Fail v. Community Hosp.

• Decision Date: 10 April 1997
• Docket Number: No. 96CA0004,96CA0004
• Citation: 946 P.2d 573
• Parties: 9 NDLR P 289, 21 Colorado Journal 521 Erika FAIL, Plaintiff-Appellee and Cross-Appellant, v. COMMUNITY HOSPITAL, Defendant-Appellant and Cross-Appellee. . V
• Court: Colorado Court of Appeals

Page 573

946 P.2d 573

9 NDLR P 289, 21 Colorado Journal 521

Erika FAIL, Plaintiff-Appellee and Cross-Appellant, v. COMMUNITY HOSPITAL, Defendant-Appellant and Cross-Appellee.

No. 96CA0004.

Colorado Court of Appeals,

Div. V.

April 10, 1997.

Rehearing Denied June 19, 1997.

Certiorari Granted Nov. 24, 1997.

Keith Killian & Associates, P.C., J. Keith Killian, James P. Guthro, Kay Snider Coffman, Connie K. Ward, Grand Junction, for Plaintiff-Appellee and Cross-Appellant.

Elder & Phillips, P.C., Mark R. Luff, Keith Boughton, Grand Junction, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge ROY.

Defendant, Community Hospital (hospital), appeals the judgment entered on a jury verdict awarding damages to plaintiff, Erika Fail, on her claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (1994). Plaintiff cross-appeals the court's order regarding prejudgment interest and attorney fees. We affirm.

The hospital employed plaintiff for almost nine years, during which time plaintiff worked in a variety of positions, including dietary aide, emergency room clerk, and rehabilitation aide. While in her last position, plaintiff developed a hernia and injured her right knee, both of which required surgery and lost time from work.

Plaintiff's knee injury permanently limited her ability to walk and bear weight on her right leg, which restricted her ability to perform all of the necessary duties of a rehabilitation aide. Recognizing her own limitations, plaintiff requested a transfer to a vacant position in medical records for which she was qualified, which she could perform without accommodation, and which carried the same pay grade as her present position.

Plaintiff interviewed for the medical records position on December 8, 1992, at which time she was being paid at the rate of $8.46 an hour. Plaintiff discontinued the interview when she learned that the salary would be $6.25 an hour and it would take 9 1/2 years to reach her current pay category. The next day the interviewer stated to plaintiff that the pay would be $7.66 an hour and plaintiff indicated that would not be acceptable.

The hospital assigns a numerical salary grade to each position that corresponds to a salary range which is further subdivided into eight lettered "steps." An employee moves up the steps within a grade based on performance, experience, and seniority. The hospital had a policy that transferring employees were to be paid no higher than the sixth step of the pay grade assigned their new position. In the rehabilitation aide position, plaintiff was being paid at a rate above the sixth step.

At the time plaintiff was seeking the transfer to medical records, and unbeknownst to plaintiff, her supervisor had decided that she could no longer perform the essential functions of her present position because of her disabilities. The supervisor decided to terminate plaintiff and so advised her on December 10, 1992, at which time she gave the plaintiff her severance pay and plaintiff left the hospital. At the time plaintiff was terminated, there were three like-graded positions vacant for which plaintiff was qualified by training and experience and which she could perform without any accommodation, one of which was the medical records position.

Plaintiff was not offered any of the vacant positions at the time of, and following, her termination, nor was any other accommodation discussed with her. Plaintiff unsuccessfully requested reinstatement approximately 10 days later. Plaintiff filed a claim pursuant to the ADA, alleging she was disabled, that she had been terminated because of her disability, and that the hospital had failed to offer her a reasonable accommodation.

At trial, plaintiff testified for the first time that her knee problem might have resulted from a work-related injury but that she did not file a workers' compensation claim because she could not recall when and how the injury actually occurred.

The jury rendered a verdict in plaintiff's favor, awarding $17,390 in back pay, $99,794 in front pay, and $100,000 in punitive damages. The court entered judgment on the jury verdict, and awarded prejudgment interest in the amount of $4,041.64, attorney fees in the amount of $50,803.30, and costs of $10,546.79, for a total judgment of $282,575.63. This appeal and cross-appeal followed.

