United States District Court, N.D. Alabama, Middle Division
SHARON L. DUNCAN, Plaintiff,
DAVITA HEALTHCARE PARTNERS, INC., Defendant.
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE.
matter is before the court on the motion for summary judgment
filed by defendant, DaVita Healthcare Partners, Inc. (Doc.
103). Also pending is DaVita's motion to strike certain
affidavits on which plaintiff, Sharon Duncan, relies in
opposing the motion for summary judgment. (Doc. 133). Both
motions are fully briefed and ripe for adjudication. (Docs.
104-112, 116-126, 128, 132, 134, 135). As explained below,
the motion to strike is due to be granted in part, and the
motion for summary judgment is due to be denied.
SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The party asking for summary judgment always
bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of
the pleadings or filings which it believes demonstrate the
absence of a genuine issue of material fact. Id. at
323. Once the moving party has met its burden, Rule 56(e)
requires the non-moving party to go beyond the pleadings and
by his own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing there is a genuine issue for trial. See
Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
SUMMARY JUDGMENT FACTS
operates multiple dialysis clinics in and around Birmingham.
As relevant here, DaVita operates a Birmingham East clinic
("Birmingham East"), an Ensley clinic
("Ensley"), a clinic inside St. Clair Prison
("St. Clair"), a Center Point clinic (“Center
Point”), and a Leeds clinic (“Leeds”). As
explained in more detail below, Duncan initially worked for
DaVita at Birmingham East; she subsequently worked at Ensley
and St. Clair. (Doc. 104 at 3, 16-18). In each of these
clinics, Duncan worked as a Patient Care Technician
("PCT"). The PCT job description includes duties
such as weighing patients to determine how much fluid to pull
off, taking vital signs, checking access points,
administering dialysis, and preparing equipment between
patients. (Doc. 128 at 12).
dialysis requires several acid solutions, including a glycol
acetic acid solution. (Doc. 104 at 3). At most DaVita
facilities, including Birmingham East, Center Point, Leeds,
and Ensley, PCTs prepare the glycol acetic acid by mixing
chemical solutions; at St. Clair, glycol acetic acid is made
by a different process which does not require PCTs to mix it.
(Id.; Doc. 128 at 9). Mixing glycol acetic acid is
not among the tasks enumerated in the PCT job description,
but Duncan and all other PCTs were trained on how to mix it.
(Doc. 128 at 12). However, Duncan also testified that not all
PCTs were required to mix glycol acetic acid. (Doc. 105-1 at
glycol acetic acid creates potentially noxious or irritating
fumes. (See Doc. 116-2 at 3). Accordingly, glycol
acetic acid is prepared in a mixing room; at Birmingham East,
a door separates the mixing room from the area where patients
are treated. (See id.). PCTs at Birmingham East did
not wear respirators when mixing glycol acetic acid, but the
mixing room's ventilation system dissipated the fumes
within approximately 30 minutes after the mixing was
complete. (Id. at 3-4). At Birmingham East, glycol
acetic acid was stored in a tank; when the supply dropped
below 250 gallons, a PCT would mix a 100-gallon batch and add
it to the tank. (Id. at 2-3). Duncan testified
glycol acetic acid was mixed consistently, approximately
three times per week. (Doc. 128 at 3; see Doc. 104
at 3; Doc. 132 at 2-3). Mixing a batch of glycol acetic acid
took less than 30 minutes. (Doc. 116-2 at 4). Another PCT
whose tenure at Birmingham East overlapped with Duncan's
averred there were always enough PCTs on duty there that, if
one PCT was unable to mix glycol acetic acid, another PCT
could perform the task. (Doc.116-2 at 3-4).
Duncan's Employment at Birmingham East
began working for DaVita as a PCT at Birmingham East on
September 27, 2010. (See Doc. 104 at 3). Duncan
received a positive evaluation in September 2011 and earned a
merit increase. (Doc. 128 at 12-13).
Exposure and Sensitization to Glycol Acetic Acid
January 2, 2012, Duncan was transporting chemicals when a
bottle of glycol acetic acid broke on the floor. (Doc. 104 at
5). When Duncan bent down to clean up the liquid, she inhaled
the fumes and burned her face. (Id.). Duncan
immediately had difficulty breathing and began vomiting.
(Id.). Paramedics were summoned, and Duncan was
transported to the St. Vincent's East emergency room via
ambulance. (Id.). Emergency room personnel treated
Duncan with Tylenol and cleared her to return to work the
following day. (Id.; see Doc. 128 at 13).
Treatment notes indicate Duncan was told to avoid chemical
fumes for one week and to follow-up with her doctor. (Doc.
104 at 5; Doc. 128 at 4).
following day, Duncan worked a ten-hour shift without
incident. (Doc. 104 at 6). On January 4, 2012, Duncan saw Dr.
