Vivienne Wulff v. Sentara Healthcare, Inc. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1262
VIVIENNE WULFF,
Plaintiff – Appellant,
v.
SENTARA HEALTHCARE, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:11-cv-00577-LO-IDD)
Argued: December 4, 2012 Decided: March 4, 2013
Before KING, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Leizer Z. Goldsmith, Washington, D.C., for Appellant.
William McCardell Furr, WILLCOX & SAVAGE, PC, Norfolk, Virginia,
for Appellee. ON BRIEF: Bryan C. R. Skeen, WILLCOX & SAVAGE,
PC, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vivienne Wulff appeals the district court’s order
granting summary judgment in favor of Sentara Healthcare, Inc., 1
on her claims for failure to accommodate, discriminatory
termination, and retaliatory termination under the Americans
with Disabilities Act (“ADA”). 42 U.S.C. § 12101, et. seq. For
the following reasons, we affirm.
I.
Wulff worked as a nurse in the emergency department at
Sentara Potomac Hospital from June 2009 through April 2010. In
September 2009, Wulff presented Sentara with a doctor’s note
stating that she was restricted from lifting more than ten
pounds with her left arm. Sentara accommodated this restriction
without any complaint from Wulff. Because the note only imposed
the lifting restriction for six weeks, Wulff submitted another
note in December 2009 that extended the same lifting restriction
for another six weeks. Sentara continued the accommodation.
In March 2010, Sentara’s Occupational Health Nurse,
Irene Sullivan, asked Wulff to update her restrictions because
the December note had only extended them for six weeks.
1
Sentara notes that Wulff’s actual employer was Potomac
Hospital Corporation of Prince William, a corporation affiliated
with Sentara. To avoid confusion, we will refer to both Wulff’s
employer and the Appellee as “Sentara.”
2
Sullivan gave Wulff a Physical Capacities Form to have her
doctor complete. This form listed numerous possible
restrictions and instructed the doctor to place a check mark
next to each restriction that applied. With regard to lifting
restrictions, the form presented the following options: “No
lifting/carrying 0-20 lbs.,” “No lifting/carrying 20-50 lbs.,”
and “No lifting/carrying 50-100 lbs.” The form listed numerous
other potential restrictions next to which the doctor could
place a check mark, and the form provided a space for additional
comments.
Wulff’s physician’s assistant completed the form on
March 24, and Wulff returned it to Sullivan one week later. The
restrictions noted on this form were far more stringent than the
previous restrictions. Specifically, on the March 24 form,
Wulff’s physician’s assistant placed check marks next to the
following restrictions: “No lifting/carrying 0-20 lbs.,” “No
pushing/pulling,” “No climbing ladders, poles, etc,” and “No
stretching or working above shoulders.” J.A. 64. 2
2
Wulff contests the accuracy of this form and contends that
it overstated her restrictions. However, she submitted the form
to Sentara without taking any steps to clarify or correct the
alleged misstatements, justifying Sentara’s decision to abide by
the restrictions shown on the form. See Uhalik v. Runyon, Case
No. 95-CV-75179-DT, 1997 U.S. Dist. LEXIS 6911, at *16 (E.D.
Mich. Mar. 18, 1997) (where employee requested to perform work
his doctor had restricted him from performing, the employer “was
perfectly justified in refusing to return plaintiff to . . .
(Continued)
3
After receiving the form, Sullivan emailed the
Emergency Room Clinical Director, Inez Johnson, informing her of
the restrictions noted on the form and inquiring whether the new
restrictions could be accommodated. Johnson responded by email,
stating that Sentara could not accommodate the new restrictions
and that Sentara should remove Wulff from the work schedule
until Wulff submitted medical documentation showing that her
restrictions had abated. Then, Sullivan, along with Vice
President of Human Resources Charles Ramey, Employment Manager
Jane Velarde, and Human Resource employee Susan Reiss, jointly
considered whether there was any way that Sentara could
accommodate Wulff’s new restrictions. This group ultimately
reached a consensus that there was simply no reasonable
accommodation that would enable Wulff to work with the new
work, absent his doctor’s approval.”). In any event, Wulff’s
“self-serving opinion [about her restrictions without] . . .
objective corroboration” does not permit her to avoid summary
judgment. Williams v. Giant Food, Inc., 370 F.3d 423, 433 (4th
Cir. 2004). Claiming to have such objective corroboration,
Wulff points to the records from the March 24 appointment, which
she contends show that the form her physician’s assistant filled
out that day overstated her restrictions and that the
restrictions had actually not changed at all. However, Sentara
did not have these records in its possession at any relevant
time. Moreover, contrary to Wulff’s contention, the records
indicate that her condition was getting worse. Specifically,
the records indicate that Wulff’s left arm is “still numb and
tingly” but that she “now” has pain in her shoulder as well as
her arm, suggesting that the shoulder pain was a new
development. J.A. 127 (emphasis added).
