Wells v. Lester E. Cox Med. Ctrs.

• Decision Date: 09 October 2012
• Docket Number: No. SD 31752.,SD 31752.
• Citation: 379 S.W.3d 919
• Parties: Jessica L. WELLS, Plaintiff–Appellant, v. LESTER E. COX MEDICAL CENTERS, d/b/a Coxhealth, Defendant–Respondent.
• Court: Missouri Court of Appeals

379 S.W.3d 919

Jessica L. WELLS, Plaintiff–Appellant,

v.LESTER E. COX MEDICAL CENTERS, d/b/a Coxhealth, Defendant–Respondent.

No. SD 31752.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 9, 2012.

Kathryn E. Denner, St. Louis, MO, attorney for Appellant.

Bryan O. Wade, Springfield, MO, attorney for Respondent.

DON E. BURRELL, J.

In two points relied on, Jessica L. Wells (“Plaintiff”) appeals the trial court's summary judgment in favor of Lester E. Cox Medical Center's Cox College of Nursing and Health Sciences (“College”) on her claim that she was improperly terminated from College's nursing program under section 213.065 ¹ of the Missouri Human Rights Act (“MHRA”). Because whether Plaintiff, who has “a profoundly severe hearing loss,” is “disabled” for purposes of the MHRA is a disputed material fact and because College failed to prove as a matter of law that the use of American Sign Language (“ASL”) interpreters by Plaintiff in the clinical setting posed a “direct threat” to the safety of Plaintiff or others, we reverse the judgment and remand the case for further proceedings not inconsistent with this opinion.

Applicable Principles of Review

Summary judgment is appropriate if the moving party has shown that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6).² “A ‘genuine issue’ that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts[.]” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007).

Summary judgment tests simply for the existence, not the extent of these genuine disputes. Therefore, where the trial court, in order to grant summary judgment, must overlook material in the record that raises a genuine dispute as to the facts underlying the movant's right to judgment, summary judgment is not proper.

ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 378 (Mo. banc 1993).

Our review is de novo. Id. at 376. “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. The moving party bears the burden of showing the lack of a genuine dispute of material fact, ITT, 854 S.W.2d at 378, and we view the record “in the light most favorable to [Plaintiff,] the party against whom judgment was entered” and “accord the non-movant the benefit of all reasonable inferences from the record.” Id. at 376;see also Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App. S.D.2007).

When, as here, the moving party is the defendant, that party may establish a right to summary judgment by showing: (1) facts negating any one of the claimant's elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense.

Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58–59 (Mo. banc 2005); see also Barekman, 232 S.W.3d at 677. “If the trial court's judgment does not specify the basis upon which summary judgment was granted, we will uphold the decision if it was appropriate under any theory.” Horneyer v. City of Springfield, 98 S.W.3d 637, 639 (Mo.App. S.D.2003).

The Undisputed Material Facts ³

Plaintiff has had a hearing deficit since the age of three, and her unaided hearing has continued to deteriorate. Plaintiff was enrolled in College's general education program during the Fall 2006 and Spring 2007 semesters. During those semesters, College provided Plaintiff with accommodations to compensate for her hearing loss in the form of note takers, tape recordings of class sessions, and ASL interpreters. Plaintiff was denied admission to College's Associate of Science in Nursing (“ASN”) program ⁴ for the Fall 2006 semester because her grade point average was inadequate. Plaintiff was eventually admitted into the ASN program for the Fall 2007 semester.

During the Spring of 2007, College instructed one of its employees, Janice Lee, to conduct research on accommodations required for students like Plaintiff who were hearing impaired. The conclusion of Ms. Lee's research was that

the deaf/hard-of-hearing individual can be successful as both a nursing student and as a nurse, although it may be difficult to achieve that success, based upon stereotypes and prejudice.... If the deaf student is strong-willed and has a great degree of fortitude, the student can be trained to enter many different areas of the nursing profession.

Before Plaintiff's classes began, she met with College administrators to discuss the accommodations she would need in order to participate in the ASN program. Plaintiff had received new hearing aids in 2007 that she thought would improve her hearing, and both College administrators and Plaintiff expected that she would be able to function in the clinical portions of the program without the assistance of an ASL interpreter based upon that anticipated improvement in her hearing.⁵ During the Fall 2007 semester, Plaintiff received volunteer note takers and tape recordings of class sessions, and she was provided an ASL interpreter during the classroom portions of the ASN program. The Missouri Department of Vocational Rehabilitation reimbursed College for 75% of the cost of the ASL interpreters, and it provided adapted equipment to allow Plaintiff to fully participate in her clinical exercises. Plaintiff also received an ASL interpreter during the first week of clinical rotations. After beginning her clinical rotations, Plaintiff requested that she be provided with ASL interpreters to assist her in the pre-and post-clinical conferences. These conferences were classroom-like group discussions that occurred among the students and their instructors before and after clinical sessions. With these accommodations, Plaintiff successfully completed the ASN program requirements for the Fall 2007 semester.

For the Spring 2008 semester, Plaintiff again requested note takers and ASL interpreters to assist her in completing her course and clinical work. On January 22, 2008, before the second semester of her ASN training was to begin, College dismissed Plaintiff from its ASN program. In its dismissal letter, College asserted that Plaintiff's “hearing loss would substantially limit (and in some cases completely limit) [Plaintiff]'s ability to safely perform clinical rotations.”

On January 21, 2009, Plaintiff filed a petition in the Circuit Court of Greene County, alleging that College violated section 213.065 of the MHRA by “fail[ing] to provide Plaintiff with reasonable accommodations so that she could participate in its Nursing Program despite her disability.” In its Answer, College asserted an affirmative defense that Plaintiff's request for interpreters “in the clinical setting pose[d] a direct threat to the health or safety of plaintiff and others, including hospital patients” (“direct threat” defense). On May 24, 2011, College filed its motion for summary judgment. After the trial court granted the motion and entered its summary judgment in favor of College on November 8, 2011, Plaintiff timely appealed.

Analysis

Point I—Disability

Plaintiff's first point asserts the trial court erred in granting summary judgment against her because College failed to establish that she could not participate in College's ASN program with or without reasonable accommodation. We agree.

The MHRA, in relevant part, declares,

It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

Section 213.065.2. In this case, the parties agree that: 1) College's nursing school is a “place of public accommodation” within the meaning of section 213.010(15) such that it is subject to the MHRA's prohibition on discrimination on the basis of disability; and 2) College dismissed Plaintiff from its ASN program because it refused to accommodate her hearing loss. College's motion for summary judgment asserted that Plaintiff could not prove as a matter of law that she “satisf[ies] the MHRA definition of ‘disability’ ” under the uncontroverted material facts.

The MHRA defines “[d]isability” as:

a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job, utilizing the place of public accommodation, or occupying the dwelling in question.

Section 213.010(4). Reviewing courts have interpreted this statutory definition of disability as having two parts: 1) a person must have an impairment that limits major life activity; and 2) with or without reasonable accommodation, that impairment must not interfere with performing the job, utilizing the public accommodation, or occupying the dwelling. SeeLomax v. DaimlerChrysler Corp., 243 S.W.3d 474, 480 (Mo.App. E.D.2007); Medley v. Valentine Radford Commc'ns, Inc., 173 S.W.3d 315, 320–21 (Mo.App. W.D.2005). ⁶ It is this second part of the definition that lies at the heart of the parties' legal dispute.

“A ‘reasonable accommodation’ is an accommodation that does not impose ‘undue financial and administrative burdens' on...