Chmura v. Monongalia Health System

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

GEORGETTE CHMURA,

Plaintiff,

v. CIVIL ACTION NO. 1:17CV222

(Judge Keeley)

MONONGALIA HEALTH SYSTEM,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [DKT. NO. 25] AND DISMISSING CASE WITH PREJUDICE

The plaintiff, registered nurse Georgette Chmura (“Chmura”),

was terminated from her employment at Monongalia General Hospital

(“Mon General”), a subsidiary of the defendant, Monongalia Health

System (“Mon Health”), after failing to obtain a mandatory

influenza vaccination. Chmura alleges that by terminating her

employment Mon Health discriminated against her on the basis of her

alleged disability, a latex allergy, in violation of the Americans

with Disabilities Act (ADA). Pending before the Court is Mon

Health’s motion for summary judgment. For the reasons that follow,

the Court GRANTS Mon Health’s motion (Dkt. No. 25), and DISMISSES

the case WITH PREJUDICE.1

1

Because, as a matter of law, Chmura’s sole claim fails as a matter

of law under the ADA, the Court need not reach the issue of whether

Mon General and Mon Health are integrated employers. Accordingly,

the Court will refer to each entity as reflected by the record

before it.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [DKT. NO. 25] AND DISMISSING CASE WITH PREJUDICE

I. BACKGROUND

A. Chmura’s Employment History and Mon General’s Influenza

Vaccination Program

Beginning in January 2007 Chmura was employed by Mon General

as a per diem registered nurse (Dkt. No. 26-1 at 6-7). Chmura

maintained that job title throughout the duration of her employment

with Mon General, working approximately two to three days per week.

Id. at 7, 9.

Sometime in 2015, Mon General implemented a mandatory

Influenza Vaccination Program. See Dkt. No. 26-2 (“Flu Vaccination

Policy”); see also Dkt. No. 26-1 at 11. The stated purpose of the

Flu Vaccination Policy was “to provide information to [Mon Health]

Healthcare Workers (HCW) regarding the requirements for all

employees, medical staff, allied health staff, residents, contract

employees, and volunteers providing services on any [Mon Health]

premises to be immunized against influenza” (Dkt. No. 26-2 at 1).

Chmura testified during her deposition that the Policy was designed

to “reduce [the] risk” of influenza to patients and staff members

(Dkt. No. 26-1 at 11-12).

According to the Flu Vaccination Policy, any healthcare worker

having a medical contraindication that prevented him or her from

obtaining the influenza vaccination “must submit a Medical

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Exemption Form in its entirety to [the] Employee Health

[Department]” (Dkt. No. 26-2 at 1). The Medical Exemption Form

“require[d] complete documentation” from the healthcare worker’s

physician, and an exemption request was subject to approval by the

Chair of the Infection Prevention Committee and the Vice

President/Medical Director. Id. A healthcare worker receiving an

approved medical exemption “[was] required to wear a mask at all

times while at work per annually established vaccination

deadlines.” Id. Further, healthcare workers “[failing] to receive

the influenza vaccination or obtain an approved exemption by the

date determined annually, [were] considered as not meeting the

conditions of employment and . . . considered to have resigned

their employment.” Id. at 2.

During her employment with Mon General, Chmura had reviewed

the Flu Vaccination Policy and understood that it applied to her

(Dkt. No. 26-1 at 10, 17).

B. Chmura’s 2015 Vaccination Exemption Request

In October 2015, Chmura submitted a Medical Exemption Form

completed by her primary care physician, Dr. Janice Allen (“Dr.

Allen”) (Dkt. No. 26-3 at 2). The 2015 Medical Exemption Form

provided three boxes that could be checked by a healthcare worker’s

physician, each of which referenced certain recognized

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contraindications to the influenza vaccination. The Form directed

the physician to certify that the healthcare worker “should not be

immunized for influenza for the following reasons (Please check all

that apply):

‘ History of previous allergic reaction and documented

allergy testing to indicate an immediate hypersensitivity

reaction to the influenza vaccine or a component of the

vaccine. Please attach supporting DOCUMENTATION or

MEDICAL RECORDS.

‘ History of Guillain-Barre Syndrome within six weeks of

receiving a previous vaccine. Please provide and attach

a detailed narrative that describes the event.

