OAH Docket No. 15-1700-18042-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State of
Velma
Korbel, Commissioner, Department
of Human Rights, Complainant, v. Respondent.
|
ORDER DENYING SUMMARY DISPOSITION |
This matter is before
Administrative Law Judge Beverly Jones Heydinger on cross motions for summary
disposition by
Margaret
Jacot, Assistant Attorney General,
Based upon the record in
this matter, and for reasons set forth in the accompanying Memorandum, the
Administrative Law Judge makes the following:
1.
The
Complainant’s Motion for Summary Disposition is DENIED.
2.
The
Respondent’s Motion for Summary Disposition is DENIED.
3.
A
prehearing conference shall be held by telephone on April 22, 2008, at 10:30
a.m. to set the matter for hearing.
4.
The
Department’s request to reopen discovery is DENIED; but
Dated: March _20th_,
2008
_/s/
Beverly Jones Heydinger_
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
Summary Disposition
Standard
Summary
disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where
there is no genuine issue as to any material fact and one party is entitled to
judgment as a matter of law.[1] The Office of Administrative Hearings has
generally followed the summary judgment standards developed in judicial courts
in considering motions for summary disposition regarding contested case
matters.[2] A genuine issue is one that is not sham or
frivolous. A material fact is a fact
whose resolution will affect the result or outcome of the case.[3]
The moving party has the initial
burden of showing the absence of a genuine issue concerning any material
fact. To successfully resist a motion
for summary judgment, the nonmoving party must show that there are specific
facts in dispute that have a bearing on the outcome of the case.[4] When considering a motion for summary
judgment, the Court must view the facts in the light most favorable to the
non-moving party.[5] All doubts and factual inferences must be
resolved against the moving party.[6] If reasonable minds could differ as to the
import of the evidence, judgment as a matter of law should not be granted.[7] Summary judgment should only be granted in
those instances where there is no dispute of fact and where there exists only
one conclusion.[8]
In this instance, where there are
cross-motions for summary disposition, the same standards apply, and summary
disposition should be granted only where there are no material facts in
dispute.[9]
Stipulated Facts
The parties have stipulated for the
purposes of this motion to many facts concerning Ms. Parsons’ employment. She was employed as a legal secretary in the
Clay County Attorney’s Office beginning in 1982. She had a good work record and was considered
a valuable member of the
In July 2004, Ms. Parsons was
diagnosed with major depression and hospitalized overnight and was prescribed
anti-depressant medication. Following
the hospitalization she continued to decline and on August 11, 2004, her
co-workers took her to the hospital emergency room. At that point, she was not able to do her
work. She was granted a one-month leave
of absence. She was hospitalized until
August 17, 2004.[12]
On August 18, 2004, Ms. Parsons’
psychiatrist, Dr. Nadeem Haider, completed a health certification form
indicating that Ms. Parsons was unable to work because of illness and should be
able to return to work in two weeks.[13]
Ms. Parsons was not able to return
to work in two weeks. On September 27,
2004, she attempted to return to work, but she was unable to perform the
essential functions of her job. On
September 28, 2004, Dawn Schlosser-Greuel, the County’s human resources
director, sent Ms. Parsons a letter asking Ms. Parsons to submit an updated
report of her health status by October 15, 2004, and telling Ms. Parsons to
provide 48 hours notice and fitness-for-duty certificate when she was ready to
return to work.[14]
On October 7, 2004, Ms. Parson
submitted a letter from her psychiatrist stating that Ms. Parsons was disabled
and unable to work due to illness, but might be able to return to work in one
to two weeks if her symptoms improved.
On October 13, 2004, Ms Parsons submitted a note from her psychiatrist
stating that she would be able to return to work part time on October 25, 2004,
and, if she did well, that she could return to work full time beginning
November 1, 2004.[15]
On October 15, 2004, Ms.
Schlosser-Greuel sent a letter to Dr. Haider enclosing a copy of Ms. Parsons’
job duties and asking him to affirm that Ms. Parsons could perform the
essential functions of her position. The
letter also stated, “As you are aware, this is a full-time position. We can accommodate a part-time status for a
1-week period, but [Ms. Parsons] must necessarily return to a full time status
thereafter.” [16]
Dr. Haider called Ms. Schlosser-Greuel and told her that Ms. Parsons
could perform the duties on the position description, but he was concerned for
how long she could perform. He restated
what he had written on October 13, that if Ms. Parsons could return part time
and do well that she could increase to full time. Dr. Haider planned to see Ms. Parsons toward
the end of the week of October 25, 2004, and agreed to contact Ms.
