Opinion

Howard v. City of Sedalia, Missouri

Court: District Court, W.D. Missouri
Filed: Apr 21, 2022
Cited by: 0 cases
Authority: More cited than 24.3%

The opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

SAMANTHA HOWARD, )

)

Plaintiff, )

)

vs. ) Case No. 2:21-cv-04034-MDH

)

CITY OF SEDALIA, MISSOURI, )

D/B/A BOTHWELL REGIONAL )

HEALTH CENTER, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion for Summary Judgment. (Doc. 59).1 The motion

has been fully briefed and is ripe for review. For the reasons set forth herein the Court denies

Defendant’s motion.

BACKGROUND

Plaintiff, a pharmacist, has brought this lawsuit against her former employer, the City of

Sedalia, Missouri, d/b/a Bothwell Regional Health Center, alleging disability discrimination –

failure to accommodate. In her single count Complaint Plaintiff alleges she was employed by

Defendant as a pharmacist and requested permission for a diabetic service dog to accompany her

to work. Plaintiff alleges Defendant failed to engage in an interactive process in good faith to

accommodate her disability and that she was compelled to resign her position in violation of her

ADA rights. The facts of the case as presented in the parties’ briefing are largely uncontested.

1 Defendant also filed a Motion to Amend Exhibit to Doc. 60 - replacing Exhibit 4 of its

suggestions in support of summary judgment filed on February 4, 2022. Plaintiff did not object to

this motion. The Court grants Defendant’s motion to replace Exhibit 4 to its summary judgment

brief. (Doc. 61).

Plaintiff was diagnosed with Type 1 diabetes at or around 14 months old. Plaintiff was also

diagnosed with hypoglycemic unawareness during pharmacy school between 2014 and 2018.

Hypoglycemic unawareness is a condition where a person does not recognize their blood sugar

levels have dropped to a dangerously low level. On or about June 5, 2017, Plaintiff requested a

service animal to assist with management of her diabetes and hypoglycemic unawareness from

CARES, Inc. a company that trains and sells service dogs. CARES, Inc. put Plaintiff on a waiting

list. Plaintiff was told it could be about two years before she received an animal.

Plaintiff began working as a pharmacist at Bothwell on or around March 15, 2019. Plaintiff

informed her supervisor, Pharmacy Director Brad Nicholson, that she had diabetes and he granted

her request for an informal accommodation to have food and drink at her desk while she was

working alone. Plaintiff did not inform Bothwell at that time about her pending request for a

service animal.

Within the Bothwell pharmacy, there are several distinct areas. Two of these areas are the

anteroom and the clean room. The clean room is a sterile area, requiring Personal Protective

Equipment (“PPE”) to enter. IVs are prepared in this area. As part of Plaintiff’s job she was

required to enter the clean room. The anteroom is located between the main pharmacy and the

clean room and is an area where employees prepare to go into the clean room, including washing

hands, putting on PPE, etc. Unlike the “sterile” clean room, the main pharmacy outside the

anteroom and clean room is considered a “sanitary” area. Non-sterile drug compounding and

preparation is performed in the main pharmacy.2 Occasionally Plaintiff would put drugs together

in the main pharmacy area.

2 USP Section 795 is the governing standard applicable to compounding that is performed in the

Defendant’s pharmacy, outside of the pharmacy anti-room and clean room (referred together

herein as the Defendant’s “sterile compounding suite”).

Pharmacy personnel are not required to wash their hands when entering or exiting the

pharmacy and are not required to wear gloves, hair covering, gowns or other PPE when working

in the pharmacy outside of the sterile compounding suite. The pharmacy personnel do “very little”

compounding outside of the sterile compounding suite. The pharmacists’ workstations are in the

room where non-sterile compounding takes place. Compounding is not done at their workstations.

Plaintiff states she only went into the clean room portion of the sterile compounding suite

about once a week to make an IV. Bothwell estimates that a pharmacist would need to be inside

the clean room anywhere from 5-20 times per shift, especially if the pharmacist is working the late

shift when only one pharmacist is on duty. Plaintiff states once a shift she would go into the ante

room to verify IVs prepared by technicians and that she was not required to pass the line of

demarcation to verify the IV. Plaintiff also states one or two times per shift she would enter the

ante room to get IVs from the refrigerator. Bothwell states a pharmacist would cross the line of

demarcation to get IVs from the refrigerator.