4
restrictions. Accordingly, Velarde called Wulff to inform her
that she would remain off the work schedule until her
restrictions abated. 3
Several months later, Wulff’s attorney notified
Sentara that Wulff’s restrictions had been lifted, and, through
her attorney, Sentara offered Wulff the opportunity to return to
work. Wulff never responded to this offer. (The record reveals
that on or about April 21, 2010, Wulff applied for a nursing
position at a different facility and indicated in her
application that all of her work restrictions had abated.
Nevertheless, Wulff never sought to return to Sentara.)
Wulff filed an action in the Eastern District of
Virginia for failure to accommodate, discriminatory discharge,
and retaliatory discharge under the ADA. Following discovery,
the district court granted Sentara’s motion for summary
judgment. With regard to Wulff’s claims for failure to
accommodate and discriminatory discharge, the district court
concluded that the undisputed evidence showed that Wulff could
not perform the essential functions of her position, even with a
3
The parties dispute whether this action was a
“termination” or decision to remove Wulff from the work schedule
temporarily. For the purposes of this appeal, we will assume
that the action was an adverse employment action within the
meaning of the ADA’s anti-discrimination and retaliation
provisions.
5
reasonable accommodation (of which there were none). Therefore,
the court further concluded that, as a matter of law, Wulff was
not a “qualified individual” protected by the ADA. 42 U.S.C. §§
12111(8) & 12112. With regard to Wulff’s retaliatory discharge
claim, the district court concluded that the undisputed evidence
showed that Sentara terminated Wulff because of her inability to
perform the functions of her job and that Wulff produced no
evidence that this reason was pretextual. Wulff now appeals.
II.
We review a district court’s grant of summary
judgment de novo, applying the same legal standards as the
district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.
2008). Summary judgment is appropriate where there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Id. In determining whether a
genuine issue of material fact exists, we view the evidence in
the light most favorable to the non-moving party. Id. Having
fully considered Wulff’s claims, we are constrained to the view
that the district court did not err in granting summary
judgment.
A.
6
With regard to Wulff’s failure to accommodate claim,
Wulff must establish several prima facie elements, one of which
is that, with reasonable accommodation, she could perform the
essential functions of the position. Rhoads v. FDIC, 257 F.3d
373, 387 n. 11 (4th Cir. 2001). The district court, properly
viewing the evidence in the light most favorable to Wulff,
concluded as a matter of law that no reasonable accommodation
existed that would have enabled Wulff to perform the essential
functions of her position, and, therefore, she could not
establish her prima facie case. Wulff challenges this
conclusion, contending that she generated a genuine dispute of
material fact as to whether she was able to perform the
essential functions of her position with a reasonable
accommodation. However, the record does not support her
contention.
In her deposition, Wulff listed numerous functions of
her position that required the ability to lift, push, or pull
some amount of weight. For example, Wulff testified that she
was required to transport patients between rooms and stabilize
patients who were unsteady on their feet. She also acknowledged
that, in emergency situations, she could be required to lift
patients and that her restrictions prevented her from doing so
in accordance with Sentara’s back-safety guidelines. Moreover,
Wulff’s own expert witness testified that a nurse who was unable
7
to lift any weight would be unable “to perform the regular
functions of an emergency nurse.” J.A. 547. Therefore, under
the restrictions noted on the March 24 form, Wulff was unable to
perform the essential functions of her position, and she does
not suggest any reasonable accommodation that would have allowed
her to do so. Accordingly, she cannot establish one of the
elements of her prima facie case.
Wulff attempts to avoid this conclusion by arguing
that the March 24 form was incorrect or misleading and that it
overstated her actual restrictions. Wulff contends that the “No
lifting/carrying 0-20 lbs.” restriction is ambiguous and that it
could be interpreted to state that she was still able to lift up
to 10 pounds. However, the form clearly states that Wulff was
incapable of lifting or carrying any weight within the range of
zero to twenty pounds; i.e., she could not lift or carry at all. 4
If Wulff’s physician’s assistant believed that Wulff’s lifting
restriction did not fit within one of the ranges listed on the
form, she could have noted that point in the “comments” section
4
Wulff contends that there is evidence in the record that
the lifting/carrying restriction on the March 24 form applied
only to her left arm. Even assuming that Wulff’s contention is
correct, a restriction against lifting or carrying at all with
her left arm, coupled with the other restrictions on that form
such as no pushing or pulling and the inability to work above
her shoulders, would fatally undermine her contention that a
genuine dispute of material fact existed as to whether Wulff
could perform the essential functions of her position.
8
of the form. Needless to say, as well, Wulff (who apparently
had the form in her possession for a week before she delivered
it to her employer) could have insisted that her physician’s
assistant so indicate, but she never did.
Wulff next attacks the March 24 form by claiming that
Sentara did not believe that the restrictions noted on that form
were accurate. Again, the record does not support Wulff’s
contention. In discovery, Wulff generated no evidence tending
to show that the Sentara management and human resources
personnel reviewing her circumstances questioned the accuracy of
the restrictions noted on the March 24 form. To the contrary,
the undisputed evidence shows that Ramey and Johnson, who were
most directly involved as the ultimate decision-makers regarding
Wulff’s ability to perform the essential functions of her job as
an emergency room clinical nurse, accepted the restrictions on
that form as accurate, as they were entitled to do. 5
5
Wulff points to an April 5, 2010, email from Employment
Manager Jane Velarde to Ramey stating that Wulff has been
“working with these same accommodations since November,” J.A.
