United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS United States District Judge
Roxanna Jackson filed this action against her former
employer, St. Vincent Healthcare, for disability
discrimination, age discrimination, retaliation, and wrongful
discharge. (Doc. 1-1). Now pending is St. Vincent's
motion for summary judgment on all of Jackson's claims.
(Doc. 16). As discussed below, genuine issues of material
fact exist respecting some of the remaining claims.
Accordingly, the Court grants St. Vincent's motion in
part and denies it in part.
Statement of Facts
Jackson has had speech and learning disabilities her entire
life. (Jackson Depo., Doc. 19-1 at 51:19-22;
Douglas Jackson Depo., Doc. 19-5 at 66:19-20). She
went through high school under a special needs program and
received her education under a special needs diploma.
(Id. at 66:2267:2). She attended a YMCA/YWCA special
needs training program to learn self-care skills.
mid-1970s, she graduated from high school and applied to St.
Vincent Healthcare for a job in central processing
("CP"). (Jackson Depo., Doc. 19-1,
14:25-15:3). Although Jackson had special needs, her cousin
knew St. Vincent's director and explained Jackson's
situation. (Douglas Jackson Depo., Doc. 19-5,
65:23-67:25). St. Vincent hired Jackson as a CP aide.
(Jackson Depo., Doc. 19-1, 23:9-10). Jackson
delivered sterile trays, linens, and machines throughout the
hospital. (Id. at 19:12-21). She washed and
sterilized dirty instruments, wrapped them, and occasionally
filled carts with items for delivery. (Id. at
19:12-20:5). Although other aides were trained to do more,
Jackson was initially limited to these duties because of her
disability. (Id. at 23:18-18).
years into her employment, Jackson asked to become a CP tech
so that she could make more money. (Id. at
21:17-22:1), CP tech duties included disassembling carts,
sterilizing equipment and instruments, wrapping clean
supplies and instruments, maintaining records for all
instruments, transporting sterilized items, instrument
assembly, checking instruments for cleanliness and
impairments, checking power equipment, reporting and
documenting missing instruments, maintaining instrument
coding systems, inventorying equipment status, back orders,
and changes and communicating the status to staff, and making
sure that all emergency, trauma, and add-on cases are picked
and sent to the operating room in a timely manner. (Doc.
19-12). Techs were required to be capable of performing all
aspects of the job in the event they had to work a weekend
alone. (Jackson Depo., Doc. 19-1 at 37:15-38:6).
Jackson had previously learned and completed all the other
tasks as an aide and was knowledgeable in them, so all she
needed was training in completing the instrument sets, which
she received. (Id. at 25:14-25).
her tenure as a tech, Jackson was open with her co-workers
about the fact that she had a disability and she experienced
various accommodations. For example, although she could
perform all of the duties required to be a tech,
(id. at 104:22-23; Hoffman Depo., Doc. 19-3
at 21:9-16), her manager, Diane Larson, did not typically
have her work with the instruments because of her disability.
(Jackson Depo., Doc. 19-1 at 26:6-10, 26:20-22).
Also, Larson and the evening head tech, David Wilcox, would
switch Jackson out of instruments to another task if the
instrument area was busy or if Jackson did not have a helper.
(Id. at 99:14-24; 96:25-97:3). From the time she was
promoted in 2006, Jackson worked successfully as a tech; she
was never subjected to any discipline whatsoever until 2013.
(Smith Depo., Doc. 19-7 at 12:15-24; 29:10-19).
2013, David Dobson became the director of OR, surgical,
procedural, and support services, which included oversight of
CP. (Dobson Depo., Doc. 19-9 at 4:16-5:9; 7:4-18;
8:10-16). As director, Dobson had control over policies and
procedures in CP and he played a role in the discipline of
the CP techs. (Id. at 9:22-10:3; 11:4-11; 14:7-25).
After meeting Dobson, Jackson told him that she had special
needs. (Jackson Depo., Doc. 19-1 at 49:13-50:12). He
told her he had worked with people with special needs before.
(Id. at 50:13-15). Dobson promoted Jackson's
co-worker, Heather Franzel, to be the CP department manager.
