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July 16, 1999


The opinion of the court was delivered by: Rueter, United States Magistrate Judge.


Plaintiff, Joyce E. Tatum, brought this action pursuant to the Americans with Disabilities Act of 1990, ("ADA" or "Act"), 42 U.S.C. § 12101, et seq. Plaintiff alleges that defendant, the Hospital of the University of Pennsylvania ("Hospital"), refused to accommodate her disability, and later terminated her employment because of her disability. By Memorandum and Order dated June 24, 1999, the Honorable Edmund v. Ludwig granted defendant's motion for summary judgment on the plaintiff's claim that defendant violated the ADA by terminating her employment. The parties consented to have the remaining claim, the refusal to accommodate claim, tried before the undersigned pursuant to 28 U.S.C. § 636 (c).

On July 14 and 15th, 1999, this court conducted a jury trial. Plaintiff presented her testimony, and the videotaped deposition of Albert Cooke, M.D. After plaintiff rested her case, defendant made a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. For the reasons that follow, the court grants the motion.


A motion for judgment as matter of law can be granted "only if, viewing the evidence in light most favorable to the non-movant and, giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Jaguar Cars Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 269 (3d Cir. 1995). In making such a determination, the "court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." While a "scintilla of evidence is not enough to sustain a verdict of liability," the question is "whether there is evidence upon which the jury could properly find a verdict for that party." Id. at 269 (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).


Viewing the evidence in the light most favorable to plaintiff, the trial evidence was that since the early 1970s, plaintiff worked as a nurse's assistant at the Hospital. Beginning in 1973, she developed a Bartholin cyst.*fn1 Plaintiff alleges that this cyst sporadically causes her severe pain, especially when she lifts heavy objects. Although plaintiff admits that "the essential functions of a nursing assistant position include, among other things, lifting and pulling heavy patients, bathing patients, taking heights and weight of patients, and lifting patients in and out of bed," plaintiff testified she was able to perform these functions from 1973 through 1995, because the Hospital accommodated her by providing her assistance when lifting patients. Amended Pretrial Stipulation (Doc. No. 13) at 1. Plaintiff did not elaborate any further on the accommodations, nor did she testify as to how often she needed assistance from others. Plaintiff testified that in 1994, she complained to her then supervisor, Elizabeth Craig, R.N., that she was experiencing difficulty lifting and pulling heavy patients. She testified that she told Ms. Craig about a note she procured in 1978, from an unnamed emergency room physician at the University of Pennsylvania, who opined that plaintiff was unable to pull or lift heavy patients. Ms. Craig informed plain tiff that the Hospital had no record of this note, and therefore instructed her to obtain a note from plaintiff's gynecologist Lilbourne Parrot, M.D., who treated plaintiff for a period of time prior to September 1994. Plaintiff secured a note from Dr. Parrot dated September 21, 1994, which was written on Dr. Parrot's prescription pad.*fn2 The note simply stated: "Mrs. Tatum is unable to lift or pull heavy patients." No additional information was provided. Two weeks after receiving the note, Ms. Craig instructed plaintiff that Dr. Parrot needed to provide further information.

Plaintiff returned to Dr. Parrot, and requested a more detailed note. According to plaintiff, Dr. Parrot informed her that she did not need another note. Subsequently, plaintiff informed Ms. Craig what Dr. Parrot had indicated. A few months later, Ms. Craig gave plaintiff a Physical Capabilities Form, and told her to have Dr. Parrot complete the form. Plaintiff informed Ms. Craig that she took this form to Dr. Parrot, who informed her that he would not complete this form because "she could work."*fn3 Ms. Craig then suggested that Ms. Tatum take the form to the Occupational Health Department at the Hospital. Ms. Tatum testified that she took the form to a nurse/practitioner at the Occupational Health Department, who informed her that she did not need to fill out the form, because plaintiff was under the care of a physician. When plaintiff informed Ms. Craig of this, Ms. Craig next suggested that she take the form to her family physician, Dr. Harrison Gratz. She returned to Ms. Craig and explained that Dr. Gratz would not fill out the form. "At no time did Tatum get the capabilities form completed or provide any further documentation of her medical condition to HUP." Amended Pretrial Stipulation at 2.

On the evening of March 29, 1995, plaintiff reported to work at the Hospital. She informed the duty nurse that she could not lift patients by herself. The duty nurse spoke to the evening coordinator, Catherine Beer, who then spoke with plaintiff. Ms. Tatum informed Ms. Beer that she could not lift patients without assistance. Ms. Beer was unaware of these restrictions, and informed plaintiff that she would speak with plaintiff's immediate supervisor, Ms. Craig, who was at home. After speaking with Ms. Craig, Ms. Beer told plaintiff that she was required to perform a normal assignment, and if she refused, she should leave the Hospital, and not be paid for her time.*fn4 Plaintiff chose to go home. The following day, plaintiff returned to work, and was notified that she was suspended for three days without pay for failure to perform her assignment. Between April 1995 and August 1995, plaintiff continued to work. Plaintiffs employment was terminated on or about August 7, 1995, for reasons not pertinent to the disposition of this motion.

Dr. Albert Cooke, plaintiff's expert, testified that he examined plaintiff on April 28, 1999. During the pelvic examination, Dr. Cooke noted a preexisting inflammatory condition, although he did not positively detect the existence of a Bartholin cyst. He further stated that he could not determine whether she had this condition in 1995, although he stated that such a condition is consistent with plaintiff's description of the pain she experienced in 1995.


In its Rule 50 motion, defendant argued that plaintiff failed to prove that she suffered from a disability in September 1994, that was protected by the ADA. Additionally, defendant averred that plaintiff did not show that the Hospital failed to participate in the interactive process when informed of plaintiff's request for accommodation in September 1994. Although the defendant raises a serious question as to whether plaintiff is disabled under the Act, this court need not address this question, since no jury could reasonably find for the plaintiff on her claim that defendant failed to participate in the interactive process of addressing plaintiffs request for a reasonable accommodation.


Recently, the Third Circuit set forth what is required of an employee and an "employer during the interactive process. The court stated the following: "To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Taylor ...

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