Hennagir v. Utah Dept. of Corrections

• Decision Date: 25 November 2009
• Docket Number: No. 08-4087.,08-4087.
• Citation: 587 F.3d 1255
• Parties: Barbara Mitten HENNAGIR, Plaintiff-Appellant, v. UTAH DEPARTMENT OF CORRECTIONS; Scott Carver; Mike Chabries; Richard Garden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

587 F.3d 1255

Barbara Mitten HENNAGIR, Plaintiff-Appellant, v. UTAH DEPARTMENT OF CORRECTIONS; Scott Carver; Mike Chabries; Richard Garden, Defendants-Appellees.

No. 08-4087.

United States Court of Appeals, Tenth Circuit.

November 25, 2009.

Russell T. Monahan, Cook & Associates, P.C., Salt Lake City, UT, for Plaintiff-Appellant.

J. Clifford Peterson, Assistant Utah Attorney General (Mark L. Shurtleff, Utah Attorney General, with him on the briefs), Salt Lake City, UT, for Defendants-Appellees.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

ORDER

LUCERO, Circuit Judge.

This matter is before the court on appellant's petition for panel rehearing. In her petition, Barbara Hennagir seeks rehearing on several different grounds. We deny the petition as it relates to her claim for disability discrimination. With respect to her request that we reconsider our analysis of her retaliation claim, however, we have determined an amendment of our original opinion is warranted. Therefore, the petition is granted in part with respect to appellant's argument that the court misconstrued the facts when reviewing her retaliation claim. The new amended opinion is attached. The mandate shall issue forthwith.

This case requires us to determine whether a job function that is rarely required in the normal course of an employee's duties may nonetheless be an essential job function under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). We conclude that when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe, such a function may be deemed essential. We further conclude that it is unreasonable for an employee to demand identical job duties less the disputed essential job requirement, regardless of the label given to the proposed accommodation.

Plaintiff Barbara Hennagir was employed as a physician's assistant ("PA") by the Utah Department of Corrections ("DOC"). Following several years of successful work by Hennagir, DOC added a physical safety training requirement to medical and clinical positions that required inmate contact, including Hennagir's position. Unable to complete the training because of a number of physical impairments, Hennagir complained of disability discrimination and requested that she be able to continue in her position without fulfilling the new requirement. DOC refused, leading to this lawsuit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's grant of summary judgment in favor of defendants¹ on all of Hennagir's claims.

I

From April 1997 until August 2005, Hennagir was employed as a PA at DOC's Central Utah Correctional Facility in Gunnison, Utah ("Gunnison"). When she was hired, DOC did not require Peace Officer Standards and Training ("POST") certification for medical and clinical staff at Gunnison. In 2001, however, DOC sought to enter such staff into Utah's Public Safety Retirement system ("PSR"). To enroll in PSR, all covered positions in the agency must be POST certified. POST certification includes an assessment of physical strength, flexibility, and endurance.

DOC considered the POST certification requirement for medical staff for several years. As early as September 1998, a DOC division director recommended POST certification to the executive director. In 1999, a medical technician was attacked by a Gunnison inmate, and the victim sued DOC and a number of its employees, leading the State Risk Management Division to echo the POST certification recommendation. The following year, DOC clinical services administrators met to discuss POST certification. At that meeting, questions were raised as to whether incumbent employees could be "grandfathered" in—that is, exempted from the POST requirement based on their status as current employees.

In 2001, DOC contacted Utah Retirement Systems ("URS") regarding its plan to enroll medical and clinical personnel in PSR. URS advised that workers could be eligible for PSR only if every employee in a given position was POST certified. In 2002, DOC applied for PSR for all its clinical personnel whose job duties required contact with inmates. Because Hennagir's PA position at Gunnison included inmate contact, it was approved for PSR, and thus POST certification was mandated.

Gunnison medical staff began attending a POST "academy" in October of 2002. Hennagir attended, but was given permission not to participate in the physical activities because of her medical conditions. Hennagir complains of a number of impairments, including lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren's syndrome, and fibromyalgia. She has had both hips replaced and undergone surgery on her left shoulder. As a result of these maladies, Hennagir is limited in activities such as sitting, bathing, sleeping, lifting, bending and flexing, climbing stairs, running, and biking.

