SELENA Y. HANCOCK, Plaintiff,
WASHINGTON HOSPITAL CENTER, Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT L. WILKINS United States District Judge
Plaintiff Selena Hancock (“Hancock”) was formerly employed as a medical assistant at the Washington Hospital Center (“WHC”). She commenced this action in March 2010, alleging that WHC failed to accommodate her disabling nerve conditions known as Polyradiculopathy and Polyneuropathy and wrongfully terminated her in violation of the Americans with Disabilities Act (“ADA”). A jury trial commenced on August 30, 2013.
At the close of WHC’s case, Hancock moved for judgment as a matter of law under Rule 50(a) on her failure-to-accommodate claim and on WHC’s affirmative defense of failure to mitigate damages. Sept. 4, 2013, Trial Transcript (“Tr.”) at 105:22-109:16. Consistent with the best practices governing pre-verdict motions, the Court reserved ruling on Hancock’s motion. See 9-50 Moore’s Federal Practice-Civil § 50.33 (“[I]t is often the better and safer practice for trial courts to refrain from granting a pre-verdict motion for judgment until after the jury reaches or fails to reach a verdict. The primary reason for this practice is that if it becomes necessary to grant the motion, the jury verdict may be reinstated without a costly retrial if the reviewing court finds that judgment as a matter of law was erroneously granted.”); Mattivi v. South African Marine Corp. “Huguenot, ” 618 F.2d 163, 166 n.2 (2d Cir. 1980); Hladyshewski v. Robinson, 557 F.2d 1251, 1255 n.3 (8th Cir. 1977) (“[T]he preferred practice is to reserve ruling on a motion for a directed verdict until after the verdict in order to avoid a retrial with its resulting delay, trouble and expense and the possibility of a second appeal.”) (internal quotation marks and citations omitted); Fed.R.Civ.P. 50 (Advisory Committee Notes) (“[T]he court may often wisely decline to rule on a motion for judgment as a matter of law made at the close of the evidence[.]”). After the jury returned a verdict in favor of WHC, the Court denied Hancock’s Rule 50(a) motion on the grounds that, taking the evidence in the light most favorable to the non-movant, a reasonable juror could find in favor of WHC. Sept. 5 Tr. at 29:18-30:10. Hancock now renews her motion for judgment as a matter of law under Rule 50(b) and, alternatively, moves for a new trial under Rule 59(a). Upon careful review of the entire record, the parties’ written submissions and arguments put forth at the motions hearing, the Court DENIES Hancock’s motions.
I. Judgment as a Matter of Law
a. Legal Standard
After a jury trial, a court may grant a motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure if it finds that “a reasonable jury would not have had a legally sufficient evidentiary basis to find for the party on that issue[.]” Fed.R.Civ.P. 50(a)(1). The court deciding on a motion for judgment as a matter of law must consider the evidence in the light most favorable to the non-movant and disregard all evidence favorable to the moving party that the jury is not required to believe. Huthnance v. District of Columbia, 793 F.Supp.2d 183, 196-97 (D.D.C. 2011); In re Lorazepam & Clorazepate Antitrust Litig., 467 F.Supp.2d 74, 80 (D.D.C. 2006); Thomas v. Mineta, 310 F.Supp.2d 198, 203 (D.D.C. 2004). In addition, the court “is not to resolve legitimately disputed issues of fact already decided by the jury, ” even if it finds “the evidence that led to the jury verdict unpersuasive, or that it would have reached a different result if it were sitting as the fact-finder.” Halcomb v. Woods, 767 F.Supp.2d 123, 134-35 (D.D.C. 2011) (internal quotation marks and citations omitted). The court should grant the motion only when “the non-movant’s evidence is so insufficient that a reasonable finder of fact could not possibly find for the non-movant.” Id. (internal quotation marks and citations omitted); see also In re Lorazepam, 467 F.Supp.2d at 80.
Hancock contends that she is entitled to judgment as a matter of law on her failure-to-accommodate claim because she proved that (1) she is a disabled person within the meaning of the ADA and WHC had notice of her disability; (2) she is a qualified individual with a disability under the ADA because she performed the essential functions of a medical assistant with an accommodation of no triage; (3) she requested light duty of no triage and no lifting over fifteen to twenty pounds as a reasonable accommodation; and (4) although WHC had previously granted the requested accommodation, WHC refused to continue to provide accommodation because it wanted Hancock to return to full duty, and ultimately terminated her. WHC counters by arguing that (1) Hancock is not a qualified individual because she could not perform the essential function of triage; (2) Hancock failed to demonstrate that the requested accommodation was reasonable; and (3) WHC reasonably accommodated Hancock’s condition by allowing her to take a leave of absence.
The ADA prohibits discrimination against qualified individuals on the basis of disability. 42 U.S.C. § 12112(a). It defines a qualified individual as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA does not require an employer to reallocate essential functions in order to accommodate an employee’s disability. 29 C. F. R. Pt. 1630, App. § 1630.2(o); see also Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (“An employer is not required by the ADA to reallocate job duties in order to change the essential functions of a job.”); Terrazas v. Medlantic Healthcare Grp., Inc., 45 F.Supp.2d 46, 53 (D.D.C. 1999). Accordingly, a plaintiff seeking to establish a prima facie case of discrimination for failure to accommodate under the ADA must demonstrate that (1) she was an individual who had a disability within the meaning of the statute; (2) the employer had notice of her disability; (3) with reasonable accommodation she can perform the essential functions of her job; and (4) the employer refused to make such accommodations. Etheridge v. FedChoice Fed. Credit Union, 789 F.Supp.2d 27, 35 (D.D.C. 2011) (citing Lytes v. D.C. Water and Sewer Auth., 527 F.Supp.2d 52, 60 (D.D.C. 2007), aff’d, 572 F.3d 936 (D.C. Cir. 2009)); Spelke v. Gonzales, 516 F.Supp.2d 76, 81 (D.D.C. 2007). Here, the Court finds that Hancock is not entitled to judgment as a matter of law with respect to her failure-to-accommodate claim because a reasonable jury could have found that Hancock was not a qualified individual and that the requested accommodation of no triage was unreasonable.
