Andrea Olsen v. Capital Region Medical Center ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2113
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Andrea Olsen
lllllllllllllllllllll Plaintiff - Appellant
v.
Capital Region Medical Center; Robert Mazur
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: November 15, 2012
Filed: May 7, 2013
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Before SMITH, BEAM, and GRUENDER, Circuit Judges.
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SMITH, Circuit Judge.
Andrea Olsen was employed by the Capital Regional Medical Center (CRMC)
as a mammography technician. Olsen, who has epilepsy, suffered numerous seizures
at work. After Olsen was unable to reduce her seizures with CRMC's office
accommodations, CRMC placed Olsen on unpaid administrative leave. CRMC
offered to reinstate Olsen after learning Olsen was taking medicine that successfully
controlled the seizures. Olsen refused this offer and CRMC eventually terminated her.
At one point prior to placing Olsen on administrative leave, CRMC hired an
additional technician, who was younger than Olsen, to supplement the staff. Olsen
filed a charge of discrimination with the Missouri Commission on Human Rights
(MCHR) and the Equal Employment Opportunity Commission (EEOC), alleging
violations of the Americans with Disabilities Act (ADA), the Age Discrimination in
Employment Act (ADEA), and the Missouri Human Rights Act (MHRA) based on
CRMC's placement of her on administrative leave following the work-related
epileptic seizures and the hiring of a younger technician. The district court1 granted
summary judgment on all claims in CRMC's favor. Olsen timely appealed. We affirm.
I. Background
Olsen, who is over 40, was hired as a Certified Mammography Technologist
for CRMC in 1993. In this position, she performed mammography examinations,
where she positioned patients in the machine, controlled the table movement, and
collected specimens. CRMC required Olsen to follow departmental protocols and
recommended safety standards while she operated the radiographic equipment and
performed radiographic procedures of the breast. CRMC also expected Olsen to tend
to the patients' physical and psychological needs as well as manage paperwork,
including registration, billing, and records.
Olsen experienced epileptic seizures unpredictably. Olsen's seizures generally
caused her to lose orientation and muscle control, resulting in falls that produced
injuries. Olsen's first seizure at CRMC occurred in 2004. In 2007, Olsen suffered
another seizure while she was in the back office of the mammography room. During
this seizure, Olsen hit her head on the counter and bit her tongue and cheek. After
Olsen experienced three more seizures at work, CRMC placed Olsen on paid
1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
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administrative leave in August 2008. While on leave, Olsen consulted a neurologist,
who submitted a letter approving her return to work. Olsen resumed her duties. In
November 2008, Olsen experienced a seizure causing her to fall and resulting in a
head wound requiring staples. Subsequently, CRMC determined that the risk to
patients and to Olsen, herself, was too great and again placed her on paid
administrative leave. CRMC made a number of accommodations in an effort to
eliminate environmental triggers to Olsen's seizures, including, removing mold;
investigating cleaning agent ingredients; having other technicians handle patients,
who wore heavy perfumes; installing anti-glare filters on lights; eliminating scrolling
from computers; covering x-ray films to reduce brightness; permitting Olsen to wear
sunglasses; and educating Olsen's co-workers regarding epilepsy and how to treat
someone who is seizing. Olsen eventually returned to work but continued to suffer
seizures despite CRMC's accommodations.
Olsen suffered 14 seizures at CRMC between June 2008 and August 2010.
Some seizures resulted in injuries to Olsen, including cuts to her head and tongue,
injuries to her face, and a stoppage of breathing. Two of these seizures occurred in
the presence of patients receiving mammograms. Olsen was positioning a patient in
the mammography machine when one seizure occurred. This patient complained to
CRMC, expressing a concern for patient safety and stating that she was complaining
so that "no one else having a mammo[gram] will have to go thru [sic] what I just went
thru [sic]. Please make certain this safety issue will be taken [c]are of."
In a report following Olsen experiencing a seizure in March 2010, Olsen's
supervisor, Kristy Trent, stated that the patient under Olsen's care during the seizure
"seemed very shaken." The first employee, Kari L. Binder, to enter the room
following the March 2010 seizure stated that the patient said:
[a]ccording to the patient, [Olsen] was positioning [the patient] for
MLO, [Olsen] turned her head like she was distracted but never turned
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it back. Patient said "hey" to [Olsen] because it had been too long for her
head to pause and then [Olsen] screamed and went to fall while having
a seizure. The patient caught [Olsen] and lowered her to the
floor—which is when I opened the door. [Olsen] seized a very long time
—maybe 5 minutes or more—she was still seizing when Bob from RT
responded and [Olsen] was unresponsive when they wheeled her away
on a stretcher to ER.
After work alterations proved ineffective, CRMC placed Olsen in an alternative
position as a temporary file clerk. Olsen had originally requested that CRMC create
a new position as a Breast Health Coordinator, but CRMC rejected this proposal as
the position required a registered nurse, a qualification that Olsen did not possess.
