JON STUART SCOLES, Chief Magistrate Judge.
This matter comes before the Court on the Second Motion for Summary Judgment (docket number 24) filed by Defendants on January 29, 2016, and the Resistance (docket number 28) filed by Plaintiff on February 22, 2016. Pursuant to Local Rule 7.c, the motion will be decided without oral argument.
On October 19, 2015, Plaintiff Marvin Piburn, M.D., filed an Amended Complaint in federal court.
Defendants timely filed the instant motion for summary judgment on January 29, 2016.
Plaintiff Marvin Piburn, M.D., is a board certified psychiatrist who was employed at BHGMHC from October 1984 through May 13, 2014. Piburn was a full-time employee at all times, except for the period of September 1994 through January 1997, when he worked as a part-time contract psychiatrist for BHGMHC. Additionally, at different times during his employment, Piburn served as the Medical Director for BHGMHC, including the final 13 years of his employment.
The Medical Director position requires supervisory responsibilities over all other psychiatrists and all clinical staff. The Medical Director reports to the Executive Director. The Medical Director's essential functions include: (1) evaluation of all clients referred for consideration of medication and prescribed medication as clinically appropriate; (2) follow-up with clients placed on medications; (3) completing all paperwork according to BHGMHC standards; (4) assisting nursing staff with resolution of related issues; (5) providing consultation to clinic staff; (6) developing and promoting good working relationships with other community representatives, agencies, and organizations; (7) complying with all managed care and insurance company requirements; (8) providing primary coverage for emergency, after-hours calls, and weekends; (9) adherence to BHGMHC's code of ethics; (10) attending and participating in scheduled meetings; and (11) providing clinical oversight to all staff and clinical services.
The record does not contain a job description for the staff psychiatrist position at BHGMHC.
Defendant BHGMHC is a community mental health center located in Waterloo, Iowa. BHGMHC provides comprehensive mental health services for children, adolescents, adults, older adults, couples, and families.
Defendant Thomas Eachus is a trained social worker. He has been employed by BHGMHC since 1988. Beginning in 1993, Eachus became the Executive Director for BHGMHC.
Since 2010, Piburn has suffered from sleep apnea, which disrupts his sleep at night, and causes him to experience fatigue during the day. Gradually over time, Piburn became slower in completion of patient visits, causing him to go over the time allotted for an individual patient visit, and into the next patient's allotted time. The delays sometimes created situations where patients waiting to see Piburn would lash out at the front desk staff or leave without having their appointment. In 2013, due to patient delay issues, Piburn's schedule was reduced to two-patient blocks (30 minutes per patient) with 30 minutes of case management between blocks.
On March 25, 2014, a patient became irate and verbally abusive towards the front desk staff due to having to wait 35 minutes for his appointment with Piburn. In response to this incident, Sue Anderson, BHGMHC's Office Manager, sent Piburn an email outlining her concerns. Specifically, Anderson's email provided in pertinent part:
Defendants' Appendix (docket number 26) at 51. Following the March 25 incident, Piburn requested medical leave.
On March 25, 2014, Piburn requested medical leave under the FMLA, and it was approved. He was on medical leave from March 28, 2014 through May 1, 2014. During that time period, Piburn voluntarily entered a 10-day inpatient treatment program at the Mayo Clinic in Rochester, Minnesota, for major depressive episode. According to Piburn's medical leave certification, he was diagnosed with bipolar disorder, depression, obsessive compulsive disorder, obstructive sleep apnea, parkinsonism, and neuropathy. Piburn's treating physician, Dr. Mark Frye, released him to return to work on May 1, 2014 with a reduced schedule "per patients [(sic)] instructions."
While at the Mayo Clinic, Piburn was also treated by Dr. Erik K. St. Louis, M.D., for his sleep disorder. Dr. St. Louis diagnosed Piburn with hypersomnia, most likely narcolepsy without cataplexy. Dr. St. Louis indicated that Piburn was under "appropriate management for these conditions."
Piburn's Appendix (docket number 29) at 21.
