Samper v. PROVIDENCE ST. VINCENT MEDICAL CENTER

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONIKA SAMPER, 

Plaintiff-Appellant, No. 10-35811

v.

 D.C. No.

3:09-cv-01182-AC

PROVIDENCE ST. VINCENT MEDICAL

CENTER, OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Oregon

John V. Acosta, Magistrate Judge, Presiding

Argued and Submitted

December 8, 2011—Seattle, Washington

Filed April 11, 2012

Before: Ralph B. Guy, Jr.,* M. Margaret McKeown, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

*The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth

Circuit, sitting by designation.

3879

3882 SAMPER v. PROVIDENCE ST. VINCENT

COUNSEL

Thomas K. Doyle, BENNETT, HARTMAN, MORRIS &

KAPLAN LLP, Portland, Oregon, for the plaintiff-appellant.

Jeffrey J. Druckman, Janine C. Blatt, DRUCKMAN &

BLATT, P.C., Portland, Oregon, for the defendant-appellee.

OPINION

McKEOWN, Circuit Judge:

This case tests the limits of an employer’s attendance pol-

icy. Just how essential is showing up for work on a predict-

SAMPER v. PROVIDENCE ST. VINCENT 3883

able basis? In the case of a neo-natal intensive care nurse, we

conclude that attendance really is essential.

Monika Samper, a neo-natal intensive care unit (“NICU”)

nurse, sought an accommodation from her employer, Provi-

dence St. Vincent (“Providence”), that would have allowed

her an unspecified number of unplanned absences from her

job. She wanted to opt out of Providence’s attendance policy,

which sanctioned five unplanned absences of unlimited dura-

tion as well as other permitted absences. Samper appeals the

district court’s summary judgment in favor of Providence on

her reasonable accommodation claim under the Americans

with Disabilities Act (“ADA”). Because regular attendance is

an essential function of a neo-natal nursing position at Provi-

dence, we affirm.

BACKGROUND

Providence is a medical facility in Portland, Oregon, that

provides a broad range of medical services. Its NICU offers

a high level of intensive care to premature infants. According

to the NICU charge nurse, absences among NICU staff can

jeopardize patient care: NICU nurses require special training

such that the universe of nurses that can be called in at the last

minute is limited. As the charge nurse explains, given the rel-

evant patient population, being understaffed is “highly unde-

sirable and, potentially, can compromise patient care.”

Nonetheless, striking a balance between the needs of patients

and employees, Providence’s attendance policy allows its

employees to take up to five unplanned absences during a

rolling twelve-month period. In addition, “[u]nplanned

absences related to family medical leave . . . jury duty,

bereavement leave and other approved bases are not counted”

towards this limit, and each absence, however long, counts as

only one occurrence. Samper challenges the application of

this generous absence policy to her circumstances.

3884 SAMPER v. PROVIDENCE ST. VINCENT

Although Samper claims material issues of fact remain

regarding the circumstances surrounding her dismissal, the

sequence of events is undisputed.1 Samper was employed with

Providence as a registered NICU nurse for eleven years. Since

at least 2005, she has had fibromyalgia, a condition that limits

her sleep and causes her chronic pain. Over the entire period

of her employment, Samper never worked full time, but,

nonetheless, regularly exceeded the number of unplanned

absences permitted even for full-time employees. In July

2000, while on leave of absence, Samper received a perfor-

mance appraisal that reflected she had taken seven unplanned

absences over the year, exceeding the number permitted by

the attendance policy. She was informed her attendance

needed improvement. In 2002, Samper was placed on work

plans to manage her continued absences, the result, according

to her, of a difficult divorce. At the time, Samper optimisti-

cally predicted that because her “personal life [had] dramati-

cally improved in the last few months,” her absences would

decrease.

This was not to be. After two more years of attendance

problems, and yet another negative attendance review, in

August 2005 Samper’s manager asked to meet with her and

a leave-of-absence specialist to address Samper’s chronic

attendance problems. At the meeting, Providence agreed to a

highly flexible accommodation: Samper was allowed to call

in when having a bad day, and move her shift to another day

in the week. Providence did not require Samper to find a

replacement for her shift.