Elliot Saltz, who advised her to avoid chemical fumes for a
week, at which time she would be reevaluated. (Doc. 128 at
4). On January 13, 2012, Duncan saw Dr. Jonathan Moore, who
said she could return to work but: (1) must take
OSHA-recommended precautions when mixing glycol acetic acid;
and (2) would need to “cease mixing chemicals if
pneumonitis symptoms reoccur.” (Id.).
her facial burns healed, Duncan repeatedly attempted to mix
glycol acetic acid, but she experienced breathing
difficulties each time, requiring hospital treatment. (Doc.
128 at 4, 13). For example, on September 19, 2012, Duncan was
admitted to Trinity Hospital with respiratory distress and
was diagnosed with acute dyspnea and anxiety. (Id.
at 8). On September 21, 2012, Duncan again experienced
shortness of breath while mixing acid at work; she was
transported to the emergency room via ambulance.
(Id.). Treatment records reflect Duncan reported
“baseline asthma for years” that had been
“well controlled.” (Id.). At one point,
Duncan experienced tightness in her chest when she was caring
for patients, not while mixing glycol acetic acid. (Doc.
108-2 at 11).
Dr. Goldstein's Treatment and Restrictions
the repeated respiratory episodes, Duncan requested to see a
pulmonary specialist; DaVita granted the request. (Doc. 128
at 13; Doc. 104 at 9). On October 1, 2012, Duncan saw a
pulmonologist, Dr. Allan Goldstein, on a workers'
compensation referral. (Doc. 128 at 13; see Doc.
108-1). Dr. Goldstein concluded Duncan had been
“sensitized to glycol acetic acid and should avoid that
substance” because each of her pulmonary episodes was
related to exposure. (Doc. 108-1). Dr. Goldstein opined Duncan
could return to work and perform dialysis on patients but
“should not be involved in mixing the materials that
have caused the sensitization and the acute asthmatic
attacks.” (Id.). Duncan promptly delivered
this note to DaVita. (Doc. 128 at 6-7). On October 4, 2012,
Dr. Goldstein completed an FMLA health certification,
concluding it would be medically necessary for Duncan to miss
work during flare-ups. (Doc. 116-14 at 4; see Doc.
128 at 14).
October 12, 13, and 15, 2012, Duncan missed work without
providing a doctor's excuse. (Doc. 104 at 10). On October
15, 2012, DaVita's People Services Manager, Ed De Jesus,
sent an email to a DaVita Disability Specialist, inquiring
when additional information would be available from
Duncan's doctor regarding her ability to withstand
exposure to chemicals. (Id.). On October 16, 2012,
Duncan was admitted to Trinity Medical Center for shortness
of breath and chest pain. (Id.). On October 18,
2012, Dr. Goldstein saw Duncan, again noting she could return
to work “as long as she is not exposed to glycol acetic
acid.” (Id.). Duncan understood her only
limitation was that she could not mix glycol acetic acid.
(Id. at 10-11).
October 12 through October 23, 2012, DaVita took Duncan off
the work schedule. (Doc. 128 at 14). When Dr. Goldstein saw
Duncan on October 18, 2012, he noted she had been
hospitalized two days earlier but was feeling much better
after beginning treatment with Symbicort and her pulmonary
functions were normal. (Doc. 120-2; see Doc. 128 at
14). The following day, the manager at Birmingham East faxed
other DaVita managers the restriction Dr. Goldstein imposed
that Duncan not be exposed to glycol acetic acid. (Doc.
October 22, 2012, Dr. Goldstein completed a form in which he
advised Duncan to “avoid irritants especially glycol
acetic acid.” (Doc. 108-6; see Doc. 104 at
11). On October 23, 2012, Duncan's workers'
compensation attorney wrote the Birmingham East manager,
requesting DaVita accommodate her by allowing her to return
as a PCT without mixing glycol acetic acid. (Doc. 128 at 15).
On the same day, a DaVita Disability Specialist requested
additional information from Dr. Goldstein regarding
Duncan's restrictions; attached to the request was a
questionnaire for Dr. Goldstein to complete. (Id. at
14; Doc. 109-1 at 2). On November 8, 2012, Dr. Goldstein
responded, explaining Duncan “cannot mix the glycol
acetic acid. She can do all other aspects of her job, ”
including all essential functions. (Doc. 109-1 at 3). Dr.
Goldstein also explained Duncan must not be in the mixing
room, which would cause bronchospasm. (Id.).
Finally, Dr. Goldstein opined Duncan could perform dialysis
and care for patients. (Id.). After reviewing Dr.
Goldstein's notes, Duncan's manager at Birmingham
East expressed confusion regarding whether Duncan could mix
the other solutions required to operate a dialysis clinic.