On April 24, 2014, Piburn presented BHGMHC's Human Resources Director, Donna Herbrandson, with a form entitled "Return from Medical Leave of Absence" signed by Dr. Frye. The form stated Piburn was prepared to return to work on May 1, 2014, with the restriction of a "reduced schedule per patient's instructions." Piburn requested a meeting with Herbrandson, Thomas Eachus, and Sue Anderson. The meeting occurred on April 25, 2014. At the meeting, Piburn presented the schedule recommended by Dr. Frye and supported by Dr. St. Louis. Under the new schedule, Piburn would reduce his patient load from an average of 13 patients per day, to 10 patients per day. Due to the reduction in patient load, Piburn believed it was reasonable to reduce his compensation by 25%. According to Piburn, Eachus immediately stated without explanation that such a schedule would be unacceptable.
Believing he had either been demoted to a part-time contract psychiatrist position, or fired, Piburn went to his office on Sunday, April 27, 2014, to clean it out because "[h]ourly employees share offices. They don't get an office."
Following his interaction with Eachus, Piburn left a handwritten note for Eachus to find the following day, April 28, 2014, detailing his complaints regarding his April 25 and April 27 encounters with Eachus.
Piburn's Appendix (docket number 29) at 25-26.
Piburn did not return to work on May 1, 2014. On that date, Piburn's attorney sent a letter to Eachus requesting that BHGMHC honor the requested accommodation of a reduced patient schedule, as outlined by Dr. Frye and Piburn. Piburn's attorney also requested BHGMHC's Board of Directors be involved in the discussion of Piburn's requested accommodation due to the grievence Piburn intended to file against Eachus. On May 2, Defendants responded through counsel, requesting a meeting between the lawyers to discuss a reasonable accommodation for Piburn's disability.
On May 12, 2014, Piburn, his attorney, and BHGMHC's attorney had a meeting to discuss Piburn returning to work at BHGMHC. The discussion did not involve a written offer from BHGMHC, and did not contain specifics with regard to Piburn's position, work hours, compensation, or benefits if he returned to BHGMHC.
On May 13, 2014, the attorneys for both parties engaged in a series of emails, with BHGMHC's attorney urging Piburn not to attend the May 14 Board of Directors meeting, as his grievance had not yet been properly submitted under BHGMHC procedure and he would not be on the agenda.
Also on May 13, at 7:00 a.m. a meeting was held with the Executive Committee of the BHGMHC Board of Directors. At the committee meeting, Eachus addressed the situation involving Piburn, and indicated that the two sides were in negotiations to find an acceptable accommodation for Piburn to keep his employment at BHGMHC. The Executive Committee minutes provide "[t]he Executive Committee recommended to work with legal counsel for a resolution to the issues and problems presented."
Piburn's Appendix (docket number 29) at 56; Eachus' Deposition at 26:15-27:7.
Later in the day, on May 13, shortly after 5:00 p.m., Eachus provided Piburn's attorney with a letter terminating Piburn. The letter states that BHGMHC attempted in good faith to find an appropriate accommodation for Piburn, but Piburn rejected BHGMHC's proposal that was verbally discussed by BHGMHC's attorney at the May 12 meeting. The letter concludes:
Defendants' Appendix (docket number 26) at 88.
Other facts that are significant for making a determination on Defendants' motion for summary judgment will be discussed, as necessary, in the Court's consideration of the legal issues presented.
Summary judgment is appropriate if the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute as to a material fact "`exists if a reasonable jury could return a verdict for the party opposing the motion.'" Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting Humphries v. Pulaski County Special School District, 580 F.3d 688, 692 (8th Cir. 2009)). A fact is a "material fact" when it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to establish the existence of a genuine dispute as to a material fact, the non-moving party "`may not merely point to unsupported self-serving allegations.'" Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008) (quoting Bass v. SBC Communications, Inc., 418 F.3d 870, 872 (8th Cir. 2005)). Instead, the non-moving party "`must substantiate [its] allegations with sufficient probative evidence that would permit a finding in [its] favor.'" Anda, 517 F.3d at 531 (quoting Bass, 418 F.3d at 873); see also Anderson, 477 U.S. at 248 (A nonmoving party must offer proof "such that a reasonable jury could return a verdict for the nonmoving party."). "`Evidence, not contentions, avoids summary judgment.'" Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir. 2006) (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003)). The court must view the record in the light most favorable to the nonmoving party and afford it all reasonable inferences. Baer Gallery, Inc. v. Citizen's Scholarship Foundation of America, Inc., 450 F.3d 816, 820 (8th Cir. 2006) (citing Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir. 2006)).