‘ Other – Please provide this information in a separate

narrative that describe the exception in detail (these

requests will be reviewed on a case-by-case basis).”

Id. at 2 (emphasis in original). On Chmura’s 2015 Medical Exemption

Form, Dr. Allen checked the box next to “Other,” and noted “severe

Latex allergy. Patient concerned Latex in vial or needle.” Id.

Chmura testified in her deposition that, along with her

completed Medical Exemption Form, she provided Mon General with a

September 12, 2014 letter from Lisa Donahue, Patient Safety Officer

at University of Pittsburgh Medical Center Shadyside (“Donahue”)

(Dkt. No. 26-1 at 18-19).2 In Donahue’s words, “the purpose of this

2 Although the September 12, 2014 letter is signed by Donahue and

displays her letterhead, the parties sometime refer to the letter

as being written by Dr. Hrebinko, Chmura’s treating surgeon at

UPMC. Donahue’s letter indicates that a courtesy copy was

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letter [wa]s to confirm that during . . . [a hospital] stay

beginning September 4, 2014, [Chmura] experienced low blood

pressure requiring medication during surgery from the use of latex

gloves” (Dkt. No. 26-4). The only supporting documentation Chmura

provided with her 2015 exemption request was Donahue’s letter

recounting her reaction to latex (Dkt. No. 26-1 at 22).

In an email dated November 9, 2015, S. Nicole Linger, Employee

Health & Wellness Manager for Mon General (“Linger”), informed

Chmura that her “request for a medical exemption to the vaccine

ha[d] been denied” (Dkt. No. 26-5) (emphasis in original). Linger’s

email also advised Chmura that, “[i]f you fail to receive the

influenza vaccination by [November 13, 2015], you have failed to

meet [Mon Health] conditions of employment and your actions will be

considered a resignation of employment” (Dkt. No. 26-5).

The following day, November 10, 2015, Linger sent an email to

Dr. Dino Delaportas (“Dr. Delaportas”), stating that Chmura “was

just in my office and would like to talk to you about her flu

exemption . . . She has a Latex allergy.” See Dkt. No. 26-6. On the

same date, Linger or another employee indicated in a handwritten

note that she had “called [Chmura] and told her that Delaportas

states he’s not changing his mind on latex.” Id. Chmura’s

provided to Dr. Hrebinko. See Dkt. No. 26-4.

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deposition testimony confirms that she never spoke to Dr.

Delaportas following the denial of her 2015 exemption request but

understood her request had been denied due to the availability of

latex-free influenza vaccines (Dkt. No. 26-1 at 22).

Three days after the denial of her exemption request, on

November 12, 2015, Chmura received an intramuscular injection of

Afluria®, a latex-free influenza vaccine (“Afluria”), at a Rite Aid

pharmacy (Dkt. No. 26-7). Approximately two months after receiving

Afluria, on January 19, 2016, Chmura completed a Vaccine Adverse

Event Reporting System (VAERS) form, in which she reported that the

vaccine had caused itching on her arm and wrist and redness on her

hands and neck (Dkt. No. 26-8).

C. Chmura’s 2016 Vaccination Exemption Request

The following year, in October 2016, Chmura met with Lisa

Pifer, an Employee Health Nurse at Mon Health (“Pifer”), to discuss

her 2016 influenza vaccination status. See Dkt. No. 26-9. During

that meeting, Chmura provided Pifer with copies of her completed

VAERS form and an observation note from George Anderson

(“Anderson”), the Rite Aid pharmacist who had administered the

Afluria vaccine to her (Dkt. No. 26-7). Anderson’s note stated, in

full, “Patient showed severe anxiety & nervousness due to latex

allergy. Observed pt for over a half hour & showed anxiousness &

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itching. I did not observe any rash or breathing issues, but

patient was itching midsection & various other parts of the body.”

Id. Chmura testified in her deposition that Anderson’s report

accurately described her 2015 reaction to the Afluria vaccine (Dkt.

No. 26-1 at 24).

In an October 12, 2016 email memorializing her conversation

with Chmura, Pifer reported that she had advised Chmura to “have

her doctor fill out a medical exemption form with as much

supporting documentation as possible.” Id. In the same email, Pifer

wrote that Chmura “said she would not take the flu shot this year.”

(Dkt. No. 26-9).

