Duncan v. Davita Healthcare Partners, Inc

          MEMORANDUM OPINION AND ORDER ^[1]

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE.

         This 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.

         I. SUMMARY JUDGMENT STANDARD

         Under 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.

         The 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.

         II. SUMMARY JUDGMENT FACTS

         DaVita 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).

         Performing 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 26).

         Mixing 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).

         A. Duncan's Employment at Birmingham East

         Duncan 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).

         1. Exposure and Sensitization to Glycol Acetic Acid

         On 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).

         The 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.).

         After 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).^[2]

         2. Dr. Goldstein's Treatment and Restrictions

         Following 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).^[3] 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).

         On 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).

         From 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. 116-15).

         On 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).

         Meanwhile, 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).

         Although 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).

         On 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).

         Birmingham 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.).

         On 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).

         On 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).

         On 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).

         B. Duncan's Employment at Ensley

         DaVita 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).

         When 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).

         C. Duncan's Employment at St. Clair and Back Injury

         Duncan 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 asthma. (Id.).

         Yvette 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).^[4] 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).

         On 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. Clair.

         DaVita's 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 restrictions ...