The Employer's Legal Resource: Tenth Circuit Says Deaf Applicant's ADA Claim Survives Summary Judgement - Reasonableness of Proposed Accomodations Goes to Jury

09.01.15

Kelly Osborne applied to work as a plasma center technician at BioLife Plasma Services (an arm of Baxter Healthcare Corporation) in Cheyenne, Wyoming.  The technician position performed three primary functions: (1) taking plasma donors' medical history, (2) monitoring the area where donors give plasma to watch for adverse reactions, and (3) working in the sample preparation area where donated plasma is processed and stored.  Osborne made it clear in both of her interviews in August 2008 that she was deaf and communicated primarily through lip reading.  BioLife made a conditional offer of employment to Osborne contingent upon a background check, drug test, and medical screening.  But after receiving Osborne's medical paperwork, BioLife rescinded Osborne's offer of employment.  BioLife stated that Osborne could not safely monitor the donor area of the facility because she could not hear the audible alarms on the plasmapheresi s machines, which sound when something goes wrong or needs attention, and therefore could not perceive a donor's need for attention when she was not looking directly at the donor.

Osborne filed a lawsuit alleging that BioLife's revocation of her job offer violated the Americans with Disabilities Act (ADA).  The trial court initially granted summary judgment in favor of BioLife but Osborne appealed that decision to the Tenth Circuit.  Both parties agreed that Osborne was disabled (because of her deafness), that her conditional offer of employment was rescinded because of her disability, and that she would not be qualified for the technician position without an accommodation.

Thus, the only issue to be decided by the court was whether Osborne would be qualified for the technician position with a reasonable accommodation. Osborne suggested three separate reasonable accommodations: job restructuring, visual or vibrating alerts, and call buttons.  Osborne argued that these reasonable accommodations would allow her to perform the essential function of perceiving the alarms on the plasmapheresis machines and engaging in donor monitoring.

The court decided that Osborne's first suggested accommodation--job restructuring to allow Osborne to spend more time in the sample preparation area and less time in the phlebotomy area where donor monitoring takes place--would not be a reasonable accommodation because it would still leave Osborne responsible at least to some extent for the essential function of donor monitoring that she is unable to perform.  The court noted that an employee must be able to perform all of a position's essential functions, even if they are rarely called upon to perform them.  And for an accommodation to be reasonable, it must actually enable the employee to perform the essential functions at issue.

Osborne next suggested that visual or vibrating alerts be added to the plasmapheresis machines, which would notify her when the alarms on the machines sound.  The ADA's definition of reasonable modification specifically includes "acquisition or modification of equipment or devices."  The EEOC has said the use of appropriate emergency notification systems--like strobe lights or vibrating pagers that Osborne suggests--is one form of reasonable accommodation for a deaf employee, including those in healthcare settings.  It is clear that Osborne did enough to show that visual or vibrating alerts were a reasonable accommodation on their face and she is required to do no more at this time.  The Tenth Circuit determined that the trial court misallocated the burden of proof by requiring Osborne to show not only that her proposed accommodation is reasonable on its face, but also that the proposed accommodation would be feasible for BioLife to implement. Osbo rne was only required to show that the equipment modification for a deaf employee was reasonable on its face. It was then BioLife's burden to show whether they could implement the equipment modifications without undue hardship.  Considerations about how much alarms would cost, when they could be added in the production process, and who would install them are considerations BioLife, as the employer, must identify with specificity to illustrate why the proposed accommodations would not be feasible; employees like Osborne are ill equipped to provide evidence about whether an accommodation is feasible for an employer.  BioLife testified that it was unable to modify the machines on its own and any modification would have to be requested through its vendor, but BioLife did not otherwise investigate the possibility of equipment modifications suggested by Osborne.  BioLife has not shown that the specific modifications here are costly or difficult, and merely noting that the modifications would require BioLife to contact its vendor does not show undue hardship and fails to satisfy BioLife's burden of showing it would be not be feasible to implement Osborne's proposed accommodation regarding visual or vibrating alerts.  The Tenth Circuit said this left a question of fact for the jury to decide on this issue.

