United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge.
matter is before the Court on Defendant's Motion
for Summary Judgment [#36] (the “Motion”).
Plaintiff filed a Response [#37] in opposition to the Motion,
and Defendant filed a Reply [#38]. The Court has reviewed the
Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#36] is
initiated this action on October 18, 2017, alleging that
Defendant, Plaintiff's former employer, discriminated
against her on the basis of a disability in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12112, et seq. See Compl.
[#3].Plaintiff's Complaint and Jury Demand
[#3] (the “Complaint”) does not state a specific
cause of action. However, Plaintiff claims that Defendant
violated the ADA, 42 U.S.C. § 12112, by failing to
reasonably accommodate her recovery from shoulder surgery in
not giving her reasonable leave and not allowing her to
return to work under her doctor's restrictions.
Id. ¶ 30. For this alleged violation, Plaintiff
seeks back pay and front pay, compensatory damages, and
reasonable attorneys' fees pursuant to 42 U.S.C. §
12112. Id. ¶ 31.
in this case concluded on September 6, 2018, and Defendant
filed the present Motion [#36] on September 18, 2018. In the
Motion [#36], Defendant argues that “Plaintiff is
unable to demonstrate a triable issue of fact as to the first
element of a prima facie case of disability discrimination --
that Plaintiff was in fact a ‘disabled person'
under the ADA.” [#36] at 2. Therefore, according to
Defendant, summary judgment “must be granted in favor
of [Defendant] as to Plaintiff's claim that she was
discriminated against in violation of the ADA.”
contests only one paragraph in Defendant's
“Statement of Material Facts” section of the
Motion [#36]. Response [#37] at 1. Plaintiff further
states that “the facts regarding [D]efendant's
discrete issue (Did [Plaintiff] suffer from an ADA
disability?) are generally undisputed.” Id. at
2. Therefore, the Court incorporates Defendant's
“Statement of Material Facts” herein unless
Plaintiff's Employment with Defendant
is a private, not-for-profit pediatric healthcare network and
children's hospital. Def.'s Ex. 1, Aff. of
Jennifer Darmofal (the “Darmofal Aff.”)
[#36-1] ¶ 2. Plaintiff began her employment with
Defendant as a Clinical Nurse II in the Post-Anesthesia Care
Unit (“PACU”) on or about April 1, 2008.
Compl. [#1] ¶ 5; Def.'s Ex. 2, Depo. of
Plaintiff Roseann Austin (the “Austin
Depo.”) [#36-2] at 27:2-8.
Clinical Nurse II in the PACU, Plaintiff's job duties
included monitoring patients coming out of surgery who were
still under the effects of anesthesia, including being
responsible for their airways, monitoring vital signs,
assessing pain levels, and going over information with the
parents of the patient. Def.'s Ex. 2, Austin
Depo. [#36-2] at 30:21-32:25; Pl.'s Ex. 6, Decl.
of Plaintiff Roseann Austin (the “Austin
Decl.”) [#37-1] ¶ 1. Plaintiff's job duties
also included holding patients down while they were coming
out of anesthesia, and being able to perform CPR on patients
if necessary. Def.'s Ex. 2, Austin Depo. [#36-2]
at 35:1-36:12. Patients in the PACU ranged from the age of
zero to eigteen or twenty. Id. [#36-2] at
physical requirements listed in the Job Description for the
Clinical Nurse II position in the PACU included carrying,
lifting, pulling, pushing, and reaching up to one-third of
the time, being able to assist in lifting, transporting and
positioning of patients, being able to encounter a patient
who falls or loses balance, and being able to lift or exert
force of up to 100 pounds, up to one-third of the time.
Def.'s Ex. 1, Darmofal Aff. [#36-1] ¶ 6;
Ex. A to Darmofal Aff. [#36-1] at 6-7. Plaintiff
agrees that the physical requirements listed above are
accurate but explains that she never had to lift 100 pounds
while at work. Def.'s Ex. 2, Austin Depo.
[#36-2] at 41:5-11; Pl.'s Ex. 6, Austin Decl.
[#37-1] ¶ 2. Plaintiff further explains that her job
required little physical exertion except to occasionally hold
a child down who was coming out of anesthesia but that this
involved downward pressure which did not cause her shoulder
any heightened pain. Pl.'s Ex. 6, Austin Decl.
[#37-1] ¶ 2.
Plaintiff's May 2, 2016 Shoulder Surgery and Subsequent
between 2014 and 2015, Plaintiff began experiencing pain in
her right shoulder. Def.'s Ex. 2, Austin Depo.
[#36-2] at 59:22-60:12; Pl.'s Ex. 6, Austin
Decl. [#37-1] ¶ 3. Plaintiff saw Dr. Jonathan
Bravman for her shoulder pain on December 16, 2015, at which
time she and Dr. Bravman discussed physical therapy and
injections to treat Plaintiff's shoulder. Def.'s
Ex. 2, Austin Depo. [#36-2] at 61:5-25; 63:15-24. In
February 2016, after physical therapy and injections did not
result in significant improvement, Plaintiff and Dr. Bravman
discussed the possibility of surgery but Dr. Bravman
“never said [surgery] was an absolute mandatory
thing.” Id. at 63:25-64:15; 65:21-66:10.
this time, Plaintiff had no work or medical restrictions and
was still able to work and perform all of the essential job
requirements of her position as a Clinical Nurse II in the
PACU, including lifting, reaching and carrying. Id.
at 59:22-60:19; 63:5-14; 66:11-23. Plaintiff experienced pain
while working but was able to work through it. Id.
ultimately decided to have surgery on her shoulder, and
discussed the timing of her surgery and how much time she
would need to be off from work with her supervisor, Regina
Hoefner-Notz. Id. at 66:24-67:10. In that
conversation, Plaintiff and Ms. Hoefner-Notz agreed that
Plaintiff would likely be out on leave for at least twelve,
but probably sixteen weeks. Id. at 87:10-22. Ms.