DOC eventually opted to require POST certification for incumbent employees. In October 2003, Hennagir was notified that she would be unable to continue working as a PA at Gunnison because she was unable to meet the POST certification requirement.

In response, Hennagir filed an administrative grievance in November 2003, asserting that the threat of termination constituted harassment on the basis of disability and that she should be "grandfathered" through the new POST requirement. David Worthington, then DOC's Director of the Division of Institutional Operations, responded that he did not have the power to exempt Hennagir from POST certification. Instead, DOC offered her a PA position at DOC's Olympus Facility in Draper, Utah ("Olympus") that did not require POST certification. Hennagir internally appealed Worthington's treatment of her grievance, arguing that POST certification was not a PA job requirement and that, because Olympus was over 100 miles from her home, it was not an acceptable substitute for her position at Gunnison. Then-Deputy Director Scott Carver met with Hennagir in January 2004, but determined that DOC could not alter the POST requirement and that Hennagir no longer met the minimum requirements for her position. He notified Hennagir that she would have to decide whether to accept the proposed transfer. However, DOC placed Hennagir's grievance on hold to allow time to review the classification issues regarding clinical positions and the Gunnison facility's needs.

On April 7, 2004—during this administrative hold—Hennagir filed a charge of disability discrimination in violation of the ADA with the Utah Anti-Discrimination and Labor Division, which forwarded the charge to the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC notified the Human Resources Director of DOC of Hennagir's complaint on April 26, 2004.

In July 2004, DOC issued a final determination regarding Hennagir's grievance. It determined that all Gunnison PAs were required to be POST certified and that Hennagir had to choose between the Olympus PA position or termination. Rather than choosing from DOC's proffered options, Hennagir took medical leave under the Family and Medical Leave Act. When this leave was exhausted, she went on long-term disability. Due to surgery on her hip and shoulder, this leave lasted close to a year, during which DOC retained her position at Gunnison.

While on leave, Hennagir filed a second EEOC charge, alleging retaliation by DOC Medical Director Richard Garden and other unnamed individuals. Hennagir claimed that Garden improperly altered her performance evaluation in retaliation for her prior complaints. On April 19, 2004, Hennagir's direct supervisor issued an evaluation giving her "exceptional" results in each category and as an overall rating. According to that supervisor, Garden pressured her to lower Hennagir's evaluation because Hennagir had treated an inmate who sued DOC for inadequate care. On April 27, Hennagir's supervisor signed a new performance evaluation that rated Hennagir "unsuccessful" in the "application of job knowledge, judgment, problem-solving" category and provided an overall rating of "successful." Hennagir signed the document, but checked the box "I disagree with the evaluation," writing, "I acknowledge the incident but feel the judgment here is not warranted...." Shortly thereafter, a third evaluation was filed in which Hennagir's "application of job knowledge, judgment, problem-solving" evaluation was revised to "successful." Her overall evaluation remained "successful." Hennagir signed this evaluation, checking the box labeled "I agree with the evaluation." Her second EEOC charge also alleged that Garden unjustifiably called into question her treatment of a patient and that the proposed transfer to Olympus constituted retaliation for her complaints of disability discrimination.

In March 2005, before Hennagir returned from medical leave, the EEOC found reasonable cause to believe that Hennagir had been the victim of disability discrimination and that DOC's offer to transfer Hennagir to Olympus was not a reasonable accommodation. Accordingly, the EEOC initiated conciliation. By July 2005, however, it notified DOC that conciliation had apparently failed. DOC then informed the EEOC that it would make Hennagir one additional offer: a medical position at Gunnison auditing, reviewing, coordinating, and monitoring the contract care of inmates at the same salary. On August 29, 2005, Carver, now DOC Executive Director, wrote to Hennagir stating that because she had declined each of DOC's offers, including the auditing position described above, DOC was terminating her employment.

On August 31, 2005, the EEOC referred the matter to the Department of Justice for possible litigation. DOJ issued Hennagir a notice of right to sue, and Hennagir exercised that right on December 15, 2005. As amended, Hennagir's complaint alleges discrimination, denial of reasonable accommodation, and retaliation in violation of the ADA, and the same in...