Hennagir v. Utah Department of Corrections

Citations: 587 F.3d 1255; 22 Am. Disabilities Cas. (BNA) 1182; 2009 U.S. App. LEXIS 28841; 2009 WL 4068331Docket: 08-4087

Court: Court of Appeals for the Tenth Circuit; November 25, 2009; Federal Appellate Court

Original Court Document: View Document

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Barbara Hennagir, the Plaintiff-Appellant, filed a petition for panel rehearing regarding her claims against the Utah Department of Corrections and several officials. The court denied her petition concerning the disability discrimination claim but granted it in part regarding her retaliation claim, acknowledging a need to amend its original opinion based on her assertion that the facts were misconstrued. The case involves the Americans with Disabilities Act (ADA) and addresses whether infrequently required job functions can be deemed essential. The court concluded that if the consequences of failing to perform such a function are severe, it may be considered essential, and that it is unreasonable for an employee to request job duties without the disputed essential function. Hennagir, employed as a physician's assistant, could not complete a newly mandated physical safety training requirement due to physical impairments and alleged disability discrimination when her request to continue without fulfilling this requirement was denied. The court affirmed the district court's summary judgment in favor of the defendants, noting that Hennagir had been employed by the Department of Corrections from 1997 until 2005, during which time the requirement for POST certification was introduced for medical staff in response to safety concerns.

In 2001, the Department of Corrections (DOC) sought to clarify whether incumbent employees could be exempted from the POST certification requirement. In 2002, after consulting Utah Retirement Systems, DOC determined that all clinical personnel in positions involving inmate contact, including Hennagir as a Physician Assistant (PA), would need POST certification to enroll in the Public Safety Retirement (PSR) program. Hennagir, who has multiple medical conditions limiting her physical abilities, was allowed to attend a POST academy in October 2002 but exempted from physical activities due to her health issues. By October 2003, she was informed that her inability to meet the POST requirement would prevent her from continuing her role at Gunnison. Hennagir filed a grievance in November 2003, claiming harassment due to her disability and arguing for a "grandfather" exemption. DOC Director David Worthington stated he could not grant this exemption and offered her a position at the Olympus Facility, over 100 miles from her home, which she deemed unacceptable. After an internal appeal, Deputy Director Scott Carver confirmed that DOC could not change the POST requirement. Hennagir’s grievance was put on hold for further review, but she filed a charge of disability discrimination with the Utah Anti-Discrimination and Labor Division on April 7, 2004, which was forwarded to the EEOC. In July 2004, DOC concluded that all Gunnison PAs required POST certification and presented Hennagir with the choice of transferring to Olympus or facing termination. Instead, she took medical leave under the Family and Medical Leave Act and subsequently went on long-term disability due to surgeries. While on leave, she filed a second EEOC charge alleging retaliation regarding a performance evaluation that was reportedly altered under pressure from DOC Medical Director Richard Garden, despite her supervisor giving her an “exceptional” rating.

On April 27, Hennagir received a performance evaluation rating her "unsuccessful" in job knowledge and problem-solving, yet overall rated her as "successful." She signed the evaluation but disagreed with the judgment. A subsequent evaluation revised her problem-solving rating to "successful," and she agreed with this version. Hennagir's second EEOC charge claimed that Garden unjustly questioned her patient treatment and that her proposed transfer to Olympus was retaliatory due to her disability discrimination complaints. In March 2005, the EEOC found reasonable cause for her disability discrimination claim and deemed DOC's transfer offer unreasonable. After failed conciliation attempts, DOC proposed one final position, which Hennagir declined, leading to her termination on August 29, 2005. The EEOC referred the case to the DOJ, which issued a right to sue notice, and Hennagir filed her complaint alleging ADA violations. DOC successfully obtained summary judgment, with the district court ruling that Hennagir was neither disabled nor qualified for the position at Gunnison, that her accommodation requests were unreasonable, and that the actions taken by DOC were for legitimate reasons. The court reviewed the summary judgment de novo, affirming that Hennagir could not establish she was a "qualified individual" under the ADA, thus not needing to address other claim elements. Hennagir had the burden to prove her ability to perform essential job functions, which included POST certification, necessitating an assessment of whether DOC required this for all employees in her position.

POST certification is deemed fundamental to the Gunnison PA position, based on several critical factors outlined in 29 C.F.R. 1630.2(n)(1). These factors include the employer's judgment on essential functions, pre-advertisement job descriptions, the time spent on job functions, consequences of not requiring performance of those functions, collective bargaining agreements, and the work experience of past and current incumbents. The analysis does not aim to second-guess the employer's standards, provided job specifications are job-related and enforced uniformly.

Evidence indicates that all PAs at Gunnison must achieve POST certification, a requirement established under URS rules following PSR enrollment approval. Testimony from Medical Director Garden confirms that all medical staff, including doctors and nurses, have attained this certification. Hennagir does not dispute this but contends that POST certification was not a requirement at her hiring and that she performed effectively without it for years. However, the essential function inquiry considers the requirements at the time they were imposed, not at the time of hire. 

