Phelps v. Optima Health

• Decision Date: 06 April 2001
• Docket Number: No. 00-2347,00-2347
• Citation: 251 F.3d 21
• Parties: (1st Cir. 2001) SIMONNE PHELPS, Plaintiff, Appellant, v. OPTIMA HEALTH, INC. AND CATHOLIC MEDICAL CENTER, Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

251 F.3d 21 (1st Cir. 2001)

SIMONNE PHELPS, Plaintiff, Appellant, v. OPTIMA HEALTH, INC. AND CATHOLIC MEDICAL CENTER, Defendants, Appellees.

No. 00-2347

United States Court of Appeals For the First Circuit

Heard April 6, 2001

Decided May 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] [Copyrighted Material Omitted]

Sheila O. Zakre, was on brief, for appellant.

David W. McGrath, with whom Peter S. Cowan and Sheehan Phinney Bass + Green, P.A., were on brief, for appellees.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Boudin, Circuit Judge.

TORRUELLA, Chief Judge.

Appellant Simonne Phelps claims that she was dismissed from her nursing position at the Catholic Medical Center (CMC)¹ in violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).² The district court ruled on summary judgment that Phelps was not a "qualified individual with a disability" because she could not perform the "essential functions" of her job "with or without reasonable accommodation." Phelps v. Optima Health, Inc., Civ. No. 99-227-JD, 2000 WL 1513782 (D.N.H. Sept. 15, 2000). We affirm.

BACKGROUND

The following facts are summarized in the light most favorable to the appellant. Greenwald v. Chase Manhattan Mortgage Corp., 214 F.3d 76, 78 (1st Cir. 2001). Phelps worked as a staff nurse for CMC from 1979 until 1983, at which point she injured her back at work and, as a result, discontinued employment there. Since then, she has been restricted from lifting more than fifteen to twenty pounds at a time. In 1989, CMC rehired Phelps as a "per diem relief nurse" in the rehabilitation unit. Because Phelps's disability prevented her from performing the normal tasks of a staff nurse, the manager of the rehabilitation unit, Lorraine Simon, created the unique position of "medication nurse" for her. As a medication nurse, Phelps was primarily responsible for the delivery of medicine, as well as for other tasks that did not involve lifting heavy objects.

As a result of a temporary shortage of nurses, Phelps stopped being a medication nurse and began to undertake some patient care in early 1995. Phelps remained unable to fulfill all the duties of a typical staff nurse, so she shared a patient load with her sister, Suzanne Lemire (who was also employed as a nurse in the rehabilitation unit at CMC). If Lemire was unavailable or otherwise occupied, other nurses would undertake lifting tasks. Although this job-sharing arrangement was never officially reported to either the Employee Health Department or the Human Resources Department at CMC, it was unofficially approved by Simon.

In June of 1997, Jeanne Wolfendale replaced Simon as the nurse manager for the rehabilitation unit. Wolfendale asked Phelps to provide a more recent physician's report on the extent of her physical restrictions. The report indicated that Phelps could lift twenty pounds frequently, but was unable to lift fifty pounds at all.³ Wolfendale concluded that, lacking the ability to lift fifty pounds, Phelps was unable to perform the essential functions of the clinical nurse position. Phelps was therefore dismissed from her position in the rehabilitation unit on October 27, 1997, but remained employed by CMC.

Immediately after Phelps was notified of her removal from the rehabilitation unit, she met with human resources manager Vicki L'Heureux. L'Heureux reviewed the available positions both at CMC and elsewhere in the Optima system, explained the application process for an internal transfer to a new position, and offered to help Phelps find a new position that was compatible with her physical limitations. Phelps indicated that any position would have to have the same flexibility as to scheduling and the same level of pay that she had at the rehabilitation unit. CMC terminated Phelps on February 25, 1998, without having employed her in a new position.

DISCUSSION

To state a prima facie claim of disability discrimination under the ADA, a plaintiff must prove by a preponderance of the evidence that: (1) she was disabled within the meaning of the ADA; (2) she was a qualified individual; and (3) she was discharged because of her disability. Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 32-33 (1st Cir. 2000). The parties agree that Phelps was disabled within the meaning of the ADA (so we need not decide the issue) and that she was discharged because of her disability. However, appellees argue, and the district court held, that Phelps was not a qualified individual under the ADA.

