Opinion
4:00CV3182
September 27, 2001
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Michelle Latas Lanxon worked as a Fuel Tax Processor at Crete Carrier Corporation until October 1, 1997. Lanxon filed a three-count complaint alleging a "denial of reasonable accommodations" in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112(b)(5) (Count I); "disclosure of plaintiff's disability to co-workers" in violation of the ADA, 42 U.S.C. § 12112(d)(3)(B) and (4)(C) (Count II); and "unlawful discharge" in violation of the ADA, 42 U.S.C. § 12101 et seq. (Count III) (filing 1). The defendant has moved for summary judgment pursuant to FED. R. CIV. P. 56, filing 27. After carefully reviewing the briefs and evidentiary materials submitted by the parties pursuant to FED. R. CIV. P. 56 and NELR 7.1 and 56.1, I find that the defendant's motion must be granted in part.
I. BACKGROUND
The background information presented in this portion of the memorandum has been taken from the statements of facts provided by the parties pursuant to Local Rule 56.1, except where otherwise indicated. The evidence is to be considered in the light favorable to the plaintiff. Adickes v. S.H. Kress Co ., 398 U.S. 144, 157 (1970).
The plaintiff, Michelle Latas Lanxon, was hired by the defendant on May 5, 1997 as a Fuel Tax Processor in the Fuel Tax Department. The duties of a Fuel Tax Processor consist primarily of entering data into a computer.
The plaintiff has been diagnosed with a seizure disorder. On May 6, 1997, the plaintiff presented Jane Goertzen, the defendant's Human Resources Director (Goertzen Dep. at 7:8-10), with a handwritten note entitled "In Case of Emergency." (Def.'s Ex. 29.) The note set forth five steps that the defendant was to follow in case the plaintiff "happens to black out" or suffer seizures. (Id.) The note explained that the defendant should call Jeff Lanxon or the Nebraska Heart Institute if the defendant could not manage such an incident. (Id.) The plaintiff asked Goertzen to keep the plaintiff's medication for her and administer medicine if needed. Goertzen declined this request.
On May 22 and June 10, the plaintiff missed work. On June 11, the plaintiff left work after 10 a.m. in order to visit the Nebraska Medical Center for treatment of her seizure condition. On June 26 and June 30, the plaintiff was absent during a portion of the workday in order for her physicians to conduct tests relating to her seizure condition.
On July 8, the plaintiff called the defendant to report that she would be absent from work due to her seizure condition. On July 9, the plaintiff returned to work and suffered a violent seizure that lasted for approximately 30 minutes. Mr. Lanxon was telephoned to come and take the plaintiff home from work early.
Dr. Acklie, the defendant's Medical Director, met with the plaintiff on July 10 to discuss her seizure condition. There is evidence that Dr. Acklie concluded that "911" should be called if the plaintiff were to experience any grand mal seizures in the future. (Def.'s Ex. 15.) There is also evidence that a Randy Palmer helped Dr. Acklie arrive at this conclusion. Palmer became aware of the plaintiff's condition in late June because he was "CPR certified and First Aid certified." (Palmer Dep. at 10:1-7.) Palmer is an employee of Transportation Claims, Inc., and handles all of the defendant's benefits programs, including "health insurance, disability, life insurance, dental insurance, and long term disability programs." (Peetz Dep. at 72:12-21.) Although Palmer is not an employee of the defendant, his office is located at Crete Carrier Corporation. (Palmer Dep. at 4:20-23.)
Sometime during July, the defendant disclosed the plaintiff's condition to a number of the plaintiff's co-workers. There is evidence that this disclosure resulted in "gossip" and caused a disruption at the workplace. (Saltzman Aff. ¶ 9.) There is also evidence that Palmer said something "disparaging" about the plaintiff's disability. (Saltzman Aff. ¶ 10.)
On July 14, the plaintiff suffered another seizure at work that was observed by many of her co-workers. (Latas Dep. at 54:22-55:16.) The plaintiff was moved to a "wellness room" in the office in order to recover from her seizure, but she was ultimately transported to the hospital. The plaintiff admits that when she experiences a seizure at her workstation, she is observable by other employees. Specifically, the plaintiff admits that it would have been impossible for the defendant to conceal the July 14 seizure from her co-workers.
