Johnson v. Norton Cnty. Hosp.

550 F.Supp.3d 937

Shaylei JOHNSON, Plaintiff,

v.NORTON COUNTY HOSPITAL and Norton County Hospital Board of Trustees, Defendants.

Case No. 20-cv-2082-JWL

United States District Court, D. Kansas.

Signed July 23, 2021

Aaron C. McKee, McKee Law, LLC, Olathe, KS, for Plaintiff.

Frankie J. Forbes, Matthew J. Chiasson, Quentin Marc Templeton, Russell J. Keller, Forbes Law Group, LLC, Overland Park, KS, for Defendants.

MEMORANDUM & ORDER

John W. Lungstrum, United States District Judge

Plaintiff Shaylei Johnson filed this lawsuit against her former employer asserting claims of failure to accommodate, disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008 ("ADAAA"), and claims of interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.¹ This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 80) and plaintiff's motion for partial summary judgment (doc. 82).² Defendant has also filed an unopposed motion to modify the pretrial order to change the trial location (doc. 79). As explained below, defendant's motion for summary judgment is granted on plaintiff's hostile work environment claim; granted on plaintiff's ADA retaliation claims other than those based on the termination of plaintiff's employment; granted on plaintiff's FMLA claims other than those based on the termination of plaintiff's employment; and is otherwise denied. Plaintiff's motion for partial summary judgment is granted on the after-acquired evidence defense and is otherwise denied. The motion to modify the pretrial order to change the trial location is denied.

I. Facts

The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to the nonmoving party. Defendant hired plaintiff Shaylei Johnson as a Dietary Manager in January 2015. In that role, plaintiff was responsible for conducting dietary and nutritional assessments of patients and counseling patients consistent with those assessments; performing weekly patient visits; supervising employees in the Dietary department; and maintaining a high standard of hospital food service. There is little dispute that plaintiff's regular presence at the hospital was essential to her job.

In 2017, Gina Frack became the CEO of the hospital and plaintiff's direct supervisor. At all times relevant to this lawsuit, Shannan Hempler was the hospital's Director of Human Resources. Moreover, the hospital, beginning in 2017, contracted with HR Partners, a human-resources consulting firm, for employment-related services including ADA and FMLA compliance matters. Erin Brown and Kristina Dietrick were both associated with HR Partners and consulted with the hospital about plaintiff's employment on numerous occasions.

The record reflects that the hospital approved various medical leave requests for plaintiff over her employment. In 2015, the hospital approved pregnancy-related leave from June 2015 through August 2015 and additional medical leave in November 2015. In 2017, the hospital approved 12 weeks of FMLA leave for pregnancy, with an additional two weeks of leave after plaintiff's FMLA leave expired. At some point in 2017, plaintiff was diagnosed with Crohn's disease. There is no indication in the record that plaintiff sought leave relating to her Crohn's disease at any time until August 2018. Beginning in August 2018, plaintiff occasionally used vacation days and sick leave to manage symptoms of her Crohn's disease. On August 22, 2018, plaintiff submitted a doctor's note to Ms. Frack stating that plaintiff needed three consecutive days off work. Ms. Frack forwarded that email to Ms. Hempler, asking whether plaintiff "was now [sic] FMLA?" She also questioned whether plaintiff had "any benefit time left to use" and stated that she "could not justify a department supervisor/manager position that isn't even working enough that she has to take leave without pay." Ms. Hempler advised Ms. Frack that plaintiff had FMLA time available, that she only had a "couple" hours of sick leave remaining, and that she had only three vacation hours remaining. Ms. Frack responded, "Just keep me posted on this as to where her hours really end up."

On September 25, 2018, plaintiff provided the hospital with a doctor's note to excuse her absences on September 24, 2018 and September 25, 2018 for "medical treatment." Plaintiff's attendance record, maintained by Ms. Hempler, indicates that plaintiff's absences on those days were related to her Crohn's disease. At some point in or around December 2018, defendant began actively consulting with HR Partners about plaintiff's eligibility for FMLA leave and Ms. Hempler advised plaintiff that she was eligible for FMLA leave relating to her Crohn's disease. It is unclear from the record what triggered this conversation. In mid-December 2018, Ms. Hempler gave plaintiff a Certification of Health Care Provider form for completion by plaintiff's medical provider. Shortly after that time, Ms. Frack emailed Erin Brown and Kristina Dietrick at HR Partners, asking "Could one of you help me write out the plan of improvement for Shay? This whole thing of not working the full 36 hours/week has gone on a long time."

