Nerenberg v. RICA

• Decision Date: 28 April 2000
• Docket Number: No. 894,894
• Citation: 750 A.2d 655,131 Md. App. 646
• Parties: Roy NERENBERG, Personal Representative of the Estate of Laura G. Nerenberg v. RICA OF SOUTHERN MARYLAND.
• Court: Court of Special Appeals of Maryland

750 A.2d 655

131 Md. App. 646

Roy NERENBERG, Personal Representative of the Estate of Laura G. Nerenberg v. RICA OF SOUTHERN MARYLAND.

No. 894, Sept. Term, 1999.

Court of Special Appeals of Maryland.

April 28, 2000.

Laura A. Stefani (Michael J. Kator and Kator, Scott & Parks, PLLC, on the brief), Washington, DC, for appellant.

Cynthia G. Peltzman, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SALMON and THIEME, JJ. THIEME, Judge.

This is an appeal from an order of the Circuit Court for Prince George's County granting summary judgment to the Regional Institute for Children and Adolescents (RICA) of Southern Maryland, a State operated facility for children with psychiatric and emotional disorders. Laura Nerenberg was hired by RICA as a therapeutic recreator. Because concerns arose about her job performance, management extended her initial six-month period of probation. Problems continued, and RICA management finally allowed Laura to choose between resigning from her job or being let go. Subsequently, Laura died of complications from insulin-dependent diabetes. Her estate sued RICA under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (1994), and the Rehabilitation Act, 29 U.S.C. § 794 (1994), after receiving a Probable Cause Determination and "right-to-sue" letter from the Equal Opportunity Employment Commission (EEOC). Laura's estate alleges that she was discharged solely because she suffered a disability. The court granted summary judgment in favor of RICA, and Laura's estate brings this appeal and asks:

1. Did the trial court err by granting RICA summary judgment when the estate failed to establish a prima facie case of discrimination under the ADA because it did not show that Laura met the legitimate expectations of her employer and that she was discharged because of her diabetes?

2. Did RICA produce evidence of Laura's poor job performance sufficient to overcome any presumption that she was discharged because of her diabetes and that its reasons were not pretextual?

3. Does a Probable Cause Determination by the EEOC preclude a grant of summary judgment to RICA when the estate did not present evidence sufficient for a reasonable jury to find that she was discharged because of her diabetes?

Facts

The facts, set forth in the light most favorable to the appellant, who was the non-moving party at summary judgment, are as follows. Laura Nerenberg, a probationary employee of RICA of Southern Maryland, was given the choice of resignation or termination from her position as a Therapeutic Administrator I after her employer became increasingly dissatisfied with her job performance. After Laura died, at age 31, from complications of diabetes, her estate sued RICA under the ADA¹ and the Rehabilitation Act,² claiming that she was discharged because she was diabetic.

RICA is a facility for children with psychiatric or emotional disorders recognized by the Diagnostic and Statistical Manual ("DSM") IV. Children placed at RICA may suffer from impulsivity disorders, severe disturbances in interpersonal relations and behavior, sexual identity problems, aggressiveness, and the aftereffects of physical and emotional abuse. These children are prone to behaving in ways that might result in harm; thus, they must be continually supervised by staff members who exercise sound judgment.

Monica Cooke, then the Director of Nursing and Residential Services, hired Laura in May 1994 for the position of Therapeutic Recreator I. Laura was responsible for supervising male children and adolescents, designing and implementing recreational activities used to evaluate their physical and emotional strengths, and evaluating whether they could engage in developmentally appropriate programs. She was also responsible for transporting them to off-campus events, and, we note, "state vehicles" were listed as required equipment on the position description form for a Therapeutic Recreator I. As with all new State employees, Laura was initially placed on probation for a six-month period.³

Cooke transferred to another facility in October 1994, and Janette Carson became the Acting Director of Nursing and Residential Services. Carson, who holds a master's degree with a specialty in psychiatric nursing, supervised all nurses and therapeutic recreators who provided care and services to the RICA children. She directly supervised Eddie Spearman, RICA's former Director of Therapeutic Recreation, who, in turn, supervised Laura.