A few weeks following her conversation with Pifer, Chmura

submitted a Medical Exemption Form completed by her new primary

care physician, Dr. Maria Gauna (“Dr. Gauna”) (Dkt. No. 26-11).

Like the 2015 version of the Medical Exemption Form, the 2016 Form

provided three boxes that could be checked by Chmura’s physician:

The above person should not be immunized for influenza

for the following reasons (Please check all that apply):

‘ History of previous allergic reaction and

documented allergy testing to indicate an

immediate hypersensitivity reaction to the

influenza vaccine or a component of the

vaccine.

‘ History of Guillain-Barre Syndrome within six

weeks of receiving a previous vaccine.

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‘ Other – (these requests will be reviewed on a

case-by-case basis).”

Please attach supporting DOCUMENTATION or MEDICAL RECORDS

for your request.

Id. (emphasis in original).

On Chmura’s 2016 Medical Exemption Form, Dr. Gauna checked the

boxes next to “History of previous allergic reaction and documented

allergy testing” and “Other.” Beside the box marked “Other,” Dr.

Guana wrote that she had “advised [Chmura] to wear a mask all the

time during flu season.” Id. Although Dr. Gauna checked the box

indicating a “History of previous allergic reaction and documented

allergy testing to indicate an immediate hypersensitivity reaction

to the influenza vaccine or a component of the vaccine,” Dr. Gauna

did not attach any supporting documentation regarding a previous

allergic reaction or documented allergy testing. See id.

On November 8, 2016, Chmura was informed via email and letter

from Kristan Rogers, Director of Corporate Education and Employee

Health & Wellness (“Rogers”), that her “request for a medical

exemption to the vaccine ha[d] been denied” (Dkt. No. 26-12 at 2)

(emphasis in original); see also Dkt. No. 26-11 (indicating that

Chmura’s medical exemption request had been denied on 11/7/16).

Rogers’ letter further stated, “if you fail to receive the

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influenza vaccination by [November 18, 2016], you have failed to

meet [Mon Health] conditions of employment and your actions will be

considered a resignation of employment” (Dkt. No. 26-12 at 2).

Following the denial of her 2016 exemption request, Chmura

submitted a one-paragraph letter from Dr. Gauna, dated November 15,

2016, which stated, in relevant part, that “[i]t is medically

necessary that Mrs. Chmura dose [sic] not get the influenza vaccine

due to hypersensitivity to a component in the influenza vaccine. If

you have any questions please feel free to contact my office.”

(Dkt. No. 26-14). See also Dkt. No. 26-1 at 30. Dr. Gauna did not

indicate the component of the influenza vaccine to which Chmura was

hypersensitive, nor did she provide any documented allergy testing

or other medical records supporting her conclusion. Id. In her

deposition, Chmura confirmed that Dr. Guana did not perform allergy

testing or any other type of medical testing to determine whether

she is hypersensitive to any component of the influenza vaccine

(Dkt. No. 26-1 at 26, 31, 34).

Following receipt of Dr. Guana’s letter, Dr. Brian Hawthorne,

then the Vice President and Medical Director of Mon General (“Dr.

Hawthorne”), contacted Dr. Guana to discuss her opinion (Dkt. No.

26-15 at 1-2). According to Dr. Hawthorne, Dr. Gauna confirmed that

Chmura had reported a latex allergy to her, but that she never

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performed any allergy testing to identify the root of the alleged

allergy. Id. at 2. Significantly, Dr. Gauna further advised Dr.

Hawthorne that, in her opinion, there was no medical reason why

Chmura could not receive a latex-free vaccination. Id. Chmura

testified in her deposition that she “wouldn’t have any reason to

doubt” that Dr. Guana so advised Dr. Hawthorne (Dkt. No. 26-1 at

36-37). She further testified that, she “didn’t have any medical

evidence” from Dr. Guana that she “had a hypersensitivity to any

other component of the vaccine other than latex.” Id. at 31.

Following Dr. Hawthorne’s conversation with Dr. Gauna, Mon

General denied Chmura’s renewed 2016 exemption request “due to the

availability of numerous latex-free influenza vaccination options”

(Dkt. No. 26-15 at 2). Rogers notified Chmura of the denial via

email and in a letter dated November 18, 2016 (Dkt. No. 26-16)

(informing Chmura that her renewed “request for a medical exemption

to the vaccine ha[d] been denied”)(emphasis in original). As had

the first denial letter, the second letter stated, “if you fail to

receive the influenza vaccination by [November 18, 2016], you have

failed to meet [Mon Health] conditions of employment and your

actions will be considered a resignation of employment.” Id.