However, the proposed visual and vibrating alerts would not allow Osborne to perform the full range of essential functions of the technician position unless additional accommodations were also adopted.  The visual and vibrating alerts would address BioLife's concerns about the plasmapheresis machine, but would not enable Osborne to perform the essential function of donor monitoring more generally.  Thus, although there remains an issue of fact about whether the visual and vibrating alerts would allow Osborne to perceive the alarms on the plasmapheresis machines, this determination does not merit reversal of the trial court's granting of summary judgment in favor of BioLife unless Osborne's remaining accommodation, in tandem with the visual and vibrating alerts, would permit her to perform the other essential functions of the technician position.

The third accommodation Osborne proposed is to issue call buttons to donors to notify her if they experience discomfort or distress, which she argues would allow her to perform the essential function of donor monitoring.  BioLife disagreed, arguing that there are limited circumstances where Osborne might not be able to safely perform the essential functions of the technician position even with the call buttons and other accommodations she requests.  Osborne claimed the potential mishaps BioLife identified were so remote and hypothetical that they do not implicate her ability to perform the essential function of donor monitoring.  To determine whether Osborne is qualified for the technician position and can safely perform its essential functions without endangering others (with or without a reasonable accommodation), the court considered whether she was a "direct threat," which the ADA defines as "a significant risk to the health or safety of other that cannot be eliminated by reasonable accommodation."  Relevant factors in this inquiry include the nature, duration, severity, and probability of any risk.  "Whether one is a direct threat is a complicated, fact intensive determination, not a question of law.  To determine whether a particular individual performing a particular act poses a direct threat to others is a matter for the trier of fact to determine after weighing all of the evidence about the nature of the risk and potential harm.  Permitting employers to obtain summary judgment by identifying such unlikely scenarios would eliminate ADA protection for disabled individuals working in professions where they might be tasked with the health and safety of others."  The Tenth Circuit concluded that "because the specific kinds of donor reactions and attendant factual circumstances BioLife identifies are neither likely nor in each instance necessarily serious, they do not undermine Osborne's abil ity to fulfill the essential function of donor monitoring with reasonable accommodations."  Specifically, "the infinitesimal risk of these hypotheticals occurring simultaneously...does not come anywhere close to constituting a direct threat."  The trial court incorrectly held that the potential of a donor's severe reaction--even if statistically de minimis--was enough to issue summary judgment, but the Tenth Circuit clarified that Osborne is not required to prove that her requested accommodations "would eliminate every de minimis health or safety risk that BioLife can hypothesize" and summary judgment should not have been granted.  "Whether the risk of a series of hypotheticals occurring is sufficiently real, whether any such risk is greater than one pertaining to a hearing person, and whether any such risk renders Osborne unqualified to perform the essential function even with the aid of reasonable accommodations are questions of fact for the jury, not que stions for the district court to decide as a matter of law."

In addition to the visual and vibrating alerts, giving call buttons to plasma donors is a reasonable accommodation on its face that would alert Osborne if a donor was experiencing an adverse reaction, therefore allowing Osborne to perform the essential functions of the technician position.  Call buttons are common in hospitals and other medical settings and there is no reason to believe they would be less effective in the plasma donation context.  Use of call buttons is not markedly different than donors verbally calling out to employees--they do not place any additional burden on the donor than the donor already bears to get a technician's attention if necessary, and a donor losing consciousness would be unable to both verbally call out or press the call button.  Since Osborne has shown that the call button accommodation is reasonable on its face and BioLife has not shown that such accommodation would be infeasible or an undue hardship, the Tenth Circu it determined that Osborne had raised a genuine issue of material fact as to whether the call buttons, used in conjunction with visual or vibrating alerts, would allow Osborne to perform the essential function of donor monitoring (specifically, perceiving and responding to adverse donor reactions), thereby making summary judgment inappropriate and requiring that the issue be submitted for the jury to decide.

By Rebecca D. Stanglein, rstanglein@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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