In early June 2020, Plaintiff received a notice from CARES, Inc. that a service dog had

become available for her to pick up in August. On or about June 8, 2020, Plaintiff informed

Bothwell that she would be requiring a service animal by speaking with Lisa Irwin, Bothwell’s

Executive Director of Human Resources & Support Services. Bothwell had never previously

encountered a request to have a service animal in its pharmacy. Irwin provided Plaintiff a Request

for Accommodation Packet so that Bothwell could gather additional information to assist in

making a decision regarding the service animal. At this time, Plaintiff believed she would need the

service dog at her side constantly for six months for training purposes, and then after that she could

go to work without her. Plaintiff requested that her service dog be allowed in the main pharmacy,

a sanitary area, but did not ask to bring her into the pharmacy’s anteroom or clean room. Irwin

requested, and Plaintiff provided, an authorization that permitted Bothwell to speak directly to the

physicians treating Plaintiff’s diabetes.

On or about June 12, 2020, Defendant received a letter regarding Plaintiff’s need for a

service animal from Plaintiff’s physicians, which included an invitation to Defendant to reach out

to the physician if there were any questions. Irwin did not contact the physician’s office, nor did

she direct anyone to do so.

In late June 2020, Plaintiff told Irwin that she did not believe she had to fill out the Request

for Accommodation Packet to move forward with her request. Nevertheless, Plaintiff filled out the

Accommodation Packet and left it in Irwin’s office on July 13, 2020. On or about July 24, 2020,

Irwin wrote a letter to Plaintiff summarizing the status of the interactive process to that point and

requested that Plaintiff have her doctor fill out an additional ADA Health Provider Questionnaire.

Plaintiff provided the ADA Health Provider Questionnaire to Defendant on or about July 28, 2020.

After Plaintiff provided her completed paperwork, Irwin set up a team to investigate and

review Plaintiff’s request. She asked Nicholson, Jennifer Unkel (Bothwell’s

Risk/Regulatory/Compliance Manager), Kathy Trogden (Bothwell’s Interim Infection

Preventionist), and Dr. Phillip Fracica (Bothwell’s Chief Medical Officer) to analyze the request

and provide their opinions. Nicholson, Unkel, and Trogden were each asked to write a

recommendation for whether the service animal should be in the pharmacy based on their

individual investigations and respective specialties. Nicholson, Unkel, Trogden, Fracica, and Irwin

performed a walkthrough of the Bothwell Pharmacy, including viewing the anteroom and clean

room. Following the walkthrough, Nicholson, Unkel, and Trogden finalized their recommendation

letters regarding Howard’s service request. All three independently determined that having a

service dog in the pharmacy was a risk to the safety of Bothwell’s patients and should not be

allowed.

Unkel reviewed the Americans with Disabilities Act (“ADA”) and the Conditions of

Participation for the Centers for Medicare and Medicaid (“CMS”) and focused on the CMS

guidance that sterile or non-sterile compounded medications may be subject to contamination. She

concluded: “In the event a service animal is approved to accompany a staff member throughout

the pharmacy, the organization cannot say with certainty that all of the Conditions for Participation

are met as canines shed hair and carry dirt/debris under their paws.” She said that allowing the

animal in the pharmacy would risk Bothwell’s accreditation, and that it would affect a patient if

the medication was contaminated.

Nicholson reviewed a variety of sources and found that while none of them definitively

stated that a service animal should not be in the inpatient pharmacy areas, the overall direction

from these sources led him to the conclusion that service animals should be excluded from the

area to allow for the highest quality patient care. Nicholson reviewed CDC guidance entitled

“Background H. Animals in Health-Care Facilities” in connection with evaluating Plaintiff’s

accommodation request, reading the document in full. In his report to Defendant, Nicholson stated

the following with respect to the CDC guidance:

CDC guidance in regards to animals in health care settings acknowledges that

animals can be reservoirs for antibiotic resistant bacteria, can increase allergens

with saliva, dander, hair shedding and urine/feces. While the CDC supports the use

of service animals in general public areas, it is appropriate to exclude them from

special care areas which include medication preparation/storage, or areas where

strict attention to hand hygiene must be maintained.