In his Amended Complaint, Piburn alleges Defendants violated his rights under the FMLA by failing to restore him to his position as Medical Director and staff psychiatrist at BHGMHC after taking approved medical leave, and by retaliating against him for exercising his rights under the FMLA (Count I), discriminated against him for failure to accommodate his disability, reasonably engage in the interactive process, and retaliation in violation of the ADA (Count II), and discriminated against him for failure to accommodate his disability, reasonably engage in the interactive process, and retaliation in violation of the ICRA (Count III).
Piburn alleges disability discrimination for failure to accommodate under both the ADA and ICRA. When the parties in disability discrimination litigation "do not dispute the application of federal analysis, disability claims under the ICRA are generally analyzed in accord with the ADA." Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir. 2007) (citing McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005)); see also Kallail v. Alliant Energy Corporate Services, Inc., 691 F.3d 925, 930 (8th Cir. 2012) ("[D]isability claims under the ICRA are generally analyzed in accord with the ADA"). Therefore, the Court will analyze both Piburn's ADA and ICRA disability discrimination claims using federal law.
Under the general framework of the ADA, employers are prohibited from discriminating against "a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (2009).
42 U.S.C. § 12112(b)(5)(A). See also Peyton v. Fred's Stores of Arkansas, Inc., 561 F.3d 900, 902 (8th Cir. 2009). "As the statutory language indicates, ADA protection extends only to a qualified individual with a disability, namely, `an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" Id. (quoting 42 U.S.C. § 12111(8)).
In a failure to accommodate case, "the `discrimination' is framed in terms of the failure to fulfill an affirmative duty — the failure to reasonably accommodate the disabled individual's limitations." Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004). The Eighth Circuit Court of Appeals explained:
Id. (citations omitted). Thus, under the ADA, "an employer is required to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability, unless the requisite accommodation would impose an undue hardship on the employer's business." Battle v. United Parcel Service, Inc., 438 F.3d 856, 862 (8th Cir. 2006) (citing 42 U.S.C. § 12112(b)(5)(A)).
In reasonable accommodation cases, courts apply a modified burden-shifting analysis. Fenney v. Dakota, Minnesota & Eastern Railroad Co., 327 F.3d 707, 712 (8th Cir. 2003). Under the modified burden-shifting approach:
Brannon v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir. 2008) (quotations and citations omitted). "`If the employer can show that the employee cannot perform the essential functions of the job even with reasonable accommodation, then the employee must rebut that showing with evidence of his individual capabilities.'" Fenney, 327 F.3d at 712 (quotation omitted). "`At that point, the employee's burden merges with his ultimate burden of persuading the trier of fact that he has suffered unlawful discrimination.'" Id.
Furthermore, "[w]here the employee requests accommodation, the employer must engage in an `informal, interactive process' with the employee to identify the limitations caused by the disability and the potential reasonable accommodations to overcome those limitations." Battle, 438 F.3d at 862 (citing Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 951 (8th Cir. 1999)). At the summary judgment stage, the Eighth Circuit has stated "the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith." Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000). In order to show that an employer failed to participate in the interactive process, the plaintiff must show:
E.E.O.C. v. Product Fabricators, Inc., 763 F.3d 963, 971 (8th Cir. 2014) (quoting Peyton, 561 F.3d at 902). If a court concludes that the employer failed to engage in the interactive process, then "a factual question exists as to whether the employer has attempted to provide reasonable accommodation as required by the ADA." Cravens, 214 F.3d at 1021 (quoting Fjellestad, 188 F.3d at 952). However, "if no reasonable accommodation is available, an employer is not liable for failing to engage in a good-faith interactive process." Battle, 438 F.3d at 864 (citation omitted).
In their brief, Defendants assert they are entitled to summary judgment because:
Defendants' Brief in Support of Defendants' Second Motion for Summary Judgment (docket number 25-1) at 8.
