Federal District Court Opinions
AMICK v. VISITING NURSE AND HOSPICE HOME, (N.D.Ind.
10-18-2006) DEBORAH L. AMICK, Plaintiff, v. VISITING NURSE
AND HOSPICE HOME, Defendant. Cause No. 1:05-CV-264.
United States District Court, N.D. Indiana, Fort Wayne
Division. October 18, 2006
MEMORANDUM OF OPINION AND ORDER
WILLIAM LEE, Judge
This matter is before the Court on the Motion for Summary
Judgment filed by the Defendant, Visiting Nurse and Hospice
Home (“VNHH”), on May 5, 2006. The Plaintiff, Deborah L.
Amick (“Amick”), filed a response in opposition to the
motion on July 3, 2006, and VNHH filed a reply on July 24,
2006. For the reasons discussed in this Order, the motion
for summary judgment is DENIED.
I. FACTUAL BACKGROUND[fn1]
Amick has suffered from type one diabetes for the past
thirty-five years. Currently, she uses an insulin pump to
administer insulin based on basal and bolus rates.[fn2] To
maintain her blood sugar level within a safe range, Amick
must follow a strict daily regimen of diet and exercise and
also checks her blood sugar at least five times a day,
making adjustments to her diet and exercise regime
accordingly. Furthermore, when doing activities that
involve physical exertions, such as exercise, household
cleaning, shopping, walking, running, or playing, Amick
monitors her sugar Page 2 level more closely. She is also
more vigilant in monitoring her sugar level while driving
and has food readily available in her car in case her sugar
level is too low. Despite these limitations, Amick is able
to attend to her personal care needs daily, which include
showering, fixing her hair, cleaning the house, cooking,
and shopping. She also is able to ambulate fully.
On January 10, 2001, VNHH hired Amick as a “Medical Social
Worker,” which entailed driving to patients’ homes to
provide social services to them and their families. At the
time Amick was hired, VNHH knew that she had insulin
dependant diabetes but noted that it did not disqualify her
from the position.[fn3]
In December 2003, Doctor David Sorg (“Dr. Sorg”), Amick’s
endocrinologist, recommended that she gain tight control
over her blood sugar levels because her kidney was not
functioning properly. Concerned that this would result in
an increased risk of hypoglycemic episodes, Amick asked Dr.
Sorg to write to VNHH requesting that she cut back on her
driving. Dr. Sorg obliged, writing to VNHH:
[Amick] is on an insulin pump with fairly good glucose
control. She has, however, become more apprehensive about
hypoglycemic reactions when she is driving. Until such
time as we can deal with that more specifically, I have
recommended that she work in a position in which driving
is not necessary or very minimal. This would be for a
period of perhaps six months.
(Pl.’s Resp. to Def.’s Mot. for Summ. J. & Designation of
Evidence (“Pl.’s Resp.”) Ex. 18.)
Upon learning of Amick’s kidney problems, Peggy Longardner
(“Longardner”), VNHH’s Human Resources Officer, forbade
Amick to drive at work and ordered her to stay in the
office Page 3 and do paperwork. Amick worked in the office
for about a week, but spent most of her time helping
co-workers, particularly the volunteer coordinator, because
she had completed her paperwork and had nothing else to do.
In early January 2004, Longardner and Theresa Judy
(“Judy”), Amick’s supervisor, met with Amick. Judy
suggested that Amick might be able to ride with VNHH nurses
to patients’ homes; however, Judy also indicated that she
had to check with the nurses first. Although Amick
expressed interest, neither Judy nor Longardner ever got
back to her with a decision regarding whether she could
ride with the nurses. Amick was also informed that she was
to continue to stay in the office but was no longer
permitted to help the volunteer coordinator.
Because she was frustrated at having nothing to do, on
January 6, 2004, Amick asked Longardner for a leave of
absence. According to Amick, Longardner was eager to place
her on FMLA leave and did not question why she was taking
the leave. Dr. Sorg completed the FMLA certification on
January 13, 2004, writing that Amick had “frequent
hypoglycemia” and was “dangerous to drive.”[fn4] (Pl.’s
Resp. Ex. 19.)
By mid-March, Amick’s kidney had repaired itself; therefore
she no longer needed to keep her blood sugar levels under
tight control. Accordingly, Dr. Sorg wrote a release to
VNHH stating that Amick “has had no further hypoglycemic
problems and may return to work and resume driving.”
(Def.’s Mot. for Summ. J. Ex. S.) Before returning to work,
Amick wanted to inquire about an opening for a part time
bereavement counselor, but in the end she never directly
asked about the position. Instead, she commented to
Longardner that her doctor would probably Page 4 like her
to work part time. According to Amick, Longardner
responded, “Your job is full time, and it requires driving.”
(The Dep. of Deborah L. Amick (“Amick Dep.”) 85-86.) After
Longardner’s reaction, Amick did not ask her about the part
time position.
In mid-June 2004, Amick again broached the subject of
working part time by commenting to Judy, “I have a doctor’s
appointment coming up. . . . [Dr. Sorg] usually talks about
going part time. . . . [I]s there any possibility of me
working part time?” (Amick Dep. 128.) Judy responded, “I
don’t see how that is possible.” (Amick Dep. 128.) On
August 2, Amick specifically requested to work part time,
but this time she provided a note from her psychiatrist
stating that she was “[m]edically unable to work for more
than 25 hours a week.” (Pl.’s Resp. Ex. 16.) Accordingly,
Judy reduced Amick’s schedule, effective that day.[fn5]
On August 4, Amick had an appointment at a patient’s
house. Before embarking on the fifteen minute drive, she
checked her blood sugar level, which indicated that she did
not have to make any adjustments. En route she ate some
fruit, and she was fine while driving and upon arrival.