At some undetermined time, the plaintiff's co-workers placed a mirror in a position that allowed another employee, Janine Saltzman, to watch the plaintiff. (Latas Dep. at 82:2-83:9; Davison Dep. at 33:20-35:21.) It is unclear how long the mirror remained in position. (Id.) The plaintiff stated that the placement of the mirror caused her additional stress and exacerbated her seizure condition. However, the plaintiff stated that when her co-workers learned how she felt about the mirror, they removed it. (Latas Dep. at 84:16-85:1.)
The plaintiff was absent on July 16, 17, and 18, and also missed some work on July 21, 22, 23, and 28 due to her seizure condition. On July 29, it was determined that the plaintiff should take a thirty-day medical leave of absence. There is evidence that the plaintiff did not wish to be placed on this thirty-day medical leave. (Saltzman Aff. ¶ 8.)
On August 12, the plaintiff provided the defendant with a note from her physician, Dr. Gilgenast. (Def.'s Ex. 41.) The note stated that the plaintiff was being released to return to work, but it also stated that Dr. Gilgenast had last seen the plaintiff on July 17. (Id.) There is evidence that the defendant was concerned whether the plaintiff should be released to return to work when the plaintiff had suffered seizures since the July 17 visit with Dr. Gilgenast. The defendant determined that before the plaintiff would be allowed to return to work, Dr. Acklie should speak to Dr. Gilgenast to confirm whether Gilgenast was aware of the subsequent seizures and whether the plaintiff was truly fit to return to work. On August 21, the plaintiff visited Dr. Gilgenast and received a release to return to work on August 26. (Def.'s Ex. 10.) This release was accepted by the defendant. (Def.'s Ex. 9.)
The plaintiff returned to work from her thirty-day medical leave on August 26. However, on August 27 the plaintiff suffered another seizure and left work early. (Latas Dep. at 127:1-129:23.) On August 28, the plaintiff spoke to Goertzen about taking a second thirty-day medical leave due to her difficulty adjusting to her new medication. The possibility of reducing the plaintiff's workload to 20 hours per week was also raised at this meeting. As a result of this meeting, the plaintiff was placed on a second thirty-day medical leave.
In July or August of 1997, the defendant began to investigate the possibility of "out-sourcing" its Fuel Tax Department. The defendant's discussions with a company called "Inter-Tax" regarding this out-sourcing began on September 11, 1997, and Inter-Tax submitted a formal proposal for the out-sourcing on October 14, 1997. The defendant determined that the out-sourcing would go forward, and that the target date for out-sourcing the Fuel Tax Department would be January 1, 1998. Linda Lee, who was the plaintiff's supervisor (Lee Dep. at 7:22-8:2), became aware by the first of October that there was a "good chance" that the Fuel Tax Department would be out-sourced. (Continued Lee Dep. at 17:14-18.) Lee was able to find other positions for the employees under her supervision who wanted to remain with the defendant following the out-sourcing of the Fuel Tax Department.
In late September, the plaintiff notified the defendant that she was prepared to return to work from her second thirty-day medical leave. On September 24, Dr. Gilgenast issued a return-to-work note on behalf of the plaintiff, which stated that although the plaintiff's condition was not fully controlled, she could return to work. The defendant has provided evidence that at that time, Goertzen and Jack Peetz, who was the defendant's Chief Operating Officer (Peetz Dep. at 8:19-25) realized that the plaintiff's former position would soon be eliminated, and that they could offer the plaintiff a comparable position as a document processing clerk in the Revenue Department. (Goertzen Dep. at 124:14-125:24.) Goertzen and Peetz each testified that the Revenue Department position would be less stressful for the plaintiff due to the absence of the filing deadlines that existed in the Fuel Tax Department. (Id.; Peetz Dep. at 85:11-87:10.) Peetz also stated that the physical requirements of the plaintiff's former position and the Revenue position were almost identical. (Peetz Dep. at 87:5-10.)