Specifically, Defendants argue Piburn's demanded accommodation—a reduced patient schedule—would cause Piburn to be unable to perform his duties as a staff psychiatrist and Medical Director, place the burden of performing such duties on other BHGMHC practitioners, all while overcompensating Piburn. Defendants maintain Piburn's requested schedule would have him meet with only five patients per day, resulting in decreased billing and meeting with less patients than expected for a full-time salaried employee and the Medical Director. Defendants assert "[w]hile [Piburn] claims that he was able to perform the functions of Medical Director without accommodation, . . . his claim ignores the limitations his requested accommodation placed on total patient time, which would likewise limit the time available to see referred patients, an essential function of the Medical Director position."
Defendants further argue that Piburn's need of a transcriptionist to complete his recordkeeping requirements is also an unreasonable accommodation. Prior to his medical leave, Piburn handwrote his patient notes, and BHGMHC allowed a staff transcriptionist to input his patient notes into electronic records due to his difficulties with typing on a computer and neuropathy in his upper extremities. According to Defendants, Piburn's use of a transcriptionist was an unreasonable accommodation that it was not required to continue upon his return to work. Defendants also implicitly argue that reallocating Piburn's case documentation to a transcriptionist burdens the BHGMHC staff. Lastly, Defendants assert "BHGMHC is not required to tolerate a drop in productivity as it has in the past by attempting to accommodate to minimize [Piburn's] delays" through his use of a transcriptionist.
Finally, with regard to Piburn's interactive process claim, Defendants contend Piburn:
Defendants' Brief in Support of Defendants' Second Motion for Summary Judgment (docket number 25-1) at 16.
In his brief, Piburn argues:
Piburn's Brief in Resistance to the Defendants' Second Motion for Summary Judgment (docket number 28-1) at 5.
Specifically, Piburn argues Defendants immediately refused his requested accommodation for a reduced patient work schedule. Piburn maintains Defendants failed to provide any type of explanation for refusing his requested accommodation. Piburn asserts "Eachus never performed any analysis or did any research or calculations which would have allowed him to draw a reasonable conclusion that Dr. Piburn's proposed schedule was unreasonable, or that his proposed schedule would cause any undue hardship for the Medical Health Center."
Applying the modified burden-shifting approach for failure to accommodate claims, both parties agree Piburn meets the following facial showing requirements. First, the parties agree Piburn has an ADA disability, complex sleep disorder.
Following his medical leave in March and April 2014, Piburn requested a reduced patient schedule as an accommodation for his disability (complex sleep disorder). Under the revised patient schedule, Piburn explained that he:
Piburn's Appendix (docket number 29) at 6; ¶ 24 (Piburn's Affidavit). Essentially, Piburn requested an accommodation of seeing three less patients per day with a 25% reduction in his compensation for seeing less patients.
Taking these facts into consideration, the Court believes Piburn has: (1) made a facial showing that he has an ADA disability and suffered an adverse employment action; (2) made a facial showing that he is a "qualified individual" under the ADA; and (3) made a facial showing that a reasonable accommodation is possible. See Brannon, 521 F.3d at 848 (providing the facial showing requirements for a plaintiff under the modified burden-shifting approach used in a failure to accommodate cases).
The burden now shifts to Defendants to show they are unable to accommodate Piburn. In their brief, Defendants offer three reasons for being unable to meet Piburn's requested accommodation. First, Defendants assert Piburn's reduced patient schedule, seeing only 5 patients per day, would limit Piburn's ability to perform his duties as Medical Director, create additional work, and cause undue burden on other employees at BHGMHC. Second, Defendants maintain Piburn's requested accommodation would require his compensation and benefits to be reduced because he would only be seeing 5 patients per day. To that end, Defendants verbally offered to keep Piburn as a part-time contract psychiatrist with loss of full-time employee benefits and his position as Medical Director. Third, Defendants contend it is an unreasonable accommodation to have to hire a transcriptionist for Piburn's recordkeeping duties.
The burden shifts back to Piburn to rebut Defendants' assertion that they are unable to meet Piburn's requested accommodation.