However, a VNHH nurse was running behind schedule and was
still at the patient’s home when Amick arrived, causing
Amick’s appointment to be delayed.
While she was counselling the patient’s wife, Amick had a
severe hypoglycemic episode.[fn6] The patient’s wife called
Judy, relaying that something was wrong with Amick and that
Amick was unresponsive. Judy advised the patient’s wife to
call 911. When Judy arrived at Page 5 the home, two First
Responders were trying to get Amick to drink a soft drink,
but Amick was not responding and was unable to swallow.
When the EMS arrived, the EMTs started an IV, and within a
few minutes Amick regained consciousness. The EMTs then
asked the patient’s wife to make Amick a sandwich. Amick
declined going to the hospital, but Judy drove Amick home
because she felt it was unsafe for Amick to drive.
Amick claims that because of the nurse’s delay, too much
time intervened between blood sugar checks, causing her
insulin shock.[fn7] She also admitted, however, that she
had no symptoms of low blood sugar, had no forewarning that
the incident would occur, and that the incident was a total
surprise to her.
During work the next day, Amick met with Longardner and
Judy. VNHH alleges that Judy and Longardner asked Amick to
obtain a doctor’s release stating that she could return to
work and drive safely, and that arrangements were made to
have Amick work in the office part time. Amick, however,
disputes these allegations, contending that she was never
told she could work in the office. Although she also claims
that she was not asked at the meeting to obtain a release
from her endocrinologist, she admits that it was clear to
her by August 9 that VNHH wanted one.
Amick claims that after returning home from work on August
9, Longardner called to tell her that she could not return
to work until further notice and that Longardner had a list
of questions for her endocrinologist to answer. Amick
further contends that on August 10, Longardner dropped off
a letter dated August 11, which included a list of
questions for a board Page 6 certified endocrinologist to
answer regarding Amick’s history of diabetes. The letter
also indicated that VNHH found “it necessary to place
[Amick] on a leave of absence” until such time as VNHH
could inform Amick “in writing of the agency’s decision
regarding [her] ability to safely perform the essential
functions of [her] job. . . .” (Pl.’s Resp. Ex. 2.)
Amick’s counsel sent a letter dated August 19 to VNHH’s
counsel contesting VNHH’s request for medical information
as “offensively overbroad” and as an “unreasonable
invasion” of Amick’s privacy. (Pl.’s Resp. Ex. 6.) Amick’s
counsel also asserted that “there has been an irretrievable
breakdown in the work relationship” and wanted to discuss
“a reasonable offer of severance pay in exchange for Ms.
Amick’s release and waiver of the various claims we believe
she has against VNHH.” (Pl.’s Resp. Ex. 6 (emphasis
added).)
VNHH’s counsel responded with a letter dated August 26,
defending VNHH’s request for medical information and
asserting that it “has a legal obligation to properly
evaluate whether Ms. Amick creates a significant risk to
herself or others on the job. . . .” (Pl.’s Resp. Ex. 7.)
The letter closed with:
VNHH has agreed to extend the time by which it expects to
receive Ms. Amick’s medical report, notwithstanding your
client’s hostile position concerning this matter. Please
inform Ms. Amick that VNHH must receive the requested
medical documentation by no later than the end of the
business day September 10, 2004 if she wishes to pursue a
dialogue with VNHH regarding her continued employment
with VNHH.
(Pl.’s Resp. Ex. 7.) In a letter dated September 2, Amick’s
counsel indicated that although Amick continued to disagree
with VNHH regarding the extent of the medical information
it requested, she agreed to provide the information “[i]n
order to preserve her employment. . . .” (Pl.’s Resp. Ex.
8.)
On September 13, Dr. Sorg provided information regarding
Amick’s diabetes to VNHH. Page 7 He also opined:
I . . . could not say with certainty that she can drive
an automobile without some degree of risk of an insulin
reaction which she cannot perceive. Were she to check a
blood sugar before driving and find it to be above 125,
with that she could safely drive for at least a fifteen
minute span without undue risk of severe hypoglycemia.
(Pl.’s Resp. Ex. 11.)
After receiving Dr. Sorg’s letter, VNHH consulted Doctor
Gregory Schmitt (“Dr. Schmitt”), its medical director. Upon
reviewing Dr. Sorg’s letter, conversing with Dr. Sorg, and
discussing the matter with Thomas Andrew Candor (“Candor”),
VNHH’s Chief Executive Officer, Dr. Schmitt expressed his
concern regarding Amick’s ability to drive safely. VNHH
then determined that Amick could not safely fulfill her
duties and sent her a letter on October 5, 2004,
terminating her employment.
On August 3, 2005, Amick filed a complaint against VNHH,
alleging that it discriminated against her in violation of
the Americans with Disability Act (“ADA”), 42 U.S.C.
§ 12111, et seq., when it failed to reasonably
accommodate her diabetes. Furthermore, Amick claims that
VNHH fired her in retaliation for filing a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on September 20, 2004.
II. SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only if there are no
disputed genuine issues of material fact. Payne, 337 F.3d
at 770. When ruling on a motion for summary judgment, a
court “may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the
facts; these are jobs for a factfinder.” Id. The only task
in ruling on a motion for summary judgment is “to decide,
based on the evidence of record, whether there is any
material Page 8 dispute of fact that requires a trial.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994). If the evidence is such that a reasonable factfinder
could return a verdict in favor of the nonmoving party,
summary judgment may not be granted. Payne, 337 F.3d at
770. A court must construe the record in the light most
favorable to the nonmoving party and avoid “the temptation
to decide which party’s version of the facts is more likely
true[,]” as “summary judgment cannot be used to resolve
swearing contests between litigants.” Id. However, “a party
opposing summary judgment may not rest on the pleadings, but
must affirmatively demonstrate that there is a genuine
issue of material fact for trial.” Id. at 771.
III. DISCUSSION
A. Amick’s ADA Claim.
The ADA prohibits discrimination “against a qualified
individual with a disability because of the disability of
such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees . . .
and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a); Basith v. Cook County, 241
F.3d 919, 927 (7th Cir. 2001). In addition, “[t]he Act also
provides that an employer discriminates against a qualified
individual with a disability by `not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability.'”
McPhaul v. Bd. of Comm’rs of Madison County, 226 F.3d 558,
563 (7th Cir. 2000) (quoting 42 U.S.C. §
12112(b)(5)(A)). As such, “there are two distinct categories
of disability discrimination claims: failure to accommodate
and disparate treatment.” Basith, 241 F.3d at 927 (quoting
Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22
(7th Cir. 1997)).
Here, Amick alleges that VNHH failed to reasonably
accommodate her diabetes by not Page 9 permitting her to
check her blood sugar more often. To establish a claim for
failure to accommodate, Amick must demonstrate that: (1)
she is a qualified individual with a disability; (2) VNHH
was aware of her disability; and (3) VNHH failed to
reasonably accommodate the disability. E.E.O.C. v. Sears,
Roebuck, & Co., 417 F.3d 789, 797 (7th Cir. 2005). In its
motion, VNHH contends that Amick cannot show that she
suffers from a disability within the meaning of the ADA or
that she was a “qualified individual.” VNHH also argues
that it cannot be held liable for a failure to provide a
reasonable accommodation for Amick because it engaged in an
interactive process with her.
The ADA defines a disability as “(A) a physical or mental
impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(2); see also Wright
v. Ill. Dep’t of Corr., 204 F.3d 727, 730 (7th Cir. 2000).
Here, neither side disputes that Amick’s diabetes is a
physical impairment. Rather, the parties focus their
arguments on whether Amick’s diabetes substantially limits
a major life activity such as eating, thinking, working, or
caring for herself. Alternatively, Amick argues that VNHH
regarded her as impaired in these activities.
1. Amick Raises a Genuine Issue as to Whether She Is
Substantially Limited in a Major Life Activity
A plaintiff’s diabetic status does not per se qualify as a
disability. Nawrot v. CPC Int’l, 277 F.3d 896, 904 (7th
Cir. 2002). Instead, a plaintiff’s diabetes must
substantially limit a major life activity, which means that
the plaintiff is “(i) [u]nable to perform a major life
activity that the average person in the general population
can perform; or (ii) [s]ignificantly restricted as to the
condition, manner or duration under which an individual can
perform a particular major life Page 10 activity as
compared to the condition, manner, or duration under which
the average person in the general population can perform
that same major life activity.” 29 C.F.R. §
1630.2(j).
A “major life activity” includes “functions such as caring
for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29
C.F.R. § 1630.2(i). “Such activities need not have a
public or economic character to them; they must simply be
`central to the life process itself.'” Lawson v. CSX
Transp., Inc., 245 F.3d 916, 923 (7th Cir. 2001) (quoting
Bragdon v. Abbott, 524 U.S. 624, 638 (1998)). The Seventh
Circuit has previously recognized that, in addition to the
activities listed in the regulations, eating and thinking
are also major life activities for a diabetic plaintiff.
See Lawson, 245 F.3d at 924 (eating); Nawrot, 277 F.3d at
905 (thinking).
When determining whether Amick is substantially limited in
a major life activity, the crucial inquiry is whether
Amick’s “limitation[s] [are] substantial or considerable in
light of what most people do in their daily lives, and
whether the impairment’s effect[s] [are] permanent or long
term.” Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir.
2006) (quoting E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d
789, 801 (7th Cir. 2005)). Amick contends that she is
substantially limited in the life activity of eating
because she is “never free to eat whatever she pleases
whenever she pleases.” (Pl.’s Resp. 4.) Indeed, her diet is
dependant on the blood sugar readings she takes five times a
day, and she must adjust her diet throughout the day to
compensate for physical exertion. Furthermore, she must
keep food in her car in case of a hypoglycemic reaction.
Under similar circumstances, the Seventh Circuit concluded
in Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004), that
“a trier of fact rationally could determine that
[plaintiff’s] diabetes and the treatment regimen that he
must follow substantially limit him in the major life Page
11 activity of eating.”[fn8] See also, Lawson, 245 F. 3d
at 924-26 (concluding that a diabetic plaintiff was
substantially limited in eating based on the severity of
dietary restrictions and the “dangerous consequences that
could result from the failure to maintain them”).