On the same date, Chmura’s direct supervisor, Susan Konya,

Director of Clinical Resources (“Konya”), notified Chmura via

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letter that, effective immediately, her employment was suspended

due to her “failure to comply with the [Flu Vaccine] Policy by

either receiving a flu vaccine or obtaining an exemption” (Dkt. No.

26-17). Konya’s letter warned Chmura that if she “still ha[d] not

complied with the Policy by November 23, 2016, at 5pm [she] would

be considered to have resigned [her] employment.” Id. Thereafter,

on November 23, 2016, Konya notified Chmura that as Mon General had

not received proof that she had received an influenza vaccine, it

considered her continued non-compliance with the Flu Vaccination

Policy to constitute a voluntary resignation of her employment,

effective immediately (Dkt. No. 26-18).

On December 21, 2017, Chmura filed suit against Mon Health

(Dkt. No. 1), alleging a single claim of discrimination under the

ADA. Following the close of discovery in the case, Mon Health filed

a motion for summary judgment (Dkt. No. 25), which is now fully

briefed and ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on

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a motion for summary judgment, the Court reviews all the evidence

“in the light most favorable” to the nonmoving party. Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.

2000). “Summary judgment cannot be granted merely because the court

believes that the movant will prevail if the action is tried on the

merits.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562,

568 (4th Cir. 2015) (citation omitted). The Court must therefore

avoid weighing the evidence or determining its truth and limit its

inquiry solely to a determination of whether genuine issues of

triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986).

The moving party bears the initial burden of informing the

Court of the basis for the motion and of establishing the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the

necessary showing, the non-moving party “must set forth specific

facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).

The “mere existence of a scintilla of evidence” favoring the non-

moving party will not prevent the entry of summary judgment; the

evidence must be such that a rational trier of fact could

reasonably find for the nonmoving party. Id. at 248–52.

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III. DISCUSSION

A. Applicable Law

Under Title I of the ADA, covered entities, including private

employers, are prohibited from “discriminat[ing] against a

qualified individual on the basis of disability in regard to . . .

the hiring, advancement, or discharge of employees.” 42 U.S.C.

§ 12112(a); see also Summers v. Altarum Inst., Corp., 740 F.3d 325,

328 (4th Cir. 2014) (“The ADA makes it unlawful for covered

employers to ‘discriminate against a qualified individual on the

basis of disability.’”).

Disability discrimination may be proven through ordinary

principles of proof or through the burden-shifting framework

established in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th

Cir. 2015) (citation omitted). To satisfy ordinary principles of

proof, the plaintiff must provide direct evidence of a purpose to

discriminate or circumstantial evidence of sufficiently probative

force to raise a genuine issue of material fact. Goldberg v. B.

Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).

Here, the record reveals little, if any, direct or indirect

evidence of discriminatory motive, and the parties have confined

their arguments on summary judgment to whether Chmura has met her

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burden under the burden-shifting scheme established by McDonnell

Douglas. Under the familiar McDonnell Douglas framework, the

plaintiff must first establish a prima facie case of disability

discrimination. In this case, Chmura alleges discriminatory

treatment in the form of wrongful discharge.3

In order to set forth a prima facie case of wrongful discharge

under the ADA, a plaintiff must establish, by a preponderance of

the evidence, that: “(1) [s]he was a qualified individual with a

disability; (2) [s]he was discharged; (3) [s]he was fulfilling

h[er] employer’s legitimate expectations at the time of discharge;

and (4) the circumstances of h[er] discharge raise a reasonable

inference of unlawful discrimination.” Reynolds v. Am. Nat’l Red

Cross, 701 F.3d 143, 150 (4th Cir. 2012) (citing Rohan v. Networks

Presentations LLC, 375 F.3d 266, 273 n. 9 (4th Cir. 2004) (internal

quotation marks omitted)).

If the plaintiff satisfies her initial burden of establishing

a prima facie case of disability discrimination, “a presumption of

illegal discrimination arises, and the burden of production shifts

to the employer” to show that its decision to terminate the

3

Chmura has not alleged a separate cause of action for failure to

accommodate under the ADA, which is a distinct cause of action with

different prima facie elements.

