Heffern v. Willis-Knighton ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30307
Summary Calendar
TIMOTHY SCOTT HEFFERN,
Plaintiff-Appellant,
v.
WILLIS-KNIGHTON MEDICAL CENTER,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-1026)
_________________________________________________________________
September 18, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Timothy Heffern brought suit under both the Americans with
Disabilities Act (ADA) and the Family and Medical Leave Act
(FMLA) alleging that defendant Willis-Knighton Medical Center
violated his rights by failing to reinstate him in his former
position upon his completion of a substance abuse treatment
program. The district court granted Willis-Knighton’s motion for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
summary judgment, and Heffern appeals. We affirm the decision of
the district court.
I. BACKGROUND
From July 6, 1993 until October 4, 1994, Willis-Knighton
Medical Center employed Timothy Heffern, a registered nurse, as
the cardiology coordinator for its electrophysiology laboratory.
Beginning on October 5, 1994, Heffern took a leave of absence
from his job in order to undergo treatment for substance abuse.
Heffern was initially treated on an inpatient basis at Willis-
Knighton Medical Center, but he was discharged without completing
the program because he failed to abide by program rules and
regulations. Heffern was then admitted to and successfully
completed CPC Brentwood Hospital’s outpatient Addictive Disease
Recovery Program.
Upon entering the Brentwood program, Heffern signed a
Program Agreement with the Recovering Nurse Program of the
Louisiana State Board of Nursing. Among other things, the
Program Agreement required that Heffern submit to continued
monitoring and provided that for at least one year following
treatment Heffern could not work in high stress areas or
unsupervised positions. As a result of the restrictions
contained in the Program Agreement, and on the advice of Barbara
McGill, the Director of the Recovering Nurse Program, Heffern was
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reassigned to the Renal Dialysis Unit when he returned to work in
December of 1994. The reassignment was based on the fact that
the electrophysiology department was a “critical care” unit and
work in the unit was therefore considered highly stressful. As a
caveat to her transfer recommendation, however, McGill noted that
Heffern could resume work as the cardiology coordinator in the
electrophysiology department only if he could be excused from
providing direct patient care. Heffern’s transfer resulted in a
substantial decrease in salary, and he was therefore dissatisfied
with the position.
After the one-year period had elapsed, in February of 1996,
Heffern requested a transfer back to the electrophysiology unit.
His request was denied pursuant to a company policy prohibiting
the transfer of any employee who had received a corrective action
notice within six months prior to the time of the transfer
request. At the time of his request for a transfer, Heffern had
received eight corrective action notices in the preceding six
months. Heffern subsequently filed this lawsuit alleging that
his assignment to the Renal Dialysis Unit and Willis-Knighton’s
later refusal to transfer him back to the electrophysiology lab
violated his rights under both the ADA and the FMLA.
II. STANDARD OF REVIEW
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We review the granting of a motion for summary judgment de
novo, applying the same criteria used by the district court in
the first instance. Nichols v. Loral Vought Systems Corp., 81
F.3d 38, 40 (5th Cir. 1996). In reviewing the evidence contained
in the record, we view the facts and inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Id. Summary judgment is appropriate only where there is “no
genuine issue as to any material fact.” Fed. R. Civ. P. 56(c).
A genuine dispute of fact exists where “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party,” but a fact is material only if its determination “might
affect the outcome of the suit under governing law.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1985).
III. DISCUSSION
Heffern contends that the district court erred in granting
defendant Willis-Knighton’s motion for summary judgment. He
focuses on two main points of error under the ADA, the first
relating to his claim that he is protected by the ADA as a
qualified individual with a disability, and the second relating
to his claim that direct patient contact was not an “essential
function” of the job of cardiac coordinator and that “reasonable
accommodation” by Willis-Knighton would have made his
reinstatement as cardiac coordinator feasible. As to both these
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claims, Heffern insists that fact questions exist, precluding
summary judgment. Heffern further argues that fact questions
exist regarding his claim that Willis-Knighton violated his
rights under the FMLA by failing to return him to his previous
position or to an equivalent one upon his return from medical
leave. We address each of these issues in turn.
A. ADA Claim
Heffern’s first argument relates to the district court’s
conclusion that Heffern was not protected by the ADA and was
therefore ineligible to bring a claim under that statute. We
need not address that argument because even if Heffern were to
qualify as a disabled individual under the ADA, he would
nevertheless be required to prove a prima facie case of
discrimination in order to survive a motion for summary judgment.
