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Austin v. Children's Hospital Colorado

United States District Court, D. Colorado

December 13, 2018



          Kristen L. Mix, United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion for Summary Judgment [#36][1] (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 DENIED.[2]

         I. Background

         Plaintiff 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].[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.

         Discovery 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.” Id.

         II. Material Facts

         Plaintiff 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 otherwise noted.

         A. Plaintiff's Employment with Defendant

         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.

         As a 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 33:25-34:8.

         The 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.

         B. Plaintiff's May 2, 2016 Shoulder Surgery and Subsequent Recovery

         Sometime 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.

         During 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. at 68:6-14.

         Plaintiff 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.

         Plaintiff's 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.

         On May 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.

         There 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.

         On May 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.

         On July 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 pain. Id.

         Around 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] ΒΆ 6. Plaintiff felt she could return to work six ...

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