Osborne v. Baxter Healthcare Corp.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: MATHESON, Circuit Judge.
• Citation: Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 31 A.D. Cases 1770 (10th Cir. 2015)
• Decision Date: 24 August 2015
• Docket Number: 14–8052.,Nos. 14–8047,s. 14–8047
• Parties: Kelly OSBORNE, Plaintiff–Appellant/Cross–Appellee, v. BAXTER HEALTHCARE CORPORATION, d/b/a BioLife Plasma Services, L.P., Defendant–Appellee/Cross–Appellant.

798 F.3d 1260

31 A.D. Cases 1770

Kelly OSBORNE, Plaintiff–Appellant/Cross–Appellee

v.BAXTER HEALTHCARE CORPORATION, d/b/a BioLife Plasma Services, L.P., Defendant–Appellee/Cross–Appellant.

Nos. 14–8047

14–8052.

United States Court of Appeals, Tenth Circuit.

Aug. 24, 2015.

Dale A. Gaar, Denver, CO (Stephen H. Kline and Melinda S. McCorkle, Kline Law Office, PC, Cheyenne, WY, with him on the briefs), appearing for Plaintiff–Appellant/Cross–Appellee.

Bradley T. Cave, P.C., Holland & Hart LLP, Cheyenne, WY, appearing for Defendant–Appellee/Cross–Appellant.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

Opinion

MATHESON, Circuit Judge.

Kelly Osborne, who is deaf, applied to work as a plasma center technician (“PCT”) at BioLife Plasma Services.¹ After two interviews, Ms. Osborne was conditionally offered the PCT position pending final tests and paperwork. When BioLife's human resources department received Ms. Osborne's medical information, it determined Ms. Osborne could not safely monitor the donor area of the facility because she could not hear the alarms on the plasmapheresis machines,² which audibly sound when something goes wrong or requires attention. When Ms. Osborne reported to the facility for her first day of work, Joe Elder, the manager, informed her BioLife had rescinded her offer of employment.

Ms. Osborne filed a lawsuit alleging that BioLife's revocation of her job offer violated the Americans with Disabilities Act (“ADA”). The district court determined Ms. Osborne failed to identify accommodations that would allow her to perform essential functions of the PCT position. The court granted summary judgment to BioLife and instructed each party to bear its own costs.

Both parties appeal. Ms. Osborne appeals the district court's grant of summary judgment to BioLife. BioLife cross-appeals, seeking reversal of the district court's determination that each party should bear its own costs.

We conclude Ms. Osborne has identified a genuine dispute of material fact regarding her ability to perform essential functions of the PCT position with reasonable accommodation, making summary judgment premature. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's grant of summary judgment for BioLife and deem BioLife's cross-appeal for costs moot.

I. BACKGROUND

A. Factual History

In 2007, BioLife replaced three positions—medical historian, phlebotomist, and sample prep technician—in its workforce with a single PCT position, which performed three primary functions: (1) taking donors' medical history, (2) monitoring the area where donors give plasma to watch for adverse reactions, and (3) working in the sample preparation area where donated plasma is processed and stored. In late 2007, BioLife formalized a position description for the PCT position. Employees in one of the prior positions were given one year to train into the PCT position, and all entry-level employees hired by BioLife after January 2008 were hired as PCTs.

In August 2008, Ms. Osborne applied to work as a PCT at BioLife's facility in Cheyenne, Wyoming. Mr. Elder initially interviewed Ms. Osborne. She subsequently met with BioLife's supervisory staff. In both instances, Ms. Osborne made clear she is deaf and communicates primarily through lip reading. Mr. Elder made Ms. Osborne a conditional offer of employment contingent upon a background check, a drug test, and a medical screening.

After receiving Ms. Osborne's medical paperwork, BioLife's human resources department—which is based in Illinois—determined she could not safely monitor the donor area of the facility because she could not hear the audible alarms on the plasmapheresis machines, which sound when something goes wrong or needs attention.

When Ms. Osborne reported to work in September 2008, Mr. Elder informed her that, because of safety issues, BioLife had rescinded her offer of employment.³ Ms. Osborne contacted BioLife, and Melissa Grabiner, a Staffing Manager, explained in an email that BioLife could not hire her as a PCT because she would be unable to hear audible alarms on the plasmapheresis machines and could not safely monitor donors.⁴

B. Procedural History

Ms. Osborne filed a lawsuit alleging that BioLife's revocation of her job offer violated the ADA. She proposed four accommodations to allow her to perform the essential functions of a PCT: (1) job restructuring, (2) enhanced alerts on the plasmapheresis machines, (3) paging or call button systems for donors, and (4) a hearing oral interpreter.⁵ BioLife moved for summary judgment, arguing Ms. Osborne could not perform the essential functions of a PCT with or without reasonable accommodation and was not entitled to relief under the ADA.