When the plaintiff was prepared to return to work, Goertzen explained to her that she was being offered a position in the Revenue Department instead of her former position. Goertzen described the nature of the position and told the plaintiff that her hourly rate of pay would be 50 cents less than it had been in her previous position. (Goertzen Dep. at 129:25-130:2.) After the plaintiff stated that she needed to be paid the same wage she received at her former position, the defendant offered her a full-time position in the Revenue Department at the same wage she received in the Fuel Tax Department.
The plaintiff refused to accept the Revenue Department position. The plaintiff testified that she liked her former position and that she was afraid that she might be hurt if she worked in another area of the office.
The defendant has provided evidence that a part-time employee, Tannya Kemerling, began to work as a file clerk in the Fuel Tax Department in October. There is evidence that the file clerk position assumed by Kemerling was distinct from the Fuel Tax Processor position formerly held by the plaintiff, and that Kemerling did not assume any of the job functions formerly performed by the plaintiff. However, there is also evidence that Kemerling was trained to replace the plaintiff. (Saltzman Aff. ¶ 11.)
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co ., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson , 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS
The defendant argues that summary judgment should be granted in its favor because (1) the plaintiff has failed to set forth a prima facie case of discrimination based upon her disability; (2) the defendant did not violate the "wrongful disclosure" provision of the ADA; and (3) the plaintiff was not wrongfully discharged. Each of the defendant's arguments will be analyzed in turn.
A. Whether the Plaintiff Has Established a Prima Facie Case of Discrimination
The defendant first argues that its motion for summary judgment should be granted because the plaintiff has failed to set forth a prima facie case of discrimination based upon her disability.
To establish a prima facie case of discrimination, [a plaintiff] must show (1) that she had a disability within the meaning of the ADA, (2) that she was qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) that she suffered an adverse employment action because of her disability.Taylor v. Nimock's Oil Co., 214 F.3d 957, 959-60 (8th Cir. 2000). In this case the defendant does not argue that the plaintiff had no disability within the meaning of the ADA, or that the plaintiff was not qualified to perform the essential functions of her job with or without a reasonable accommodation. However, the defendant argues that the plaintiff cannot establish that she suffered an adverse employment action because of her disability.
"Not everything that makes an employee unhappy is an actionable adverse employment action. Rather, an adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). "Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard, but minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities do not." Spears v. Missouri Dept. of Corrections and Human Resources, 210 F.3d 850, 853 (8th Cir. 2000) (citations omitted). A "purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action." Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
The defendant argues that the plaintiff in this case did not suffer an adverse employment action. Specifically, the defendant argues that the evidence shows that when the plaintiff was prepared to return to work following her second thirty-day medical leave, she was offered a position in the Revenue Department that was substantially similar to her former position in the Fuel Tax Department.
The plaintiff responds that there were three adverse employment actions taken against her by the defendant. First, the plaintiff argues that the placement of the mirror in her work area in order to allow other employees to watch her constituted an adverse employment action. Second, she argues that the defendant's refusal to return her to her former position in the Fuel Tax department and its offer of employment in the Revenue Department constitute adverse employment actions. Finally, the plaintiff argues that she was involuntarily placed on medical leave by the defendant. Each of these three arguments shall be addressed in turn.
1. The Mirror
The plaintiff claims that the placement of a mirror near her work area amounted to an adverse employment action against her. There is evidence that the purpose of the mirror was to allow the plaintiff's co-workers to observe her if she should experience a seizure. She asserts that the presence of the mirror caused her stress and exacerbated her disability because other employees were able to watch her in her workstation. The plaintiff has presented evidence that she did not want the mirror to be placed in her work area. (See Saltzman Aff. ¶ 9; Latas Dep. at 84:21-24.) On the other hand, the defendant has provided evidence that the plaintiff wanted the mirror to be placed, thought that it "was an excellent idea," and even determined which co-worker she wanted to have watch her using the mirror. (Davison Dep at 34:1-35:20.) The conflict in the evidence will be resolved in the plaintiff's favor for the purposes of this summary judgment motion. Adickes v. S.H. Kress Co ., 398 U.S. 144, 157 (1970). Nevertheless, the uncontroverted evidence shows that the plaintiff's co-workers, not her supervisors, arranged the mirror out of concern for the plaintiff's well-being, and that when the plaintiff's co-workers became aware of how the plaintiff felt about the mirror, they took it down. (Latas Dep. at 84:16-85:1.) It seems to me that the placement of an observation mirror by admittedly concerned co-workers who removed the mirror at the plaintiff's request does not amount to an adverse employment action for the purposes of the ADA.
