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.
III. DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW
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 ...