United States Court of Appeals
For the First Circuit
No. 00-2347
SIMONNE PHELPS,
Plaintiff, Appellant,
v.
OPTIMA HEALTH, INC. AND
CATHOLIC MEDICAL CENTER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Sheila O. Zakre, was on brief, for appellant.
David W. McGrath, with whom Peter S. Cowan and Sheehan Phinney
Bass + Green, P.A., were on brief, for appellees.
May 30, 2001
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TORRUELLA, Chief Judge. Appellant Simonne Phelps claims that
she was dismissed from her nursing position at the Catholic Medical
Center (CMC)1 in violation of Title I of the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a).2 The district court ruled on summary judgment
that Phelps was not a "qualified individual with a disability" because
she could not perform the "essential functions" of her job "with or
without reasonable accommodation." Phelps v. Optima Health, Inc., Civ.
No. 99-227-JD, 2000 WL 1513782 (D.N.H. Sept. 15, 2000). We affirm.
BACKGROUND
The following facts are summarized in the light most
favorable to the appellant. Greenwald v. Chase Manhattan Mortgage
Corp., 214 F.3d 76, 78 (1st Cir. 2001). Phelps worked as a staff nurse
for CMC from 1979 until 1983, at which point she injured her back at
work and, as a result, discontinued employment there. Since then, she
has been restricted from lifting more than fifteen to twenty pounds at
a time. In 1989, CMC rehired Phelps as a "per diem relief nurse" in
the rehabilitation unit. Because Phelps's disability prevented her
from performing the normal tasks of a staff nurse, the manager of the
1 Appellee CMC is a subsidiary of appellee Optima Health, Inc.
(Optima).
2 Claims under Title I of the ADA and § 504 of the Rehabilitation Act
are analyzed under the same standards. EEOC v. Amego, Inc., 110 F.3d
135, 143 (1st Cir. 1997).
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rehabilitation unit, Lorraine Simon, created the unique position of
"medication nurse" for her. As a medication nurse, Phelps was
primarily responsible for the delivery of medicine, as well as for
other tasks that did not involve lifting heavy objects.
As a result of a temporary shortage of nurses, Phelps stopped
being a medication nurse and began to undertake some patient care in
early 1995. Phelps remained unable to fulfill all the duties of a
typical staff nurse, so she shared a patient load with her sister,
Suzanne Lemire (who was also employed as a nurse in the rehabilitation
unit at CMC). If Lemire was unavailable or otherwise occupied, other
nurses would undertake lifting tasks. Although this job-sharing
arrangement was never officially reported to either the Employee Health
Department or the Human Resources Department at CMC, it was
unofficially approved by Simon.
In June of 1997, Jeanne Wolfendale replaced Simon as the
nurse manager for the rehabilitation unit. Wolfendale asked Phelps to
provide a more recent physician's report on the extent of her physical
restrictions. The report indicated that Phelps could lift twenty
pounds frequently, but was unable to lift fifty pounds at all.3
Wolfendale concluded that, lacking the ability to lift fifty pounds,
Phelps was unable to perform the essential functions of the clinical
3 Phelps later conceded that she had asked the doctor for an optimistic
evaluation of her physical limitations; in actuality, she could lift
twenty pounds only "occasionally" rather than "frequently."
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nurse position. Phelps was therefore dismissed from her position in
the rehabilitation unit on October 27, 1997, but remained employed by
CMC.
Immediately after Phelps was notified of her removal from the
rehabilitation unit, she met with human resources manager Vicki
L'Heureux. L'Heureux reviewed the available positions both at CMC and
elsewhere in the Optima system, explained the application process for
an internal transfer to a new position, and offered to help Phelps find
a new position that was compatible with her physical limitations.
Phelps indicated that any position would have to have the same
flexibility as to scheduling and the same level of pay that she had at
the rehabilitation unit. CMC terminated Phelps on February 25, 1998,
without having employed her in a new position.