Because the record would permit only one conclusion -- Heffern
was not qualified for the position of cardiology coordinator at
the time of his reinstatement -- Heffern has failed to prove a
prima facie case of discrimination.
The ADA defines a “qualified individual with a disability”
as “an individual with a disability 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) (1995). The burden is on the plaintiff in
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an ADA discrimination case to show that “(1) he or she suffers
from a disability; (2) he or she is qualified for the job; (3) he
or she was subject to an adverse employment action; and (4) he or
she was replaced by a non-disabled person or was treated less
favorably than non-disabled employees.” Daigle v. Liberty Life
Insurance Co., 70 F.3d 394, 396 (5th Cir. 1995).
Due to his agreement with the Recovering Nurse Program,
Heffern was prohibited from working in any position that was
highly stressful or unsupervised. Moreover, Barbara McGill
specifically recommended that he not return to the
electrophysiology lab unless he was excused from patient care.
Thus, in order to determine if Heffern was qualified for the
position of cardiology coordinator of the electrophysiology lab,
the district court was called upon to determine whether patient
care is an essential function of that position. If patient care
is an essential function of the job, the district court was then
required to determine whether reasonable accommodation by Willis-
Knighton would have made it possible for Heffern to perform it.
According to the EEOC regulations promulgated to implement
the ADA, the essential functions of a job are those that are the
“fundamental job duties of the employment position.” 29 C.F.R.
§ 1630.2(n)(1) (1997). Along with other factors, the regulations
indicate that “[w]ritten job descriptions” prepared prior to
advertising or interviewing applicants and “the employer’s
judgment as to which functions are essential” may be considered.
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29 C.F.R. § 1630.2(n)(3). Heffern’s 1994 pre-printed evaluation
form contained the following statements as part of the job
description: ”Supervises or assists in all departmental
procedures,” . . . “[a]ssures that patients receive maximum care
services in accordance with established methods and techniques
under the supervision of the Cardiologists.” In addition, the
evaluation form noted that “[t]he above statements reflect the
general duties considered necessary to describe the principal
functions of the job as identified, and shall not be considered
as a detailed description of all the work requirements that may
be inherent in the position.” Based on this job description, the
district court found that providing patient care was an essential
function of the job of cardiac coordinator of the
electrophysiology lab.
Heffern argues that this description is insufficient to
support summary judgment, but there is in fact additional
evidence in the record to support the district court’s decision.
Kathy Rowland, Administrative Director of the Cardiology
Departments, testified that the job is “highly demanding” and
“required substantial patient contact.” In addition, Dr. Scott
Wiggins, a physician who worked in the electrophysiology lab,
testified that the cardiac coordinator provides direct patient
care and that the job was stressful. Finally, although Heffern’s
affidavit contains a line to the effect that the cardiac
coordinator position did not require “substantial patient
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contact,” Heffern goes on to state that, “I did have substantial
patient contact while I held it since I was a qualified and
unrestricted registered nurse.” Nevertheless, Heffern argues
that although the department is generally staffed with four
people -- two registered nurses, a physician, and an x-ray
technician -- there was no requirement that either nurse be the
cardiac coordinator. Although it may be true that the positions
of nurse and cardiac coordinator can be severed, the EEOC
regulations promulgated to implement the ADA specify that a
“function may be essential because of the limited number of
employees available among whom the performance of that job
function can be distributed.” 29 C.F.R. §1630.2(n)(2)(ii)
(1997). In this case, in order to relieve the cardiac
coordinator position of direct patient care responsibilities,
Willis-Knighton would have had to hire a fifth person to work in
the electrophysiology lab.
In sum, the summary judgment evidence (including evidence
drawn from Heffern’s own experience) indicates that patient care
was an essential function of the job of cardiac coordinator.
Although Heffern disputes this conclusion, he presents no
evidence other than a bare conclusion, undermined by his own
experience, in his own affidavit to support his contention, and
he therefore has failed to create a genuine issue of material
fact that precludes summary judgment on this claim.
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Having determined that patient care is an essential function
of the job of cardiac coordinator, the next question that we must
address is whether Willis-Knighton could have reasonably
accommodated Heffern’s disability by redefining the position to
exclude patient care.