Accordingly, Amick has raised a genuine issue as to whether
she is substantially limited in the major life activity of
eating.
More importantly, Amick raises a genuine issue as to
whether she is substantially limited in her ability to
think and to care for herself. These activities were
certainly impaired during the August 4 incident, and Amick
presents evidence to demonstrate that the effect of her
diabetes on her ability to think and care for herself may
be permanent or at least long-term.[fn9]
2. Amick Raises a Genuine Issue as to Whether VNHH Regarded
Her as Disabled
Even if a plaintiff does not suffer from an impairment
that substantially limits a major life activity, she still
falls under the ambit of the ADA if her employer regarded
her as disabled. An employee is regarded as disabled if “1)
the employer mistakenly believes the employee has a
physical impairment that substantially limits a major life
activity; or 2) the employer mistakenly believes that an
actual, non-limiting impairment substantially limits a
major life activity.” Peters v. City of Mauston, 311 F.3d
835, 843 (7th Cir. 2002). Stated another way, the employer
“must believe either that one has a substantially limiting
impairment that one does not have or that one has a
substantially limiting impairment when, in fact, the
impairment is not so limiting.” Id. Page 12 (quoting
Sutton v. United Air Lines, Inc., 527 U.S. 471, 489
(1999)).
Amick contends, as an alternative to her argument offered
above, that VNHH mistakenly believed that her diabetes
substantially limited the major life activities of eating,
thinking, working, and caring for herself. VNHH argues,
however, that it only regarded Amick as limited (although
not substantially limited) in her ability to drive, which
is not a major life activity. Amick counters that VNHH’s
focus on driving is too narrow and that the reasons behind
VNHH’s position reveal that it regarded her as
substantially limited in a major life activity.
Specifically, Amick contends that VNHH regarded her as
limited in her ability to drive because it believed she was
unsafe to drive. She argues further that VNHH believed she
was unsafe to drive because her diabetes could lead to
unexpected episodes of unconsciousness. This fact is
actually not disputed. Clearly, VNHH did, in fact, believe
that Amick was limited in her ability to drive, and
ultimately terminated her because she could not perform the
essential functions of her job as a result of that
limitation. The dispute, rather, is whether VNHH truly
believed that Amick could not perform the functions of her
job or, alternatively, whether VNHH perceived her as being
more disabled in her ability to perform certain essential
functions than she actually was. But resolution of this
issue would turn predominately on credibility
determinations that the court cannot make when ruling on a
motion for summary judgment.
Indeed, the very manner in which VNHH treated Amick in the
days and weeks following the August 4 incident serve to
create an issue of fact with regard to Amick’s ability to
perform her job with reasonable accommodation. Again, VNHH
did, in fact, accommodate Amick on more than one occasion.
This occurred twice before the August 4, 2004, incident (in
December of 2003, when she worked temporarily in the
office, and on August 2, 2004, when she was Page 13
permitted to work part time), and once after (on August 5,
when she was allegedly told that arrangements had been made
again for her to work in the office).[fn10]
3. Amick Raises a Genuine Issue as to Whether She is a
Qualified Individual
It is not enough, however, for Amick to be “disabled” under
the ADA; rather, in order to prevail, Amick must also show
that she is an “otherwise qualified individual” with a
disability. A qualified individual is “an individual with a
disability who, with or without reasonable accommodation,
can perform the essential functions of the employment
position that the individual holds or desires.” 42 U.S.C.
§ 12111(8). The Seventh Circuit has parsed this
definition into a two-part test, requiring a plaintiff to
establish that she (1) has the requisite skill, experience,
education, and other job-related requirements for her
position; and (2) can perform the essential functions of
the job, either with or without a reasonable accommodation.
Ross v. Ind. State Teacher’s Ass’n Ins. Trust, 159 F.3d
1001, 1013 (7th Cir. 1998).
VNHH does not dispute that Amick possessed the
prerequisites for her position as a medical social worker.
Instead, VNHH focuses its argument on the second prong,
contending that Amick was unable to perform two essential
job functions — driving and performing services at
patients’ homes — due to the risk of an
incapacitating hypoglycemic episode. Amick claims, however,
that she could have performed the essential functions of
her job if VNHH would have permitted her to check her blood
sugar every fifteen minutes. In support of her proposed
accommodation, Amick offers Dr. Sorg’s September 13, 2004,
letter, which opines, “Were she to check a blood sugar
before driving and find it to be above 125, with that she
could safely drive Page 14 for at least a fifteen minute
span without undue risk of severe hypoglycemia.” (Pl.’s
Resp. Ex. 11.) VNHH, however, argues that Dr. Sorg’s letter
supports its contrary position.[fn11] Specifically, VNHH
contends that Amick’s proposed accommodation is
insufficient because Dr. Sorg “could not say with certainty
that [Amick] can drive an automobile without some degree of
risk of an insulin reaction which she cannot perceive.”
(Pl.’s Resp. Ex. 11.)
Contrary to both parties’ positions, Dr. Sorg’s letter is
hardly “clear evidence” either supporting or opposing a
reasonable accommodation. Regardless, as the court must
make every reasonable inference in favor of the plaintiff,
Dr. Sorg’s letter creates a genuine issue as to whether
Amick could have performed her job with a reasonable
accommodation.