2. The Defendant's Refusal to Return the Plaintiff to Her Previous Position
Second, the plaintiff argues that the defendant's refusal to allow her to return to her Fuel Tax position amounted to an adverse employment action. The evidence shows that when the plaintiff was prepared to return to work from her second thirty-day medical leave, the defendant told her that she could not return to her former position because the Fuel Tax Department was to be out-sourced. Instead, the defendant offered the plaintiff a position in the Revenue Department. The plaintiff argues that the defendant refused her request to be returned to her former position on a part-time schedule for discriminatory reasons, and instead hired Tannya Kemerling and placed Kemerling in the Fuel Tax Department.
Initially, I note that it is undisputed that the Fuel Tax department was going to be eliminated, and that all employees who wanted to continue their employment with the defendant were being reassigned to other departments. Thus, it seems unlikely that the plaintiff could show that the defendant's desire to place the plaintiff to another department was a pretext for unlawful discrimination. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). However, as the issue has not been argued thus, I shall determine whether the defendant's refusal to return the plaintiff to her former position was an adverse employment action.
The defendant ultimately offered the plaintiff a job in its Revenue Department at the same rate of pay she received in her former position in the Fuel Tax Department. Although the plaintiff has argued that this offer of alternate employment constitutes an adverse employment action, the defendant has provided undisputed evidence that the Revenue and Fuel Tax positions were very similar and that the Revenue Department position was less stressful than the Fuel Tax position formerly occupied by the plaintiff. (See, e.g., Peetz Dep. at 85:11-87:20.) The plaintiff has referred me to no evidence that the Revenue Department position was less prestigious, would lead to fewer opportunities for advancement, provided fewer benefits, or otherwise significantly affected her future career prospects. There is no evidence that the position in the Revenue Department would have been anything other than a purely lateral move for the plaintiff from her former position, and it is well established such changes in employment do not rise to the level of a materially adverse employment action. Ledergerber v. Stangler, 122 F.3d at 1144.
The plaintiff has set forth two reasons why she refused to accept the Revenue Department position. First, she has stated that she liked her Fuel Tax job and wanted it back. (Compl. ¶ 21; Latas Dep. at 159:4-13.) As I have noted above, "Not everything that makes an employee unhappy is an actionable adverse employment action." LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). The plaintiff's statement does not demonstrate that the defendant's refusal to place the plaintiff in her former position amounted to an adverse employment action. Second, the plaintiff has argued that she would be in danger of injuring herself on filing cabinets if she accepted the Revenue Department job. (Latas Dep. at 159:16-22.) However, she admits that she never expressed these fears to the defendant. (Latas Dep. at 142:1-143:10.) The Eighth Circuit has recently determined that an employee seeking a reasonable accommodation must request that accommodation. Hatchet v. Philander Smith College, 251 F.3d 670, 675 (8th Cir. 2001). It may have been possible for the defendant to allay the plaintiff's safety concerns regarding the Revenue Department position. The plaintiff cannot expect the defendant to read her mind and know that she was concerned with the safety of the Revenue Department position, and then sue the defendant for not providing a safe position.See Ferry v. Roosevelt Bank, 883 F. Supp. 435, 441 (E.D. Mo. 1995). It seems to me that the defendant's decision to offer the plaintiff a position in the Revenue Department that was physically similar to her former position and paid the same wage as her former position, especially when the former position was soon to be eliminated, did not amount to an adverse employment action.