A qualified individual under the ADA is one "able to perform the essential functions of [her position] with or without reasonable accommodation." Id. at 33. Our analysis of whether an individual is qualified occurs in two steps: first, whether the individual can perform the essential functions of her position; and second, if she is unable to perform those essential functions, whether any reasonable accommodation by her employer would allow her to do so. Id.

A. Lifting as an Essential Function of Phelps's Position

The district court held that the ability to lift fifty pounds on a consistent basis was an essential function of the clinical nurse position. Phelps does not disagree with this determination, nor does she suggest that the court erred in its conclusion that she was unable to lift that amount of weight on a consistent basis. Instead, she argues that she was not technically a clinical nurse, but that she held a nursing position that had been created specifically for her physical limitations. The district court found no evidentiary support for such an argument: "It appears to be undisputed that Phelps was working in a clinical nurse I position, shared with her sister, at the time her employment was terminated." Phelps, 2000 WL 1513782, at *3. The evidence overwhelmingly supports the district court's conclusion.

First, Phelps testified that she was no longer a medication nurse at the time of her termination, and that although she had not considered what her job description was at the time of her termination, she "assume[d] [that she] was a staff RN." Phelps then indicated that the technical job description "clinical nurse I" was essentially synonymous with the shorthand "staff nurse."⁴ Second, CMC Human Resources Manager Mary Ann Flatten testified that Human Resources had to approve changes to job descriptions or the creation of new positions. It is undisputed that Human Resources never approved, nor was even aware of, the altered nurse position that Phelps describes. All of the differences between her position and that of the other nurses were a result of understandings between Phelps, Simon, and other nurses in the rehabilitation unit, and none were in writing. Third, Phelps testified that there were occasions in which nurses other than her sister had to assist her in nursing duties. The fact that Phelps and Lemire would occasionally work on different shifts suggests that there was no formal and permanent job-sharing arrangement. In short, the evidence clearly indicates that Phelps held the position of clinical nurse, albeit with unwritten modifications aimed at allowing her to fulfill most job duties despite her disability.

Although this Court has not yet addressed the issue, several other courts have indicated that -- even when an employer and employee have made arrangements to account for the employee's disability -- a court must evaluate the essential functions of the job without considering the effect of the special arrangements. See, e.g., Basith v. Cook County, 241 F.3d 919, 930 (7th Cir. 2001) (delivery of medicine remained essential function of job despite special assignment allowing employee not to deliver medicine for period of time); Pickering v. City of Atlanta, 75 F. Supp. 2d 1374, 1378-79 (N.D. Ga. 1999) (temporary assignment of prison guard to "light duty" because of her disability does not change essential functions of prison guard position). The fact that an employee might only be assigned to certain aspects of a multi-task job does not necessarily mean that those tasks to which she was not assigned are not essential. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175-76 (10th Cir. 1999) (relevant functions are those of "TPO" position for which employee was hired, as opposed to can-sorter position to which she was assigned); Miller v. Ill. Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997) (essential functions of prison guard position included all functions required of prison guards, even when plaintiff had been allowed to rotate only between certain assignments).

Phelps's basic counter-argument is that the accommodations offered by Simon, her sister, and the rest of the nursing staff distinguished the essential functions of Phelps's position from those of the other nurses; i.e., that for Phelps's nursing position alone, lifting was not an essential function. However, we agree with the Seventh Circuit that evidence that accommodations were made so that an employee could avoid a particular task "merely shows the job could be restructured, not that [the function] was non-essential." Basith, 241 F.3d at 930. To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers. See Laurin v. Providence Hosp., 150 F.3d 52, 60-61 (1st Cir. 1998); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997); Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 545 (7th Cir. 1995). In short, even though her co-workers had allowed Phelps to avoid having to lift more than fifty pounds, the ability to do so remained an essential function of her position.

B. Reasonable Accommodation

Having found that the...