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Feb. 11 — A female former medical assistant in Oklahoma who had a breast infection that lasted about two to three weeks did not have a disability within the meaning of the Americans with Disabilities Act, a federal judge ruled Feb. 7 (McKenzie-Nevolas v. Deaconess Holdings LLC,2014 BL 33654, W.D. Okla., No. 5:12-cv-00570, 2/7/14).
Ruling for Deaconess Holdings LLC, Judge Timothy D. DeGuisti of the U.S. District Court for the Western District of Oklahoma found that, even under the broad coverage afforded by the 2009 ADA Amendments Act, Susan McKenzie-Nevolas failed to show she had a physical impairment that substantially limited a major life activity.
Given that McKenzie-Nevolas's infection was “limited to one part of her body,” and “was not chronic but temporary and of short duration,” the court found that it was not a disability that affected major bodily functions related to her skin and connective tissue.
The ruling follows the first federal appeals court decision to apply the ADAAA's expanded definition of disability to include temporary impairments that are sufficiently severe enough to substantially limit a major life activity (Summers v. Altarum Inst., Corp., 2014 BL 18348, 29 AD Cases 1 (4th Cir. 2014)), and adds to a growing body of case law at the district court level discussing temporary, short-term or non-severe conditions that will not be considered disabilities under the law.
Apart from her inability to establish a disability, the district court held, McKenzie-Nevolas's ADA discrimination claim must fail because her excessive absenteeism demonstrated that she could not perform the essential functions of her job with or without reasonable accommodation.
In addition, the court dismissed her ADA retaliation claim because she did not include that claim in the bias charge she filed with the Equal Employment Opportunity Commission before bringing suit.
According to the court, McKenzie-Nevolas began working for Deaconess in March 2010 and began experiencing tenderness in her left breast by early December.
She was diagnosed with infectious mastitis, or inflammation of her mammary glands caused by a bacterial infection, and was prescribed antibiotics.
Although the infection seemingly cleared up by Dec. 15, McKenzie-Nevolas continued to experience breast pain and she underwent an MRI to determine if she had an abscess. The MRI found no abnormalities.
In January 2011, McKenzie-Nevolas consulted a general surgeon, who observed no skin changes, masses, redness or pain in either breast. None of McKenzie-Nevolas's medical providers placed any work restrictions or limitations on her.
During the period in which her mastitis symptoms were present and she sought treatment, McKenzie-Nevolas took eight days off from work, was partially absent on two days and had at least one extended lunch break.
In the eight months before that time, however, she already had amassed 23 occasions in which she either left work early or took entire days off because of her own illnesses and doctor's appointments or because she was caring for a family member.
Deaconess's discipline and termination policy provides that excessive absenteeism may result in termination. McKenzie-Nevolas received oral and written warnings for excessive absences, and she was fired Jan. 25, 2011.
She filed an EEOC charge alleging discrimination, but checked only the box for “disability” and not “retaliation” on the agency's form. She eventually filed an ADA bias and retaliation suit against Deaconess, and the company moved for summary judgment.
Granting the motion, the district court ruled that McKenzie-Nevolas failed to establish two elements of a prima facie case of disability discrimination under the ADA.
First, it said, she did not demonstrate that she had an actual disability within the meaning of the law, which requires a showing of a physical or mental impairment that substantially limits one or more major life activities. The court observed that the ADAAA amended the law to include major bodily functions to the definition of major life activities.
Here, McKenzie-Nevolas argued that her infectious mastitis was a physical impairment that substantially limited the “functioning of her skin, connective tissue, and internal organs, and her circulatory system,” the court said.
Rejecting that contention and pointing to district court rulings in the Second, Third and Fourth circuits, the court said “case law recognizes that temporary, short-term or non-severe conditions do not satisfy the definition of disability.”
McKenzie-Nevolas's infection was “limited to the skin and soft tissue of the left breast” and lasted about two to three weeks “at most,” the court said.
“Because Plaintiff's infection (impairment) was limited to one part of her body and was not chronic but temporary and of short duration, the Court finds that there is no genuine issue of material fact regarding disability, and that Plaintiff did not have a disability which substantially limited one or more major life activity, i.e., which substantially limited the operation of Plaintiff's skin and soft tissue,” the court concluded.
Second, the district court found that McKenzie-Nevolas failed to show that she was qualified to perform the essential functions of her job, with or without reasonable accommodation.
The court said the requirement of “physical presence or attendance” during clinic hours to assist doctors is “inherent” in the duties of a medical assistant.
“Because of Plaintiff's excessive absences, there is no genuine issue of material fact that she was not qualified for her position within the meaning of the ADA,” it said. “Reasonable jurors could not find otherwise.”
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/McKenzieNevolas_v_Deaconess_Holdings_LLC_Docket_No_512cv00570_WD_.
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