Although prior to the plaintiff's second thirty-day medical leave the plaintiff and defendant discussed whether the plaintiff should return to work on a part-time schedule at the conclusion of that leave, there is no evidence that the plaintiff raised the issue of part-time employment in connection with the Revenue Department position or declined to accept the Revenue Department position because it was not being offered to her on a part-time basis. Thus, I reject the plaintiff's suggestion that the defendant refused to accommodate her by failing to offer her part-time employment.
The plaintiff has also suggested that the defendant's decision to use a part-time employee to perform work in the Fuel Tax Department for a few months prior to the Department's out-sourcing and after the plaintiff expressed her desire to return to work means that the plaintiff was the victim of an adverse employment action. However, as I have determined that the undisputed evidence shows that the plaintiff's move to the Revenue Department would have been a lateral transfer, it is irrelevant whether Kemerling or another employee performed the work that would have been assigned to the plaintiff until the time of the out-sourcing of the Fuel Tax Department. The defendant's decision not to return the plaintiff to the Fuel Tax Department, coupled with the offering of employment in the Revenue Revenue Department, was simply not an adverse employment action.
3. Involuntary Medical Leave
Finally, the plaintiff argues that she was forced to take medical leave and that she wanted instead to remain at work on a part-time schedule. I have already determined that there is no evidence that the plaintiff refused the position in the Revenue Department because that position was not offered on a part-time schedule. However, I must now determine whether the plaintiff was forced into involuntary leave and whether that involuntary leave amounted to an adverse employment action.
In paragraph 7 of her statement of material facts, the plaintiff refers me to the following evidence in support of her claim that she was placed on a forced medical leave on July 29, 1997: Goertzen Dep. at 103:20-25; Latas Dep. at 103:22-104:8, 107:18-108:2; Lee Dep. at 33:16-19, 41:13-20; Pl.'s Ex. 6, 21, 22, 24, 54; and Saltzman Aff. I have carefully reviewed this evidence. The excerpt from the Goertzen deposition does not support the claim that the plaintiff was placed on forced medical leave. The Latas deposition does provide evidence that the plaintiff felt as if she was forced into taking medical leave, but the plaintiff also stated that she did not recall the discussions she had with the defendant about taking medical leave. The cited portions of the Lee deposition do not support the argument that the plaintiff was placed on a forced medical leave. Exhibit 6 merely reflects that medical leave had been granted for the plaintiff effective July 29, 1997, through August 28, 1997, and that the plaintiff was to keep in contact with the defendant during this time. Exhibits 21 and 22 concern the plaintiff's request to return to work prior to the conclusion of the thirty-day leave on August 28. Exhibits 24 says that the plaintiff "was granted a 30-day medical leave to seek treatment for her condition." Exhibit 54 says the plaintiff assented to the leave. Finally, Saltzman's affidavit states that the plaintiff informed her that she was being forced to take a thirty-day medical leave, that she wanted to work, but that she had to take the leave if she wanted to keep her job, and that she was very upset about having to accept the leave. The statement of the plaintiff in the Saltzman affidavit is inadmissible hearsay with no indicia of reliability, including no indication of where the plaintiff received any information that she "had to take the leave if she wanted to keep her job."
Nonetheless, the defendant has conceded "the allegations of [paragraph 7 of the Plaintiff's Memorandum Brief in Opposition of Defendant's Motion for Summary Judgment]" for purposes of the summary judgment only. Defendant's Reply Brief in Support of It's (sic) Motion for Summary Judgment, p. 6, ¶ 7. The paragraph 7 of the plaintiff's brief asserts that "On or about July 29, 1997, Crete Carrier placed Gladys on a forced medical leave until August 28, 1997, because of her disability . . ." (Emphasis added.)
A forced thirty-day unpaid medical leave may be a material employment disadvantage that rises to the level of an adverse employment action.Cf. Ludwig v. Northwest Airlines, Inc., 98 F. Supp.2d 1057, 1069-70 (D. Minn. 2000) (noting that adverse employment actions include decisions relating to granting leave); White v. Honeywell, Inc., 141 F.3d 1270, 1279 (8th Cir. 1998) (holding that a plaintiff forced to take a medical leave due to racially intolerable work conditions may have been constructively discharged).
