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Carnicella v. Mercy Hospital

Superior Court of Maine, Cumberland

November 4, 2016



          Nancy Mills Justice

          Before the court is defendant Mercy Hospital's motion for summary judgment in plaintiff Beth Carnicella's action for disability discrimination. For the following reasons, the motion is granted.


         In March 2011, defendant hired plaintiff as a per diem Registered Nurse (RN). (Supp.'g S.M.F. ¶ 1.) In June 2011, plaintiff became a part time RN at defendant's Express Care branch in Gorham. (Id. ¶¶ 2-3.) The part time position was for 24 hours per week, although plaintiff often worked more than that. (Pl.'s Addt'l S.M.F. ¶¶ 6-7.) A typical shift was staffed by two RNs and one medical assistant. (Supp.'g S.M.F. ¶ 11.) Occasionally, only one RN was present during a shift. Q&¶ 12.)

         The part time position involved performing certain physical tasks, including lifting, pushing, and pulling. (Id. ¶ 6.) The job description, which applied to all RN positions, listed as a physical requirement the ability to lift up to 30 pounds constantly and up to 50 pounds frequently. (Id. ¶ 4; Opp. S.M.F. J 4.) In plaintiff's experience, Express Care RNs were more likely to lift up to 30 pounds and only rarely engaged in heavier lifting. (Pl.'s Addt'l S.M.F. ¶¶ 31, 33.) Plaintiff maintains that she most commonly lifted "a couple of pounds, " a fact which defendant disputes. (Id., ¶¶ 36-37; Def.'s Reply S.M.F. ¶¶ 36-37.) Plaintiff agrees, however, that "assisting patients into wheelchairs . . . getting them on a stretcher, crutch training, lifting, pushing, and pulling" were requirements of her job. (Supp.'g S.M.F. ¶ 6; Opp. S.M.F. ¶ 6.)

         On July 29, 2013, plaintiff was diagnosed with breast cancer and learned she would need to undergo surgery. (Supp.'g S.M.F. ¶ 14.) That same day, she requested leave from work under the Family Medical Leave Act. (Id. ¶ 15.) By letter dated August 1, 2013, defendant granted plaintiff a 10-week medical leave. (Id. ¶ 17.) The letter stated: "Once you are ready to return to work, have your Physician fax me a letter . . . stating the date you're cleared to return to work." (Id. ¶ 18; Opp. S.M.F.¶ 18.)

         After her surgery, plaintiff developed lymphedema, which caused her to experience difficulty moving her left arm properly. (Supp.'g S.M.F. ¶ 19.) Plaintiff concedes that she would find it difficult to use her left shoulder to push, pull, or lift anything. (Id. ¶ 89; Opp. S.M.F. ¶ 89.) Plaintiff is right hand dominant and asserts that her lymphedema did not affect the use of her right arm. (Pl.'s Addt'l S.M.F. ¶¶ 1, 3.)

         By letter dated September 20, 2013, defendant reminded plaintiff that her medical leave would expire on October 18, 2013. (Supp.'g S.M.F. ¶ 20.) The letter further stated, in bold: "You must have clearance from your Physician before you return to work." (Id. ¶ 21.) Plaintiff requested an extension of her medical leave until November 18, 2013, which defendant granted by letter dated October 10, 2013. (Id. ¶¶ 23-24.) The October 10 letter reiterated that a physician would need to clear plaintiff before she could return to work. (Id. ¶ 25.) The parties agree that no doctor has released plaintiff to return to work since the 2013 surgery. (Id. ¶ 75; Opp. S.M.F. ¶75.)

          Plaintiff was unable to return to work on November 19, 2013 and requested a second extension, which defendant granted. (Supp.'g S.M.F. ¶¶ 27, 31.) Defendant expected plaintiff to return to work on December 31, 2013. (Id. ¶ 32.) Defendant sent plaintiff a letter dated December 13, 2013, which explained the process for obtaining accommodations. (Id. ¶ 33.) The letter stated in part: "It is always up [to] you to alert your supervisor or human resources to your need for accommodation." (Id. ¶ 35.) Plaintiff returned to defendant an accommodation request form indicating that she wished to participate in the reasonable accommodation process. (Id. ¶37.)

         On December 18, 2013, defendant received a questionnaire completed by Dr. Melinda Molin, plaintiff's breast surgeon. (Id. ¶ 38; Pl.'s Addt'l S.M.F. ¶ 9.) In response to defendant's question inquiring whether there was a medical reason plaintiff could not return to work, Dr. Molin had written "yes, cannot lift over 3 pounds or do repetitive computer, telephone work." (Supp.'g S.M.F. ¶ 39.) In response to defendant's question inquiring whether plaintiff would require any accommodations, Dr. Molin had written "pending return to work-anticipated return to work 3/15/14." (Id., ¶40.)

         Around the time Dr. Molin completed the questionnaire, she transferred plaintiff's care back to her primary care physician, Dr. Heather Schwemm. (Supp.'g S.M.F. ¶ 41; Pl.'s Addt'l S.M.F. ¶ 9.) On January 21, 2014, Dr. Schwemm sent a letter to defendant's Human Resources Director, Elizabeth Christensen, which stated that, in her opinion, it would not be appropriate for plaintiff to return to work on March 15, 2014. (Supp.'g S.M.F. ¶¶ 41-42; Pl.'s Addt'l S.M.F. ¶ 13.) Dr. Schwemm wrote that plaintiff "cannot use her left arm and I have told her that she needs to recover sufficient strength in her arm to do her job safely." (Supp.'g S.M.F. ¶ 42.) Dr. Schwemm estimated that plaintiff would be able to return to work without restrictions by June 1, 2014. (Id.)

         On January 24, 2014, plaintiff met with Ms. Christensen and plaintiff's supervisor, Amanda VanHorn. (Supp.'g S.M.F. ¶ 43.) Ms. Christensen informed plaintiff that defendant would extend her leave until March 15, 2014, but if she were unable to return to work at that time, defendant would need to post her position due to staffing shortages. (Id. ¶¶ 49-54.) Ms. Christensen further stated that, if defendant filled her position, plaintiff could return to work on a per diem basis. (Id., ¶ 56.)

         In late February 2014, Ms. VanHorn was preparing the schedule for April, May, and June. (Id. ¶ 58.) Defendant asserts that Ms. VanHorn sent plaintiff a text message and left her a voicemail asking whether plaintiff would appear on the schedule, and that plaintiff did not return these messages. (Id., ¶¶ 60-61.) Plaintiff counters that Ms. VanHorn's messages did not inquire about adding her to the schedule and that she was in regular contact with Ms. VanHorn during this time. (Opp. S.M.F. ¶¶ 60-61.)

         On March 15, 2014, Ms. Christensen left plaintiff a voicemail asking whether plaintiff would be able to return to work. (Supp.'g S.M.F. ¶¶ 63-64.) Defendant did not ask Dr. Schwemm to provide an update on plaintiff's condition at this time. (Pl.'s Addt'l S.M.F. ¶ 25.) In response to Ms. Christensen's message, plaintiff left Ms. Christensen a voicemail stating that she was not able to return to work. (Supp.'g S.M.F. ¶ 65.) Ms. Christensen interpreted plaintiff's voicemail to mean that plaintiff did not wish to remain employed on a per diem basis. (Id. ΒΆ 66.) Ms. Christensen processed ...

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