Providence’s flexibility, however, yielded no results. By

1

“We review the district court’s grant of summary judgment de novo

[and] . . . affirm the decision to grant summary judgment when, reviewing

the record as a whole and drawing all reasonable inferences in favor of the

nonmoving party, we find no genuine issue of material fact.” Vander v.

United States Dep’t of Justice, 268 F.3d 661, 663 (9th Cir. 2001) (citations

omitted).

SAMPER v. PROVIDENCE ST. VINCENT 3885

July 2006, Samper admits that she once more exceeded the

attendance policy, and received a corrective action notice that

was later withdrawn.2 Samper again met with management in

August 2006, which agreed to yet another accommodation

under which Samper’s two shifts-per-week would not be

scheduled on consecutive days. Again, despite hoped for

improvement, Samper received a verbal warning at the end of

the year because of her attendance. Samper responded by

seeking an exemption from the attendance policy altogether.

Samper’s absences and requests for further absences

occurred against a backdrop of multiple other absences that

were not counted towards the unplanned absence limit. For

example, in early 2005, Samper obtained intermittent medical

leaves. In November 2005, she was allowed to take time off

to attend a trial involving her spouse. Although her attendance

in early 2007 improved, by May 2007, Samper sought and

was given a month-long leave of absence to obtain counsel-

ing. She received another medical leave of over two weeks in

October. The following year, 2008, began with another two-

week medical leave.

Although none of these leaves counted towards her

unplanned attendance limit, despite ongoing accommodation,

Samper was issued a corrective action notice in March 2008

for seven unplanned absences over the previous twelve-month

period, some of several days in length. Matters came to a head

in early 2008, when management informed Samper that her

part-time position would cease to exist, and that she could

transfer to another position or face termination. Samper

responded by making inappropriate comments in the presence

of patients. Providence issued two corrective action notices in

March: one for seven unplanned absences over the previous

2

We accept Samper’s representation that she had only seven absences

over the twelve-month period preceding the evaluation. However, the cor-

rective action notice states that Samper had seventeen absences over the

previous twelve months.

3886 SAMPER v. PROVIDENCE ST. VINCENT

twelve months, and another for her comments. After two fur-

ther unplanned absences in April, Samper was scheduled to

discuss her attendance issues with management at a meeting

at which Samper was (not uncharacteristically) absent. Sam-

per was finally discharged for, among other issues, seven

absences in a twelve month period, and general problems with

attendance.

Samper filed suit alleging, among other claims, a violation

of the ADA due to failure to accommodate. The district court

granted summary judgment in favor of Providence, reasoning

that because Samper was unable to adhere to Providence’s

attendance policy, she was unqualified for her position as a

matter of law. The court also held that the 2006 part-time

work plan was a reasonable accommodation, and that the

accommodation that Samper requested, to obtain a waiver

from the five unplanned absence limit, was unreasonable.

DISCUSSION

[1] This case turns on the role that regular attendance plays

in the functions of a NICU nurse. To establish a prima facie

case for failure to accommodate under the ADA, Samper must

show that “(1) [s]he is disabled within the meaning of the

ADA; (2) [s]he is a qualified individual able to perform the

essential functions of the job with reasonable accommodation;

and (3) [s]he suffered an adverse employment action because

of [her] disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114

(9th Cir. 2003); see also 42 U.S.C. §§ 12112(a), (b)(5)(A)

(requiring reasonable accommodation). Providence does not

dispute that Samper is disabled, that she has the requisite

technical skills for the job, or that she suffered an adverse

employment action. Samper runs into an insurmountable hur-

dle, however, in arguing that regular attendance is not an

essential function of the NICU nurse position.

[2] An individual is qualified if “with or without reason-

able accommodation, [she] can perform the essential func-

SAMPER v. PROVIDENCE ST. VINCENT 3887

tions of the employment position . . . .” 42 U.S.C. § 12111(8).

“The court first examines whether the individual satisfies the

requisite skill, experience, education and other job-related

requirements of the position. The court then considers

whether the individual can perform the essential functions . . .

with or without a reasonable accommodation.” Bates v.