(Doc. 104 at 12).
Duncan returned to work on October 26, 2012. (Doc. 104 at
11). On November 16, 2012, Duncan was suspended for failing
to ensure valves were open so a tank could be properly
cleaned; the suspension lasted from November 17 until
November 24, 2012. (Id. at 12). On November 19,
2012, Duncan's workers' compensation attorney again
wrote DaVita, contending it refused to accommodate
Duncan's restrictions and suspended her for actions which
normally did not result in formal discipline. (Doc. 117-11).
However, as DaVita notes, Duncan worked from October 26
through her November 16, 2012 suspension. (Doc. 132 at 5).
Duncan wanted to keep working, DaVita removed her from the
schedule from November 2012 to April 29, 2013. (Doc. 128 at
16). Duncan offered to do additional work in lieu of mixing
glycol acetic acid or to work on days when glycol acetic acid
was not scheduled to be mixed. (Doc. 105-1 at 27). On
December 5, 2012, DaVita managers, H.R. personnel, and
disability specialists had a conference call with Duncan to
evaluate job opportunities with DaVita that would accommodate
her restriction. (Compare Doc. 128 at 11,
with Doc. 104 at 24; see Doc. 105-1 at 44).
December 10, 2012, Duncan again saw Dr. Goldstein, explaining
DaVita was not satisfied with his prior explanations of her
limitations and relaying additional questions. (See
Doc. 109-4 at 3). Later that day, Dr. Goldstein sent a terse
letter to the DaVita Disability Specialist, expressing his
displeasure that DaVita did not contact him directly.
(Id. at 3-4). Dr. Goldstein explained, contrary to
DaVita's understanding that Duncan could never enter the
mixing room, Duncan was only restricted from entering the
mixing room when glycol acetic acid was being made and for 30
minutes thereafter. (Id. at 3). Dr. Goldstein
reiterated that Duncan was “quite capable of
working” but “needs to avoid the glycol acetic
acid while it is being made.” (Id. at 4).
East ran three shifts on Mondays, Wednesdays, and Fridays; on
other days it ran two shifts. (Doc. 105-3 at 31-32). Jacki
Ward testified that “at one point, ” the third
shift at Birmingham East was staffed by only one PCT.
(Id.). Accordingly, Jacki Ward testified that
emergency situations could arise in which the PCT working the
third shift would have to mix glycol acetic acid.
(Id.). Examples of emergency situations include an
acid tank malfunctioning and draining or changes to the
acid's conductivity, making it unusable. (Id.).
January 10, 2013, Sedgwick Claims Management Services, Inc.,
which administers DaVita's workers' compensation
claims, wrote to Dr. Goldstein regarding Duncan's
restrictions. (Doc. 105-5; see Doc. 104 at 13-14).
The letter noted Duncan's exposure occurred during a
spill, not while mixing glycol acetic acid. (Doc. 105-5 at
2). The letter also noted glycol acetic acid was present
throughout the facility and was not limited to the mixing
room. (Id. at 2). The letter posed three questions
to Dr. Goldstein: (1) whether Duncan became sensitized at the
time of her exposure; (2) how exposure to glycol acetic acid
would affect Duncan; and (3) what harm Duncan faced if
exposed to glycol acetic acid. (Id.). Dr. Goldstein
responded on March 1, 2013, by writing next to each question,
in turn: (1) “yes”; (2) “causes
asthma”; and (3) “worse asthma.”
(Id.; see Doc. 104 at 14).
January 29, 2013, Dr. Goldstein noted that in the two months
since Duncan last worked, she had experienced three or four
episodes of acute bronchospasms. (Doc. 128 at 17; Doc.
122-2). Throughout January and February 2013, Duncan's
workers' compensation attorney repeatedly wrote DaVita,
requesting Duncan be allowed to return to work under the acid
mixing restriction imposed by Dr. Goldstein. (Doc. 128 at 17;
Doc. 116-3 at 3-4; Doc. 117-17).
March 5, 2013, Duncan again saw Dr. Goldstein. Dr. Goldstein
noted Duncan had not returned to work and stated he could not
guarantee Duncan would not have another asthma attack.
However, Dr. Goldstein opined Duncan could return to work
“any time that her employer will allow.” (Doc.
104 at 14).
Duncan's Employment at Ensley
employs a careers account through which Duncan could look for
other jobs and receive notifications for openings in
positions in which she was interested. (Doc. 104 at 15).
Duncan could access the account and apply for jobs on her
cell phone. (Id.). DaVita searched for a clinic with
enough PCTs and sufficient space to allow Duncan to work
without exposure to the mixing of glycol acetic acid; it also
sent Duncan information about interim positions for which she
could apply. (Id.). DaVita identified Ensley as an
option. (Id. at 15-16). Ensley had a larger mixing
room than Birmingham East, operated only two shifts, and
always had at least two PCTs working. (Id.).