The hospital appears to argue in the alternative: (1) that it was not required to offer plaintiff a transfer to a position for which she was otherwise qualified at the same rate of pay she was presently receiving if she was not otherwise entitled to that rate of pay upon transfer under its transfer policy; and (2) that it did, in fact, offer plaintiff the medical records position at $7.66 an hour as an accommodation. Plaintiff testified that she was never offered the medical records position or any other accommodation by the hospital at the time of her termination. The jury found, in response to a special verdict interrogatory, that the hospital failed reasonably to accommodate the plaintiff with regard to her reassignment to another position.

I.

The hospital first contends that the jury instructions failed to inform the jury as to plaintiff's burden to establish a prima facie case under the ADA, and impermissibly shifted the burden of proof to the hospital. Under the circumstances of this case, we disagree.

To ascertain whether the law has been correctly stated, the instructions given the jury should be read as a whole. And, unless the instructions as given resulted in substantial prejudicial error, they cannot be grounds for reversal. Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992).

Here, the trial court first gave a general instruction which stated:

(1) The burden of proof is on the Plaintiff to establish her case by a preponderance of the evidence.

(2) The burden of proof is on the Defendant to establish any affirmative defense by a preponderance of the evidence.

The court then gave a specific instruction regarding the requirements of the ADA:

The Americans with Disabilities Act does not prohibit an employer from taking an individual's disability into account when it makes an employment decision. However, when an employer relies on the individual's disability in making an employment decision, the employer has the burden of proving that the disability was properly considered.

In a case like this, where the defendant admits that the Plaintiff's disability was, at least in part, a factor in its decision, the Defendant has the burden of proving, by a preponderance of the evidence that defendant reasonably accommodated Plaintiff's disability in regard to reassignment to vacant positions for which she was qualified.

If you find that Defendant has proven this proposition, by a preponderance of the evidence, you must find for the Defendant.

If, on the other hand, the Defendant has not proven this proposition by a preponderance of the evidence, you must find for the Plaintiff if you also find that defendant's failure to accommodate Plaintiff's disability caused her damages.

The hospital argues that because this latter instruction failed to identify all of the elements of a prima facie case under the ADA, the determination as to whether plaintiff had met her burden was impermissibly removed from jury consideration. We disagree.

A prima facie case under the ADA requires a plaintiff to establish: 1) that she was "disabled," i.e., suffered from an impairment that substantially limited one or more of her major life activities; 2) that the hospital was subject to the ADA; 3) that she was qualified to perform the essential functions of the position held or sought with or without an accommodation; and 4) that she suffered an adverse employment decision. Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir.1996). In this instance, the elements of plaintiff's prima facie case were either expressly admitted or uncontroverted.

The hospital admitted plaintiff was disabled as defined by the ADA, and it did not dispute that it was subject to the ADA, having approximately 300 employees when 15 are required. See 42 U.S.C. § 12111(5)(A) (1994).

Both parties agreed that plaintiff was unable to perform the essential functions of her job as a rehabilitation aide solely because of her disability, that she was terminated because of her disability, and that plaintiff was qualified by experience and training to perform the duties of three positions which were vacant at the time of her termination.

Therefore, all of the elements of plaintiff's prima facie case were either agreed to or clearly not contested.

The burden-shifting mechanism in an ADA claim is identical with that outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170 (10th Cir.1996); Price v. S-B Power Tool, 75 F.3d 362 (8th Cir.1996).

Once an ADA plaintiff establishes a prima facie case, there exists a rebuttable presumption of discrimination. The employer can meet its burden with evidence of a legitimate nondiscriminatory reason for its actions. Once that burden is met, the plaintiff must show the employer's reason is pretextual. McDonnell Douglas Corp. v. Green, supra.

Therefore, plaintiff's prima facie case having been established, the burden shifted to the hospital to rebut the resulting presumption that it discriminated against plaintiff because of her disability. This burden can be satisfied by evidence that the hospital provided a reasonable accommodation to plaintiff including reassigning her to a vacant position for which she was qualified with equivalent status and pay. See Interpretative Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R.App. § 1630.2(o) (1996).

The primary issue tried, therefore, was whether the hospital had adequately accommodated plaintiff. The issue was further narrowed, as a practical matter, to whether the hospital had...