Hoefner-Notz anticipated that Plaintiff might need leave for
up to sixteen weeks based on the fact that another nurse in
the unit had just had the same shoulder surgery and was out
for approximately that long. Id.; Def.'s Ex.
3, Depo. of Regina Hoefner-Notz (“Hoefner-Notz
Depo.”) [#36-3] at 9:25-10:13.
surgery was initially scheduled for March 28, 2016, but was
postponed after Plaintiff came down with the flu.
Def.'s Ex. 2, Austin Depo. [#36-2] at
69:7-70:23; Pl.'s Ex. 6, Austin Decl. [#37-1]
¶ 3. Plaintiff states, and Defendant does not dispute,
that after recovering from the flu, Dr. Bravman released
Plaintiff to return to work on April 1, 2016, with the
restriction that Plaintiff not lift more than five pounds and
keep her right arm in a sling at all times. Pl.'s Ex.
8, Dr. Bravman's Note, dated April 1, 2016 [#37-3]
at 1. Plaintiff further states that her supervisor did not
allow her to return to work prior to her surgery because of
these restrictions even though Plaintiff said she could do
her job under those restrictions. Pl.'s Ex. 6, Austin
Decl. [#37-1] ¶ 3. Ultimately, Plaintiff did not
return to work between March 28, 2016, and her rescheduled
surgery date of May 2, 2016. Def.'s Ex. 2, Austin
Depo. [#36-2] at 83:24-84:1.
2, 2016, Plaintiff underwent surgery on her right shoulder,
specifically a right shoulder arthroscopy with debridement of
undersurface rotator cuff tear, biceps tenodesis, distal
clavicle resection and subacromial decompression.
Id. at 84:7-23; Def.'s Ex. 4, medical
records from University of Colorado Hospital
(“uchealth”), [#36-4] at 13-16;
Pl.'s Ex. 6, Austin Decl. [#37-1] ¶ 5.
Plaintiff's preoperative diagnoses were a right partial
versus focal full-thickness rotator cuff tear, right shoulder
biceps tendinitis with subluxation, right shoulder AC
arthrosis and right should subacromial bursitis.
Def.'s Ex. 4, medical records from uchealth
[#36-4] at 12-13.
were no complications during Plaintiff's May 2, 2016
surgery. Id. at 13. For the first six weeks after
the surgery, Plaintiff had to wear a sling over her right arm
and she could not use that arm for any reason. Def.'s
Ex. 2, Austin Depo. [#36-2] at 84:24-85:20;
Pl.'s Ex. 6, Austin Decl. [#37-1] ¶ 5.
Three days after her surgery, Plaintiff started attending
physical therapy sessions once or twice a week, which lasted
for at least six weeks. Def.'s Ex. 2, Austin
Depo. [#36-2] at 85:21-86:13. Plaintiff does not dispute
that she started physical therapy three days after her
surgery but explains that she was unable to move her shoulder
on her own for at least six weeks. Pl.'s Ex. 6,
Austin Decl. [#37-1] ¶¶ 4-5. The physical
therapist moved Plaintiff's arm and shoulder so she could
regain her range of motion but she herself could not move her
arm or shoulder for six weeks. Id. ¶ 4.
13, 2016, eleven days after her surgery, Plaintiff returned
to see Dr. Bravman for her first postoperative visit. Dr.
Bravman noted that Plaintiff was “doing great, ”
“looks great, ” and that she had no complaints,
had started physical therapy, and her pain was under good
control. Def.'s Ex. 4, medical records from
uchealth [#36-4] at 25. According to Dr. Bravman's
physical examination, Plaintiff's right shoulder showed
“nicely-healing incisions” and she did not have
“any biceps cramping or deformity.” Id.
6, 2016, approximately eight weeks after her May 2, 2016
surgery, Plaintiff was seen again by Dr. Bravman.
Id. at 26. Dr. Bravman indicated in his notes that
Plaintiff stated that “she was doing excellent, though,
over the past two weeks or so, she thinks that the shoulder
is getting a bit more painful and a bit stiff.”
Id. Dr. Bravman's physical examination of
Plaintiff revealed that her shoulder “shows nicely
healing incisions, ” she had no biceps cramping or
deformity, and she did have “a bit of limitation of
active equal to passive range of motion….”
Id. Dr. Bravman also noted that “I think that
her surgical result looks good, though I think she is
developing a little bit of capsulitis here in the
postoperative period. I have discussed continuing with gentle
stretching and progression with [physical therapy] as I think
this will be time limited and will likely go away.”
Id. Dr. Bravman also noted that Plaintiff could
consider an injection if she continued to be bothered by
this time, ten weeks after her surgery, Plaintiff states that
she could barely raise her arm parallel to the ground but
began to be able to lift twenty pounds in physical therapy.
Pl.'s Ex. 6, Austin Decl. [#37-1] ¶ 6.
Plaintiff felt she could return to work six ...