Schlosser-Greuel thereafter to notify her if Ms. Parsons could return to work
full time.[17]
On October 25, 2004, Ms. Parsons
returned to work part time. She was
sent home on October 26, 2004. By letter
dated October 27, 2004, Ms. Schlosser-Greuel stated that Ms. Parsons had been
sent home because of her “inability to perform essential functions” of her
position, and that her Family and Medical Leave Act (FMLA) would expire on
November 3, 2004. The letter also stated: “If the request for additional time off is
not excessive, we are willing to accommodate the additional leave request. However, if we determine the additional leave
time will create an undue hardship on the employer, we reserve the right to
deny your request for additional leave.”[18]
Also on October 27, 2004, Ms.
Schlosser-Greuel sent a letter to Dr. Haider informing him that Ms. Parsons had
not been able to perform her routine duties or engage with her co-workers. Once again, Ms. Schlosser-Greuel requested
that Dr. Haider provide a statement at the time that he determined that Ms.
Parsons could return to work.[19]
On October 28, 2004, Ms. Parsons
entered a partial hospitalization program.
She received intensive group therapy for six hours each week day and
returned home in the evenings. On
November 5, 2004, Dr. Haider faxed a letter to Ms. Schlosser-Greuel
stating: “It appears that it may take
another 1 to 2 months before [Ms. Parsons’] illness may remit to the point that
she would be able to return to work.”[20]
On November 8, 2004, Ms.
Schlosser-Greuel wrote to Ms. Parson restating that it would accommodate an
additional leave request, but “if we determine the additional leave time will
create an undue hardship on the employer, we reserve the right to deny your
request for additional leave.” The
letter also stated that the County had not received an additional request by
November 5, 2004, as requested, but extended the deadline to respond to
November 12, 2004.[21]
On November 9, 2004, Ms. Parsons contacted
Ms. Schlosser-Greuel and requested an additional six weeks off work. She attached a note from the psychiatrist for
the day treatment program, dated November 1, 2004, which stated: “Mary Parsons is being treated for a medical
condition that would not allow her back to work on November 3rd. I anticipate she would need at least 6 weeks
off from work before she can return.”[22]
On November 12, 2004, the County
sent Ms. Parsons a letter terminating her employment when her remaining hours
of sick leave expired on the basis that her FMLA had ended, that she would need
at least six weeks of additional leave, and that the County could not
accommodate her request for additional leave due to the extreme hardship it
posed for the County Attorney’s Office.
She was invited to reapply for any open position after her doctor
released her to return to full time work.[23]
The County concedes that cost was
not a factor in its decision,[24] but the hardship was caused because
another employee was on temporary maternity leave, and had been replaced by a
temporary employee. Tasks had been
restructured for one temporary staff member, but the
During the early part of Ms.
Parsons’ leave, Ms. Borgen hired a part-time person to work about 10 hours a
week during the evenings. Ms. Borgen
concluded that the arrangement did not work well because the individual had
another full-time job and was not available during the day when the attorneys
were present. Ms. Borgen was reluctant
to hire a temporary replacement because Ms. Parsons’ return date had been
postponed, because twice Ms. Parsons had returned to work but could not
function, and because Ms. Parsons’ psychiatrist was uncertain when Ms. Parsons
could return to work.[26]
After Ms. Parsons was terminated,
the County replaced her with an experienced secretary from a neighboring
county.[27]
Material Facts in
Dispute
Although there are many undisputed
facts, there are important facts in dispute about the essential functions of
Ms. Parsons’ position, and whether a temporary secretary would be able to adequately
perform them. As a legal secretary, Ms. Parson worked primarily in the office’s
juvenile division, but handled other types of cases as well. As part of her job, Ms. Parsons was trained
to use the Minnesota County Attorney Practice System (MCAPS) software. This is a complex file management system that
tracks information necessary to prepare documentation for filings in civil and
criminal cases in which the
Ms. Borgen stated that it took six months
for a legal secretary to learn to use MCAPS efficiently. Its use involved entering correct, timely
information and, at the request of one of the attorneys, producing appropriate
documents from the system. The legal
secretaries were also required to learn the unique deadlines that apply to the
work of a county attorney. In addition,
Ms. Borgen stated in her affidavit that the legal secretaries were required to
learn about the public, private or confidential status of data handled by the
The position description for Ms.