Laura proved popular with the children, and she earned praises from Spearman. Because Spearman had considerable autonomy in running his department, Laura had relatively little contact with Carson and upper management. Nevertheless, even as Laura's probationary period was set to expire in November 1994, Carson harbored significant concerns about her job performance, and not without reason. For example, in October, while RICA children and staff participated in a tree-planting event, Laura allowed the children under her care to play near heavy equipment located in the vicinity. When Laura failed to heed Carson's warning to supervise the children more closely, Carson herself directed the children away from the equipment.

Thus, in late October, Carson met with Spearman to discuss Laura's job performance. At this meeting, Spearman also reported some concerns, but he said that he was willing to work with Laura to overcome them. He worried, for example, that Laura became overly involved with the children she supervised, jeopardizing the objectivity she needed to monitor and evaluate emotionally disturbed children. He was concerned that Laura became too invested in the unit's activities, e.g., after a rock-climbing trip was canceled, she attempted to revive the activity, going from unit to unit trying to determine which children might still be available. He further noted that Laura inappropriately joined in activities outside of her unit, taking time away from her real responsibilities. Carson and Spearman met with Laura to discuss these concerns.

Carson decided, over Spearman's protests, that the concerns justified extending Laura's probation, and she thus contacted the personnel office to learn the appropriate procedures for doing so. She was informed that she only needed to complete a form to extend probation. She was not required to document her reasons for the extension. Laura's probationary period was extended.

In December 1994, while transporting RICA clients in a State van, Laura suddenly became unresponsive. The mental health aide accompanying the group was unable to rouse her, and the van hit the car in front of it, which was stopped at a red light. Laura's loss of consciousness was never attributed to her diabetes; indeed, her own physician stated that her fainting spell or seizure was due to an unknown etiology, for her blood glucose level after the accident was within normal limits. It should be noted that, prior to the accident, neither Carson nor Dr. Joseph O'Leary, RICA's Acting Chief Executive Officer, seemed to know first-hand that Laura suffered from diabetes. Although Laura had indicated her condition on an employee information sheet, wore a medic alert bracelet, and had told some co-workers about the illness, Carson claims she had only heard rumors. Cooke, however, said that Dr. O'Leary seemed to know about Laura's medical condition and expressed concern about whether Laura's condition was sufficiently under control so that she could do her job.

After the accident, Carson, who questioned whether Laura was still able to perform the physical tasks that her job required, contacted Employer-Employee Relations, which recommended that Laura be referred to the State Medical Director's office for an evaluation. Such a referral is standard procedure for State employees who exhibit health problems on the job. The Medical Director requested that Carson prepare a task analysis of the Therapeutic Recreator I position, so that he might determine whether Laura could carry out her job duties. Carson included driving on the list of required tasks. Although the evaluation was incomplete at the time of Laura's termination, a neurologist had recommended that she should refrain from driving in the future, and all parties agreed.

As the probationary period continued, Carson and Dr. O'Leary identified additional problems with Laura's performance. For example, Laura seemed to have difficulty getting some of the more willful clients to cooperate with various tasks. Laura also argued with Dr. O'Leary on one occasion, a problem that he considered to be especially serious in an institution that deals with severely disturbed children. The argument occurred in early February 1995, after he requested that Laura cease from trying to repair a broken copier. The machine had been damaged previously when other employees had tried to fix it, and Dr. O'Leary requested that she not remove a paper jam. Laura may have threatened to drive to the library to make copies. After Dr. O'Leary reminded her that she was not permitted to drive, she said that she would ask Spearman, her supervisor, to drive her there. Ultimately, Dr. O'Leary informed Laura that she was under his supervision and would have to respect his authority.

In January 1995, Laura experienced another episode of unconsciousness. She was supervising children in the gymnasium when she became unresponsive and fell down. Carson reported the incident to Employer-Employee Relations. Shortly thereafter, she received the Medical Director's report indicating that Laura was still under evaluation and should refrain from operating State vehicles. On February 17, 1995, Carson received a complaint from the resident grievance counselor, an independent advocate for patients housed at State facilities, questioning the appropriateness of some of Laura's activities with the children. Such complaints, we...