MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 161 Docket: Cum-16-528 Argued: June 14, 2017 Decided: July 20, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
BETH CARNICELLA
v.
MERCY HOSPITAL
MEAD, J.
[¶1] Beth Carnicella appeals from a summary judgment entered by the
Superior Court (Cumberland County, Mills, J.) in favor of Mercy Hospital on her
complaint that Mercy discriminated against her in violation of the
Maine Human Rights Act (MHRA). See 5 M.R.S. §§ 4551-4634 (2016). Carnicella
argues that the court erred by determining that she was not a “qualified
individual with a disability” as defined by the MHRA, and by failing to determine
that Mercy did not meet its obligation to identify a reasonable accommodation
for her disability. We affirm the judgment. 2
I. BACKGROUND
[¶2] The following facts are presented in the light most favorable to
Carnicella and are supported by the summary judgment record. See
Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶ 2, 66 A.3d 7.
[¶3] In 2011, Beth Carnicella was hired by Mercy Hospital as a part-time
registered nurse (RN) at Mercy’s Express Care facility in Gorham. On
July 29, 2013, Carnicella was diagnosed with a serious medical condition.
Carnicella requested a leave of absence to begin on August 9, 2013, to have
surgery; she expected to be out of work for only two weeks. In a letter dated
August 1, 2013, Mercy granted her up to ten weeks of leave pursuant to
Maine’s Family Medical Leave statute. See 26 M.R.S. § 844 (2016). The letter
also stated: “Once you are ready to return to work, have your Physician fax . . .
a letter . . . stating the date you’re cleared to return to work.”
[¶4] After her surgery, Carnicella developed complications that affected
her ability to move her left arm properly. On September 20, 2013, Mercy sent
Carnicella a letter reminding her that her leave would expire on
October 18, 2013, and that if she needed an extension, she must file a written
request with the human resources department. The letter also stated in bold
print that she “must have clearance from [her] Physician before [she] return[s] 3
to work.” At that time, Carnicella’s medical provider had not released her to
return to work.
[¶5] Carnicella requested an extension of her leave through
November 18, 2013, which Mercy granted. In the October 10 letter granting
the request, Mercy reiterated the need for Carnicella’s physician to clear her to
work prior to her return. Carnicella was unable to return to work on
November 19 and requested a second extension of her leave. Mercy again
extended Carnicella’s leave and held her position open for her.
[¶6] Based on the information provided to Mercy by Carnicella’s medical
providers, Mercy expected her to return to work on or about
December 31, 2013. Anticipating her return to work, Mercy sent Carnicella a
memorandum dated December 13 regarding any reasonable accommodation
she may need due to a disability. The memorandum explained, among other
things, that it was “up [to her] to alert [her] supervisor or human resources to
[her] need for accommodation.” Carnicella returned the form having checked
a box indicating that she “would like to go forward with the process of
requesting a reasonable accommodation.”
[¶7] On or around December 18, 2013, Mercy received a “Health Care
Provider Questionnaire Regarding Employee Disability and Accommodation” 4
completed by Carnicella’s surgeon. The form asked, among other things,
whether there was a medical reason why Carnicella could not work her normal
twenty-four-hour-per-week schedule, to which Carnicella’s surgeon
responded, “Yes. Cannot lift over 3 pounds or do repetitive computer,
telephone work.” Another question on the form asked: “Will Patient require
any reasonable accommodations to enable him/her to perform the essential
functions of his/her job (please consult enclosed job description). If so, what
accommodations do you recommend?” In response, Carnicella’s surgeon
wrote: “Pending return to work – anticipated return to work 3/15/14.”
[¶8] On January 21, 2014, Carnicella’s primary care physician—who had
taken over management of Carnicella’s medical issues—wrote to Mercy
regarding Carnicella’s return to work. The physician explained:
I know that [Carnicella’s surgeon] recommended that [Carnicella] return to work on March 15, 2014[,] without restrictions. However, in the setting of her left arm weakness and the need for further evaluation, I do not believe that this is an appropriate return to work date. It is always difficult to estimate recovery time, particularly when an evaluation is ongoing. However, I would estimate that she will be able to work full time without restrictions by June 1, 2014.
