Thrasher v. UAB Hosp. Mgmt.

1

KATHRYN THRASHER, Plaintiff, v. UAB HOSPITAL MANAGEMENT, LLC, et al., Defendants.

No. 2:22-cv-01324-SGC

United States District Court, N.D. Alabama, Southern Division

September 30, 2024

MEMORANDUM OPINION & ORDER^[1]

STACI G. CORNELIUS, U.S. MAGISTRATE JUDGE

This is an employment discrimination case. The plaintiff, Kathryn Thrasher, claims the defendants, UAB Hospital Management LLC, and the Board of Trustees of the University of Alabama at Birmingham (collectively, “UAB” or “the hospital”), discriminated against her based on her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the “Rehabilitation Act”). (Doc. 1).^[2] The case is before the court on UAB's motion for summary judgment. (Doc. 17). The parties have briefed the motion fully, and it is ripe for review. (Docs. 18, 22, 23). For the reasons stated below, the court will deny the motion.

I. Standard of Review

Under Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, “[t]he [district] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment bears the initial burden of informing the district court of the basis for its motion and identifying those portions of the record the party believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp., 477 U.S. at 323. If the moving party carries its initial burden, the non-movant must go beyond the pleadings and come forward with evidence showing there is a genuine dispute of material fact for trial. Id. at 324.

The substantive law identifies which facts are material and which are irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the evidence is merely colorable or not significantly probative, summary judgment is appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about the facts should be resolved in favor of the non-movant, and all justifiable inferences should be drawn in the non-movant's favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

II. Summary Judgment Facts^[3]

Thrasher is a registered nurse. (Doc. 19-1 at 11). She suffers from pulmonary alveolar proteinosis, a chronic lung disease that causes symptoms including headaches, fatigue, and difficulty breathing. (Doc. 19-1 at 16-17). When COVID-19 arrived in Alabama in March 2020, Thrasher was working the “Baylor shift” in the perioperative services department at UAB. (Doc. 19-1 at 21, 44; Doc. 19-9 at 1). The Baylor shift consists of two twelve-hour shifts each weekend, with one weekend of paid leave and one weekend of unpaid leave each year. (Doc. 19-1 at 12; Doc. 19-25 at 3). Assistant Nurse Manager Kayla Evans was one of Thrasher's supervisors. (Doc. 19-1 at 22).

Thrasher notified UAB on April 22, 2020, shortly after her second exposure to COVID-19 at the hospital, that her pulmonologist had recommended she be excused from work or allowed to work from home for between two and three weeks because her lung condition put her at risk for respiratory complications should she become infected with COVID-19. (Doc. 19-23 at 6-7, 23). Thrasher used her Baylor leave to cover her April 24-25 and May 1-2, 2020 shifts. (Doc. 19-25 at 3). She then applied for a twelve-week leave of absence and supported the request with documentation from her pulmonologist and another treating provider regarding the serious risk COVID-19 posed to her as a person with pre-existing pulmonary disease. (Doc. 19-25 at 3-4, 6, 9, 11-13).^[4] UAB granted Thrasher a twelve-week leave of absence without pay. (Doc. 19-25 at 4, 10).

After twelve weeks had passed, Thrasher asked UAB to (1) extend her leave of absence,^[5](2) reassign her to one of seven open positions outside the perioperative services department for which she applied,^[6]or (3) allow her to return to her job as a nurse in the perioperative services department but exempt her from direct patient care. (Doc. 19-1 at 41-42, 59, 66; Doc. 19-16 at 6, 14). Thrasher requested any one of the accommodations only so long as the COVID-19 pandemic remained a particular threat to her due to her lung disease but concedes she was not able to define that duration more precisely. (Doc. 19-1 at 67-68). She just “knew [the COVID-19 pandemic] couldn't last forever.” (Doc. 19-1 at 67).