In considering Piburn's rebuttal to Defendants' assertion that they are unable to meet Piburn's requested accommodation, the Court begins by noting that Defendants' contention that Piburn requested a reduced patient schedule which would allow him to see only 5 patients during the workday is incorrect. It appears that Defendants base their assertion of Piburn requesting to only see 5 patients per day on one sentence in a 10-page handwritten document Piburn provided Eachus, after he believed Eachus fired him on April 27, 2014. In the handwritten document, after stating that the reduced patient schedule he was requesting would allow him to see 10 patients per day, Piburn states "I have no doubt I'll spend 1 hour with each pt, not 30 minutes."
Moreover, in his deposition, Eachus stated he made no calculations as to monetary loss or patient loss in determining BHGMHC was unable to accommodate Piburn's request for a reduced patient schedule. Specifically, Eachus' deposition testimony provides:
Piburn's Appendix (docket number 29) at 68; Eachus' Deposition at 123:19-124:24.
It appears that the only discussion of economic concerns with Piburn's requested accommodation is presented in a letter dated May 7, 2014, from BHGMHC's counsel to Piburn's counsel.
Similarly, it appears that Defendants' contention in their brief that Piburn's requested accommodation would limit his ability to fulfill his Medical Director duties is based on Piburn seeing 5 patients per day, instead of 10 patients per day.
Finally, Defendants' argument with regard to hiring a transcriptionist as an unreasonable accommodation is misplaced. Piburn did not request a transcriptionist as part of his request for accommodation. Piburn began using a transcriptionist in 2012 because he had poor keyboarding skills and neuropathy in his upper extremities. According to Piburn, he requested a transcriptionist and one was given to him. Specifically, Piburn states:
Piburn's Appendix (docket number 29) at 2; ¶ 11 (Piburn's Affidavit). Similarly, in his deposition, Piburn stated that the transcriptionist "was my idea and it was my requrest, and they did not block it."
Based on the foregoing facts, and viewing the record in the light most favorable to Piburn, and affording Piburn all reasonable inferences, the Court finds a genuine dispute exists as to whether Defendants fulfilled their duty under both the ADA and ICRA to reasonably accommodate Piburn. See Peebles, 354 F.3d at 767. Accordingly, Defendants' motion for summary judgment on Piburn's reasonable accommodation claim is denied.
Turning to the issue of whether Defendants properly participated in the interactive process to find a reasonable accommodation for Piburn, the record demonstrates that there is no dispute Defendants were aware of Piburn's disability. It is also undisputed that Piburn requested an accommodation of a reduced patient schedule for his disability.
Next, in considering whether Defendants made a good faith effort to assist Piburn in seeking an accommodation(s), the Court considers the following facts. First, on April 25, 2014, Piburn presented Defendants with his requested accommodation of a reduced patient schedule. According to Piburn, Eachus immediately stated that such a schedule would be unacceptable.
Second, on April 27, 2014, believing he had either been demoted to a part-time contract psychiatrist position, or fired, Piburn went to his office to clean it out. While at his office, Piburn encountered Eachus. Piburn told Eachus he intended to file a grievance against Eachus for his failure to accept his request for a reasonable accommodation. Piburn also told Eachus that he was going to contact an attorney to learn about his rights as an employee.
Third, following his interaction with Eachus, Piburn wrote a long letter to Eachus detailing his complaints with the manner in which Eachus had addressed his request for an accommodation. The letter was later typed and provided to Eachus.
Piburn's Appendix (docket number 29) at 25-26.
Fourth, Piburn did not return to work on May 1, 2014. Between May 1 and May 11, the attorneys for both parties exchanged letters and emails discussing Piburn's requested accommodation of a reduced patient schedule. On May 12, 2014, Piburn, his attorney, and BHGMHC's attorney had a meeting to further discuss Piburn returning to work at BHGMHC. An official written offer from BHGMHC was not presented to Piburn. Instead, BHGMHC through its attorney continued to present Eachus' initial April 25, 2014 position that Piburn could return to work as a part-time hourly paid contract psychiatrist with loss of his title as Medical Director, and an elimination of some benefits.
Fifth, on May 13, 2014, Eachus called a meeting with the Executive Committee of the Board of Directors. Eachus addressed the situation with Piburn, and indicated that the two sides were in negotiations to find an acceptable accommodation for Piburn to keep him employed at BHGMHC. The Executive Committee minutes provide "[t]he Executive Committee recommended to work with legal counsel for a resolution to the issues and problems presented."