VNHH ostensibly incorporates the “direct threat” defense
into its “essential functions” argument, because its
concern regarding Amick’s alleged inability to perform the
essential functions of her job is due to its fear that
Amick would pose a safety risk to herself and others if she
suffered another severe hypoglycemic episode. If a
plaintiff poses “a significant risk of substantial harm to
the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable
accommodation,” then the plaintiff is not a qualified
individual because she is a “direct threat.” 29 C.F.R.
§ 1630.2(r); Darnell v. Thermafiber, 417 F.3d 657,
659 (7th Cir. 2005) (citing Bekker v. Humana Health Plan,
Inc., 229 F.3d 662, 670 (7th Cir. 2000)). VNHH bears the
burden of showing that Amick is a direct threat. See
Branham, 392 F.3d at 907. This burden is a high one, as
VNHH must demonstrate that “the evidence on the question of
direct threat is so one-sided no reasonable jury could find
for [Amick].” Id. (citing Anderson v. Page 15 Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
The assessment of whether Amick posed a direct threat
should take into account four factors: “(1) the duration of
the risk, (2) the nature and severity of the potential
harm, (3) the likelihood that the potential harm will
occur, and (4) the imminence of the potential harm.”
Darnell v. Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir.
2005) (citing 29 C.F.R. § 1630.2(c); Chevron U.S.A.
Inc., v. Echazabal, 536 U.S. 73, 86 (2002); Emerson v. N.
States Power Co., 256 F.3d 506, 514 (7th Cir. 2001)).
Although the second factor clearly favors VNHH’s direct
threat defense, its evidence in support of the remaining
three is not so one-sided that no reasonable jury could
find for Amick.
The August 4 incident provides strong evidence in VNHH’s
favor with regards to the nature and severity of the
potential harm. As a result of a hypoglycemia episode,
Amick lost consciousness, her patient’s wife was forced to
become her caretaker, and the EMTs were called to revive
her. Indeed, Amick herself characterizes the episode as
“severe” and “life threatening.” (Pl.’s Resp. 3.) If this
incident had occurred while Amick was driving, the risk to
the safety of Amick and others would likely have been even
more severe. Cf. Branham, 392 F.3d at 907 (finding that a
reasonable trier of fact could find in the plaintiff’s favor
on the second factor because “he has never lost
consciousness and he never has experienced physical or
mental incapacitation as a result of mild hypoglycemia”).
The evidence is not so one-sided regarding the duration of
the risk and the likelihood and imminence of potential
harm. In support of its position, VNHH offers the opinion
of Dr. Schmitt, its medical director. After conducting a
review, which included a conversation with Dr. Sorg, Dr.
Schmitt concluded that he was very concerned about having
Amick continue to drive. See Page 16 Darnell, 417 F.3d at
660 (noting that an employer’s determination that an
employee poses a direct threat must be based on “a
reasonable medical judgment that relies on the most current
medical knowledge and/or the best available objective
evidence”). VNHH also points out that prior to the August 4
incident, Dr. Sorg opined that Amick had frequent
hypoglycemia and was unsafe to drive.
Amick counters that she strictly follows her diabetic
regimen, that her diabetes is generally well-maintained and
under control, and that the August 4 incident was a
“fluke.” Furthermore, Amick contends that the likelihood of
such a severe episode happening again would be greatly
reduced if she were allowed to check her blood sugar every
fifteen minutes, i.e., if she was given a reasonable
accommodation.[fn12] In the light most favorable to Amick’s
evidence, a reasonable jury could conclude that the
duration of the risk, likelihood, and imminence of another
severe hypoglycemic episode is low. See Branham, 392 F.3d
at 908 (“On this record, a reasonable trier of fact could
conclude that [the plaintiff] can prevent severe
hypoglycemia from occurring by maintaining his treatment
regimen and vigilantly testing his blood sugar levels. . .
.”), with Darnell, 417 F.3d at 660-62 (concluding that
employer produced sufficient evidence that plaintiff was a
direct threat where plaintiff’s diabetes was unmonitored
and uncontrolled).
4. Amick Raises a Genuine Issue Regarding the Request for
a Reasonable Accommodation Page 17
The ADA prohibits discrimination against the disabled, and
one form of such discrimination is the failure to make
“reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A).
Accordingly, once an employer knows of an employee’s
disability and the employee has requested reasonable
accommodations, the employer must engage in an “interactive
process” with the employee to determine what precise
accommodations are necessary. Ross, 159 F.3d at 1013-14;
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137
(7th Cir. 1996). Liability for failure to provide
reasonable accommodation ensues only when the employer
fails to engage in the interactive process or bears
responsibility for the breakdown in the process. E.E.O.C.,
417 F.3d at 797; Hoffman v. Caterpillar, Inc., 256 F.3d
568, 572 (7th Cir. 2001); Rehling v. City of Chicago, 207
F.3d 1009, 1015-16 (7th Cir. 2000); Ross, 159 F.3d at
1013-14. The employer, however, is not per se liable when
this occurs; rather, the plaintiff must demonstrate that
the inadequate interactive process led to the employer’s
failure to provide reasonable accommodations. Emerson, 256
F.3d at 515.
Before reaching the issue of whether fault attaches to VNHH
for any alleged inadequacies in the interactive process,
Amick must first show that there is a genuine issue
regarding the availability of a reasonable accommodation.