[Carnicella] loves her job and is highly motivated to return to work. She is understandably frustrated at the thought of having to postpone her return to work date. However, she 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. I am confident that we will be able 5
to help [Carnicella] achieve this and I would ask that you grant us a little more time . . . .
[¶9] On January 24, 2014, Carnicella met with the director of
Mercy’s human resources department and with Carnicella’s direct supervisor.
At that meeting, Carnicella did not represent that she had work capacity, either
with or without reasonable accommodations. The HR director informed
Carnicella that Mercy would extend her leave until March 15, 2014, and that if
she were unable to return to work by that time, it would attempt to fill her
position due to business needs, but Carnicella could then transition to working
on a per diem basis. Both the HR director and Carnicella’s supervisor assumed
that if and when Carnicella returned to work, it would be with restrictions.
[¶10] In late February 2014, Carnicella’s supervisor was preparing the
schedule for April, May, and June; when she completed the schedule, she was
unable to fill all of the shifts. Mercy contends that the supervisor sent Carnicella
a text message and left her a voicemail asking whether she wanted to be on the
schedule, and that Carnicella never responded. Carnicella, however, asserts
that the supervisor contacted her only to see how she was doing and did not
inquire about adding her to the schedule although Carnicella had been in
regular contact with the supervisor. 6
[¶11] Around March 15, 2014, the HR director left Carnicella a voicemail
asking for a status report concerning her work capacity. Carnicella returned
the HR director’s call and left a voicemail stating that she was not able to return
to work. The HR director interpreted the voicemail to mean that Carnicella did
not want to remain as a per diem employee, and so she processed Carnicella’s
termination from employment. The HR director sent Carnicella a letter dated
March 20, 2014, explaining that her employment would end on March 21 and
inviting her to “please reach out to explore job opportunities” when she was
able to return to work.
[¶12] When Carnicella received the letter, she called her supervisor to
discuss why she had been terminated instead of put on a per diem status. The
supervisor then contacted the HR director and explained that Carnicella wished
to remain on per diem status. Accordingly, on April 3, 2014, the HR director
directed that Carnicella’s termination be reversed and that she be reinstated as
a per diem employee. Carnicella was restored to per diem status within a few
days and remains a per diem employee to this day.1 As of June 2016, however,
no doctor had cleared Carnicella to actually return to work.
1 Beginning in July 2014, the supervisor emailed Carnicella on several occasions inviting her and
other per diem employees to pick up available shifts. 7
[¶13] In April 2014, Carnicella applied for Social Security disability
benefits, which she concedes was premised on her inability to work. In a
“Function Report” dated April 7, Carnicella described herself as unable to lift
more than three pounds, having ongoing pain and weakness in her left arm and
shoulder, and having minimal use of her left arm. She stated on the form, “This
disability has been life altering. . . . I was employed as an RN and was also an
avid cook. Now I cannot do either due to my strict functional limitations, pain,
and neuropathies.” Carnicella filled out another Function Report in
August 2014, where she represented that she experienced pain and immobility
in her left arm and shoulder, and that she could not lift or make lateral or
overhead movements with her left arm and shoulder. Carnicella admits that
the August 2014 report accurately reflected her restrictions and limitations at
that time.
[¶14] On September 2, 2015, Carnicella filed a complaint against Mercy
alleging that Mercy discriminated against her in violation of the MHRA by
terminating her employment because of her disability and refusing to provide
her with a reasonable accommodation. Mercy filed a motion for summary
judgment on August 3, 2016. On November 3, 2016, the court granted 8
Mercy’s motion and entered summary judgment for Mercy. Carnicella
appealed. See M.R. App. P. 2.
