobs. (EEOC PFF ¶ 51).
Prior to any physical examination, a prospective employee received and was required to fill out a Medical History and Physical Examination form (the "Form"). (Aurora PFF ¶ 12).4 The Form included a three-page "history" section, that directed prospective employees to check a "yes" box for any of a number of listed symptoms that the prospective employee "[was] experiencing or [had] experienced." (Aurora PFF ¶ 14; EEOC Resp. to Aurora PFF ¶ 14). The form also asked prospective employees to list "currentmedications," but did not provide any specific guidance regarding whether the prospective employee was required to list all medications currently prescribed or, rather, all medications that were actually being taken at the time. (Aurora PFF ¶ 15).5 The form also contained the following statement:
I understand that this is an evaluation and that my participation does not imply a Doctor/Patient relationship with the examining medical provider. I hereby certify that I have carefully read and completed the following questions, that I understand them and that the information given is complete, true and accurate to the best of my knowledge. I understand that the falsification or misrepresentation of any of the information, or the failure or neglect to disclose any information requests [sic], may be grounds for termination, regardless of when such falsification, misrepresentation, failure or neglect may be discovered.
(Aurora PFF ¶ 13).6 In addition to completing the Form, the prospective employee was also required to sign an authorization, agreeing that any medical information previously prepared by an Aurora provider, such as a medication list, could be disclosed. (Aurora PFF ¶ 16; EEOC PFF ¶ 60).
Typically, after the prospective employee finished filling out the Form, a licensed practical nurse ("LPN") or medical assistant ("MA") measured the prospective employee's vital signs, blood pressure, height, and weight; administered a vision and grip test; and, occasionally, drew the prospectiveemployee's blood. (Aurora PFF ¶ 17).7 The LPN or MA also performed a medication reconciliation, reviewing prescriptions listed on the Form or in the prospective employee's medical file. (Aurora PFF ¶¶ 18-19; EEOC PFF ¶ 66).8 After the LPN or MA had completed the initial examination and review, a physician, physician's assistant ("PA"), or nurse practitioner would review the Form with the prospective employee and perform the actual physical examination. (Aurora PFF ¶¶ 11, 21).9 Then, after the physical examination, the prospective employee typically underwent a drug screen. (Aurora PFF ¶ 23).10
Depending on the outcome of the physical examination, the prospective employee would either "pass" or be asked to provide more information. (Aurora PFF ¶ 24). In the latter event, Aurora's Employee Health Department would receive notice that employment was "onhold" until the required additional information was received.(Aurora PFF ¶¶ 24-25).
Aurora has, in the past, hired individuals with MS diagnoses when those individuals disclosed their diagnoses during their physical examinations. (Aurora PFF ¶ 106).
Aurora generally expects that all of its employees and prospective employees—including AVNA nurses—will not provide false or misleading information. (Aurora PFF ¶ 4). Its Caregiver Accountability Policy states that "dishonesty or falsification or unauthorized altering of...employment applications" may result in discharge. (Aurora PFF ¶ 5).11 Thus, Aurora occasionally rescinds offers of employment when it discovers that a prospective employee has been dishonest. (Aurora PFF ¶¶ 6, 8, 9, 26, 27,107).12 Aurora generally makes a decision after reviewing the circumstances of the individual case; on occasion, Aurora has even hired individuals who disclosed information during their physical examination that they did not previously disclose on the Form. (Aurora PFF ¶ 28, 108).13 Aurora has, however, rescinded offers when applicants have not disclosed "significant medical history." (EEOC PFF ¶ 49).
Ms. Beckwith was diagnosed with relapsing-remitting MS in 2005 after reporting to her doctor occasional weakness, numbness upon bending over, and shaking of her right eye. (Aurora PFF ¶ 29; EEOC PFF ¶¶ 8-9, 15, 33). Relapsing-remitting MS (which the Court will refer to simply as "MS" for the remainder of this order) is a form of MS that involves "flare-up" periods in which symptoms are pronounced and other periods in which symptoms are nonexistent. (EEOC PFF ¶ 11). However, even during times when Ms. Beckwith is not displaying symptoms, she still has MS. (EEOC PFF ¶ 14). Ms. Beckwith has been prescribed Rebif by her neurologist, Dr. BhupendraKhatri, since she was first diagnosed with MS, although she has not been entirely compliant with her medication. (Aurora PFF ¶ 30; EEOC PFF ¶¶ 8, 16).
The parties disagree over the extent to which Ms. Beckwith is affected by her MS, but seem to agree that her symptoms are relatively mild. For example, the numbness and shaky vision that Ms. Beckwith originally complained of would go away upon standing straight and closing her eye, respectively. (Aurora PFF ¶ 36).14 Ms. Beckwith testified at her deposition that her symptoms did not affect her activities or bodily functions, at least in 2005 when she initially reported her symptoms to her doctor. (Docket #32, Ex. 1 at 105:15-106:14, 161:1-23, 171:21-173:24).15 Indeed, Dr. Khatri has described Ms. Beckwith's 2005 symptoms as mild, minimal, and not disabling. (Docket #92, Ex. 7 at 41:3-5, 71:13-20, 78:24-79:1).16
After 2005, Ms. Beckwith's MS has been stable. (EEOC PFF ¶ 32). Her shaky vision has not returned. (Aurora PFF ¶ 40). The parties seem to agree that she did not have any flare-ups between 2006 and 2009. (Aurora PFF ¶ 56; EEOC Resp. to Aurora PFF ¶ 56; EEOC PFF ¶ 28). And, at least prior to 2009, the numbness or weakness issues occurred infrequently and were of limited effect. (Docket #92, Ex. 1 at 106:22-109:7; Docket #119, Ex. 10 at 114:17-116:23).17 However, Ms. Beckwith has continued to suffer from other symptoms, including fatigue, pain, and depression; the parties disagree over whether these symptoms can be attributable to her MS. (Aurora PFF ¶¶ 42, 43; EEOC Resp. to Aurora PFF ¶¶ 42, 43; EEOC PFF ¶¶ 21-22). It is clear, however, that at all times relevant to this litigation, Ms. Beckwith was diagnosed with MS and that there is no cure for her condition. (EEOC PFF ¶ 10; Aurora Resp. to EEOC PFF ¶¶ 10, 38).18
In any event, the parties agree that, in 2009, during the relevant time period, Ms. Beckwith reported to Dr. Khatri that she was doing well (AuroraPFF ¶ 47),19 although she may have had decreased vibratory sense perception in her toes (EEOC PFF ¶ 26).20 Despite the fact that she was doing well, though, Dr. Khatri instructed Ms. Beckwith to continue taking Rebif. (Aurora PFF ¶ 49).
Importantly, the parties agree that, during the relevant time period, Ms. Beckwith was capable of performing the essential functions of the position for which she applied. (EEOC PFF ¶ 79).
In August of 2009, Ms. Beckwith applied online for...
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