See E.E.O.C., 417 F.3d at 805 (quoting Mays v. Principi,
301 F.3d 866, 870 (7th Cir. 2002)) (“The plaintiff cannot
seek a judicial remedy for the employer’s failure to
accommodate her disability without showing that a
reasonable accommodation existed.”). As discussed supra,
Amick raises a genuine issue of whether a reasonable
accommodation was available. Specifically, Amick makes the
requisite showing that if VNHH would have allowed her to
check her blood sugar levels every fifteen Page 18
minutes, its concerns regarding the possibility of her
having another severe hypoglycemic reaction would have
been allayed.[fn13]
Amick contends that after the August 4 incident VNHH
refused to consider any accommodation for her diabetes.
VNHH argues that Amick’s position contains a fatal flaw
— in order for VNHH to be liable for its alleged
failure to consider a reasonable accommodation, Amick must
have actually requested one. See E.E.O.C., 417 F.3d at
803-04; Jovanovic v. In-Sink-Erator Div. of Emerson Elec.
Co., 201 F.3d 894, 898-99 (7th Cir. 2000) (“[W]e believe
that the standard rule is that a plaintiff must normally
request an accommodation before liability under the ADA
attaches.”). Amick, however, was not required to use the
specific buzz words, “I want a reasonable accommodation,”
Bultemeyer, 100 F.3d at 1285, and the evidence (at least at
this point) supports her contention that she was interested
in an accommodation.
It is true that the specific accommodation that Amick now
seeks — that she be allowed to check her blood sugar
every fifteen minutes — ostensibly was not even
mentioned until Amick’s response to the motion for summary
judgment. However, Amick suggests that Dr. Sorg’s September
13 letter served as such a request when he opined, “Were
she to check a blood sugar before driving and find it to be
above 125, with that she could safely drive for at least a
fifteen minute span without undue risk of severe
hypoglycemia.” (Pl.’s Resp. Ex. 11.) It is for a jury to
determine whether Dr. Sorg’s letter constituted a request
by Amick for a reasonable Page 19 accommodation.[fn14]
See Bultemeyer, 100 F.3d at 1282, 1285 (holding that a
doctor’s note, which stated that “due to [plaintiff’s]
illness and his past inability to return to work, it would
be in his best interest to return to a school that might be
less stressful than Northrop High School,” was enough to
serve as a request for accommodation). Amick’s interest in
retaining her job with VNHH was demonstrated in the
September 2, 2004, letter from her attorney. In that
letter, counsel stated that Amick would acquiesce to VNHH’s
request for medical records and information “in order to
preserve [Amick’s] employment. . . .” Pl.’s Resp. Exh. 4.
As to the issue of the interactive process, VNHH was
required to begin that process once Amick requested an
accommodation. See E.E.O.C. v. Yellow Freight Sys., Inc.,
253 F.3d 943, 958-59 (7th Cir. 2001) (“The employee has the
affirmative obligation to let the employer know that he is
disabled and that he needs an accommodation. . . . Once the
employee provides this information, the employer has a
responsibility to start the interactive process.”)
(internal citations omitted). As discussed above, the court
has determined that a fact issue exists with regard to
whether Amick (or her physician) actually requested any form
of accommodation. Likewise, a genuine factual dispute
exists regarding whether, or to what degree, an interactive
process took place.
The parties dispute whether VNHH engaged in any
interactive process throughout the last year of Amick’s
employment. Amick specifically contests VNHH’s claim that
throughout this period it “did engage in the informal
interactive process with Amick until she obtained counsel.
. . .” (Def.’s Br. in Supp. of its Mot. for Summ. J. 18.)
For example, Amick contends Page 20 that VNHH failed to
engage in the interactive process with her after her kidney
failed. However, after VNHH received Dr. Sorg’s letter
requesting that Amick work in a position where driving was
not necessary or very minimal, VNHH accommodated Amick by
allowing her to work in the office even though it was under
no obligation to alter the essential functions of her job.
See 29 C.F.R. Pt. 1630 App.; Dvorak, 289 F.3d at 484.
The parties also disagree about VNHH’s willingness to
engage in the interactive process regarding Amick’s desire
to work part time. Eventually, just days before the August
4 incident, VNHH acceded to Amick’s request after it
received a note from her psychiatrist indicating that Amick
was medically unable to work more than 25 hours per week.
Liability for failure to engage in the interactive process
attaches only if it resulted in a failure to accommodate.
See Emerson, 256 F.3d at 515. VNHH contends, correctly by
all indications, that an accommodation was provided at that
point in time.[fn15] But following the August 4 incident,
the evidence demonstrates that the relationship between
Amick and VNHH deteriorated to the point that VNHH was
allegedly unwilling to accommodate Amick any more. Within a
day or so, Amick was told that she had to provide VNHH with
medical information so the company could make a
determination about her employment. Eventually, after an
exchange of letters between Amick’s attorney and VNHH’s
attorney, this information was provided. Of course, it
resulted in Amick’s termination rather than a subsequent
accommodation. VNHH contends that its decision was based on
a determination that Amick’s condition presented a threat
of harm either to herself or to the public. Amick, however,
takes the position that the decision was the result of
discrimination Page 21 in violation of the ADA. Once
again, the ultimate resolution of this issue turns largely
on credibility determinations, which are not within the
court’s purview to make at the summary judgment stage.
