Park HR 357 – Samper v. Providence St. Vincent Medical Center

Samper v. Providence St. Vincent Medical CenterThe question in this case is whether predictable attendance is an essential function of a position. Theplaintiff/employee Monika Samper, who suffered from fibromyalgia, was terminated from her position asa neonatal intensive care unit nurse when her absences exceeded her employer’s unplanned absencelimit and after a history of “general problems with attendance.” Samper then filed a claim under theADA, alleging that the hospital failed to accommodate her disability. The hospital’s policy allowed for fiveunplanned absences annually and Samper had requested that she be allotted “additional” unplannedabsences, though had not specified how many. The lower court held as a matter of law that Samper wasnot qualified for the position since she was unable to adhere to the hospital’s attendance policy, andgranted summary judgment in favor of the hospital. The current decision is the judgment on her appealof that decision to the Ninth Circuit, which affirms the lower court’s decision.BackgroundProvidence is a medical facility in Portland, Oregon, that provides a broad range of medical services. ItsNICU offers a high level of intensive care to premature infants. According to the NICU charge nurse,absences among NICU staff can jeopardize patient care: NICU nurses re-quire special training such thatthe universe of nurses that can be called in at the last minute is limited. As the charge nurse explains,given the relevant patient population, being understaffed is “highly undesirable and, potentially, cancompromise patient care.” Nonetheless, striking a balance between the needs of patients andemployees, Providence’s attendance policy allows its employees to take up to five unplanned absencesduring a rolling twelve-month period. In addition, “[u]nplanned absences related to family medical leave,jury duty, bereavement leave and other approved bases are not counted” towards this limit, and eachabsence, however long, counts as only one occurrence. Samper challenges the application of thisgenerous absence policy to her circumstances.This case turns on the role that regular attendance plays in the functions of a NICU nurse. To establish aprima facie case for failure to accommodate under the ADA, Samper must show that “(1) [s]he isdisabled within the meaning of the ADA; (2) [s]he is a qualified individual able to perform the essentialfunctions of the job with reasonable accommodation; and (3) [s]he suffered an adverse employmentaction because of [her] dis-ability.” Providence does not dispute that Samper is disabled, that she has therequisite technical skills for the job, or that she suffered an adverse employment action. Samper runsinto an insurmountable hurdle, however, in arguing that regular attendance is not an essential functionof the NICU nurse position. * * *It is a “rather common-sense idea … that if one is not able to be at work, one cannot be a qualifiedindividual.” Both before and since the passage of the ADA, a majority of circuits have endorsed theproposition that in those jobs where performance requires attendance at the job, irregular attendancecompromises essential job functions. Attendance may be necessary for a variety of rea-sons. Sometimes,it is required simply because the employee must work as “part of a team.” Other jobs re-quire face-toface interaction with clients and other employees (teacher, airline customer service agent). Yet otherjobs require the employee to work with items and equipment that are on site (dockworker, tool and diemaker, production worker, telephone customer support, computer consultant, mechanic, housekeepingaide, coding clerk, mail handler). The common-sense notion that on-site regular attendance is anessential job function could hardly be more illustrative than in the context of a neo-natal nurse. This atrisk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary forregular performance: teamwork, face-to-face interaction with patients and their families, and workingwith medical equipment. Samper herself admits that her absences sometimes affected “teamwork andcause[d] a hardship for [her] co-workers who must cover for [her].” Similarly, once at work, Samper’stasks required her to “lift babies, push cribs and isolettes.” More critically, she had to “get up at amoment’s notice to answer alarms [and] . . . [o]ften . . . run to codes.” Rather than merely relying onSamper’s own admissions, or the logical presumption that it is essential for a nurse to be presentregularly and predictably to do her job, Providence supplies evidence to meet its burden of productionwith alacrity. Providence notes that the written job description required strict adherence to theattendance policy. Under the heading “standards of performance,” “Attendance” and “Punctuality” arelisted as essential functions. The more detailed statement provides that the employee must“[d]emonstrate performance by adhering to established policies and procedure and exhibiting thedefined characteristics associated with attendance and punctuality.” As Providence further explains in adeclaration from Samper’s former supervisor, NICU nurses must have specialized training, and it is verydifficult to find replacements, especially for unscheduled absences. Understaffing compromises patientcare. Providence’s evidence meets its burden of production. See 29 C.F.R. § 1630.2(n)(3) (“Evidence ofwhether a particular function is essential includes, but is not limited to [t]he employer’s judgment as