The defendant has not argued that the plaintiff does not have a disability within the meaning of the ADA or that she was not qualified to perform the essential functions of her job, with or without reasonable accommodation. The defendant's concession takes the place of evidence and causes me to conclude that there is a genuine issue of whether the plaintiff suffered an adverse employment action, for the purposes of the defendant's summary judgment motion. Furthermore, since the defendant has not argued that it had a legitimate, nondiscriminatory reason for forcing the plaintiff to take medical leave, the defendant's motion for summary judgment cannot be granted.
The evidence does not support the plaintiff's claim that the second thirty-day medical leave effective August 28, 1997, through September 28, 1997, was against her will. In paragraph 9 of her statement of material facts, the plaintiff refers me to the following evidence in support of her claim that this second medical leave was involuntary: Goertzen Dep. at 86:17-87:4, 103:20-25; Latas Dep. at 133:20-24; and Pl.'s Ex. 11. The Goertzen deposition reflects that the leave was requested by the plaintiff. The Latas deposition merely confirms that the leave began on August 28. Finally, Exhibit 11 confirms that the second leave was granted at the plaintiff's request. Therefore, I find that the undisputed evidence shows that the plaintiff's second thirty-day medical leave occurred pursuant to her own request and does not constitute an adverse employment action against the plaintiff.
The placement of the mirror near the plaintiff's work area, the defendant's decision to offer the plaintiff a position in the Revenue Department instead of her former position, and the second thirty-day medical leave do not constitute adverse employment actions. For summary judgment purposes, the plaintiff has established a prima facie case of discrimination, but it is limited to the claimed forced thirty-day medical leave of July 1997.
B. Whether There Has Been a "Wrongful Disclosure" of the Plaintiff's Disability
The plaintiff's second cause of action is based upon 42 U.S.C. § 12111(d)(3)(B) and (4)(C), and states that the defendant violated the ADA by disclosing the plaintiff's medical condition to her co-workers. The defendant argues that summary judgment should be granted with respect to this cause of action because the discovery of the plaintiff's disability by her co-workers was inevitable, and because there is no evidence that the plaintiff suffered a tangible injury as a result of the disclosure. The plaintiff responds that there was indeed a disclosure of confidential medical information and that she was injured by the defendant's unauthorized disclosure of this information.
The ADA forbids employers from requiring examinations or making inquiries of its employees as to whether the employees are individuals with disabilities or as to the nature or severity of their disabilities, unless such examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). Furthermore, employers who conduct mandatory medical entrance examinations of job applicants pursuant to § 12112(d)(3) or voluntary medical examinations or inquiries into the ability of an employee to perform job-related functions pursuant to § 12112(d)(4)(B) are required to comply with § 12112(d)(3)(B)-(C):
[Such exams or inquiries may be conducted if:]
(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that —
(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and
(C) the results of such examination are used only in accordance with this subchapter.42 U.S.C. § 12112(d)(3)(B)-(C).
The defendant does not argue that the information it obtained from the plaintiff was not the result of a medical exam or inquiry covered by § 12112(d), and therefore, for the purposes of the defendant's summary judgment motion, I shall assume that the information that was allegedly wrongfully disclosed by the defendant was information that was required to be "maintained on separate forms and in separate medical files and . . . treated as a confidential medical record" pursuant to § 12112(d)(3)(B). Nor has the defendant argued that the alleged disclosures fall within one of the exceptions set forth in § 12112(d)(3)(B), or that the plaintiff consented to the disclosure of confidential medical information to co-workers.
Instead, the defendant argues that the disclosure of medical information that was readily observable by persons working near the plaintiff cannot constitute a violation of the ADA. Additionally, the defendant suggests that the disclosures were made with the safety of all affected persons in mind. Finally, the defendant claims that the plaintiff suffered no tangible injury as a result of any disclosures that were made.