Often, reasonable accommodation refers to the modification
of the job description or of the work environment in such a way
as to allow the disabled individual to perform the essential
function at issue. 29 C.F.R. § 1630.2(o) (1997). In this case,
however, the Program Agreement that Heffern signed prohibited him
from working without supervision and from providing patient care
in a critical care unit. Thus, the only possible way to
accommodate Heffern’s disability was to eliminate patient care
from the responsibilities of the cardiac coordinator. This court
has previously held that requiring an employer to use another
employee to substitute for the portions of the job that the
disabled individual cannot perform “exceeds reasonable
accommodation.” Bradley v. University of Texas M.D. Anderson
Cancer Center, 3 F.3d 922, 925 (5th Cir. 1993), cert. denied, 510
U.S. 1119 (1994); see also EEOC v. Amego, Inc., 110 F.3d 135 (1st
Cir. 1997) (holding, in similar employment dispute, that hiring
additional staff to compensate for plaintiff’s disability went
beyond reasonable accommodation).
The EEOC guidelines indicate that reasonable accommodation
also may include “reassignment to a vacant position.” 29 C.F.R.
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§ 1630.2(o)(2)(ii) (1997). In this case, Heffern was in fact
reassigned to another position for which he was qualified. We
therefore agree with the district court’s finding that on this
record, there was no reasonable accommodation which would have
allowed Heffern to resume his position as cardiac coordinator,
and that Willis-Knighton did in fact reasonably accommodate
Heffern to the extent possible by reassigning him to a position
for which he was qualified.
B. FMLA
Heffern claims that a similar fact question exists relating
to his claim that Willis-Knighton also violated his rights under
the FMLA by failing to either return him to his previous position
or reassign him to an equivalent one. We disagree.
The FMLA provides that an eligible employee who takes
medical or family leave is entitled to “be restored by the
employer to the position of employment held by the employee when
the leave commenced” or to be “restored to an equivalent position
with equivalent employment benefits, pay, and other terms and
conditions of employment.” 29 U.S.C. § 2614(a)(1) (Supp. 1997).
Because the FMLA is a relatively new statute, few courts have had
the opportunity to interpret it. Nevertheless, those that have
considered the statute have applied the burden-shifting framework
that was introduced in McDonnell Douglas Corp. v. Green, 411 U.S.
10792 (1973). See, e.g., Kaylor v. Fannin Regional Hospital, Inc.,
946 F. Supp. 988, 1000 (N.D. Ga. 1996) (“The burden shifting
approach best effectuates the intent of the FMLA to prohibit
discrimination against employees using FMLA leave because it can
most accurately balance providing employees a broader basis for
proving an employer violated the FMLA while also protecting the
interests of employers.”); see also Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 n.3 (10th Cir. 1997) (applying McDonnell Douglas
analysis to FMLA claim); Oswalt v. Sara Lee Corp, 889 F. Supp.
253, 259 (N.D. Miss. 1995) (same), aff’d 74 F.3d 91 (5th Cir.
1996).
Under the McDonnell Douglas framework, the plaintiff must
establish a prima facie case of discrimination. In other words,
the plaintiff “must produce evidence that he or she is protected
under the FMLA, that he or she suffered an adverse employment
decision, and . . . that the adverse decision was made because of
the plaintiff’s request for leave.” Oswalt, 889 F. Supp. at 259.
Once the plaintiff establishes a prima facie case, then the
burden shifts to the defendant, who must provide a legitimate and
non-discriminatory reason for the action. Id. Once the
defendant has introduced an appropriate reason, then the burden
again shifts to the plaintiff to provide evidence that the reason
given by the defendant was merely a pretext. Id.In the present case, Heffern has presented no evidence that
the adverse decision was made on the basis of his taking FMLA
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leave. Moreover, even if Heffern had proved a prima facie case,
Willis-Knighton has provided a legitimate reason for the
transfer--the Program Agreement’s restrictions on his working
conditions. In addition, Willis-Knighton has provided a
legitimate reason, in the form of an existing company policy not
to transfer those with corrective action notices in the last six
months, for refusing to transfer Heffern back to the
electrophysiology department upon his request. Heffern has
introduced no evidence tending to show that these reasons were
pretextual or illegitimate. Thus, as the district court
correctly determined, Willis-Knighton did not violate the FMLA by
reassigning Heffern to the Renal Dialysis Unit upon his return or
by later refusing to transfer him.
IV. CONCLUSION
For the foregoing reasons, we find that the district court
properly granted summary judgment in favor of Willis-Knighton.
The judgment is AFFIRMED.
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