United Parcel Svc., Inc., 511 F.3d 974, 990 (9th Cir. 2007)

(en banc) (internal quotation marks omitted). Although Sam-

per retains the burden of proof in making her prima facie case,

Providence has the burden of production in establishing what

job functions are essential as “much of the information which

determines those essential functions lies uniquely with the

employer.” Id. at 991 (citations and internal quotation marks

omitted). To meet its burden of production, Providence “must

clearly set forth, through the introduction of admissible evi-

dence, reasons for its actions which, if believed by the trier of

fact, would support a finding” favorable to the defendant—in

this case, that compliance with the attendance policy is an

essential function of the job. St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 507 (1993) (emphasis in original, citation and

internal quotation marks omitted).

[3] It is a “rather common-sense idea . . . that if one is not

able to be at work, one cannot be a qualified individual.”

Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999).

Both before and since the passage of the ADA, a majority of

circuits have endorsed the proposition that in those jobs where

performance requires attendance at the job, irregular atten-

dance compromises essential job functions. Attendance may

be necessary for a variety of reasons. Sometimes, it is

required simply because the employee must work as “part of

a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727

(5th Cir. 1998). Other jobs require face-to-face interaction

with clients and other employees. Nowak v. St. Rita High

Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans

World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline

customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d

209 (4th Cir. 1994) (teacher). Yet other jobs require the

3888 SAMPER v. PROVIDENCE ST. VINCENT

employee to work with items and equipment that are on site.

EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir.

2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator,

201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner,

169 F.3d 481 (production worker); Corder v. Lucent Techs.,

Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer sup-

port); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir.

1997) (computer consultant); Rogers v. Int’l Marine Termi-

nals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.

Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping

aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding

clerk under the Rehabilitation Act); Law v. U.S. Postal Serv.,

852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Reha-

bilitation Act).

[4] The common-sense notion that on-site regular atten-

dance is an essential job function could hardly be more illus-

trative than in the context of a neo-natal nurse. This at-risk

patient population cries out for constant vigilance, team coor-

dination and continuity. As a NICU nurse, Samper’s job

unites the trinity of requirements that make regular on-site

presence necessary for regular performance: teamwork, face-

to-face interaction with patients and their families, and work-

ing with medical equipment. Samper herself admits that her

absences sometimes affected “teamwork and cause[d] a hard-

ship for [her] coworkers who must cover for [her].” Similarly,

once at work, Samper’s tasks required her to “lift babies, push

cribs and isolettes.” More critically, she had to “get up at a

moment’s notice to answer alarms [and] . . . [o]ften . . . run

to codes.”

[5] Rather than merely relying on Samper’s own admis-

sions, or the logical presumption that it is essential for a nurse

to be present regularly and predictably to do her job, Provi-

dence supplies evidence to meet its burden of production with

alacrity. Providence notes that the written job description

required strict adherence to the attendance policy. Under the

heading “standards of performance,” “Attendance” and

SAMPER v. PROVIDENCE ST. VINCENT 3889

“Punctuality” are listed as essential functions. The more

detailed statement provides that the employee must

“[d]emonstrate[ ] performance by adhering to established pol-

icies and procedure and exhibiting the defined characteristics

associated with attendance and punctuality.” As Providence

further explains in a declaration from Samper’s former super-

visor, NICU nurses must have specialized training, and it is

very difficult to find replacements, especially for unscheduled

absences. Understaffing compromises patient care. Provi-

dence’s evidence meets its burden of production. See 29

C.F.R. § 1630.2(n)(3) (“Evidence of whether a particular

function is essential includes, but is not limited to [t]he

employer’s judgment as to which functions are essential; . . .

[w]ritten job descriptions; . . . [t]he consequences of not

requiring the incumbent to perform the function; [and t]he

current work experience of incumbents in similar jobs.”).