Accordingly, for all the reasons just discussed, Amick’s
claim under the ADA must be presented to a jury.
B. Amick’s Retaliation Claim.
In addition to her claim of discrimination under the ADA,
Amick alleges that VNHH terminated her in retaliation for
filing a charge of discrimination with the EEOC. A
plaintiff alleging retaliation can contest summary judgment
by using either the direct or indirect method of proof.
Tomanovich v. City of Indianapolis, No. 05-1653, slip op.
at 6 (7th Cir. Aug. 8, 2006). Amick relies on the direct
method, which requires her to show that she “(1) engaged in
a statutorily protected activity; (2) suffered an adverse
employment action; and (3) that a causal connection exists
between the two.”[fn16] Id. at 7.
The causal connection may be established through direct or
circumstantial evidence. Tomanovich, No. 05-1653, 10;
Treadwell v. Office of Ill. Sec’y of State, 455 F.3d 778,
781 (7th Cir. 2006); Sylvester v. SOS Children’s Vills.
Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006). Direct
evidence is evidence that “if believed . . . would prove
the fact in question without reliance on inference or
presumption,” Mannie v. Potter, 394 F.3d 977, 983 (7th Cir.
2005), which Page 22 “essentially requires an admission by
the decision maker that his actions were based on the
prohibited animus.” Culver v. Gorman & Co., 416 F.3d 540,
545 (7th Cir. 2005) (quoting Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003)). In contrast,
“circumstantial evidence can establish a causal link if the
trier of fact can infer intentional discrimination.” Id. at
545-46 (emphasis in original).
Here, Amick offers as direct evidence the following
statement made by Candor, VNHH’s CEO, during his
deposition: “[Amick’s attorney] made it very clear that
[she was] interested in filing with the EEOC. . . . [M]y
impression again was we’re going to take you to the EEOC.”
(The Dep. of Thomas Andrew Candor (“Candor Dep.”) 49.)
Standing alone, this statement might be direct evidence
that VNHH fired Amick in retaliation for filing charges
with the EEOC. However, VNHH argues that an examination of
the statement in its proper context reveals that it is not
direct evidence, since it was not offered as a reason for
Amick’s termination. Instead, Candor made the statement in
response to a series of questions posed by Amick’s attorney
regarding why VNHH failed to directly communicate with
Amick. Candor explained that once Amick’s counsel sent the
August 19 letter, VNHH “felt we weren’t able to talk
directly to [Amick] because we thought it was
lawyer-to-lawyer communication.” (Candor Dep. 48.) He
further explained that reasonable accommodations were not
discussed directly with Amick “because [counsel’s] letter
had stated that [counsel was] interested in discussing a
settlement and severance. So reasonable accommodation was
no longer an issue.” (Candor Dep. 49.) Finally, he made the
following comment, which contains the alleged direct
evidence:
[Counsel’s] subsequent letter where you gave permission
or approval for this medical information to be obtained
from Dr. Sorg, you made it very clear that you were
interested in filing with the EEOC, and there was no
mention of . . . any interest in accommodation for Deb . .
. [M]y impression again was we’re going to Page 23 take
you to the EEOC. And there is no change from your prior
letter where you were referring to an irretrievable
breakdown in the employment situation.
(Candor Dep. 49-50.) VNHH maintains that this statement was
not an admission by Candor that the motive for firing Amick
was retaliatory, but rather was intended as additional
explanation for why VNHH did not discuss (or, arguably,
continue to discuss) an accommodation with Amick.
Amick also contends that “Candor’s statement create[s] the
causal link between Amick’s protected activity and the
termination of the interactive process which directly
resulted in Amick’s termination. . . .” (Pl.’s Resp. 14.).
The court does not believe that either party’s
interpretation of Candor’s statement is conclusive. If it
is true that Candor’s statement was intended merely to help
explain why the interactive process ended, then Amick’s
termination may have had nothing to do with her allegations
of discrimination. On the other hand, a jury might infer
from Candor’s statement that VNHH reached a point of
frustration with Amick and/or her situation, and decided to
terminate her once the company believed that an EEOC
investigation and possible litigation appeared unavoidable.
Once again, resolution of this genuine issue depends to a
great extent on credibility determinations that only a jury
is empowered to make. For that reason, summary judgment
cannot be granted on Amick’s claim of retaliation.[fn17]
Page 24
IV. CONCLUSION
Based on the foregoing, the Motion for Summary Judgment
filed by Visiting Nurse and Hospice Home is DENIED.
[fn1] For summary judgment purposes, the facts are recited
in the light most favorable to Amick, the nonmoving party.
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
[fn2] The basal rate is determined by Amick’s doctor, while
the bolus rate is calculated by Amick at every meal she
eats by applying a ratio of one unit of insulin for every
twelve carbohydrates she consumes.
[fn3] Within the first six months of her employment, Amick
had an incident of low blood sugar at work but did not
lose consciousness. Co-workers recognized that Amick was
having an insulin reaction and took her to VNHH’s Hospice
Home to get food. Amick claims that she received negative
treatment following this incident, particularly from the
Patient Care Coordinator of the Hospice Home who allegedly
told Amick that she was not to return to the Hospice Home
to get food or to work. Amick, however, makes no legal
arguments regarding this incident in her response brief.