On May 30, 2014, the district court issued an oral ruling granting BioLife's motion for summary judgment. The court concluded Ms. Osborne had not carried her burden of showing she could perform the essential functions of the PCT job with or without reasonable accommodation. The court granted summary judgment to BioLife and instructed each party to bear their own costs.

II. DISCUSSION

Ms. Osborne appeals the district court's summary judgment order, and BioLife cross-appeals the district court's decision on costs. As we detail below, we believe there are material disputes of fact as to whether Ms. Osborne's proposed accommodations are reasonable, and conclude that summary judgment is therefore inappropriate at this stage in the litigation. We reverse the district court's summary judgment order and remand for further proceedings. On the basis of this determination, we deem BioLife's cross-appeal for costs moot.

A. Summary Judgment

Ms. Osborne argues reasonable accommodations would allow her to perform the essential functions of perceiving the alarms on the plasmapheresis machines and engaging in donor monitoring. To determine whether summary judgment is appropriate, we (1) identify the applicable standard of review, (2) discuss relevant legal standards that narrow the issues before us on appeal, (3) review the district court's determinations, (4) consider each of Ms. Osborne's proposed accommodations in turn, and (5) address a remaining concern BioLife has raised regarding essential functions of the PCT position.

1. Standard of Review

On appeal, “[w]e review summary judgment determinations de novo, applying the same standard as the district court.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir.2014). We view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in his or her favor. Id. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In this inquiry, “[t]he nonmovant is given wide berth to prove a factual controversy exists.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1182 (10th Cir.2003) (quotations omitted).

2. Legal Background

We evaluate BioLife's decision to rescind Ms. Osborne's job offer using ADA law. Our analysis is guided by: (1) the elements of a prima facie case of discrimination under the ADA, (2) the burden-shifting framework used to determine whether an accommodation is reasonable, and (3) the criteria used to determine whether health and safety concerns render an employee unqualified to perform the essential functions of a position. Before turning to the merits of Ms. Osborne's claims, we review these legal standards in turn.

a. Prima facie case of discrimination under the ADA

The ADA prohibits employers from discriminating against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a).⁶ “To establish a prima facie case of discrimination under the ADA, an employee must show: (1) she is disabled within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) she was discriminated against because of her disability.” Mason v. Avaya Commc'ns, Inc., 357 F.3d 1114, 1118 (10th Cir.2004). Establishing a prima facie case is “not onerous,” Hawkins v. Schwan's Home Serv., Inc., 778 F.3d 877, 883 (10th Cir.2015) (quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005) ), and “summary adjudication may be improper when the employee has presented evidence she could perform the essential functions of her position” with the aid of an accommodation, Mason, 357 F.3d at 1124.

The parties agree Ms. Osborne's deafness constitutes a disability for purposes of the ADA, and agree that she satisfies the first element of the prima facie test insofar as she cannot hear the audible alert on the plasmapheresis machine or verbal requests from donors.⁷ The parties also do not dispute that BioLife rescinded Ms. Osborne's job offer specifically because she is deaf, which constitutes discrimination on the basis of disability. See 42 U.S.C. § 12112(a) (prohibiting discrimination against qualified individuals in job application procedures and hiring).

But the parties disagree whether Ms. Osborne satisfied the second element of the prima facie test. For this element, courts use a two-step inquiry to determine whether a plaintiff is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired:

First, the court determines whether the individual can perform the essential functions of the job. Second, if (but only if) the court concludes that the individual is unable to perform the essential functions of the job, the court determines whether any reasonable accommodation by the employer would enable [her] to perform those functions.

Davidson, 337 F.3d at 1190 (citation omitted); see also 42 U.S.C. § 12111(8) (defining the phrase “qualified individual”). Throughout this inquiry, “[t]he plaintiff bears the burden of showing she is able to perform the essential functions of her job.” Mason, 357 F.3d at 1119 ; see U.S. Airways v. Barnett, 535 U.S. 391, 400, 122 S.Ct....