(Id. at 9:19-21; Franzel Depo., Doc. 19-6
at 13:22-14:1). Franzel had also worked with Jackson since
2007, and knew she had a disability. (Id. at
15:19-16:4; Jackson Depo., Doc. 19-1 at
long after Franzel became Jackson's manager, Franzel told
Jackson that she was "going too slow on the
instruments." (Jackson Depo., Doc. 19-1 at
30:1-9). Periodic time trials were implemented to measure the
amount of time it took employees to put instrument trays
together. (Smith 30(b)(6) Depo., Doc. 19-8 at
58:7-11). According to CP supervisor Amanda Mordhorst, the
sole purpose of the time trials was to determine how long
employees were taking to complete instrument trays.
(Mordhorst Depo., Doc. 19-2 at 26:4-7). These trials
were not typical procedure in the CP department. (Franzel
Depo., Doc. 19-6 at 53:2-19). Through the trials,
Franzel learned how long it took Jackson to complete her
instrument trays. (Id. at 54:20-55:13). She
contacted Human Resources Manager Annette Hoffman with
concerns about the time it took Jackson to process different
types of instrument trays. (Hoffman Depo., Doc.
19-3. at 12:8-15).
Franzel, Mordhorst, and Human Resources business partner
Melissa Young met with Jackson and discussed the time Jackson
took to complete instrument sets and advised her of the needs
of the job and expectations. (Id. at 13:3-11). They
discussed retraining with Jackson as a means to meet their
expectations. (Id. at 13:8-11). They did not talk
about her disability or any restrictions Jackson had.
(Id. at 13:25-14:5). On July 24, 2013, Dobson and
Franzel met again with Jackson and discussed "high,
medium, and low perspectives of Productivity in the Central
Processing Department to establish expectations." (Doc.
16-8, ¶ 1; Doc. 19-21). Franzel wanted Jackson to
improve her instrument assembly time. (Franzel Depo.
Doc. 19-6 at 47:24-48:1).
October 10, 2013, Jackson received her first disciplinary
notice or "correction action form" regarding her
work. (Id.; Doc. 16-8; Doc. 19-21). Specifically,
Jackson was advised that "[t]he request to improve your
technical skills to be able to maintain the instrumentation
area has not been met" and that changes in her
"productivity skills" had not occurred. (Doc. 16-8
at ¶ 2). The form also stated, "we asked that if
you needed assistance to make us aware and we would provide
the training and a means of measure to improve on. To date,
there has been only one request to the lead tech and none to
[Franzel]. As a result, you have either (sic) not taken on
the tasks that would require you to improve your performance,
" (Id.). The form was signed by Franzel and St.
Vincent's Human Resources Director Kathy Smith. (Doc.
needed additional time to complete the instrument trays, so
she provided Franzel and Dobson a letter dated October 16,
2013, from her doctor, William Phillips, DO. (Jackson
Depo. Doc. 19-1 at 57:11-17; Doc. 16-9). In his letter,
Dr. Phillips stated that Jackson was special needs and thus
required additional time "to learn and perform certain
tasks." (Doc. 16-9), He also advised that Jackson was a
diabetic with a heart condition and asked that her employer
take that into consideration when performing job evaluations.
(Id.). Despite the fact that she thought Dr.
Phillip's' letter was "vague, " Franzel did
not ask for further clarification, nor did she discuss the
letter with Jackson, or find out from Jackson what disability
or restrictions she might have. (Franzel Depo., Doc.
19-6 at 32:6-20, 33;8-12, 34:21-23). In fact, Franzel never
discussed Jackson's disability with her or any
restrictions she had. (Jackson Depo. Doc. 19-1 at
receiving Dr. Phillips' letter, Dobson advised human
resources of Jackson's potential disability and arranged
for a clinical assessment to validate if Jackson did indeed
have a disability. (Dobson Depo. 27:21-28:13).