116, and contends that this email shows that Sentara believed
her restrictions had not changed. However, this email simply
notes that the accommodations Wulff requested had not changed.
It does not suggest that Wulff’s restrictions were unchanged;
the contrary is plainly evident. Wulff also points to testimony
and notes from Velarde where Velarde suggests that Wulff’s
accommodations “had just gone on indefinitely,” J.A. 436, to
argue that Sentara ceased accommodating Wulff because of the
duration of the accommodations, not because of Wulff’s increased
restrictions. However, Velarde’s testimony does not indicate
(Continued)
9
In summary, Wulff’s attempts to discredit the form
that her physician’s assistant completed (and thus Sentara’s
reliance on the form in its decision to remove Wulff from the
work schedule) are unavailing; those attempts do not persuade us
that the district court erred in relying on the form in
concluding that Wulff has failed to generate a genuine dispute
of material fact critical to her ability to support her prima
facie case. We agree with the district court’s assessment,
namely, that the form imposed restrictions that prevented Wulff
from performing the essential functions of her position, and no
reasonable accommodation existed that would have enabled her to
do so. Therefore, Wulff fails to support an essential element
of her prima facie case.
that Sentara ceased accommodating Wulff because the
accommodations “had just gone on indefinitely,” but, rather,
that the indefinite duration of the accommodations led Sentara
to “request that she get a new note and we start fresh.” Id.
There is no indication in the record that if, indeed, Wulff’s
physician’s assistant had simply reiterated in the March 24 form
the extant restrictions on Wulff’s capacity, Sentara’s
accommodation of Wulff’s left arm impairment would not have
continued as it had for seven months.
Rather than confront these inconvenient facts, Wulff’s
arguments have attempted to cast a burden on Sentara to go
beyond the form that Wulff herself delivered to her employer.
See Appellant’s Brief at 25 ("Velarde did not suggest that Wulff
should then obtain a revised Capacities Form in order to keep
her job."); id. at 26 ("[Sentara] made no effort to further
ascertain Wulff’s doctors’ intentions."). Like the district
court, we find her arguments unpersuasive.
10
B.
We turn next to Wulff’s discriminatory termination
claim. To establish a prima facie case of discriminatory
termination under the ADA, Wulff must establish several
elements, including that she is within the ADA’s protected
class. Haulbrook v. Michelin North America, 252 F.3d 696, 702
(4th Cir. 2001). The district court found that Wulff failed to
produce evidence to support this element. We agree.
To be within the ADA’s protected class, one must be “a
qualified individual” with a disability. 42 U.S.C. § 12112. A
“qualified individual” is one who, “with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). As explained above, viewing the evidence in
the light most favorable to Wulff, she was unable to perform the
essential functions of her position. Therefore, the district
court was correct to determine, as a matter of law, that she was
not a “qualified individual” and could not support a prima facie
case of wrongful discharge. 42 U.S.C. § 12111(8); Haulbrook,
252 F.3d at 702.
C.
11
We turn now to Wulff’s retaliatory termination claim.
To establish a prima facie case of retaliatory termination,
Wulff must produce evidence that (1) she engaged in protected
activity, (2) Sentara took adverse action against her, and (3)
there is a causal connection between the protected activity and
the adverse employment action. Haulbrook, 252 F.3d at 706. If
Wulff supports her prima facie case, then Sentara must
articulate a legitimate and nonretaliatory reason for the
termination. Id. Once Sentara does so, the burden shifts back
to Wulff to show that Sentara’s reason is pretextual. Id. The
district court assumed that Wulff established her prima facie
case of retaliation but granted summary judgment because Sentara
explained that it removed Wulff from the schedule because she
was unable to perform the essential functions of her job, and
Wulff produced no evidence that this explanation was pretextual.
We find the district court’s analysis and conclusion to be
correct.
Sentara explained that it removed Wulff from the
schedule because the medical form she submitted imposed
restrictions that prevented her from performing the essential
functions of her job. 6 As explained above, Wulff’s attempts to
6
This explanation is bolstered by the fact that Sentara
gave Wulff the opportunity to return to work when it learned
that her restrictions had been lifted. J.A. 82 (expressing
(Continued)
12
discredit Sentara’s explanation are unsuccessful. Thus, Wulff
has produced no evidence that Sentara’s explanation was
pretextual, and the district court’s entry of summary judgment
on Wulff’s retaliatory termination claim was correct.
III.
For the foregoing reasons, we affirm the district
court’s entry of summary judgment in favor of Sentara.
AFFIRMED
Sentara’s willingness “to offer Ms. Wulff a position as an ER
nurse in the hospital’s Emergency Department.”). Tellingly,
Wulff was unable in her brief or at oral argument to provide a
plausible explanation for her failure to avail herself of
Sentara’s offer.
13