Parsons makes one reference to MCAPS. The fourth task states: “Review MCAPS calendar 2 to 3 days in advance
to pull files for specific attorney preparation – 10 %.” Although this task refers to MCAPS it does
not explain whether pulling files is an electronic or a manual function. There are other tasks that could involve use
of MCAPS, but that is not apparent from the position description. These include, “Review and inspect incoming
mail and materials -25%,” “Maintaining client files and receptionist duties –
20%,” “Review court calendar and
identify, locate and retrieve files relative to daily activity, - 15%, “Prepare
files for jury trial – 15%,” “Opening new client files – 5%,” and “Assist Legal
Assistant with projects – 5%.”[30]
Ms. Borgen’s affidavit does not specify what portion of these tasks
involves use of MCAPS, nor is it obvious from the task descriptions.
In direct contradiction of Ms. Borgen’s
statement about the significance of MCAPS, Ms. Parsons testified at her
deposition that her job involved computer work, phone knowledge and typing. She acknowledged that when a case came in,
she entered its name and other information into the computer and gave the file
to the attorney. However, she stated
that the attorney she worked with would dictate documents such as a complaint,
and that about 80 percent of her day was spent transcribing the attorney’s
dictation. She stated that the balance
of her time was spent doing computer work, answering the telephone and waiting
on people who came to the counter when the receptionist was not on duty.[31]
Ms. Parsons acknowledged that occasionally she would prepare a
misdemeanor complaint directly from the data base on the computer.[32]
Thus, the actual functions of Ms.
Parsons’ position are in dispute.
According to Ms. Borgen, work with MCAPS was critical to the job, but
that is not expressly reflected in the position description and contradicts Ms.
Parsons’ statement.
Legal Analysis
A charge of discrimination under the
Minnesota Human Rights Act is governed by Minn. Stat. Chapter 363A. Interpretation of the statute is aided by
cases interpreting similar standards in the Americans with Disabilities Act
(ADA).[33] The statute requires employers to “make
reasonable accommodation to the known disability of a qualified disabled person
or job applicant unless the employer, agency, or organization can demonstrate
that the accommodation would impose an undue hardship on the business, agency,
or organization.”[34]
Review of the claim
involves several steps. First, the
claimant must show she is disabled, as defined under the Human Rights Act. For the purposes of this motion, the parties
do not dispute that Ms. Parsons is disabled.
She suffers from depression, and for a period of time beginning in July,
2004, she was unable to work because of that depression. Next, one must review the disabled person’s
essential job functions to determine whether she is able to perform them with
or without an accommodation. For the
purposes of this motion, it is stipulated that Ms. Parson was a good employee
who performed all essential functions of her job prior to the disabling
depression. It is also conceded for the
purposes of this motion that Ms. Parsons could perform the job if she received
an accommodation, in this case, sufficient leave time to restore her mental
health so that she could return to work. At the time of her termination, the County
invited Ms. Parsons to apply for an open position at any point after her
physician approved her for return to full-time employment.
An employee who demonstrates that
she was terminated because of her disability has presented a prima facie case
of discrimination. The employer must present evidence of a legitimate,
nondiscriminatory reason for termination.
In this case, the County has offered evidence in support of its claim that
it terminated Ms. Parsons because she could not come to work, and that it could
neither afford to leave the position empty nor find a temporary substitute for
an uncertain length of time of six weeks or longer.
Under the Minnesota Human Rights Act, a “reasonable accommodation may
include, but is not limited to “job restructuring, modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment or
devises, and the provision of aides on a temporary or periodic basis.”[35] In reviewing the request for a
leave of absence, it is appropriate to consider the length of the requested
leave and the employer’s ability to cover that employee’s duties during the
projected absence.
When the requested accommodation is a leave of absence, it is implicit
that there will be a burden on the employer who will not be receiving the work
effort of a trained, experienced person.
The employer will need to find and train a new worker to perform the
tasks, and this may be hampered further if it is uncertain when the disabled
employee will return to work. Moreover,
the loss of a co-worker is likely to increase the burden on fellow employees
who may be asked to temporarily assume new functions or more work.
Because of the difficulties that frequently accompany an employee’s
absence, some courts have held that attendance is essential to most jobs. The Eighth Circuit of Appeals has expressly
found that “regular and reliable attendance is a necessary element of most
jobs,”[36] and that persons who cannot be at
work cannot perform the job. Thus, it
concludes, that a person who is not at work is not qualified to perform the
job.[37]
However, some courts have found that there are circumstances when a
leave of absence may be a reasonable accommodation.[38]
An employer is not required to grant
an accommodation if it will impose an undue hardship on the employer’s
operation of its business.[39]
“Undue hardship” is defined under the Americans with Disabilities Act
as: “an action requiring significant difficulty or expense,” and includes a
list of factors to consider including the nature and cost of the proposed
accommodation, the composition, structure and function of the workforce, impact
upon the operation and the overall resources of the employer.[40]
An employee’s request for an extended medical leave, including one of
indefinite duration, may be a reasonable accommodation under some
circumstances, but may cause an undue hardship under other circumstances.[41]
Here, where the County has offered a
reasonable explanation for its actions, the burden shifts back to the
Department to demonstrate that the County’s claim of undue hardship is a
pretext for unlawful discrimination.[42]
Although the cost of the accommodation could be a factor, the County has
conceded that the cost of hiring a replacement was not a factor in its
decision.