[fn4] Amick contends that Dr. Sorg never advised her that
she should not drive or that it was unsafe for her to
drive.
[fn5] Amick contends, however, that she was still required
to carry her full case load.
[fn6] Amick provides no further details regarding what
happened during the episode, ostensibly because she does
not recall what happened. Indeed, in an incident report
Amick indicated that the last thing she remembered was
having a conversation with the patient’s wife, and “my next
memory was [sic] EMT standing next to me and there was
[sic] IV in my arm.” (Def.’s Mot. for Summ. J. Ex. W.)
Therefore, the following details are taken from VNHH’s
account of the hypoglycemic episode, which Amick does not
dispute.
[fn7] Amick contends that she did not consider doing a
blood sugar check while in the patient’s home because “[n]o
one at VNHH ever told [her that she] could take such an
intimate, personal action while in a counseling session
with a client’s family.” (Aff. of Deborah L. Amick §
15.)
[fn8] Although the plaintiff in Branham sued under the
Rehabilitation Act, the Seventh Circuit noted that in the
employment context, the standards of the ADA are used. See
Branham, 392 F.3d at 902.
[fn9] For example, despite all her care in managing her
diabetes, Amick cannot completely control her blood sugar
level and several times a year she suffers from mild to
moderate hypoglycemia during the work day and/or while
driving. In December of 2003 her kidney was failing due to
her diabetes and she took a 2Ë?-month leave of absence as a
result. Pl.’s Resp., p. 3.
[fn10] Again, the parties dispute exactly what took place
the day after Amick passed out. VNHH maintains that Amick
was told that arrangements had been made for her to work in
the office again, while she contends she was not told that
and that she could not return to work in any capacity until
she obtained a doctor’s release.
[fn11] Curiously, VNHH makes no argument regarding whether
the accommodation of allowing Amick to check her blood
sugar every fifteen minutes was reasonable.
[fn12] In support of this contention, Amick offers Dr.
Sorg’s September 13 opinion, which was discussed above, and
the opinion of Doctor Jose Carlos Espinosa (“Dr.
Espinosa”), who is the Medical Director for General Motors.
After reviewing Amick’s medical records, Dr. Espinosa
concluded that “Amick poses no more threat than a
non-diabetic driver for drives of less than half an hour if
her blood sugar level is at 125 when she begins driving.”
(Aff. of Jose Carlos Espinosa, M.D. § 7.) VNHH
contends that Dr. Espinosa’s opinion was not available
until Amick filed her response to the motion for summary
judgment. Regardless, because it does affect the outcome of
this Order, the court will consider Dr. Espinosa’s opinion
here.
[fn13] Amick also suggests that, per Judy’s January 2004
comments, she could have ridden to patients’ homes with
VNHH nurses. VNHH explains that this accommodation was not
reasonable because the nurses’ schedules differ from
Amick’s schedule. This explanation, however, was never
offered to Amick and thus cannot be considered here. See
E.E.O.C., 417 F.3d at 806 (“An employer cannot sit behind a
closed door and reject the employee’s requests for
accommodation without explaining why the requests have been
rejected or offering alternatives.”).
[fn14] In contrast, Dr. Sorg’s earlier letter (in December
2003) specifically advocated a specific course of action in
response to Amick’s concern regarding hypoglycemic
episodes: “I have recommended that she work in a position
in which driving is not necessary or very minimal.” (Pl.’s
Resp. 18.)
[fn15] Amick maintains, as discussed previously, that she
was still required to carry a full case load at that time,
and so there exists a dispute about the genuineness of
that “accommodation.”
[fn16] The indirect method requires a plaintiff to first
establish a prima facie case of retaliation, which is a
showing that “(1) [s]he engaged in a statutorily protected
activity; (2) [s]he met the employer’s legitimate
expectations; (3) [s]he suffered an adverse employment
action; and (4) [s]he was treated less favorably than
similarly situated employees who did not engage in
statutorily protected activity.” Id. at 13. If the
plaintiff successfully establishes a prima facie case, the
burden then shifts to the defendant to provide a
legitimate, nondiscriminatory reason for the challenged
employment action. Scaife v. Cook County, 446, F.3d 735,
739 (7th Cir. 2006).
Although Amick disputes VNHH’s initial argument that it had
a valid nondiscriminatory reason for terminating her, she
makes no further attempts at fitting her retaliation claim
within the confines of the indirect methodology by
offering, for instance, any evidence concerning similarly
situated employees.
[fn17] While Amick does not raise the issue, the timing of
her termination could, coupled with Candor’s deposition
testimony and other facts, give rise to an inference of
retaliation. Amick’s attorney raised at least the specter
of EEOC proceedings (and, perhaps, litigation) in both of
her letters to VNHH’s attorney — the first on August
19, 2004, and the second on September 2, 2004. Then, on
September 20, Amick filed a Charge of Discrimination with
the EEOC. She was terminated approximately two weeks later.
The arguably suspicious timing of Amick’s termination,
standing alone, would be insufficient to support a
reasonable inference of retaliation. See Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000). However,
this temporal proximity, when combined with other
admissible evidence, may be sufficient for a jury to
reasonably conclude that Amick’s termination was
retaliatory. See, e.g., Burks v. Wisconsin Dept. of
Transp., 2006 WL 2788439 *9 (7th Cir. (Wis.)). Page 1