Within the CDC guidance that Nicholson reviewed, the CDC provided the following information

specific to service animals:

An overview of the subject of service animals and their presence in health-care

facilities has been published. No evidence suggests that animals pose a more

significant risk of transmitting infection than people; therefore, service animals

should not be excluded from such areas, unless an individual patient’s situation or

a particular animal poses greater risk that cannot be mitigated through reasonable

measures. If health-care personnel, visitors, and patients are permitted to enter care

areas (e.g., inpatient rooms, some ICUs, and public areas) without taking additional

precautions to prevent transmission of infectious agents (e.g., donning gloves,

gowns, or masks), a clean, healthy, well-behaved service animal should be allowed

access with its handler. Similarly, if immunocompromised patients are able to

receive visitors without using protective garments or equipment, an exclusion of

service animals from this area would not be justified.

Nicholson did not provide the information contained in the preceding paragraph to Defendant’s

team evaluating Plaintiff’s request for accommodation.

The CDC’s Guidance provides the following with respect to service animals:

Because health-care facilities are covered by the ADA or the Rehabilitation Act, a

person with a disability may be accompanied by a service animal within the facility

unless the animal’s presence or behavior creates a fundamental alteration in the

nature of a facility’s services in a particular area or a direct threat to other persons

in a particular area. A “direct threat” is defined as a significant risk to the health or

safety of others that cannot be mitigated or eliminated by modifying policies,

practices, or procedures. The determination that a service animal poses a direct

threat in any particular healthcare setting must be based on an individualized

assessment of the service animal, the patient, and the health-care situation. When

evaluating risk in such situations, healthcare personnel should consider the nature

of the risk (including duration and severity); the probability that injury will occur;

and whether reasonable modifications of policies, practices, or procedures will

mitigate the risk (J. Wodatch, U.S. Department of Justice, 2000). The person with

a disability should contribute to the risk-assessment process as part of a pre-

procedure health-care provider/patient conference.

Excluding a service animal from an OR similar special care areas (e.g., burn units,

some ICUs, PE units, and any other area containing equipment critical for life

support) is appropriate if these areas are considered to have “restricted access” with

regards to the general public. General infection-control measures that dictate such

limited access include the area is required to meet environmental criteria to

minimize the risk of disease transmission, strict attention to hand hygiene and

absence of dermatologic conditions, and barrier protective measures [e.g., using

gloves, wearing gowns and masks] are indicated for persons in the affected space.

Nicholson also relied on the Missouri Board of Pharmacy Regulations (Chapter 2, Division 2220

of the Missouri Code of State Regulations (CSR)) in evaluating Plaintiff’s request for

accommodation, quoting specifically from 20 CSR 222-2.2(7)(A) in his report. The regulations

define “controlled area” in this context as “a separate room designated for preparing sterile

preparations or an area designated for preparing sterile preparations that is separated from other

actives/operations by a line of demarcation that clearly separates the area from other operations.”

While Nicholson included this provision of the regulations in his report, he failed to include the

provision of the same chapter which states: “Animals, except for service animals as defined by the

American with Disabilities Act (ADA), are not allowed in pharmacies.” After relying on the CSR

in his initial report, Nicholson took the position that the “CSR refers more to retail pharmacies

and not to secure hospitals, and not secured areas that are storing and compounding sterile drugs.”

Prior to issuing its initial denial of the Plaintiff’s request for accommodation, Nicholson

reached out to other pharmacists, but those pharmacists had not dealt with a similar request for

accommodation. Nicholson did not reach out to the Department of Health and Senior Services or

the Board of Pharmacy prior to issuing its first denial of the Plaintiff’s request for accommodation.