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plaintiff was based on a legitimate, non-discriminatory reason.

Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011); see

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142

(2000). If the employer carries this burden of production, the

burden then shifts back to the plaintiff to demonstrate, by a

preponderance of the evidence, that the legitimate reason offered

by her employer is a pretext for disability discrimination. Id.

B. Chmura’s Prima Facie Case

Under the McDonnell Douglas framework, the first step in the

Court’s analysis is to determine whether Chmura has put forth

sufficient prima facie evidence of disability discrimination to

survive summary judgment. Specifically at issue are the third and

fourth prongs of Chmura’s prima facie case.4 Mon Health first

argues that Chmura has failed to establish that she was fulfilling

Mon General’s legitimate expectations at the time of her discharge

because of her failure to receive the influenza vaccination or to

obtain an approved exemption to the Flu Vaccination Policy (Dkt.

No. 26 at 16-18). It further argues that Chmura has failed to

4

Because the parties did not address the issue on summary judgment,

the Court assumes, without deciding, that Chmura can establish the

first element of her prima facie case, that she is a qualified

individual with a disability under the ADA. With regard to the

second element, the parties do not dispute that Chmura was

discharged from her employment.

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present any evidence of a reasonable inference of unlawful

discrimination. Id. at 18-20.

While Mon Health contends that Chmura’s non-compliance with

the Flu Vaccination Policy requires a finding that she was not

meeting her employer’s legitimate expectations, such a finding

cannot be made without first considering whether Mon General’s

enforcement of the Policy was discriminatory under the

circumstances. In other words, whether Chmura was meeting Mon

General’s legitimate expectations at the time of her discharge is

inextricably linked to the question of whether the circumstances of

her discharge, pursuant to the Policy, raise a reasonable inference

of discrimination. Accordingly, the Court will first consider the

fourth element of Chmura’s prima facie case, whether she has

presented sufficient evidence of a reasonable inference of unlawful

discrimination.

“An inference is defined as a conclusion reached by

considering other facts and deducing a logical consequence from

them, and the process of thought by which one moves from evidence

to proof.” Crawley v. Combs, No. 7:16-CV-00172, 2017 WL 780845, at

*2 (W.D. Va. Feb. 28, 2017), aff’d, 693 F. App’x 250 (4th Cir.

2017) (citations and internal quotation marks and alterations

omitted). “A reasonable inference is one that is within the range

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of reasonable probability.” Brown v. Rose’s Stores, Inc., 145 F.3d

1323 (4th Cir. 1998) (per curiam); see also Exergen Corp. v.

Wal-Mart Stores. Inc., 575 F.3d 1312, 1329 n.5 (Fed. Cir. 2009) (“A

reasonable inference is one that is plausible and that flows

logically from the facts alleged....”).

At the prima facie stage, the Court must carefully distinguish

between evidence that allows for a reasonable inference of

discrimination and evidence that gives rise to mere speculation and

conjecture. See Brown, 145 F.3d at 1323. Here, Chmura has failed to

establish that the circumstances surrounding her discharge give

rise to a reasonable inference of unlawful discrimination.

The parties do not dispute that, in November 2016, Chmura

failed to comply with Mon General’s Flu Vaccination Policy by

either receiving an influenza vaccination or obtaining an exemption

to the vaccination requirement. It is also undisputed that Chmura

requested medical exemptions to the Policy in 2015 and 2016, both

of which were denied. See Dkt. Nos. 26 at 7-11; 27 at 3-4; see also

Dkt. Nos. 26-5; 26-12; 26-16.

Further, the record reflects, and Chmura does not directly

dispute, that her 2015 medical exemption request was based solely

on her latex allergy. In support of her 2015 exemption request,

Chmura submitted only the Medical Exemption Form completed by Dr.

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Allen and the patient safety letter signed by Donahue, see Dkt. No.

26-1 at 22, both of which indicate, at most, that Chmura has a

“severe latex allergy,” that she was “concerned [about] latex” in

flu vaccines, and that she had “experienced low blood pressure . .