towhich functions are essential; . . . [w]ritten job descriptions; . . . [t]he consequences of not requiring theincumbent to perform the function; [and t]he current work experience of incumbents in similar jobs.”).The re-cord shows that Samper’s position differs from those considered by our sister circuits in only oneimportant respect: Samper’s regular, predictable presence to per-form specialized, life-saving work in ahospital context was even more essential than in those cases. This is not a job where it is possible toargue, as in the case of the dockworker in Yellow Freight, that “workers were basically fungible with oneanother, so that it did not matter who was doing the [job] on any particular day; [and the employer] didnot follow any fixed policy other than to treat each case individually, giving very lengthy leaves to peoplehe found deserving.” As the First Circuit observed in rejecting a scheduling accommodation requested bya nurse, “[m]edical needs and emergencies—many potentially life-threatening—do not mind the clock,let alone staff-nurse convenience. . . .The 24-hour hospital unit setting thus affords a particularly compelling context in which to defer torational staffing judgments by hospital employers based on the genuine necessities of the hospitalbusiness.” Samper offers nothing to rebut Providence’s undisputed evidence except for highlighting thatProvidence’s policy allows for some unplanned absences, and that her absences had exceeded thosepermitted un-der the policy in past years without repercussions. She claims, without evidence, that“[t]he impact on staffing levels resulting from an employee’s first absence is the same as the impact froman employee’s twentieth absence,” and clings to our decision in Humphrey v. Memorial Hosps . Ass’n forsupport, where we noted that “regular and predictable attendance is not per se an essential function ofall jobs.” Our observation that regular attendance is not necessary for all jobs is hardly remarkable whenon-site presence is not required for all jobs, a point not lost on our sister circuits. Similarly, in Humphrey,a medical transcriptionist provided evidence that other transcriptionists were allowed to work at home,and therefore, his attendance was not required for performance. 239 F.3d at 1137. However, even whenan employee “work[s] at home, regular hours on a consistent basis” often re-main a requirement.Samper’s focus on Humphrey, the unusual case, blinds her to the rule. “Except in the unusual case wherean employee can effectively perform all work-related du-ties at home, an employee ‘who does not cometo work cannot perform any of his job functions, essential or otherwise.’” As the evidence easily establishes, Samper’s engagement with patients is far more direct than that of a medical transcriptionist—although attendance may not be necessary to transcribe details regarding medical treatment, in thecontext of a neo-natal nurse, it is necessary to provide that treatment in the first place. Not only isphysical attendance required in the NICU to provide critical care, the hospital needs to populate thisdifficult-to-staff unit with nurses who can guarantee some regularity in their attendance. Turning to thereasonable accommodation analysis, Samper attempts to gild the lily by claiming not that attendance ingeneral is an essential function, but, rather that her proposed variation to the attendance policyconstitutes a reasonable accommodation. Even under a “fact-specific, individualized analysis” of theaccommodation, Samper’s argument fails. As Providence points out, “Samper never quantified thenumber of additional unplanned absences she was seeking,” even though she could have done so at anytime during her years-long negotiating with the hospital over attendance. As the Seventh Circuitobserved in similar circumstances in Yellow Freight and Jovanovic , such behavior suggests that “the onlyimaginable accommodation” that would satisfy the employee “would be an open-ended schedule thatwould allow [her] to come and go as [s]he pleased.” In these cases, the court was “hard-pressed toimagine a manufacturing facility that could operate effectively when its employees are essentiallypermitted to set their own work hours.” Id. To imagine a NICU facility, 1240*1240 responsible for theemergency care of infants, operating effectively in such a manner, stretches the notion ofaccommodation beyond any reasonable limit. An accommodation that would allow Sam-per to“simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she neededto [a]s a matter of law . . . [is] not reasonable” on its face. * * *Samper’s performance is predicated on her attendance; reliable, dependable performance requiresreliable and dependable attendance. An employer need not provide accommodations that compromiseperformance quality—to require a hospital to do so could, quite literally, be fatal. AFFIRMED.Case Questions1. The court articulates several elements that could make attendance an essential job function. What arethese elements and which do you perceive were critical to its determination in this case?2. If Samper had quantified the number of absences she would require, though still unplanned, wouldthe court have found her accommodation to be reasonable?3. Under what circumstances could you imagine that regular or on-site attendance would not beconsidered an essential function for a position? If as an employer you wish to ensure that attendance isconsidered an essential function, how could you do so?

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