Jackson was referred to David R. Gumm, Ph.D., a St. Vincent
employee, for a psychological evaluation on November 14,
2013. (Doc. 19-14). Dr. Gumm found that Jackson
"functioned in the borderline range of intellectual
abilities." (Id. at 3). He noted that she was
experiencing work-related stress due to a new manager who was
not patient with her, she had relative strength in nonverbal
abilities, and she was not confident in her skills regarding
sterilization of instruments. (Id. at 4). He
suggested that she "might learn best by having things
demonstrated to her rather than explained to her orally"
and she could benefit from "more repetition" than
the typical employee. (Id.). He also suggested that
Jackson be allowed to "perform some areas of her job
that she has more confidence in, " and that a third
party mediator could be helpful to assist her in
communicating with her manager. (Id.).
response to Dr. Gumm's evaluation, St. Vincent appointed
Hoffman to be Jackson's mediator to ensure effective
communication between Jackson and Franzel. (Jackson
Depo., Doc. 19-1 at 61:20-62:3). St. Vincent also
interpreted Dr. Gumm's remaining suggestions as three
accommodation requests on Jackson's behalf: that she have
things demonstrated to her rather than explained orally, that
she be provided with more repetition, and that they explore
"other opportunities that she may have an interest
in." (Smith 30(b)(6) Depo., Doc. 19-8 at
receiving Dr. Gumm's evaluation, Dobson and Franzel never
discussed the possibility of allowing Jackson more time to
accomplish certain tasks in her job. (Dobson Depo.,
Doc. 19-9 at 32:5-10) Instead, they placed Jackson into
retraining for six weeks, despite the fact that the human
resources manager had determined that Jackson could perform
the essential functions of her position, and that neither Dr.
Phillips nor Dr. Gumm suggested retraining was necessary.
(Smith 30(b)(6) Depo., Doc. 19-8 at 23:11-16;
Smith Depo., Doc. 19-7 at 26:15-22; 26:23-27:2).
underwent retraining from January 20, 2014 to February 28,
2014 with CP Supervisor Amanda Mordhorst. (Franzel
Depo., Doc. 19-6 at 39:8-9; Doc. 19-21). According to
Franzel, the point of Jackson's retraining was to reteach
her the instrument tasks so that she could eliminate mistakes
and improve her instrument assembly times. (Id. at
57:21-58:1). Jackson was required to complete more assembly
time trials to "help identify where she was less
confident in her work, " "[s]o that she could work
in those areas quicker." (Smith Depo. Doc. 19-7
at 59:23-25; 61:19-61:5). During retraining, Dobson and
Franzel told Jackson that she was going too slowly.
(Jackson Depo., Doc. 19-1 at 82:12-13).
Jackson did well in retraining. (Mordhurst Depo.
Doc. 19-2 at 24:17-25:1). She demonstrated that she was
competent in the instrument area. (Id. at 32:18-19).
She felt comfortable with and knew how to complete the
instrument trays during the retraining program. (Id.
at 79:10-12). After the retraining, Jackson felt more
comfortable with the instrument trays because she learned a
better way to put the instruments on the trays. (Id.
at 81:14-15). Nevertheless, Jackson expressed concerns to
Hoffman that she was still being asked to work too fast.
(Hoffman Depo., Doc. 19-3 at 21:19-21).
March 2014, after Jackson had completed the retraining, she
received her 2013 performance review. (Franzel
Depo., Doc. 19-6 at 45:23-25; Doc. 19-35). In the
evaluation, Franzel noted that Jackson was "strong in
the decontamination and sterilization areas of the
department... very familiar with the SR instrumentation and a
great source of knowledge [but] we would like to see
[Jackson] improve . .. her instrument assembly times."
(Id. at 46:15-47:8; Doc. 19-35). Despite noting that
she was still struggling with instrument assembly times, none
of Jackson's supervisors considered restructuring her
position or altering her job duties in any way.
(Mordhorst Depo., Doc. 19-2 at 41:23-42:7).
April 9, 2014, Jackson received a "verbal coaching"
regarding her training and performance. (Doc. 19-21). On
April 16, 2014, Dr. Phillips wrote a second letter to St.
Vincent on Jackson's behalf. (Doc. 19-15). Specifically,
he stated that Jackson "felt she is being mistreated and
harassed as she does her best with her physical limitations
to meet the demands of her supervisor. She typically goes
home in tears and is not getting the support that she needs
to continue to provide diligent, faithful services in her