. from the use of latex gloves” during a 2014 surgical procedure

(Dkt. Nos. 26-3 at 2; 26-4). Consistent with the documents provided

to Mon General in support of her request for an exemption, Chmura’s

2015 Medical Exemption Form reflects that her request was “denied”

because she “can take [a] Latex free” influenza vaccine (Dkt. No.

26-3 at 1). Moreover, Chmura agreed in her deposition that the

“basis” of her 2015 medical exemption request “was a latex

allergy.” (Dkt. No. 26-1 at 22).

Chmura is decidedly less specific, however, about the asserted

basis or bases for her 2016 medical exemption request (Dkt. No. 26-

3 at 2). As noted earlier, Dr. Guana completed Chmura’s 2016

Medical Exemption Form (Dkt. No. 26-11). Dr. Guana’s records

indicate that, on October 26, 2016, Chmura had an appointment as a

“new patient . . . asking for a script for work to state unable to

get flu shot due to latex allergy . . . and severe reaction to

latex-free flu shot last time in 2015” (Dkt. No. 26-10 at 3).

During the appointment, Dr. Gauna completed Chmura’s 2016 Medical

Exemption Form, in which she indicated that Chmura had a “History

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of previous allergic reaction and documented allergy testing to

indicate an immediate hypersensitivity reaction to the influenza

vaccine or a component of the vaccine” (Dkt. No. 26-11) (emphasis

added). Despite the Form’s directive to “attach supporting

documentation or medical records,” Dr. Gauna provided no

documentation supporting Chmura’s purported history of a previous

reaction to the influenza vaccine. Nor did she provide any

documented allergy testing indicating that Chmura had experienced

an immediate hypersensitivity reaction to the vaccine or one of its

components. See id. After concluding that Chmura failed to provide

medical records sufficient to demonstrate a documented

contraindication to a component of the influenza vaccine other than

latex, Mon General denied Chmura’s 2016 exemption request (Dkt.

Nos. 26-11; 26-12).

Dr. Guana’s subsequent November 2016 letter, in which she

opined, without further explanation, that it was medically

necessary that Chmura not receive an influenza vaccine “due to a

hypersensitivity to a component in the . . . vaccine,” did not

specify the component of the influenza vaccine to which Chmura was

hypersensitive, nor did it reference any documented allergy testing

or other medical records to support her opinion (Dkt. No. 26-14).

Consequently, after receipt of the letter, Mon General, via Dr.

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Hawthorne, contacted Dr. Guana to discuss her medical opinions.

During that conversation, Dr. Guana admitted that she had not

performed any allergy testing before completing Chmura’s 2016

Medical Exemption Form and writing the letter in support of her

exemption request (Dkt. No. 26-15 at 2).

During her deposition, Chmura confirmed that she never

provided any documents regarding allergy testing to Mon General at

the time she submitted her 2016 exemption request, because Dr.

Guana had never performed any type of medical testing to determine

whether she was, in fact, hypersensitive to any particular

component(s) of the vaccine (Dkt. Nos. 26-1 at 26, 31, 34). Chmura

therefore agreed that, as of the writing of Dr. Guana’s letter in

November 2016, she “didn’t have any medical evidence from Dr. Guana

or anyone else that [she] had a hypersensitivity to any . . .

component of the vaccine other than latex.” Id. at 31 (emphasis).

Finally, and most tellingly, Chmura also agreed that, because

Dr. Guana had not performed any medical testing, “Mon General [wa]s

not aware of any allergy to any component of the flu shot” other

than latex, when it denied her 2016 exemption request. Id. at 34-

35; see also id. at 26 (Chmura agreeing that, because she never

obtained medical testing to determine the component of the Afluria

vaccine to which she had allegedly reacted in November 2015, Mon

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General could not have known what caused the alleged reaction when

it considered her 2016 medical exemption request).5

Nonetheless, Chmura argues that a genuine dispute of material

fact exists “regarding Dr. Guana’s assessment of the true nature of

her disability” (Dkt. No. 27 at 11). She contends that her 2016

Medical Exemption Form suggests that Dr. Guana “appears to have

believed that [she] suffered from an allergic reaction to another

element of the influenza vaccine.” Id. As discussed earlier, it is

Chmura who bears the burden to produce sufficient evidence from

which the Court can reasonably infer discrimination. An inference

“is not a suspicion or a guess.” Bickerstaff v. Vassar College, 196

F.3d 435, 448 (2d Cir. 1999).

