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Inability to work nights on-call defeats sonographer’s disability bias suit

By Brandi O. Brown, J.D.

A sonographer who contended that she was discriminated against because of her disability when her employer refused to accommodate her need permanently to avoid nighttime on-call duties will not move forward with disability discrimination claims, a federal district court in Ohio ruled. Granting the employer’s summary judgment motion, the court explained that the evidence showed overnight on-call responsibility was an essential function and the accommodation requested—being relieved of the responsibility—was not reasonable. The court also concluded that there had been no abdication of the interactive process on the part of the employer nor did its actions violate the FMLA (Porter v. Tri-Health, Inc., November 2, 2018, Bertelsman, W.).

Diagnosed with lupus, nighttime restriction. During the employee’s first four years of employment as a sonographer in the radiology department, she worked regular daytime shifts and, along with the other sonographers, worked a rotation of on-call shifts, including nighttime shifts. In 2013, after beginning a part-time schedule, she was diagnosed with lupus and took three months leave. She also requested intermittent FMLA leave for flare-ups upon her return.

When she returned she was assigned the same on-call responsibilities but an optional sonographer took most of the on-call hours for all of the sonographers. In mid-2014, however, the employee’s physician imposed a restriction on her ability to take on-call responsibility after 9:00 pm. According to the employee’s supervisor, this was a “huge deal” in the department. None of the sonographers particularly liked being on-call. The supervisor had to ask or require other sonographers to cover the employee’s responsibilities. The employee volunteered to take all evening on-call responsibility until 9 p.m., except for Mondays, and all weekend call after 6 a.m. and before 9 p.m., per her doctor’s restrictions. The result was that she had more on-call responsibility hours than anyone else.

Permanent accommodation denied. Nevertheless, some of her coworkers voiced concerns and the supervisor contended that ensuring coverage for the overnight on-call responsibilities was difficult. In 2015, once the employee’s restrictions were deemed permanent by her physician, she requested an accommodation matching the previous one, i.e., that she not be required to take on-call responsibility after 9 p.m. and before 6 a.m. Around the same time the optional sonographer departed for a permanent job elsewhere. The employer decided that hiring another optional sonographer to cover the employee’s on-call responsibility was not feasible. Thus, the request was denied and the employee was fired. She looked for other jobs with the employer, without success, and later filed an EEOC charge of discrimination.

Responsibility was essential. At the center of the case were three questions: (1) whether accepting the overnight on-call responsibility was an essential function of the employee’s job; (2) whether the proposed accommodation was reasonable; and (3) whether the employer had engaged in the interactive process. In answering the first question, the court looked for guidance in a Minnesota district court decision, Meyer-Gad v. Centra Health Care Sys., which dealt with a similar question and factual scenario involving hospital chaplains. In that case, the district court concluded that being on-call overnight was an essential function of the job, even though, as was the case here, it was not listed in the written job description. Moreover, in both cases the employee knew upon being hired that there was an expectation of covering overnight shifts and, in fact, a significant percentage of the employee’s overall time was spent on that function.

Indeed, the sonographers spent a significant amount of time performing the job function in question. The employee’s overnight on-call responsibility accounted for 37 percent of her total weekly responsibility. For full-time employees, it would equal 26 percent. While it was true that sonographers were rarely called in and that sonographers traded off duties, resulting in some sonographers going months without actually performing it, the issue was not what time they worked, but the fact that they were responsible for being available if needed and they had responsibility for those hours. In the hospital setting, performing the responsibility was “simply not an option.” The supervisor also testified that the responsibility was an essential function because medical emergencies could arise at any time. Under the unique circumstances of a hospital, the court added, deference to the employer’s judgment on staffing is warranted. There were also complaints from the coworkers and the supervisor testified that she had to scramble to cover the employee’s on-call time.

Per se unreasonable request. Furthermore, the employee’s requested accommodation was not reasonable. The employee’s proposal was not just a modified schedule, the court explained. Instead, it shifted the burden of the responsibility to someone else. “As such,” said the court, “it is per se unreasonable.” An employer is not required to shift essential job functions to other employees, nor is it required to hire someone else to do those functions. Finally, the employer did not concede that the function was nonessential by providing the accommodation for a year before terminating the sonographer.

Nor did the employer fail to engage in the interactive process. Even if it had, the court explained, the failure to do so would not be actionable because the employee’s proposed accommodation was not reasonable. With regard to her FMLA retaliation claim, the court found she was fired not because of her use of FMLA leave, but because she could not perform an essential function of her job. Moreover, the intermittent leave sought by the employee was a permanent schedule change and, as such, was not required.