Piburn's Appendix (docket number 29) at 56; Eachus' Deposition at 26:15-27:7.
Sixth, later the same day, following the morning Executive Committee meeting, shortly after 5:00 p.m., Eachus provided Piburn's attorney with a letter terminating Piburn. The letter stated that BHGMHC attempted in good faith to find an appropriate accommodation for Piburn, but Piburn rejected BHGMHC's proposal that was verbally presented by BHGMHC's attorney at the May 12 meeting. The letter concludes:
Defendants' Appendix (docket number 26) at 88.
Seventh, prior to the termination letter sent on May 13, 2014, shortly after 5:00 p.m., Piburn had intended to attend the BHGMHC Board of Directors meeting on May 14, to discuss his position as Medical Director and inform the board he intended to file a grievance against Eachus for refusing to reasonably accommodate his disability. Because he was terminated, Piburn did not attend the May 14 Board of Directors meeting. Even though earlier in the day on May 13, as discussed in point 5 above, the Board's Executive Committee recommended BHGMHC "work with legal counsel for a resolution to the issues and problems presented[,]" Eachus decided to terminate Piburn that evening.
Viewing these facts in the light most favorable to Piburn, there is evidence in the record that: (1) Defendants denied Piburn's requested accommodation at their initial meeting to discuss accommodations for Piburn; (2) Eachus told Piburn not to return to work on May 1, 2014 if he was going to file a grievance and sue BHGMHC; (3) Defendants' initial offer to allow Piburn to work as a part-time contract psychiatrist with loss of his Medical Director position and reduced benefits never changed from April 25, 2014 through May 12, 2014; (4) Defendants terminated Piburn on the evening of May 13, 2014, even though on the morning of May 13, the Executive Committee of the BHGMHC Board of Directors recommended BHGMHC continue to work with Piburn to find an accommodation which would allow him to remain employed at BHGMHC; and (5) terminating Piburn on May 13 would prevent Piburn from attending a Board meeting on May 14 to discuss his employment situation and intention to file a grievance against Eachus. The Court believes these facts, when viewed in the light most favorable to Piburn and afforded all reasonable inferences, raise a genuine issue of dispute as to whether Defendants properly participated in the interactive process, and made a good faith effort to assist Piburn in seeking an accommodation. See Product Fabricators, Inc., 763 F.3d at 971 (providing in an interactive process claim that a plaintiff must show his or her employer failed to make a good faith effort to assist the employee in seeking accommodations). Additionally, given that the Court in section
The ADA prohibits employers from "discriminating against any individual because that individual `has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.'" Product Fabricators, Inc., 763 F.3d at 972 (quoting 42 U.S.C. § 12203(a)). Similarly, the ICRA makes it a discriminatory practice for any person to retaliate against another person "because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter." Iowa Code § 216.11(2).
Without direct evidence of a retaliatory motive, courts analyze retaliation claims (whether under Title VII, the ADA, or the ADEA) under the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). Stewart v. Independent School Dist. No. 196, 481 F.3d 1034, 1042-43 (8th Cir. 2007). Applying the analytical framework set forth in McDonnell Douglas, the initial burden is on the plaintiff to establish a prima facie case of retaliation. Id. at 1043. In order to establish unlawful retaliation under the ADA, a plaintiff must show that: "(1) she engaged in a statutorily protected activity, (2) the employer took an adverse action against her, and (3) there was a causal connection between the adverse action and the protected activity." Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (citing Amir v. St. Louis University, 184 F.3d 1017, 1025 (8th Cir. 1999)). Accord Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 678 (Iowa 2004) (enumerating the elements necessary to establish a prima facie case of retaliation under the ICRA).
If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to show a "non-retaliatory reason for the adverse employment action." Stewart, 481 F.3d at 1043. If the defendant can show a legitimate, non-retaliatory reason for its actions, then the burden returns to the plaintiff to present evidence that "(1) creates a question of fact as to whether defendant's reason was pretextual and (2) creates a reasonable inference that defendant acted in retaliation." Id. (quoting Logan v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005)).