To determine whether the requested accommodation will create an undue
hardship on the employer or that its claim is a mere pretext for
discrimination, one must fully evaluate the facts of the particular case. The
length of the requested leave and whether it is determinate or indeterminate,
whether there have been a number of successive requests, and the likelihood
that the employee will be able to return at the end of the requested leave may
be considered, but no one factor is determinative. In addition, one must consider how the
“essential functions” of the employee’s job can be covered during the absence.
Although the Department contends that Ms. Parsons made a request for a
determinate absence of two months, the undisputed facts do not support that
claim. The wording of the notes from Ms.
Parsons’ physician do not offer a reasonably certain prediction and the prior,
similarly-worded projections were followed by requests for more leave. Under the facts of this case, the December
leave request was more appropriately characterized as indeterminate. Thus, the case turns on whether the County
could find a temporary replacement to perform the essential functions of Ms.
Parsons’ job for a period of up to two months, and possibly for some undefined
additional time, or whether its difficulty in doing so imposed an undue
hardship.
“Essential job functions” are those
that are fundamental to the job and not merely marginal. A job function may be considered essential if
the position exists to perform that function, only a limited number of
employees are available to perform the job function, and/or the function
involves a high degree of specialization.[43]
The parties dispute the essential functions of Ms. Parsons’ job and the
difficulty finding and training a temporary replacement to do the job. There is no requirement that the County
redefine Ms. Parson’s job or reallocate essential functions of her
position. It follows that the County
should not have to redefine the job or reallocate essential functions so that
it could create a new temporary position that could be more easily assimilated.
“It is well settled that an employer is
under no obligation to reallocate the essential functions of a position that a
qualified individual must perform.” [44]
The County has maintained from the
time of Ms. Parsons’ termination that additional leave was an undue hardship
because the essential functions of Ms. Parsons’ job, use of a computer database
and responding to public inquiries in a manner that did not violate the
Government Data Practices Act, required extensive training. Ms. Borgen’s experience was that a temporary
secretary hired for a few months or an indeterminate time could not be trained
quickly enough to shoulder Ms. Parson’s essential job functions. Moreover, she was concerned that the
physician’s prior predictions had not been accurate and another leave request
could follow.
Unlike the employer in Garcia-Ayala v. Lederle Parenterals, the
County offered evidence and argument to support its claim that the requested
accommodation was an undue hardship. In Garcia-Ayala, the employer told the
employee that she was terminated because her one-year leave of absence had
expired, not because a leave would cause an undue hardship. The employer, Lederle, offered no evidence to
support a claim that it would be an undue hardship to grant Garcia an
additional leave of absence, and, in fact, it replaced Garcia with temporary
employees following her dismissal.
In this case, the County has offered
evidence to support its claim that a temporary replacement could not perform
the essential functions of the job. However, the County’s statements concerning
the essential functions of the job vary from Ms. Parsons’ deposition
testimony. She testified that 80 percent
of her job involved transcription from dictation, a task that a temporary
secretary could typically perform.
In light of the critical facts in
dispute concerning the essential job functions, the undue hardship on the
employer cannot be fully evaluated, and summary judgment must be denied.
Although the parties dispute whether
Ms. Parsons’ recovery and ability to return to work were hindered by her
termination, those facts are not material to deciding whether Ms. Parsons’
termination was discriminatory or whether granting Ms. Parsons an additional
leave of absence as an accommodation would have imposed an undue burden on the
County. One must evaluate the facts at
the time of the decision to terminate.[45]
In the event that it is ultimately determined that she was the victim of
discrimination and the termination was not warranted, the facts concerning her
recovery may be relevant to determining the damages that she suffered.
The Department also implies that
terminating Ms. Parsons when her FMLA leave ran out supports its claim of
unlawful discrimination. However, the
analysis of a “reasonable accommodation” is distinct from the benefits an
employee may otherwise receive. Although
the employer may be compelled to provide benefits and its ability to operate during
the medical leave may be relevant evidence, it is not determinative of “undue
hardship.[46]
Department’s Request
for Additional Discovery
The parties also dispute the need to
reopen discovery to pursue the County’s claim concerning MCAPS and its
significance. The Department requested
detailed information after discovery closed, and the County objected to the
burdensome request. However, the County
agreed to provide some additional information.