DISCUSSION
To state a prima facie claim of disability discrimination
under the ADA, a plaintiff must prove by a preponderance of the
evidence that: (1) she was disabled within the meaning of the ADA; (2)
she was a qualified individual; and (3) she was discharged because of
her disability. Ward v. Mass. Health Research Inst., Inc., 209 F.3d
29, 32-33 (1st Cir. 2000). The parties agree that Phelps was disabled
within the meaning of the ADA (so we need not decide the issue) and
that she was discharged because of her disability. However, appellees
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argue, and the district court held, that Phelps was not a qualified
individual under the ADA.
A qualified individual under the ADA is one "able to perform
the essential functions of [her position] with or without reasonable
accommodation." Id. at 33. Our analysis of whether an individual is
qualified occurs in two steps: first, whether the individual can
perform the essential functions of her position; and second, if she is
unable to perform those essential functions, whether any reasonable
accommodation by her employer would allow her to do so. Id.
A. Lifting as an Essential Function of Phelps's Position
The district court held that the ability to lift fifty pounds
on a consistent basis was an essential function of the clinical nurse
position. Phelps does not disagree with this determination, nor does
she suggest that the court erred in its conclusion that she was unable
to lift that amount of weight on a consistent basis. Instead, she
argues that she was not technically a clinical nurse, but that she held
a nursing position that had been created specifically for her physical
limitations. The district court found no evidentiary support for such
an argument: "It appears to be undisputed that Phelps was working in
a clinical nurse I position, shared with her sister, at the time her
employment was terminated." Phelps, 2000 WL 1513782, at *3. The
evidence overwhelmingly supports the district court's conclusion.
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First, Phelps testified that she was no longer a medication
nurse at the time of her termination, and that although she had not
considered what her job description was at the time of her termination,
she "assume[d] [that she] was a staff RN." Phelps then indicated that
the technical job description "clinical nurse I" was essentially
synonymous with the shorthand "staff nurse."4 Second, CMC Human
Resources Manager Mary Ann Flatten testified that Human Resources had
to approve changes to job descriptions or the creation of new
positions. It is undisputed that Human Resources never approved, nor
was even aware of, the altered nurse position that Phelps describes.
All of the differences between her position and that of the other
nurses were a result of understandings between Phelps, Simon, and other
nurses in the rehabilitation unit, and none were in writing. Third,
Phelps testified that there were occasions in which nurses other than
her sister had to assist her in nursing duties. The fact that Phelps
and Lemire would occasionally work on different shifts suggests that
there was no formal and permanent job-sharing arrangement. In short,
the evidence clearly indicates that Phelps held the position of
clinical nurse, albeit with unwritten modifications aimed at allowing
her to fulfill most job duties despite her disability.
4 After reading the written job description for clinical nurse I,
Phelps testified that "a lot of it [was] very familiar to [her] because
that's what an RN does [; i.e., the responsibilities described] are the
normal functions of an RN [in] the [rehabilitation unit]."
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Although this Court has not yet addressed the issue, several
other courts have indicated that -- even when an employer and employee
have made arrangements to account for the employee's disability -- a
court must evaluate the essential functions of the job without
considering the effect of the special arrangements. See, e.g., Basith
v. Cook County, 241 F.3d 919, 930 (7th Cir. 2001) (delivery of
medicine remained essential function of job despite special assignment
allowing employee not to deliver medicine for period of time);
Pickering v. City of Atlanta, 75 F. Supp. 2d 1374, 1378-79 (N.D. Ga.
1999) (temporary assignment of prison guard to "light duty" because of
her disability does not change essential functions of prison guard
position). The fact that an employee might only be assigned to certain
aspects of a multi-task job does not necessarily mean that those tasks
to which she was not assigned are not essential. Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1175-76 (10th Cir. 1999) (relevant
functions are those of "TPO" position for which employee was hired, as
opposed to can-sorter position to which she was assigned); Miller v.
