In an unpublished decision last week, the Fourth Circuit Court of Appeals upheld summary judgment dismissing a plaintiff’s claims for failure to accommodate, discriminatory termination and retaliatory termination under the Americans with Disabilities Act (“ADA”).
Emergency room nurse Vivienne Wulff alleged that her employer Sentara Healthcare, Inc. violated the ADA when it took her off the active work schedule due to a form she had submitted regarding her ability to work that listed a total restriction on any lifting, pushing, or pulling, rendering emergency department work unsafe for her. The case is Wulff v. Sentara Healthcare, Inc., (no. 12-1262), decided March 4, 2013 by the United States Court of Appeals for the Fourth Circuit.
Ms. Wulff had been employed for only three months when she submitted a doctor’s note that she was restricted from lifting more than ten pounds with her left arm. Sentara accommodated this request for six months at which point it asked Wulff for an update. The Occupational Health Nurse gave Wulff a “Physical Capacities Form” for her doctor to complete. Wulff’s physician’s assistant filled the form out indicating that she could not lift anything at all, as well as the increased restriction of no pushing, pulling, or stretching or working above the shoulders. Wulff’s supervisor removed Wulff from the work schedule and let her know she would remain off the schedule until her doctor authorized a change in the restrictions. Several months later when Wulff’s restrictions were lifted, Sentara offered to schedule her for work. Wulff ignored the offer and instead filed a lawsuit alleging a failure to accommodate and wrongful termination under the ADA.
One of the prima facie elements of claim for failure to accommodate is the plaintiff’s showing that she could have performed the essential functions of the position with reasonable accommodation. Wulff acknowledged that the job required transporting patients between rooms, helping patients walk who were unsteady, and lifting patients at times. She presented no evidence alleging she could have performed these functions with a reasonable accommodation that did not violate her lifting restrictions. What she did allege was that the restrictions form she had turned in was misleading and exaggerated. However, since she herself had submitted the form, the court ruled that this allegation did not constitute a genuine dispute of material fact.
The court additionally affirmed the district court’s analysis and conclusion of the retaliatory termination claim. After a plaintiff presents the prima facie case of an adverse employment action taken in response to an employee’s engagement in a protected activity (such as requesting an accommodation), then the burden shifts to the employer to show that the adverse employment action was in fact based upon a legitimate and non-retaliatory basis. The plaintiff may then attempt to prove that reason to be merely a pretext.
Sentara’s explanation of removing Wulff from the work schedule because her lifting restrictions prohibited her from performing the essential functions of the job satisfied its burden in the legal analysis. Wulff presented no evidence to show the reason was pretextual. Accordingly, summary judgment against Wulff was proper.
This appellate decision is a strong affirmation of an employer’s right to provide for the safety of its employees in accord with a physician’s instructions regarding an employee’s physical limitations. When legitimately doing so, an employer should not be subjected to liability under the ADA.