The County has failed to show that
discovery should be reopened. The
Department was offered the opportunity to depose Ms. Borgen, it will have the
opportunity to cross-examine her and Mr. Beccue, and it may question Ms.
Parsons and other secretaries in the
B. J. H.
[1] Sauter v.
Sauter, 70 N.W.2d 351, 353 (
[2] See,
[3] Illinois
Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[4] Thiele v.
Stitch, 425 N.W.2d 580, 583 (
[5] Ostendorf v.
Kenyon, 347 N.W.2d 834 (
[6] See, e.g.,
Thompson v.
[7]
[8]
[9] See Wightman v. Springfield Terminal Ry. Co.,
100 F. 3d 228, 230 (1st Cir. 1996).
[10] Affidavit of Lisa N. Borgen (Borgen Aff.), February
4, 2008,
[11] Affidavit of Lisa N. Borgen.
[12] See, Dep. of M. Parsons, Exs. 1, 2.
[13] Dep. of Schlosser-Greuel, Ex. 9.
[14] Dep. of Schlosser-Greuel, Ex. 10.
[15] Dep. of Schlosser-Greuel, Ex. 12.
[16] Dep. of Schlosser-Greuel, Ex. 13. The job description is not attached to the
file copy but is apparently the document marked as Deposition Ex. 1. See
Dep. Of Schlosser-Greuel at 12-13.
[17] Dep. of Schlosser-Greuel at 43-45.
[18] Dep. of Schlosser-Greuel, Ex. 14.
[19] Dep. of Schlosser-Greuel, Ex. 15.
[20] Dep. of Schlosser-Greuel, Ex. 16.
[21] Dep. of Schlosser-Greuel, Ex. 17.
[22] Dep. of Schlosser-Greuel, Ex. 18.
[23] Dep. of Schlosser-Greuel, Ex. 19.
[24] Borgen Interview Summary, November 20, 2006, MDHR
0278.
[25] Affid. of Borgen.
[26] Affid. of
[27] Borgen Interview Summary, November 20, 2006, MDHR
0278.
[28] Dep. of Schlosser-Greuel, Ex. 4 at Section 19 C and
D (MDHR 0205).
[29] Borgen Aff.
The County has also disclosed that it intends to call Kandiyohi County
Attorney Boyd Beccue to testify about the unique job requirements for legal
secretaries who work for a county attorney.
[30] Dep. of Schlosser-Greuel, Ex. 1.
[31] Dep. of Parsons at 12-16.
[32] Dep. of Parsons at 19-20.
[33] Mallon v.
[34] Minn. Stat. § 363A.08, subd. 6.
[35]
[36] Kinnaman v.
Ford Motor Co., 79 F. Supp. 2d 1096, 1102 (E.D. Mo. 2000), quoting Greer v. Emerson Electric Co., 185 F.3d
917, 921-922 (8th Cir. 1999).
[37] Kinnaman v.
Ford Motor Co., 79 F. Supp. 2d 1096, 1103, n. 9 (E.D. Mo. 2000).
[38] Garcia-Ayala
v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000);
Mallon v. U.S. Physical Therapy, Ltd.,
395 F. Supp. 2d 810 (D.
[39] Minn. Stat. § 363A.08, subd. 6; 42 U.S.C. § 12112
(b)(5)(A).
[40] See 42
U.S.C. 12111 (10)(B).
[41] Garcia-Ayala
v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000),
and cases cited therein. In the First
Circuit, the employer has the burden to show that the requested leave would
cause an undue hardship, but in the Eighth Circuit, once the employer presents
evidence of undue hardship, the employee must prove that the explanation is a
mere pretext. In this case, the employer has met its burden, but the facts
concerning pretext are at issue and turn on whether it is difficult to hire a
temporary replacement to perform the essential functions of Ms. Parsons’
job.
[42] Snow v.
Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997); Mallon v. U.S. Physical Therapy Ltd.,
395 F, Supp. 2d 810, 816 (D.
[43] 29 C.F.R. § 1630.2 (n); Befort, Stephen, “The Most
Difficult
[44] Alexander v.
Northland Inn, 321 F.3d 723, 728 (8th cir. 2003); Kammueller v. Loomis, Fargo & Co.,
285 F. Supp. 2d 1200, 1211 (D. Minn. 2003), at 1211, quoting Moritz v. Frontier Airlines, Inc., 147
F,3d 784, 788 (8th Cir. 1998).
[45] See, Browning v.
[46] Duckett v.
Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997).