II. DISCUSSION
[¶15] Carnicella argues that the court erred by granting summary
judgment in favor of Mercy on her discrimination claim. We review de novo the
grant of a summary judgment. Daniels v. Narraguagus Bay Health Care Facility,
2012 ME 80, ¶ 13, 45 A.3d 722. “Summary judgment is appropriate if the record
reflects that there is no genuine issue of material fact and the movant is entitled
to a judgment as a matter of law.” Dussault v. RRE Coach Lantern Holdings, LLC,
2014 ME 8, ¶ 12, 86 A.3d 52 (quotation marks omitted); see M.R. Civ. P. 56(c).
[¶16] We ordinarily use a “three-step, burden-shifting analysis” in
employment discrimination cases at the summary judgment stage. Daniels,
2012 ME 80, ¶ 14, 45 A.3d 722. Pursuant to that analysis, “an employee must
first establish a prima facie case that (1) [s]he has a disability; (2) [s]he is
otherwise qualified, with or without reasonable accommodations, to perform
the essential functions of [her] job; and (3) [her] employer adversely treated
[her] based in whole or in part on [her] disability.” Id. If the employee produces
prima facie evidence of each element, the burden shifts to the employer to
establish that it had a legitimate, nondiscriminatory basis for its actions; if the 9
employer does so, “the burden shifts back to the employee to produce evidence
that the employer’s proffered reason is a pretext to conceal an unlawful reason
for the adverse employment action.”2 Trott, 2013 ME 33, ¶ 15, 66 A.3d 7.
[¶17] Here, there is no dispute that Carnicella is disabled, and Mercy
concedes that it terminated Carnicella’s employment because her disability
prevented her from working. The only issue pertains to the second element of
Carnicella’s prima facie case: whether Carnicella is “qualified, with or without
reasonable accommodations, to perform the essential functions” of her job.
[¶18] The MHRA provides that “[t]he opportunity for an individual to
secure employment without discrimination because of . . . physical or mental
disability . . . is recognized as and declared to be a civil right.” 5 M.R.S. § 4571.
It further provides that “[a] covered entity may not discriminate against a
qualified individual with a disability because of the disability of the individual
in regard to . . . [the] discharge of employees.” 5 M.R.S. § 4572(2); see also
5 M.R.S. § 4553(1-B) (defining “covered entity”). An employer’s failure to make
2 We have dispensed with the three-step, burden-shifting analysis as applied to summary judgment motions in claims of employment discrimination arising from alleged violations of Maine’s Whistleblowers’ Protection Act, 26 M.R.S. §§ 831-840 (2016). See Brady v. Cumberland Cty., 2015 ME 143, 126 A.3d 1145. In Brady, we held that once an employee presents a prima facie case of unlawful activity and thereby satisfies the first of the three steps, the employer is not entitled to summary judgment. Id. ¶ 39. Because in this case we conclude that Carnicella did not present a prima facie case of employment discrimination, we do not reach the question of whether our analysis in Brady would apply to disability-based claims of employment discrimination. 10
“reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability” is also a form of discrimination.
5 M.R.S. § 4553(2)(E); see Winslow v. Cty. of Aroostook, No. 1:11-cv-162-GZS,
2013 U.S. Dist. LEXIS 20605, at *32 (D. Me. Feb. 15, 2013).
[¶19] In the context of employment, a “‘qualified individual with a
disability’ means an individual with a physical or mental disability who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that the individual holds or desires.” 5 M.R.S.
§ 4553(8-D). The employee bears the burden of showing that he or she is a
qualified individual with a disability and thus protected from employment
discrimination by the MHRA. See Gillen v. Fallon Ambulance Serv., Inc.,
283 F.3d 11, 24 (1st Cir. 2002). “The examination of an employee’s ‘qualified’
status requires consideration of available reasonable accommodations.”
Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 33 (1st Cir. 2000). “The
analysis is generally broken into two steps: (1) whether the employee could
perform the essential functions of the job; [and] (2) if not, whether any
reasonable accommodation by the employer would enable him to perform
those functions.” Id. 11
[¶20] Federal courts, interpreting provisions of the Americans with
Disabilities Act (ADA) that closely track those of the MHRA,3 have held that an
employee cannot prove that she is a qualified individual with a disability when
she has not established that she has been cleared to return to work by her
medical provider. See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047
(6th Cir. 1998) (“[B]ecause [the employee] was not released by her doctor to
return to work, she has not met the . . . requirement that she be qualified to
perform the essential functions of the job.”).4 Here, Carnicella has not
3 “Because the MHRA generally tracks federal anti-discrimination statutes, it is appropriate to
look to federal precedent for guidance in interpreting the MHRA.” Doyle v. Dep’t of Human Servs., 2003 ME 61, ¶ 14 n.7, 824 A.2d 48 (alteration and quotation marks omitted).
4 See also Gamble v. JP Morgan Chase & Co., No. 16-6488, 2017 U.S. App. LEXIS 8376, at *12-13, 15
(6th Cir. May 9, 2017) (holding that an employee “was not a qualified individual for the purpose of the ADA” and was unable to establish the second prong of his prima facie discrimination case when he “was not released to work by his doctor and remained completely disabled at the time of his termination”); Crews v. Dow Chem. Co., 287 F. App’x 410, 412 (5th Cir. 2008) (“[The employee] is not a ‘qualified individual with a disability’ under the ADA. According to her own physician, [she] cannot return to work in the foreseeable future. Thus, [she] cannot perform the essential functions of her job, with or without reasonable accommodation.”); Anderson v. Inland Paperboard & Packaging, Inc., 11 F. App’x 432, 438 (6th Cir. 2001) (holding that an employee could not establish the second prong of a prima facie case under the ADA when, at the time she was terminated, her doctor had not given her permission to return to work); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (“[Plaintiff] remained unavailable for work until released by his physician . . . . Because [he] could not attend work, he is not a ‘qualified individual with a disability’ under the ADA.”); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (“An employee who cannot meet the attendance requirements of the job at issue cannot be considered a “qualified” individual protected by the ADA.”); Kitchen v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d 589, 594 (S.D. W. Va. 2008) (“It is well-settled that an individual who has not been released to work by his or her doctor is not a ‘qualified individual with a disability.’”); Crow v. McElroy Coal Co., 290 F. Supp. 2d 693, 696 (N.D. W. Va. 2003) (“Because [the employee] failed to obtain a release to work from his doctor, [he] has not shown that he can perform the essential functions of the job with or without reasonable accommodation.”). 12
established that she was ever cleared to return to work by any medical
provider. Since her initial leave of absence, Mercy made clear that Carnicella
needed to have clearance from her physician in order to return to work.
However, a report from her primary care physician dated January 24, 2014,
indicated that Carnicella would not be able to return to work until possibly
June. Moreover, Carnicella did not dispute her physician’s assessment of her
abilities or estimate of her return-to-work date and did not represent to Mercy
that she had any work capacity at any time prior to her termination. See Hwang
v. Kan. State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014) (“By [plaintiff’s] own
admission, she couldn’t work at any point or in any manner for a period
spanning more than six months. It perhaps goes without saying that an
employee who isn’t capable of working for so long isn’t an employee capable of
performing a job’s essential functions . . . .”). Because Carnicella did not have
medical clearance to return to work, she was thus unable to perform the
essential functions of her job at the time that she was terminated.5
5 The record includes considerable detail and dispute regarding the “essential functions” of the
RN position. Whether a task is an “essential function” of a job is ordinarily a question of fact for the fact-finder. See Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 16, 45 A.3d 722; Pinkham v. Rite Aid of Me., Inc., 2006 ME 9, ¶ 9, 889 A.2d 1009. However, because Carnicella was never cleared to return to work under any circumstances, the determination of the essential functions of the position is immaterial. 13
[¶21] Carnicella also has not proposed a reasonable accommodation that
would have enabled her to perform the essential functions of her job in March
when she received the termination letter, in April when she was restored to
per diem status, or at any other time. Although Carnicella submitted a
“checkbox” form to Mercy dated December 17, 2013, indicating only that she
“would like to go forward with the process of requesting a reasonable
accommodation,” in a questionnaire dated December 18, Carnicella’s surgeon
did not specify any potential reasonable accommodations for Carnicella and
noted that Carnicella’s anticipated return to work would be March 15, 2014.