Piburn is able to establish a prima facie case of retaliation. First, Piburn informed Defendants that he planned to file a grievance against Eachus for failing to accommodate his disability. Both parties agree that such an act constitutes Piburn engaging in a statutorily protected activity. Second, while Defendants couch their termination of Piburn as acceptance of his resignation, they agree that this constitutes an adverse employment action. Piburn denies that he resigned from BHGMHC and asserts that he was terminated by official letter on May 13, 2014, and by statement of Eachus on April 27, 2014.
Neither party addresses the causal connection between the adverse action and the protected activity, but a causal connection clearly exists for purposes of the prima facie case. On April 27, 2014, when Piburn stated he was going to file a grievance against Eachus, Piburn maintains Eachus responded "maybe [you] should not come in to work on May 1 after all[.]"
The burden now shifts to Defendants to articulate a non-retaliatory reason for the adverse employment action. In their brief, Defendants assert Piburn "claimed he could not return to work without an accommodation. BHGMHC and [Piburn] engaged in a vigorous interactive process to determine whether a reasonable accommodation was possible, and the interactive process broke down. [Piburn] demanded unreasonable accommodations that BHGMHC did not have a duty to provide. Employment separation was the next step in the process[.]"
Even assuming Defendants properly articulated a non-retaliatory reason for Piburn's adverse employment action, the Court finds a genuine dispute as to whether Defendants' reason for terminating Piburn was pretextual and Defendants acted in retaliation. Specifically, on April 27, 2014, after Piburn told Eachus he was going to file a grievance against him for failing to accept his request for a reasonable accommodation, and contact an attorney to learn about his rights as an employee, Eachus responded "maybe [you] should not come in to work on May 1 after all[.]"
Viewing these facts in the light most favorable to Piburn and affording all reasonable inferences, the Court finds a genuine issue of dispute as to whether Defendants' termination of Piburn was pretext for retaliation. Accordingly, Defendants' motion for summary judgment on Piburn's retaliation claim is denied.
In this case, Piburn alleges: (1) an entitlement claim for failure to reinstate him to his position as Medical Director and staff psychiatrist at BHGMHC after taking approved medical leave under the FMLA; and (2) a retaliation claim for terminating him for exercising his FMLA rights.
"The FMLA entitles an employee to twelve weeks of leave from work during any twelve-month period if the employee meets certain statutory requirements." Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012) (citing 29 U.S.C. § 2612(a)(1)). Prohibited acts are established by two subsections of the statute. "Section 2615(a)(1) makes it unlawful for an employer to `interfere with, restrain, or deny the exercise of or the attempt to exercise' rights provided under the FMLA." Pulczinski, 691 F.3d at 1005. The statute also "makes it unlawful for `any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful' by the FMLA." Id. (citing 29 U.S.C. § 2615(a)(2)).
The Eighth Circuit Court of Appeals has recognized three types of claims arising under Section 2615(a)(1)-(2): (1) entitlement claims, (2) discrimination claims, and (3) retaliation claims. Johnson v. Wheeling Machine Products, 779 F.3d 514, 517 (8th Cir. 2015). In an entitlement claim, "an employee alleges a denial of a benefit to which he was entitled under the statute[.]" Id. In a discrimination claim, an employee alleges the employer discriminated against him or her because the employee exercised his or her rights under the FMLA. Id. Finally, in a retaliation claim, "an employee alleges that the employer took adverse action against him for opposing a practice made unlawful under the FMLA." Id. at 517-18; see also Pulczinski, 691 F.3d at 1005-1006 (providing a detailed discussion of the three types of claims arising under Section 2615(a)(1)-(2)).
"Employees who show they qualify for FMLA leave are entitled to be restored to their positions or the equivalent upon returning to work." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir. 2005) (citing 29 U.S.C. § 2614(a)(1)). An employee, however, "is not entitled to restoration if, at the end of the FMLA period, the employee is still unable to perform an essential function of the job." Hatchett v. Philander Smith College, 251 F.3d 670, 677 (8th Cir. 2001) (citations omitted); see also 29 C.F.R. § 825.216(c) ("If the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA."). Additionally, in contrast to the ADA, "the FMLA does not impose a duty of reasonable accommodation." Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 806-07 (8th Cir. 2013). The FMLA only "requires the employer to reinstate the employee to her original position or to an `equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment,' 29 U.S.C. § 2614(a)(1)(B), following such period of leave." Id. at 807 (citing Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002)).