Olsen experienced seizures twice while serving in the file clerk position and was
eventually placed on unpaid administrative leave. In 2011, after a change in her
medication, Olsen notified CRMC that her seizures were under control and that she
had also regained her driver's license. CRMC offered to reinstate Olsen at her prior
rate of pay with full benefits, but Olsen rejected this offer and CRMC eventually
terminated her.
Olsen filed a charge of discrimination with the MCHR and the EEOC in 2009.
Olsen's discrimination claims were based on disability, age, and retaliation, and
included violations of the ADA, the ADEA, and the MHRA. Olsen based her age
discrimination claim on her alleged replacement by a younger employee and evidence
that a supervisor left her a note inquiring if she had plans to work full-time or part-
time because she was nearing retirement age.
Olsen received right-to-sue letters and filed suit. CRMC moved for summary
judgment contending that Olsen was not entitled to relief because she failed to
establish that she was qualified for the position of Certified Mammography
Technologist. CRMC claimed that Olsen could not perform the essential functions of
her position even with accommodation and that her inability to do so caused a direct
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threat to herself and others. The district court analyzed the disability discrimination
claim under the McDonnell Douglas burden-shifting framework, because Olsen
produced no direct evidence of discrimination. Olsen v. Capital Region Med. Ctr.,
No. 10-4221-CV-C-FJG, 2012 WL 1232271, at *3 (W.D. Mo. April 12, 2012) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 802–04 (1973)). The district court
recognized that in order for Olsen to establish a prima facie case of discrimination
under McDonnell Douglas, she had to show "1) an ADA-qualifying disability; 2)
qualifications to perform the essential functions of her position with or without
reasonable accommodation; and 3) an adverse employment action due to her
disability." Id. (citing Shockley v. City of St. Louis, No. 4:10CV638 FRB, 2011 WL
4369394, at *6 (E.D. Mo. Sept. 19, 2011)).
Based upon the undisputed facts in the record, the district court first found that
Olsen was not qualified under the ADA or MHRA, because "it was not possible for
her to carry out the essential functions of her position, during the time she was having
a seizure." Id. at *6. Second, the district court found that Olsen's "seizures posed a
direct threat to the health and safety of herself and others." Id. The district court
observed that Olsen's seizures caused her to lose consciousness on multiple occasions
and incur significant injuries. The court also noted that Olsen's falls could pose risk
of injury to herself and the hospital's patients, and that "the imminence of the
potential harm was significant." Id. at *7.
The court also held that CRMC was entitled to summary judgment on Olsen's
age discrimination claim, because Olsen did not make a prima facie showing of age
discrimination. The court observed that to make a case for age discrimination the
plaintiff must establish that they were replaced by a younger person. Id. at *9. The
court found, based on undisputed facts, that CRMC never replaced Olsen. Id. at *10.
The district court also concluded that the note left for Olsen simply inquired about
work hours and did not establish age animus. Id. Olsen timely appealed.
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II. Discussion
In this appeal, Olsen argues that the district court erroneously granted summary
judgment to CRMC because she is a qualified individual with a disability under the
ADA and the MHRA and she was not a direct threat under the ADA. She also asserts
that her age discrimination claim should be remanded for consideration under
Missouri law. We review the district court's grant of summary judgment de novo.
Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011). "To avoid summary judgment,
the non-movant must make a sufficient showing on every essential element of its
claim on which it bears the burden of proof." Buettner v. Arch Coal Sales Co., Inc.,
216 F.3d 707, 718 (8th Cir. 2000).
A. Qualified Individual with a Disability under ADA and MHRA
First, Olsen argues that whether she was a qualified individual with a disability
was a question of fact for a jury and not appropriate for summary judgment. Second,
Olsen argues that the only accommodation she requires is intermittent leave to rest
and recuperate following a seizure. Olsen also stresses that she can perform all her
job functions, except during a seizure. Third, Olsen further contends that it is
CRMC's burden to prove that her proposed accommodations were unreasonable. She
asserts that CRMC failed to engage in an interactive process regarding potential
available accommodations. Olsen points to opinions of her doctors stating she was
capable of performing her duties and that she received high review scores despite her
seizures. Fourth, Olsen argues that the district court did not distinguish the qualified-
individual requirements under the MHRA from those under the ADA. Fifth, Olsen
argues that the district court's ruling contravenes public policy, as it implies that
individuals with a condition that produces temporary incapacity could not seek
gainful employment in the health care industry.