About one month later, Carnicella’s primary care physician indicated that she
“estimate[d]” that Carnicella would be able to return to work “without
restrictions” by June 1, 2014. Thereafter, on January 24, 2014, Carnicella, the
HR director, and Carnicella’s supervisor had a meeting at which Carnicella
made no representation that she had the capacity to work.
[¶22] The only accommodation that Carnicella arguably requested was
additional leave. However, this accommodation was unreasonable as a matter
of law. As a statutory defense to liability for discrimination, the MHRA
provides: “This subchapter does not prohibit an employer from discharging . . .
an individual with physical or mental disability, or subject an employer to any 14
legal liability resulting from . . . the discharge of an individual with physical or
mental disability, if the individual, because of the physical or mental disability,
is unable to perform the duties . . . or is unable to be at, remain at or go to or
from the place where the duties of employment are to be performed.” 5 M.R.S.
§ 4573-A(1-B). At the time Carnicella was terminated, she was unable to
perform the duties of a registered nurse at the Gorham Express Care facility;
additional leave would necessarily continue to prevent Carnicella from
performing those duties. Accordingly, because the statute provides a defense
to discharging an employee who cannot perform her duties, it renders
additional leave an unreasonable accommodation and permitted Mercy to
terminate Carnicella without running afoul of the MHRA.
[¶23] Therefore, because Carnicella was unable to perform the essential
functions of her job with or without a reasonable accommodation, there is no
genuine issue of material fact that she is not a qualified individual with a
disability, and the district court properly granted summary judgment on her
disability discrimination claim.6
6 Because Carnicella is not a qualified individual with a disability, she is also unable to establish a
prima facie case of discrimination based on any failure of Mercy to accommodate her disability. See Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007). 15
[¶24] Furthermore, contrary to Carnicella’s assertion, Mercy was under
no obligation to propose, identify, or consult with Carnicella regarding
reasonable accommodations. Although the MHRA provides that damages may
not be awarded if an employer “demonstrates good faith efforts, in consultation
with the person with the disability who has informed the covered entity that
accommodation is needed, to identify and make a reasonable accommodation,”
5 M.R.S. § 4613(2)(B)(8)(b), this statute does not affirmatively and
independently establish a duty on an employer to identify reasonable
accommodations for a disabled employee. As we have explained, “A plain
language reading of [this] provision reveals that [it] provides an employer with
an affirmative defense to a disability discrimination claim regarding a failure to
accommodate pursuant to the MHRA”; it “does not require an employer to
engage in such a consultation.” Kezer v. Cent. Me. Med. Ctr., 2012 ME 54, ¶ 27,
40 A.3d 955; see Farnham v. Walmart Stores E., L.P., No. 1:13-cv-305-JDL,
2014 U.S. Dist. LEXIS 169202, at *16 (D. Me. Dec. 8, 2014). Accordingly, in the
absence of a statutory mandate to the contrary, we conclude that Mercy
incurred no legal liability under the MHRA for failing to consult with Carnicella
concerning reasonable accommodations for her disability. 16
The entry is:
Judgment affirmed.
Sarah A. Churchill, Esq. (orally), Nichols & Churchill, P.A., Portland, for appellant Beth Carnicella
Katherine I. Rand, Esq. (orally), Pierce Atwood LLP, Portland, for appellee Mercy Hospital
Cumberland County Superior Court docket number CV-2015-397 FOR CLERK REFERENCE ONLY