In order to succeed on an entitlement claim for failure to reinstate, a plaintiff must establish that he or she was, in fact, entitled to FMLA leave and reinstatement. Johnson, 779 F.3d at 518 (citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006)).
"The FMLA prohibits employers from discriminating against employees for asserting rights under the Act." Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002) (citing 29 U.S.C. § 2612)); McBurney v. Stew Hansen's Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir. 2005) ("Retaliation through an adverse employment action based on an employee's exercise of FMLA rights is actionable."). Absent direct evidence, an FMLA retaliation claim is analyzed under the McDonnell Douglas v. Green, 411 U.S. 792 (1973) burden-shifting framework. Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008). Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a prima facie case. Id. In order to establish a prima facie case, the plaintiff must "`show that she exercised rights afforded by the Act, that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action.'" Id. (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002)). If a plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Phillips, 547 F.3d at 912. If the defendant is successful, the burden shifts back to the plaintiff to "come forward with evidence that creates an issue of fact as to whether the asserted reason was pretext for discrimination." Id.
In his failure to reinstate claim under the FMLA, it is undisputed Piburn was entitled to FMLA leave, but the Court concludes he was not entitled to reinstatement under the FMLA. Because the FMLA does not impose a duty of reasonable accommodation, and Piburn specifically requested upon his return from FMLA leave an accommodation of a reduced patient schedule with reduced compensation for reduced daily patient hours, Piburn is not entitled to reinstatement under the FMLA. See Dollar, 710 F.3d at 807 (The FMLA only "requires the employer to reinstate the employee to her original position or to an `equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment,' 29 U.S.C. § 2614(a)(1)(B), following such period of leave."). Due to the nature of his requested accommodation — a reduced patient schedule with reduced patient hours and reduced compensation — Piburn is apparently unable to meet the requirements of his original position at BHGMHC prior to taking FMLA leave, or its equivalent, and therefore, is not entitled to reinstatement. See Hatchett, 251 F.3d at 677 (An employee "is not entitled to restoration if, at the end of the FMLA period, the employee is still unable to perform an essential function of the job."); see also 29 C.F.R. § 825.216(c). Because Piburn is unable to perform the essential functions of his job prior to taking FMLA leave without accommodation, he is not entitled to reinstatement under the FMLA. See Dollar, 710 F.3d at 806-07 (Providing "the FMLA does not impose a duty of reasonable accommodation."). Accordingly, the Court concludes Defendants are entitled to summary judgment on Piburn's reinstatement claim under the FMLA.
In his retaliation claim under the FMLA, Piburn meets the first two prongs of his prima facie case. He exercised his FMLA rights, and was terminated following his FMLA leave. In his brief, Piburn does not address his retaliation claim under the FMLA. Furthermore, at no place in his brief, does he address a causal connection between his exercise of FMLA rights and his termination. Based on the record before it, the Court finds no causal connection between Piburn's exercise of his FMLA rights and his termination. The record demonstrates that upon returning from FMLA leave, Piburn requested an accommodation due to a disability, and the facts surrounding his termination pertain to the inability of Piburn and Defendants to agree upon a reasonable accommodation for his disability. There is no evidence in the record that Defendants' decision to terminate Piburn was motivated by Piburn's exercise of his FMLA rights. Because Piburn has failed to show a causal connection between his exercise of FMLA rights and his termination, he is unable to establish a prima facie case of retaliation under the FMLA. See Phillips, 547 F.3d at 912 (describing the prima facie case for a FMLA retaliation claim). Accordingly, Defendants are entitled to summary judgment on Piburn's FMLA retaliation claim.
The Court concludes Defendants are entitled to summary judgment on Piburn's claims under the FMLA for failure to reinstate and retaliation. The Court further concludes, however, that Defendants are not entitled to summary judgment on Piburn's claims of disability discrimination for failure to accommodate and reasonably engage in the interactive process, and retaliation in violation of the ADA and ICRA.
The Second Motion for Summary Judgment (docket number 24) filed by Defendants Black Hawk-Grundy Mental Health Center, Inc. and Thomas Eachus is hereby