Generally, the question of what constitutes an essential function of a job is a factual issue to be determined by a jury. See Baker v. Potter, 294 F.Supp.2d 33, 44 (D.D.C. 2003) (collecting cases). In the instant case, the parties stipulated in their pretrial statement that Hancock’s duties as a medical assistant included “registering patients, triaging patients, billing, and patient referrals, assisting nurses, cleaning exam rooms, stocking and ordering supplies, answering telephones.” Joint Pre-Trial Statement at §5(B) (Dkt. No. 33). The parties further stipulated that triaging patients, which entails “preparing patients to be seen by a physician, escorting patients to the exam room, and taking and recording patients’ information in their charts, ” was an essential function of Hancock’s job. Id. at § 5(B)-(C). At trial, witnesses from both parties testified that Hancock was placed on modified duty and periodically excused from performing triage because her disability prevented her from lifting over twenty pounds and triaging patients. In other words, the evidence presented at trial established that Hancock was unable to perform an essential function of her job, with or without accommodation.
Nevertheless, Hancock claims that she is a qualified individual within the meaning of the ADA because WHC “waived” the essential function of triage by accommodating her request for modified duty with no triage for a period of time. Based on the same reasoning, Hancock also argues that WHC failed to reasonably accommodate her when it refused to continue to accommodate her request for light duty with no triage. The Court disagrees.
Contrary to Hancock’s claim, the mere fact that an employer voluntarily accommodates an employee’s disability by temporarily eliminating an essential function does not mean that the employer has irrevocably waived the essential function of the job. Nor does it mean that an employee who is unable to perform an essential function of her job with or without accommodation is a qualified individual within the meaning of the ADA. At the motions hearing, counsel for Hancock failed to cite a single case in support of her waiver argument. See Dec. 9, 2013 Mot. Hr’g. Tr. Indeed, it appears that the case law on this issue overwhelmingly favors the contrary view, that is, an employee who cannot perform an essential function is not a qualified individual under the ADA, even if the employer previously chose to accommodate the employee by excusing the employee from performing the essential function. See, e.g., Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003); Amadio v. Ford Motor Co., 238 F.3d 919, 929 (7th Cir. 2001) (“[T]he fact that Ford generously granted extended leaves to its employees-in rare cases, up to two years-does not necessarily bind Ford to repeatedly grant successive leaves to [plaintiff, ]” where plaintiff is unable to perform the essential functions of his job and does not qualify for protection under the ADA) (emphasis in original); Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995).
Similarly, an accommodation that eliminates an essential function of a job is unreasonable under the ADA, even if the employer voluntarily provided such an accommodation in the past. See, e.g., Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3rd Cir. 1999) (employer’s decision to discontinue the accommodation of unpaid leave does not violate the ADA where the absent employee would not be performing the essential functions of her position); Hill v. Harper, 6 F.Supp.2d 540, 544 (E.D. Va. 1998) (previous accommodation that effectively eliminated the essential function of a jail deputy is not a reasonable accommodation, and employer was not required to continue the accommodation); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997) (declining to require the employer city to continue to accommodate plaintiff police officer by eliminating an essential function of the job).
Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) is particularly instructive. There, plaintiff, a staff nurse at a hospital, was unable to perform the normal tasks of her job due to back injuries. To accommodate her disability, the manager of plaintiff’s unit created a special position of “medication nurse” and allowed plaintiff to share her patient load with her sister who worked in the same unit. When a new manager took over plaintiff’s unit and concluded that plaintiff was unable to perform the essential functions of the clinical nurse position, she dismissed plaintiff. Id. at 24. Noting that several courts have held that, “even when an employer and employee have made arrangements to account for the employee’s disability-a court must evaluate the essential functions of the job without considering the effect of the special arrangements, ” the court in Phelps held that “[t]he fact that an employee might only be assigned to certain aspects of a multi-task job does not necessarily mean that those tasks to which she was not assigned are not essential.” Id. at 25-26 (citing cases). The court further rejected plaintiff’s argument that given the special work sharing arrangement, lifting was not an essential function with respect to plaintiff, holding that “evidence that accommodations were made so that an employee could avoid a particular task ‘merely shows the job could be restructured, not that [the function] was non-essential.’” Id. at 26 (citing Basith v. Cook County, 241 F.3d 919, 930 (7th Cir. 2001)). The same reasoning applies here.
It is undisputed that triage was an essential function of Hancock’s position. It is also undisputed that Hancock was medically restricted from performing triage due to her disability. At trial, several witnesses testified to the gravity of Hancock’s disability: Dr. Ross Myerson, medical director for occupational medicine at WHC, testified that Hancock told him that she could not do her full job, Sept. 3 Tr. at 146:13-16; Dr. Patrick Noel, Hancock’s treating physician, likewise indicated on various disability benefit forms that Hancock was unable to perform the essential functions of her job and may have been permanently damaged. See, e.g., testified that due to Hancock’s restrictions, other medical assistants were forced to work on the floor more often. Sept. 3 Tr. at 118:20-119:19. Furthermore, at the conclusion of the trial, the jury was instructed that while an employer may reallocate essential job functions as a reasonable accommodation, “the fact that the defendant may have offered certain accommodations to an employee or employees in the past does not mean that the same accommodations must be forever extended to the plaintiff, or that those ...