However, Ensley was farther from Duncan's home in St.
Clair County. (Id. at 15; Doc. 128 at 9). DaVita
offered Duncan a PCT position at Ensley; Duncan accepted and
began working there on April 29, 2013. (Doc. 104 at 16).
Duncan began working at Ensley, her employment and
disciplinary history transferred with her. (Doc. 104 at 16).
Jacki Ward told Duncan of this fact and stated that, if it
had been up to her, Duncan would not have been accommodated
and allowed to return to work. (Doc. 128 at 9). Jacki Ward
also said she would be watching Duncan closely.
(Id.). On May 2, 2013, after less than two weeks
working at Ensley, Duncan emailed Ed De Jesus and expressed
her interest in transferring to two other DaVita clinics:
either St. Clair or Leeds. Duncan's interest in the
transfer was driven by the longer commute to Ensley,
decreased hours, and safety concerns. (Doc. 104 at 16). De
Jesus responded that Leeds was not an option due to
Duncan's acid mixing restriction. (Id. at 17).
Duncan also contends De Jesus said she would not get another
job with DaVita unless Dr. Goldstein lifted the acid mixing
restriction. (Doc. 128 at 9). On May 22, 2013, DaVita sent an
email to Duncan regarding her interest in transferring to St.
Clair and providing instructions on how to apply. (Doc. 104
at 17). During her time at Ensley, Duncan did not experience
any asthmatic flare-ups at work; neither did she receive any
disciplinary write-ups. (Id. at 18).
Duncan's Employment at St. Clair and Back
applied for a PCT position at St. Clair on June 17, 2013.
(Doc. 104 at 17-18). Under DaVita's policies, Duncan was
not eligible for transfer to another clinic because she had
been working at Ensley for less than six months and had been
suspended within the past six months. (Id. at 17).
However, Jacki Ward approved Duncan's transfer, and she
began working as a PCT at St. Clair on July 1, 2013.
(Id. at 18). Treatment notes from a contemporaneous
check-up with Dr. Goldstein reveal she: (1) was doing well at
work; (2) was working full-time; (3) did not have to mix acid
in her new position; and (4) had not missed work due to
Reaume was the Facility Administrator-and Duncan's
supervisor- at St. Clair. (Doc. 104 at 18; Doc. 110-7 at 3).
Yvette Reaume issued two verbal warnings to Duncan during her
first month working at the prison clinic; (1) a July 12, 2013
warning for failing to draw lab work on three patients; and
(2) a July 22, 2013 warning for failing to report to work and
failing to call in. (Doc. 110-7 at 3, 5, 8). Duncan disputes
the substance of the July 22, 2013 warning, testifying she
called St. Clair and spoke to another PCT, informing her she
would not be at work. (Doc. 105-1 at 16). Duncan testified
her absence was doctor-excused following her trip to the
emergency room for an asthma attack and that she faxed DaVita
information regarding her emergency room visit. (Id.
at 47; see Doc. 128 at 9). During her time at St.
Clair, Duncan complained about her hours and Jacki Ward;
Duncan testified she complained to an H.R. manager that Jacki
Ward was “short” with her and made her feel
uncomfortable. (Doc. 104 at 19). On July 29, 2019, Duncan
asked the H.R. manager if she could return to work at
Birmingham East. (Id. at 19). DaVita claimed it
could not transfer Duncan to Birmingham East because of her
acid-mixing restriction. (Id. at 20; Doc. 132 at 4).
September 11, 2013, Duncan injured her back while bending
over to pick up a roll of tape at St. Clair. (Doc. 104 at
20). On September 13, 2013, Duncan was treated at Brookwood
Occupational Health for her back injury; she was assigned
temporary work restrictions prohibiting her from: (1) lifting
more than 15 pounds; (2) prolonged standing or walking; (3)
bending; and (4) pushing or pulling more than 15 pounds.
(Id. at 20). The parties dispute whether Duncan took
medical leave or DaVita placed her on medical leave. (See
id.; Doc. 128 at 10). None of the cited evidence is
conclusive on this point; for purposes of summary judgment,
DaVita placed her on medical leave. It is undisputed that
September 11, 2013, was Duncan's last day working at St.
job description for a PCT requires the physical ability to:
(1) lift up to 35 pounds unassisted; (2) repeatedly stand,
sit, stoop, walk, stretch, and reach; and (3) use the full
range of body motions. (Doc. 111-1 at 5). From the date of
her injury through October 2013, these physical requirements
for a PCT exceeded Duncan's restrictions. (Doc. 104 at
21; Doc. 111-2). Duncan sent documentation of her