The seven open positions outside the perioperative services department for which Thrasher applied were two case manager positions, a house supervisor position, a STAT nurse position, a nursing informatics position, a telemedicine position, and a patient flow coordinator position. (Doc. 19-13 at 1; Doc. 19-29 at 5). Thrasher was not selected to fill any of them. (Docs. 19-24; 19-27; 19-28; 19-30; 19-31). UAB has submitted evidence showing four of the positions required direct patient care: the case manager positions, the house supervisor position, and the STAT nurse position. (Docs. 19-27; 19-28; 19-30). It has submitted evidence applicants better qualified than Thrasher were selected to fill the nursing informatics position and the telemedicine position and that the patient flow coordinator position would have been a promotion for Thrasher. (Doc. 19-24; Doc. 19-30; Doc. 19-31).^[7]

UAB did not grant Thrasher the extended leave she requested or allow her to return to the perioperative services department as a nurse temporarily excused from direct patient care, either. The hospital instead terminated Thrasher's employment in early November 2020. (Doc. 19-1 at 60).^[8]Assistant Nurse Manager Evans made the decision. (Doc. 19-23 at 8). She testified when deposed that the basis of her decision was Thrasher's inability to perform direct patient care and later submitted a declaration stating direct patient care is an “essential function” of a perioperative services nurse. (Doc. 19-17 at 8, 11; Doc. 19-23 at 4). (The term “essential function” is one of art that the court will discuss below.) Attached to Evans's declaration is the formal job description for the perioperative services nurse position. It identifies key duties and responsibilities of the position to include assessing patients before, during, and after surgery; circulating within the perioperative suite; and working directly with surgeons in the sterile field. (Doc. 19-23 at 9).

Thrasher disputes that providing direct patient care is an essential function of a perioperative services nurse. She testified when deposed that the job of a perioperative services nurse encompasses more than caring directly for patients. She further testified that during her time in the perioperative services department there were perioperative services nurses who worked exclusively in non-patient facing roles assembling sterile trays, managing implants and materials, banking bone and tissue, and providing professional development assistance. Thrasher testified there always was work to be done in these areas of the perioperative services department and she knew how to do the work. Finally, Thrasher testified UAB facilitated these types of assignments for perioperative services nurses who had a temporary need to avoid caring directly for patients and did not require a formal application. (Doc. 191 at 33-35, 39, 49, 54-57).

In her declaration, Assistant Nurse Manager Evans denied that perioperative services nurses had been excused from direct patient care and referenced a desperate need for nurses to provide such care during the COVID-19 pandemic. (Doc. 19-23 at 3-6, 8). The manager of employment for the hospital submitted a declaration stating many of the non-patient facing roles Thrasher testified were part of the job of an perioperative services nurse actually were roles that existed independently of the position. (Doc. 19-29 at 5).

III. Discussion

The Rehabilitation Act prohibits federal executive branch agencies and recipients of federal financial assistance from discriminating against disabled employees. 29 U.S.C. § 794(a).^[9] A plaintiff establishes a prima facie case of disability discrimination under the Rehabilitation Act by showing (1) she has a disability,^[10](2) she is a “qualified individual,” meaning she can perform the “essential functions” of her job without accommodation or, failing that, with a reasonable accommodation, and (3) her employer discriminated against her “solely by reason of her [] disability.” 29 U.S.C. § 794(a); 42 U.S.C. § 12111(8); Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005); Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). A plaintiff may satisfy the third prong of a prima facie case of disability discrimination by showing either that her employer failed to provide a reasonable accommodation for her disability or that her employer subjected her to an adverse employment action, such as discharge, because of her disability. Boyle, 866 F.3d at 1289.^[11]Thrasher asserts both a failure to accommodate claim and a discriminatory discharge claim.

A. Failure to Accommodate

Failure to provide a disabled employee with a reasonable accommodation constitutes discrimination under the Rehabilitation Act, unless the accommodation would impose an undue hardship on the employer. Holly v. Clairson Indus L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007). The employee has the burden of identifying an accommodation and showing it is reasonable. Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1526 (11th Cir. ...