Kathy Trogden is certified in infection control and epidemiology and has been working in

infection control since 2008. Trodgen reviewed the CDC’s Environmental Guidelines for Infection

Control which stated that the presence of an animal could compromise a sterile environment. Her

report listed certain areas where a service animal should not be allowed due to heightened risk,

including medication storage/preparation areas. From an infection prevention standpoint, she

found a “concern over the presence of a service animal within the pharmacy proper” due to

contamination concerns. Trogden understood that she was asked to “provide a letter regarding

guidelines, recommendations for service animals within a health care facility.” Defendant never

advised Trogden of the existence or requirements of the differing USP standards applicable to

sterile and non-sterile compounding. Trogden never analyzed the extent to which it would create

an infection control risk to have a service animal in the hospital pharmacy if the service animal did

not enter the sterile compounding suite. Trogden needed to perform a full risk assessment to

analyze the extent to which housing the service animal in the pharmacy but outside the sterile

compounding suite would create an infection control risk. Had Trogden been permitted to

complete a full risk assessment as offered, she would have evaluated the risk of disease

transmission and contamination in the pharmacy in light of the proposed accommodation to house

the service animal in an area of the pharmacy outside the sterile compounding suite. Trogden did

not provide any analysis specific to the Plaintiff’s requested accommodation. Trogden analyzed

the CDC guidance that Nicholson analyzed. Like Nicholson, Trogden did not include any

information from the CDC guidance specific to the risk posed by service animals in her report.

According to Trogden, she did not include this information based on her understanding that

she was evaluating the pharmacy as a whole, rather than considering that the service animal would

remain at Plaintiff’s workstation when she was required to enter the employee pharmacy. At the

time Trogden conducted her investigation Bothwell was operating with the understanding that

Plaintiff needed the service animal by her side at all times for the first six months after Plaintiff

obtained the animal. Howard did not realize that she could be away from the service animal for

only limited periods of time until after she started training, which began in the first week of August.

In the first week of August, 2020, Bothwell provided Plaintiff with paid time off so that

she could pick up and attend special training with her service dog. On or about August 6, 2020,

Irwin sent a letter, via email, to Plaintiff stating Bothwell had denied her specific accommodation

request to allow the service animal inside the pharmacy due to concerns about contamination. The

letter stated, in part, we “consider[ed] the option [Plaintiff] raised of only allowing the service dog

in certain areas of the pharmacy but we determined that such an action would not resolve the

potential risks of contamination discussed above.” The letter stated that Bothwell wanted to work

with her to find a different accommodation.

Plaintiff responded via a letter from her counsel, Jennifer Johnson, who informed

Defendant that it had made a mistake in denying Plaintiff’s request. Counsel for Defendant,

Elizabeth Wente, responded to Johnson and told her that Defendant would continue to provide

paid leave for the rest of the week while the parties discussed other reasonable accommodations.

In an effort to gather additional information about Plaintiff’s request, on August 13, 2020,

Nicholson reached out to Tom Glenski, Chief Inspector of the Missouri Board of Pharmacy,

regarding Plaintiff’s request for a service dog in the pharmacy. After confirming the involved

animal was a service animal rather than a support animal, Glenski responded to Nicholson:

In general, the Board would prohibit an animal in the area where sterile or non-

sterile compounding is being performed. However, the Board would need to review

each case involving a service animal individually in order to make a determination.

For any animal to be allowed in the pharmacy, it must meet the [ADA] definition

for service animal.

An email from Glenski further stated:

From my perspective and the BOP, the service dogs would be allowed in the

Pharmacy public areas to p/u prescriptions, but would not be allowed where the

other activities would occur, which not only includes sterile compounding but non-

sterile compounding which we do in more than one area int eh Pharmacy. I will

contact DHSS also.

Nicholson also reached out to Richard Grindstaff, Bureau Chief of Hospital Standards for

the Department of Health and Senior Services (“DHSS”), which regulates hospital pharmacies in

Missouri, to discuss the situation. Nicholson testified that when they spoke on the phone

Grindstaff told Nicholson that DHSS would issue a citation to Bothwell if it saw a dog in the

pharmacy. In an email, Grindstaff stated:

Brad, this is to follow up with our phone conversation today. If a member of the

BHS team would observe a service dog within the pharmacy where sterile

compounding for patient use is being performed, we would consider that a Infection

Control issue and would give appropriate citations for putting your patients at risk

for contamination of compounding material in your pharmacy. In any area that

needs to have sterile protection in the hospital for patient protection, such as sterile

processing, surgery, and any other area that needs to maintain sterility, the hospital

is responsible to comply with national standards and regulations for this area. Any