The plaintiff responds with the following citations to evidence that wrongful disclosures of confidential medical information occurred: Peetz Dep. at 24:25-25:25, 72:11-21; Palmer Dep. at 4:14:23, 8:8-18, 9:23-10:10, 11:19-22, 12:1-14:23; Latas Dep. at 53:9-25, 71:21-73:1; Goertzen Dep. at 105:5-108:1, 109:18-110:22; Sapp Dep. at 45:18-20; Saltzman Aff.; and Pl.'s Ex. 35. In sum, there is evidence that on August 26, Peetz, Palmer, Lee, Goertzen, and Teresa Sapp met to discuss Dr. Acklie's decision that "911" was to be called if the plaintiff suffered a seizure; that Palmer was informed of the plaintiff's disability and the nature of the medical treatment she was receiving by Sapp because of Palmer's CPR and First Aid certifications; that Palmer had three to four conversations with Dr. Acklie about the plaintiff's condition, and also discussed with Dr. Acklie the decision to call "911" when the plaintiff suffered a seizure; that the plaintiff herself had a conversation with Palmer about her seizure condition; that Saltzman was informed by Lee of the plaintiff's "heart" disability; that Saltzman witnessed the plaintiff suffer a seizure; and that by the time of the placement of the mirror near the plaintiff's work area, "all of Ms. Latas' co-workers were told about her seizure disorder . . . ."
It seems to me that this evidence includes examples of medical information about the plaintiff beyond that which could be discovered by merely observing the plaintiff suffering from a seizure. For example, the information shared between Peetz, Palmer, Lee, Goertzen, Sapp, and Dr. Acklie concerned the decision to call emergency medical services when the plaintiff suffered a seizure. This information could not be obtained by merely observing the plaintiff during one of her seizures, and the defendant has not argued that this information falls within one of the exceptions to § 12112(d)(3)(B). Similarly, Palmer's obtainment of information about the plaintiff's medical treatment was not "inevitably discoverable" by merely observing the plaintiff's seizures. Therefore, I reject the defendant's argument that the confidential medical information disclosed by the defendant was apparent, unable to be concealed, or readily discoverable.
The defendant has provided no authority for its assertion that providing confidential medical information to its employees is permissible when done with the employees' safety in mind. The defendant has not argued that the alleged safety considerations in this case fall within the exception relating to necessary accommodations or some other exception set forth in § 12112(d)(3). As it is presented, the defendant's argument must be rejected.
Finally, the defendant argues that the plaintiff cannot show that she suffered a tangible injury as a result of the disclosure of confidential medical information. Cossette v. Minnesota Power and Light, 188 F.3d 964, 971 (8th Cir. 1999). The plaintiff has argued that the disclosure of her confidential medical information led to the placement of the mirror near her work area, which exacerbated her disorder, and to Palmer's disparaging remarks, which caused the plaintiff to lose credibility, prestige, and respect among her co-workers and disrupted the work environment.
The defendant may be right that the plaintiff has not suffered a tangible injury as a result of the disclosure. I am troubled, however, that under Rule 56 of the Fed.R.Civ.P. the defendant has not shown that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" on that issue. The defendant merely says, "Ms. Lanxon suffered no such tangible injury as a result of an alleged unauthorized disclosure." (Def's Brief in Support of its Motion for Summary Judgment, p. 23). That is not sufficient. I grant that the plaintiff's response is unimpressive on that matter. The plaintiff's Memorandum Brief in Opposition of Defendant's Motion for Summary Judgment, p. 25, says:
As a direct result of this illegal disclosure of Latas' confidential medical information, Latas felt extremely stressed out, which only exacerbated her seizure disorder, which in turn caused more seizures while she was working at Crete Carrier, which caused her undue absenteeism. (Latas dep. 54:22-25; and Saltzman's affidavit).
My examination of the Latas deposition and Saltzman's affidavit reveals no admissible evidence of any causal connection between the disclosure and loss of credibility, prestige or respect. The plaintiff also cites the Lee deposition 47:3-15, Latas deposition 81:24-82:7, 89:18-21, and Saltzman's affidavit for the proposition that "[D]ue to the disclosure, Latas' co-workers placed a mirror by Latas' work area so they could constantly watch and monitor Latas' activities, which only exacerbated her seizure disorder, which in turn caused more recurrent seizures." (Pl's Memorandum Brief in Opposition of Defendant's Motion for Summary Judgment, p. 25-26). Again, none of these citations offers any grounds for causal connection between anything the co-workers did and an exacerbation of the plaintiff's seizure disorder or recurrent seizures.