The Court therefore will not endorse Chmura’s speculation

about what Dr. Guana “appears to have believed” about her reaction

to the Afluria vaccine, particularly given the undisputed evidence

that Dr. Guana could not have known which, if any, component of the

vaccine had caused Chmura’s reaction since she had performed no

medical testing. Chmura’s contention is also directly refuted by

5

Chmura further testified that, as of the time of her deposition in

February 2019, Dr. Guana still had not performed any allergy

testing to determine whether Chmura has a hypersensitivity to a

component of the influenza vaccine other than latex. Chmura stated

that she had not yet obtained such testing “because I really

haven’t had the time.” (Dkt. No. 26-1 at 1).

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Dr. Gauna’s concession to Dr. Hawthorne that there was “no medical

reason” Chmura could not have received a latex-free vaccine (Dkt.

No. 26-15 at 2).

And so, while Chmura undoubtedly requested a medical exemption

to the Flu Vaccination Policy in both 2015 and 2016, the record

reflects that she never provided Mon General with sufficient

documentation to establish a contraindication to some component of

the influenza vaccination other than latex. Further, Mon General,

which had been aware of Chmura’s latex allergy since at least

October of 2015, had taken no adverse employment action against her

on the basis of her reported contraindication to latex. Rather, it

acknowledged that Chmura could satisfy its Policy by receiving any

one of the numerous latex-free influenza vaccinations available to

her, and continued to employ her for more than a year. Accordingly,

the undisputed evidence before the Court establishes that Chmura’s

termination, far from any unlawful disability discrimination by Mon

General, was the result of her own continued failure to comply with

the Flu Vaccination Policy in November 2016. Chmura failed either

to obtain a latex-free influenza vaccination or to provide

documentation sufficient to obtain a medical exemption based on a

recognized contraindication to the vaccine other than latex.

Thus, when the evidence is viewed in the light most favorable

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to Chmura, as it must be, the Court concludes that she has failed

to offer sufficient evidence of a reasonable inference of unlawful

discrimination so as to withstand summary judgment. Having failed

to demonstrate a reasonable inference of discrimination, Chmura has

failed to establish a prima facie case of wrongful discharge under

the ADA.

C. Burden-Shifting Analysis

Given Chmura’s failure to establish a prima facie case, it is

not necessary to undertake the burden-shifting analysis under the

second step of McDonnell Douglas. Nonetheless, even had Chmura made

out a prima facie case, Mon Health has demonstrated a non-

discriminatory reason for terminating her employment. The stated

purpose of Mon Health’s Flu Vaccination Policy was “to provide

information . . . regarding the requirements for all . . .

employees . . . providing services on any [Mon Health] premises to

be immunized against influenza” (Dkt. No. 26-2 at 1). In her

deposition, Chmura agreed that the Policy was designed to protect

the safety of hospital patients and staff by reducing the risk of

influenza infection and spread (Dkt. No. 26-1 at 11-12). As

discussed at length, Chmura did not obtain an influenza vaccine in

November 2016 and, thus, failed to comply with the Policy. Mon

Health has therefore satisfied its relatively modest burden to

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produce evidence of a legitimate, non-discriminatory reason for

terminating Chmura.

Moreover, for many of the same reasons that Chmura has failed

to demonstrate a reasonable inference of unlawful discrimination,

she also has failed to demonstrate that the legitimate reason for

her termination offered by Mon Health is a pretext for disability

discrimination. The only specific evidence Chmura cites for that

proposition is an unsupported assertion that Mon Health has

exempted at least one other employee from the Policy’s vaccination

requirement, “despite [the employee] not falling under any of

Defendant’s noted exceptions” (Dkt. No. 27 at 14). Chmura has

produced no evidence in support of this assertion. See id. (citing

to transcript pages not included in the record on summary

judgment). Therefore, even when drawing all reasonable inferences

in her favor, the Court concludes that Chmura has failed to

demonstrate, by a preponderance of the evidence, that Mon Health’s

justification for her termination was pretextual.

IV. CONCLUSION

For the reasons discussed, the Court GRANTS Mon Health’s

motion for summary judgment (Dkt. No. 25), and DISMISSES this case

WITH PREJUDICE.

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It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a

separate judgment order.

DATED: August 9, 2019

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

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