The record shows that Samper’s position differs from those

considered by our sister circuits in only one important respect:

Samper’s regular, predictable presence to perform specialized,

life-saving work in a hospital context was even more essential

than in those cases. This is not a job where it is possible to

argue, as in the case of the dockworker in Yellow Freight, that

“workers were basically fungible with one another, so that it

did not matter who was doing the [job] on any particular day;

[and the employer] did not follow any fixed policy other than

to treat each case individually, giving very lengthy leaves to

people he found deserving.” 253 F.3d at 958 (Wood, J., dis-

senting). As the First Circuit observed in rejecting a schedul-

ing accommodation requested by a nurse, “[m]edical needs

and emergencies—many potentially life-threatening—do not

mind the clock, let alone staff-nurse convenience. . . . The 24-

hour hospital unit setting thus affords a particularly compel-

ling context in which to defer to rational staffing judgments

by hospital employers based on the genuine necessities of the

hospital business.” Laurin v. Providence Hosp., 150 F.3d 52,

59-60 (1st Cir. 1998).

3890 SAMPER v. PROVIDENCE ST. VINCENT

[6] Samper offers nothing to rebut Providence’s undis-

puted evidence except for highlighting that Providence’s pol-

icy allows for some unplanned absences, and that her

absences had exceeded those permitted under the policy in

past years without repercussions. She claims, without evi-

dence, that “[t]he impact on staffing levels resulting from an

employee’s first absence is the same as the impact from an

employee’s twentieth absence,” and clings to our decision in

Humphrey v. Memorial Hosps. Ass’n for support, where we

noted that “regular and predictable attendance is not per se an

essential function of all jobs.” 239 F.3d 1128, 1135 n.11 (9th

Cir. 2001).

Our observation that regular attendance is not necessary for

all jobs is hardly remarkable when on-site presence is not

required for all jobs, a point not lost on our sister circuits. See

Waggoner, 169 F.3d at 485 (“In some jobs . . . working at

home for a time might be an option.”); Jackson, 22 F.3d at

279 (“[O]ther jobs . . . can be performed off site or deferred

until a later day.”); Carr, 23 F.3d at 530 (“Indeed, in appro-

priate cases, that section requires an agency to consider work

at home, as well as reassignment in another position, as poten-

tial forms of accommodation.”). Similarly, in Humphrey, a

medical transcriptionist provided evidence that other trans-

criptionists were allowed to work at home, and therefore, his

attendance was not required for performance. 239 F.3d at

1137. However, even when an employee “work[s] at home,

. . . regular hours on a consistent basis” often remain a

requirement. Carr, 23 F.3d at 530.

Samper’s focus on Humphrey, the unusual case, blinds her

to the rule. “Except in the unusual case where an employee

can effectively perform all work-related duties at home, an

employee ‘who does not come to work cannot perform any of

his job functions, essential or otherwise.’ ” Yellow Freight,

253 F.3d at 948 (quoting Waggoner, at 484-85). As the evi-

dence easily establishes, Samper’s engagement with patients

is far more direct than that of a medical transcriptionist—

SAMPER v. PROVIDENCE ST. VINCENT 3891

although attendance may not be necessary to transcribe

details regarding medical treatment, in the context of a neo-

natal nurse, it is necessary to provide that treatment in the first

place. Not only is physical attendance required in the NICU

to provide critical care, the hospital needs to populate this

difficult-to-staff unit with nurses who can guarantee some

regularity in their attendance.

[7] Turning to the reasonable accommodation analysis,

Samper attempts to gild the lily by claiming not that atten-

dance in general is an essential function, but, rather that her

proposed variation to the attendance policy constitutes a rea-

sonable accommodation.

[8] Even under a “fact-specific, individualized analysis” of

the accommodation, Samper’s argument fails. Wong v.

Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir.

1999). As Providence points out, “Samper never quantified

the number of additional unplanned absences she was seek-

ing,” even though she could have done so at any time during

her years-long negotiating with the hospital over attendance.