Ill. Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997) (essential
functions of prison guard position included all functions required of
prison guards, even when plaintiff had been allowed to rotate only
between certain assignments).
Phelps's basic counter-argument is that the accommodations
offered by Simon, her sister, and the rest of the nursing staff
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distinguished the essential functions of Phelps's position from those
of the other nurses; i.e., that for Phelps's nursing position alone,
lifting was not an essential function. However, we agree with the
Seventh Circuit that evidence that accommodations were made so that an
employee could avoid a particular task "merely shows the job could be
restructured, not that [the function] was non-essential." Basith, 241
F.3d at 930. To find otherwise would unacceptably punish employers
from doing more than the ADA requires, and might discourage such an
undertaking on the part of employers. See Laurin v. Providence Hosp.,
150 F.3d 52, 60-61 (1st Cir. 1998); Sieberns v. Wal-Mart Stores, Inc.,
125 F.3d 1019, 1023 (7th Cir. 1997); Holbrook v. City of Alpharetta,
112 F.3d 1522, 1528 (11th Cir. 1997); Vande Zande v. Wis. Dep't of
Admin., 44 F.3d 538, 545 (7th Cir. 1995). In short, even though her
co-workers had allowed Phelps to avoid having to lift more than fifty
pounds, the ability to do so remained an essential function of her
position.
B. Reasonable Accommodation
Having found that the ability to lift fifty pounds was an
essential function of the position held by Phelps at the time of her
termination, we next ask whether any reasonable accommodation on the
part of her employer would allow Phelps to perform that function.
Feliciano v. Rhode Island, 160 F.3d 780, 786 (1st Cir. 1998). The
burden is on Phelps to show the existence of a reasonable
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accommodation. Id. (citing Barnett v. U.S. Air, Inc., 157 F.3d 744,
748-49 (9th Cir. 1998)). She has not done so.
First, appellant contends that it would have been a
reasonable accommodation to allow her to continue sharing patient
lifting duties with other nurses. Although a reasonable accommodation
may include job restructuring, 42 U.S.C. § 12111(9)(B), an employer
need not exempt an employee from performing essential functions, nor
need it reallocate essential functions to other employees. Feliciano,
160 F.3d at 785; Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20
(1st Cir. 1998). Appellees therefore did not have to allow Phelps to
engage in job-sharing as a reasonable accommodation. The fact that
appellees previously allowed Phelps to engage in a job-sharing
arrangement does not obligate them to continue providing such an
accommodation. See, e.g., Laurin, 150 F.3d at 60-61; Holbrook, 112
F.3d at 1527. Again, to find otherwise would discourage employers from
granting employees any accommodations beyond those required by the ADA.
Laurin, 150 F.3d at 60-61.
Second, Phelps suggests that it would have been a reasonable
accommodation for appellees to allow her to return to her medicine
nurse position. Reasonable accommodation may include "reassignment to
a vacant position." 42 U.S.C. § 12111(9)(B); Feliciano, 160 F.3d at
786; Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998). However,
appellant bears the burden of proof in showing that such a vacant
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position exists. Feliciano, 160 F.3d at 786-87. The only testimony in
the record indicated that the position no longer existed in 1997; that
evidence was sufficient for summary judgment in favor of appellees. An
employer is not required by the ADA to create a new job for an
employee, nor to re-establish a position that no longer exists.
Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 730 (6th Cir.
2000); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998);
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 697 (7th Cir. 1998).