The unanimous consensus among decision-makers at the DOC asserts the importance of POST certification, which was pursued as early as 1998 to address security concerns within the institution. The Executive Director emphasized that medical staff, like certified corrections officers, have direct inmate contact, exposing them to various risks. This certification aims to ensure safety and equip staff to handle potential dangers effectively. The significance of this requirement is further underscored by a past incident in 1999, where a medical technician was attacked by an inmate, highlighting the real risks associated with the role.

The State Risk Management Division recommended a POST certification requirement due to the severe potential consequences of inmate attacks, emphasizing the need for employees with direct inmate contact to receive emergency response training. Hennagir, who spent significant time with inmates, argued she had never needed emergency training during her eight years at Gunnison, and cited the experiences of other employees. However, this argument was deemed insufficient to raise a material issue of fact, as established case law indicates that the potential for physical confrontations exists daily in such roles, making emergency response training an essential job function. The court referenced similar cases where the ability to restrain or manage potentially dangerous situations was deemed critical, regardless of the frequency of such incidents. Following the conclusion that POST certification is essential, the court examined whether reasonable accommodations could enable Hennagir to fulfill this requirement. Hennagir claimed that the Department of Corrections (DOC) failed to accommodate her inability to obtain POST certification and proposed three accommodations: a waiver of the requirement, being “grandfathered” into her position, and a job title alteration. The burden of proof lies with her to establish the reasonableness of these accommodations before it shifts to the employer to demonstrate an inability to provide them.

Proposals for accommodations made by Hennagir are deemed unreasonable as they effectively seek a waiver of the essential POST certification requirement necessary for her position as a Physician's Assistant at Gunnison. Hennagir's suggested modifications do not allow for the completion of this training, violating the principle that reasonable accommodations must enable an employee to perform essential job functions without altering or eliminating such functions. Courts have established that employers are not obliged to accommodate requests that remove essential job responsibilities. Hennagir's assertion that the Department of Corrections (DOC) failed to engage in an interactive process for reasonable accommodation does not warrant recovery unless she first demonstrates that a reasonable accommodation was feasible. Her proposals do not meet this standard, which is critical for opposing a motion for summary judgment. The unique security needs of a prison environment further complicate accommodation considerations; thus, the ADA requires Hennagir to propose accommodations that ensure safety while performing her job. Consequently, DOC is entitled to summary judgment on Hennagir’s reasonable accommodation claim. Additionally, Hennagir's retaliation claim requires proof of protected opposition to discrimination, a materially adverse action, and a causal link between the two, which remains unestablished in her case.

In Proctor v. United Parcel Serv., the court outlines the burden-shifting framework for retaliation claims under the ADA and Title VII. Once a plaintiff establishes a prima facie case, the defendant must provide a legitimate, nondiscriminatory reason for the adverse action; if successful, the burden returns to the plaintiff to demonstrate that the employer's reason is a pretext for discrimination. Hennagir did not dispute that she engaged in protected activities before filing her retaliation charge with the EEOC. Her claims of retaliation include a threatened transfer, a lowered performance evaluation, and being blamed for improper medical care.

The court determines that these actions do not constitute retaliation. It emphasizes that the ADA's anti-retaliation provision protects individuals only from materially adverse actions that would dissuade a reasonable employee from making discrimination claims. Hennagir's claim regarding the transfer fails because the threat of termination predated the grievance, making the transfer offer not materially adverse. Additionally, while Hennagir argues that changes in her performance evaluation and blame for medical care were retaliatory, she fails to establish a causal connection or provide evidence that the DOC's reasons were mere pretext. The temporal proximity between her grievance and the alleged retaliatory actions was insufficient, as the events were separated by months, aligning with precedents that suggest close timing is crucial for establishing a causal link in retaliation claims.

A strong temporal connection is established between Hennagir's EEOC complaint and the subsequent alteration of her evaluation, as the Human Resource Director was informed of the complaint just one day prior to the revised evaluation being signed. For an ADA retaliation claim, a plaintiff must show that the individual responsible for the adverse action was aware of the protected activity. While Garden, the individual involved, claimed he could not recall when he learned of Hennagir’s complaint, the circumstances suggest he was likely aware of it. DOC acknowledged the complaint, named Garden as a respondent, and he acted the day after DOC received notice. Despite this, DOC provided a legitimate reason for the evaluation change, citing concerns over Hennagir's alleged inadequate medical care leading to potential liability for DOC employees. The burden then shifted to Hennagir to prove this reason was a pretext. Her sole argument was that the alleged inadequate care occurred over two years before the evaluation change. However, the April 2004 evaluation was the first opportunity to reflect the lawsuit related to the claimed inadequate care. Consequently, Hennagir failed to create a significant factual dispute regarding the legitimacy of DOC's reasoning. The court concluded that Hennagir did not establish a genuine issue of material fact for her retaliation claim, leading to the dismissal of her Rehabilitation Act claim as well, given that the standards for claims under the Rehabilitation Act align with those under the ADA. The decision was affirmed.