On December 19, 2018, the hospital received the Certification of Health Care Provider that plaintiff's medical provider, Dr. LaVelle Ellis, had filled out. Three weeks later, on January 9, 2019, the hospital returned the form to Dr. Ellis stating, without explanation, that the form was incomplete and that a completed form should be returned to the hospital within 7 days. On January 14, 2019, Dr. Ellis sent an updated version of the Certification to the hospital. Ms. Brown at HR Partners advised the hospital that the form was still incomplete. During this same time period, plaintiff was experiencing a flare-up of her Crohn's disease. She sought medical treatment on January 4, 2019; January 9, 2019; and January 11, 2019, when she was briefly admitted to the hospital and was ultimately scheduled for a colonoscopy on January 17, 2019. On January 13, 2019, plaintiff submitted a doctor's note indicating that she would be off work until January 21, 2019 and it appears that plaintiff returned to work on January 21, 2019. In the meantime, on January 17, 2019, the hospital provided an FMLA Designation Notice to plaintiff stating that additional information was necessary, including certification as to whether plaintiff was able to perform her job functions and whether plaintiff had to be absent from work during flare-ups. The Designation Notice also noted the need for clarification on the form, highlighting that the form confusingly estimated that plaintiff would experience one flare-up per week lasting 10 days per episode over the next six months.

On January 21, 2019, the hospital received a third version of the Certification of Health Care Provider from Dr. Ellis. The hospital, with input from HR Partners, accepted this Certification as complete despite the fact that it did not clarify or correct the estimate that plaintiff would experience one flare-up per week lasting 10 days per episode over the next six months. At no time did the hospital seek to discuss plaintiff's health conditions or limitations with Dr. Ellis or plaintiff. The form indicated Dr. Ellis's belief that plaintiff needed a reduced or part-time work schedule of three days per week from "current" through May 2019 but that plaintiff would likely need a one-month period of continuous leave, presumably beginning immediately. Again, the hospital did not seek to clarify this apparent inconsistency with Dr. Ellis or plaintiff.

Based on the Certification, HR Partners recommended designating all absences relating to plaintiff's Crohn's disease as FMLA leave retroactive from August 2018. HR Partners also recommended starting a discussion about plaintiff's "request to work a three (3) day work week as it was confirmed by the doctor's paperwork." It is unclear from the record whether or when plaintiff, independent from the Certification, had requested a three-day work schedule. In any event, Ms. Frack, after consulting with Karen Bunnell, a registered dietician and long-time independent contractor with the hospital, determined that a Monday-Wednesday-Friday reduced work schedule for plaintiff would best accommodate the hospital's staff and patients as well as plaintiff's job duties. Dr. Ellis testified that when she completed the form, she did not intend the hospital to put plaintiff on a rigid schedule. The record does not reflect whether the hospital ever considered or discussed with HR Partners Dr. Ellis's indication that a period of continuous leave would be necessary.

On January 23, 2019 and January 24, 2019, the hospital and HR Partners worked together to establish "talking points" to use with plaintiff concerning "FMLA expectations," including Ms. Frack's plan for a reduced schedule of eight-hour workdays on Mondays, Wednesdays and Fridays. The talking points also indicated that plaintiff would be utilizing 6 hours of FMLA leave every Tuesday and Thursday. No one discussed with plaintiff whether a Monday-Wednesday-Friday would accommodate plaintiff's medical condition. On Friday, January 25, 2019, Ms. Frack and Ms. Hempler met with plaintiff to discuss her FMLA leave. Curiously, they provided an FMLA Designation Notice that indicated her FMLA request was approved and that "because the leave you will need will be unscheduled, it is not possible to provide the hours, days, or weeks that will be counted against your FMLA entitlement at this time." Ms. Frack and Ms. Hempler, however, verbally advised plaintiff that her schedule would include eight-hour workdays on Mondays, Wednesdays and Fridays and that she would be taking FMLA leave on Tuesdays and Thursdays. Plaintiff strongly objected to...