C. The Interactive Process
Phelps also argues that she was denied the opportunity to
investigate other vacant positions for which she was qualified because
appellees failed to engage in an interactive process to determine
appropriate accommodation. Although the EEOC regulations that
implement the ADA do not mandate that an employer provide an
interactive process, see Jacques v. Clean-Up Group, Inc., 96 F.3d 506,
513-14 (1st Cir. 1996), they do suggest that "it may be necessary for
the covered entity to initiate an informal, interactive process with
the qualified individual," 29 C.F.R. § 1630.2(o)(iii). We have said
that "[t]here may well be situations in which the employer's failure to
engage in an informal interactive process would constitute a failure to
provide reasonable accommodation that amounts to a violation of the
ADA." Jacques, 96 F.3d at 515. However, even if a fully realized
interactive process would have been successful in finding a new
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position for Phelps,5 she concedes that it was she who failed to
cooperate in such a process.6 See Taylor v. Phoenixville Sch. Dist.,
184 F.3d 296, 311 (3d Cir. 1999) (both parties have duty to engage in
5 The district court did not evaluate the quality of the interactive
process at any great length because it concluded that Phelps had not
met her burden of showing that a vacant position for which she was
qualified existed. Phelps, 2000 WL 1513782, at *5; see also Donahue v.
Consol. Rail Corp., 224 F.3d 226, 233 (3d Cir. 2000) ("[I]t falls to
the employee to make at least a facial showing that there were vacant,
funded positions whose essential functions he was capable of
performing.") (quoting Jones v. United Parcel Serv., 214 F.3d 402, 407
(3d Cir. 2000)); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011,
1021 (3d Cir. 2000) (placing such a burden on the plaintiff).
6 We reproduce here the relevant deposition testimony indicating
Phelps's lack of good faith in participating in the interactive
process:
Q: "Do you recall [L'Heureux] telling you that you shared
some responsibility for trying to find you a new position in
the system?"
A: "Correct."
Q: "Did you agree with that?"
A: "No, I didn't."
Q: "You felt it was strictly up to the hospital to find a
place for you?"
A: "I felt they displaced me and it was their job to find
another position within the hospital facility."
Q: "So you didn't feel like you had an obligation to
interact with them in that process?"
A: "Not in this situation. I didn't ask to be terminated."
Q: "And so you didn't interact with them in this process?"
A: "Correct."
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interactive process in good faith); Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1135-37 (7th Cir. 1996) (employee's
unwillingness to cooperate in interactive process prevents them from
premising liability on its failure); see also Jacques, 96 F.3d at 514
(citing Beck and Taylor with approval). Evidence of the details of
Phelps's post-dismissal conversations with human resources personnel
confirms that Phelps was not actively engaged in the interactive
process: she turned down several job opportunities suggested by
L'Heureux and placed significant conditions on her reassignment
severely limiting CMC's flexibility. Moreover, the evidence indicates
that CMC offered Phelps several potential alternatives, began the
interactive process immediately after Phelps's dismissal,7 returned her
phone calls and letters promptly, and generally acted in good faith.
We therefore cannot find that the lack of success of the interactive
process in this case creates any liability under the ADA. See Beck, 75
F.3d at 1137 ("Liability for failure to provide reasonable
accommodations ensues only where the employer bears responsibility for
7 Phelps partly premises her argument on the fact that she was
dismissed from the rehabilitation unit on October 27, 1997, immediately
prior to meeting with human resources personnel. She asserts that,
once she had been dismissed, CMC could not have engaged in a true
interactive process eventually leading to a new position because Phelps
was no longer employed. However, although Phelps was dismissed from
the rehabilitation unit in October of 1997, she was not terminated as
a CMC employee until February of 1998. We cannot say that appellees'
decision to remove Phelps from a job which she was physically incapable
of performing, without actual termination of her employment,
constitutes a failure to engage in the interactive process.
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the breakdown. But where, as here, the employer does not obstruct the
process, but instead makes reasonable efforts both to communicate with
the employee and provide accommodations based on the information it
possessed, ADA liability simply does not follow.").
CONCLUSION
Phelps has not presented sufficient evidence to meet her
burden of showing that she could perform the essential functions of her
position, with or without reasonable accommodation. The grant of
summary judgment is affirmed.
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