"Under [the McDonnell Douglas] framework, a discrimination plaintiff must
first establish a prima facie case of discrimination." Young v. Warner-Jenkinson Co.,
152 F.3d 1018, 1021 (8th Cir. 1998). "[C]laims under the ADA and the MHRA are
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governed by the same standards." Id. at 1021, n.4. Under the ADA claim, a plaintiff
must show that: (1) she is disabled; (2) she "is qualified to perform the essential
functions of [her] job, with or without accommodation[;] and (3) [she] suffered an
adverse employment action under circumstances from which an inference of unlawful
discrimination" could be inferred. Id. at 1021–22. Under the MHRA, the plaintiff
must show that she is "(1) disabled within the meaning of the MHRA, (2) qualified
to perform the essential functions of the job with or without reasonable
accommodation, and (3) suffered an adverse employment action because of [her]
disability." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004)
(citing Liljedahl v. Ryder Student Transp. Servs., Inc., 341 F.3d 836, 841 (8th Cir.
2003)).
Olsen is not a "qualified individual" for purposes of either the ADA or the
MHRA. A "qualified individual" is one, "who, with or without reasonable
accommodation, can perform the essential functions" of her position. 42 U.S.C. §
12111(8). A "reasonable accommodation" is defined as "[m]odifications or
adjustments to the work environment. . . that enable an individual with a disability
who is qualified to perform the essential functions of that position." 29 C.F.R. §
1630.2(o)(ii). Missouri law defines a "disability" as "a physical or mental
impairment" that "with or without reasonable accommodation does not interfere with
performing the job." Mo. Rev. Stat. § 213.010(4). "[T]he 2008 amendments made
clear the ADA applies to a person who 'has been subjected to [adverse employment]
action. . . under [the ADA] because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life
activity.' 42 U.S.C. § 12102(3)(A)." Brown v. City of Jacksonville, No. 12-1730, 2013
WL 1274566, at *4, (8th Cir. March 29, 2013).
It is undisputed that Olsen was disabled, because Olsen suffered from seizures
which, while occurring, incapacitated her and prevented her from performing her job
duties. Olsen, however, fails to establish that she is a qualified individual under the
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ADA and MHRA. Even with the CRMC's attempted accommodations, including
reducing the brightness of lights, eliminating mold, and rerouting strongly perfumed
patients to other technicians, Olsen still suffered from numerous seizures. An
essential function of Olsen's job included insuring patient safety. Nothing in the
record establishes Olsen could adequately perform that function during the indefinite
periods in which she was incapacitated. CRMC's attempted accommodations establish
that it engaged in an interactive process with Olsen regarding her accommodations.
Olsen claims that intermittent rest is a reasonable accommodation, but the rest did not
eliminate the seizures and did not allow Olsen to properly perform her essential job
duties, which included operating sophisticated medical machinery and tending to the
physical and emotional needs of the patient. The hospital need not subject its patients
to potential physical and emotional trauma to comply with its duties under the MHRA
and the ADA.
Because Olsen was not a qualified individual to perform the job duties with or
without accommodation, the court did not err in granting summary judgment to
CRMC based on the ADA and MHRA claims.2
B. Age Discrimination
Olsen argues that CRMC discriminated against her on the basis of age. As
proof she cites the hiring of a younger, lower-skilled worker as a mammography
technician, which coincided with Olsen's forced leave of absence. She also alleges
that her supervisor showed age animus by leaving a note asking whether she was
going to work full-time or part-time because she was nearing retirement age. Olsen
argues that age was a contributing factor in the decision to remove her from her job
2
Because we conclude Olsen has not established a prima facie case of
discrimination, we need not address CRMC's asserted defense based on a direct
threat.
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and as such the court did not properly analyze her claim under MHRA. Olsen
concludes that the issue should be remanded for consideration under Missouri law.
A prima facie age-discrimination claim under the ADEA requires that the
plaintiff show (1) she "was at least 40 years old; (2) was qualified to perform [her]
job; (3) was terminated; and (4) was replaced by another person 'sufficiently younger
to permit the inference of age discrimination.'" McGinnis v. Union Pac. R.R., 496
F.3d 868, 875 (8th Cir. 2007) (quoting Hammer v. Ashcroft, 383 F.3d 722, 726 (8th
Cir. 2004)). We distinguish between an ADEA claim for age discrimination and an
MHRA claim for age discrimination by the fact that the former requires that the age
discrimination be the "but for cause" of the "adverse employment action," while the
latter does not require it to be a "but for cause." Clark v. Matthews Int'l Corp., 639
F.3d 391, 398 (8th Cir. 2011). In analyzing both the ADEA claim and MHRA claim
for age discrimination, we will distinguish
between comments which demonstrate a discriminatory animus in the
decisional process or those uttered by individuals closely involved in
employment decisions, from stray remarks in the workplace, statements
by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process.
Rivers-Frison v. Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 (8th
Cir. 1998) (internal quotations and citations omitted).
Olsen's age discrimination claims fail for the same reason her disability
discrimination claims failed. She is unable to make a prima facie showing that she
was qualified for the position. The district court did not err in granting summary
judgment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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