Under the circumstances, where the defendant has not carried its burden of showing that there is no genuine issue as to any material fact regarding the suffering of a tangible injury as a result of the disclosure of confidential medical information, and the plaintiff has not drawn my attention to anything showing a causal connection, I am driven to deny the defendant's motion as to that issue. Whether the plaintiff can make any such showing at a trial must wait to be seen.
I find there remains a genuine issue whether the plaintiff suffered a tangible injury as a result of the disclosure of confidential medical information in violation of the ADA. The defendant's motion for summary judgment on Count II of the complaint must therefore be denied.
C. Whether the Plaintiff Was "Unlawfully" Discharged
Count III of the plaintiff's complaint sets forth a cause of action based upon "unlawful discharge," alleging that the plaintiff was not allowed to return to work at her original position and was then discharged on or about October 1, 1997. (Compl. ¶ 35.) The defendant argues that the plaintiff was not discharged at all, but was instead offered a different position in the Revenue Department due to the out-sourcing of the Fuel Tax Department, and the plaintiff simply refused this position. (See Peetz Dep. at 60:24-61:2; Pl.'s Ex. 14.) I have already determined that the defendant's decision to offer the plaintiff a position in the Revenue Department instead of the Fuel Tax Department was not an adverse employment action, and therefore there is no genuine issue as to whether the plaintiff was not discharged in violation of the ADA.
The defendant also argues that the plaintiff is unable to establish that she was constructively discharged. "Constructive discharge occurs when an employer deliberately makes an employee's work environment so intolerable that resignation is the employee's only plausible alternative." Williams v. City of Kansas City, Missouri, 223 F.3d 749, 753 (8th Cir. 2000). "The employer's actions must have been intended to force the employee to quit. The plaintiff can satisfy the intent requirement by showing that his resignation was a reasonably foreseeable consequence of his employer's discriminatory actions." Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000) (citations omitted). The intolerability of a plaintiff's working conditions is judged by an objective standard rather than the plaintiff's subjective feelings. Williams v. City of Kansas City, Missouri, 223 F.3d at 753-54. "A feeling of being unfairly criticized, dissatisfaction with work assignments, and a loss of pay are insufficient to constitute a constructive discharge." Tatom v. Georgia-Pacific Co., 228 F.3d at 932. The defendant argues that there is no evidence that the defendant intended to force the plaintiff to quit. On the contrary, the defendant has provided evidence that it attempted to retain the plaintiff as an employee despite the elimination of its Fuel Tax Department.
The plaintiff has provided no evidence or argument to oppose the defendant's motion for summary judgment with respect to Count III of the complaint. She has not responded to the defendant's arguments that there was no wrongful discharge or constructive discharge. A party opposing a properly supported motion for summary judgment is not permitted to rest upon mere allegation or denials of her pleading, but "must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (citations omitted). I find that the defendant's motion for summary judgment on the plaintiff's third cause of action is properly supported, and since the plaintiff has not opposed the motion by showing that there is a genuine issue for trial, the defendant's motion shall be granted with respect to Count III of the complaint.
IT IS ORDERED that:
1. the defendant's Motion for Summary Judgment, filing 27, is granted with respect to Count III of the complaint;
2. the placement of the mirror did not amount to an adverse employment action against the plaintiff;
3. the defendant's refusal to return the plaintiff to her previous position did not amount to an adverse employment action;
4. the defendant's decision not to return the plaintiff to the Fuel Tax Department, coupled with the offering of employment in the Revenue Department, did not amount to an adverse employment action;
5. the defendant's failure to offer the plaintiff part-time employment was not a refusal to accommodate the plaintiff;
6. the plaintiff's second thirty-day medical leave did not constitute an adverse employment action;
7. the defendant's Motion for Summary Judgment, filing 27, is denied in all other respects.