As the Seventh Circuit observed in similar circumstances in

Yellow Freight and Jovanovic, such behavior suggests that

“the only imaginable accommodation” that would satisfy the

employee “would be an open-ended schedule that would

allow [her] to come and go as [s]he pleased.” Yellow Freight,

253 F.3d at 951 (quoting Jovanovic, 201 F.3d at 899 n.9). In

these cases, the court was “hard-pressed to imagine a manu-

facturing facility that could operate effectively when its

employees are essentially permitted to set their own work

hours.” Id. To imagine a NICU facility, responsible for the

emergency care of infants, operating effectively in such a

manner, stretches the notion of accommodation beyond any

reasonable limit. An accommodation that would allow Sam-

per to “simply . . . miss work whenever she felt she needed

to and apparently for so long as she felt she needed to [a]s a

matter of law . . . [is] not reasonable” on its face. Waggoner,

3892 SAMPER v. PROVIDENCE ST. VINCENT

169 F.3d at 485; see US Airways, Inc. v. Barnett, 535 U.S.

391, 401 (2002).

[9] Indeed, Samper’s request so far exceeds the realm of

reasonableness that her argument leads to a breakdown in

well-established ADA analysis. In most cases, the essential

function and reasonable accommodation analyses are sepa-

rate: first, a court inquires as to the job’s essential functions,

after which the plaintiff must establish that she can perform

those functions with or without reasonable accommodations.

See Bates, 511 F.3d at 994. Samper essentially asks for a rea-

sonable accommodation that exempts her from an essential

function, causing the essential functions and reasonable

accommodation analyses to run together. Samper’s approach

would eviscerate any attendance policy, leaving the hospital

with the potential for unlimited absences.

To be sure, as Samper emphasizes, the hospital did not

adopt a no-tolerance policy. Her theory is essentially a “drop

in the bucket” approach—if Providence permits five unsched-

uled absences plus other absences for all NICU nurses, addi-

tional absences by a single employee will hardly have any real

effect on patient care. Providence acknowledges that it can

work around five unplanned absences, so, as Samper’s argu-

ment goes, it ought to be able to accommodate her for an

unspecified number of absences. But this approach ignores

recognition of employer needs and would gut reasonable

attendance policies.

[10] Providence endeavored to balance the realities of ill-

ness, family matters and other unplanned emergencies faced

by its employees against the vital demands of critical infant

care, by cabining the overall number of absences. Samper’s

arguments do nothing to undermine Providence’s principal

claim, backed up with evidence: unplanned absences are a

hardship to the NICU, and the written policy represents the

outer limit to the number of unplanned absences that can be

tolerated without serious repercussions on patient care.

SAMPER v. PROVIDENCE ST. VINCENT 3893

[11] Providence was under no obligation to give Samper a

free pass for every unplanned absence. Importantly, even

though Samper “had fashioned a poor attendance record for

[her]self well before [s]he was diagnosed,” Yellow Freight,

253 F.3d at 951, Providence had already provided her with

various accommodations. In 2005, Samper was allowed to

call in when having a bad day, and move her shift to another

day in the week; from 2006 her schedule comprised a maxi-

mum of two day-time shifts a week, with no two days back

to back, along with a history of extended leaves not counted

towards the attendance policy. We need not decide whether

these accommodations exceeded Providence’s ADA obliga-

tions. Cf. Laurin, 150 F.3d 52 (day-time only shifts accommo-

dation for nurse unnecessary under the ADA). Despite

Providence’s Herculean efforts to accommodate her, Sam-

per’s attendance from 2005 until she was terminated never

met the attendance policy requirements. As in Yellow Freight,

“the fact that [the employer] had infinite patience with regard

to [the employee’s] poor attendance does not necessarily

mean that every company must put up with employees who

do not come to work.” 253 F.3d at 948 (square brackets in

original omitted). Ultimately, despite Providence’s patience

and accommodations, “there was literally nothing in the

record to suggest that the future would look different from the

past,” leaving Providence with little choice but to terminate

Samper. Corder, 162 F.3d at 928.

[12] Samper’s performance is predicated on her atten-

dance; reliable, dependable performance requires reliable and

dependable attendance. An employer need not provide accom-

modations that compromise performance quality—to require

a hospital to do so could, quite literally, be fatal.

AFFIRMED.