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Equal Employment Opportunity Commission v. GGNSC Administrative Services LLC

United States District Court, E.D. Wisconsin

March 28, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
GGNSC ADMINISTRATIVE SERVICES LLC, GGNSC HOLDINGS LLC, AND SILVER SPRING OPERATING LLC d/b/a GOLDEN LIVING CENTER-SILVER SPRING, Defendants.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. Magistrate Judge.

         Introduction

         A number of motions are currently before the court. Defendants GGNSC Administrative Services LLC (Administrative Services) and GGNSC Holdings LLC (Holdings) move for summary judgment on the ground that they did not employ Juanette Roberts (née Barbee), nor were they named as respondents in her charge of discrimination filed with plaintiff Equal Employment Opportunity Commission (EEOC). (ECF Nos. 48-49.) All of the defendants move for summary judgment on several grounds, including that Roberts was not a qualified individual within the meaning of the Americans with Disabilities Act (“A D A ”) . (ECF Nos. 50-51.) And plaintiff EEOC moves for partial summary judgment, seeking dismissal of several affirmative defenses contained in the defendants' Answer to Second Amended Complaint. (ECF Nos. 54-55.) All of the motions have been fully briefed and are ready for resolution.

         Factual Background

         On August 28, 2008, Juanette Roberts applied for employment at a skilled nursing home doing business as “Golden LivingCenter-Silver Spring” located at 1300 West Silver Spring Drive in Glendale, Wisconsin. (ECF Nos. 35, ¶ 13; 79, ¶ 8.) She was hired as an Activities Assistant on or about September 3, 2008. (ECF No. 79, ¶¶ 8, 10.) About a year later Roberts was moved into a new position that apparently consisted of two roles: Staffing Coordinator and Central Supply Clerk. (ECF No. 79, ¶ 11.) As will be discussed, each role had separate responsibilities.

         The nursing home at 1300 West Silver Spring Drive in Glendale, Wisconsin is owned and operated by Defendant Silver Spring Operating LLC (Silver Spring). (ECF No. 81-10 at 5.) This Delaware limited liability company (id.) does business using the “Golden Living” trade name. (ECF No. 91, ¶ 55.) The trade name, service marks, and other proprietary materials of “Golden Living” are owned by “Golden Gate National Senior Care, LLC” (ECF No. 82-2, ¶¶ 28-29) - whose parent company is defendant Holdings (ECF No. 91, ¶ 29). The proprietary materials are licensed by Golden Gate National Senior Care, LLC to “Golden Living” trade name facilities pursuant to a nonexclusive license agreement. (ECF No. 82-2, ¶ 28.)

         Defendants admit that Silver Spring is “controlled by, or under common control” with Golden Gate National Senior Care, LLC, “or [its] parent, [defendant] Holdings.” (ECF No. 91, ¶ 30.) Holdings is a limited liability company with headquarters in Plano, Texas. (ECF No. 91, ¶ 25.) None of the parties' submissions speak to what Holdings does, if anything.

         Administrative Services is a Delaware limited liability company (ECF No. 82-12 at 3) that is also “controlled by or under common control” of Holdings. (ECF No. 91, ¶ 28). Pursuant to a contractual relationship, Administrative Services provides services to Golden Living nursing homes. (ECF Nos. 81-7 at 5; 82-14.) Administrative Services's Leave of Absence (LOA) Group provides legal and human resources advice for the Golden Living nursing homes and their employees. (ECF No. 81-7 at 6.)

         As Staffing Coordinator at the Silver Spring nursing home, Roberts ensured adequate staffing of the facility, communicated shift needs to employees, and posted schedules. (ECF No. 53-1 at 13.) As Central Supply Clerk, Roberts monitored, inventoried, and distributed the medical supplies of the facility as appropriate. (ECF No. 53-1 at 13.) The written job descriptions for the Staffing Coordinator and Central Supply Clerk positions identify the physical demands of the jobs as including reaching, bending, lifting (minimum of 10 pounds), writing, operating a computer, and answering phone calls. (ECF Nos. 53-14, 53-15.)

         On January 4, 2012, Roberts requested leave for a non-work related foot injury under the Family and Medical Leave Act (“FMLA”). (ECF No. 79, ¶ 19.) She was granted FMLA leave from January 16, 2012, until February 22, 2012. (ECF No. 79, ¶ 19.) Roberts's doctor (Dr. Ronald Z. Arnold) wrote a letter stating that Roberts was able to return to work on February 23, 2012, with the restriction that “she can only work at a desk or doing a sitting down job of some sort.” (ECF No. 53-21.) Silver Spring did not accept Roberts working with that restriction and instead granted her additional leave, until March 12, 2012, at which time Dr. Arnold stated that she could return to work without restrictions. (ECF Nos. 79, ¶ 21; 53-1 at 20.) On May 8, 2012, Roberts suffered a back injury and was again granted FMLA leave for another week. (ECF No. 79, ¶ 23.)

         During this same time period (starting on January 21, 2012) Roberts was supervised by Lakisha Hayden (née Dahm), Silver Spring's Executive Director, and by Brenda Birch, Director of Nursing Services. (ECF No. 79, ¶ 11.) No submissions from the parties identify Birch's employer, although it appears she is, or at the time was, employed by Silver Spring. The EEOC does not contend otherwise. (See ECF No. 77 at 15, stating “no GGNSC Administrative Services employee supervised Ms. Roberts' day-to-day activities[.]”)

         On May 26, 2012, Roberts fell at home and injured her right shoulder. (ECF No. 91, ¶ 86; 53-1 at 29.) After working with the injury for two weeks, Roberts started missing work on June 8, 2012. (ECF No. 79, ¶ 25.) Roberts was provided FMLA leave retroactively upon her request. (Id.) Roberts returned to work on June 25, 2012, but left work again two days later because of pain in her shoulder. (ECF No. 79, ¶ 26.) She was again granted FMLA leave upon her request. (Id.)

         Roberts's FMLA leave covered the period from June 8 until June 25 and from June 27 until July 10, 2012, which is the date that Roberts exhausted her twelve weeks of FMLA leave. (ECF No. 79, ¶ 27.) On July 10, 2012, Administrative Services's LOA Group sent Roberts a letter notifying her that she had exhausted her FMLA entitlement, but telling her in relevant part that she

may be entitled to additional Medical Leave as an accommodation pursuant to the Americans with Disabilities Act (ADA). If you wish to request such an accommodation, please have your physician complete the attached questionnaire, and return it within twelve (12) days of the date of this letter to the LOA Group, Attn: Tyler Petersen, at the address shown above or via confidential fax at (479) 201-0475. Otherwise, your employment may be separated with eligibility to re-apply in the future for a vacant position for which you are qualified and can perform essential job functions.
If you have any questions about the questionnaire or ADA process, please call Tyler Petersen at (877) 823-8375 ext. 3127.

(ECF No. 53-27.) At her deposition Roberts testified that she spoke with Petersen regarding filing paperwork for an extension of her leave of absence. (ECF No. 53-1 at 25.)

         On July 5, 2012, shortly before her FMLA leave was exhausted, Roberts visited Dr. Jonas Slawson, who filled out a “Doctor's Certification of Leave” form (ECF No. 53-26) and a “Physician Questionnaire” form (ECF No. 53-28). By July 23, 2012, either Silver Spring or Administrative Services (it's not clear which) received a fax of both of these documents. (ECF Nos. 53-26, 53-28.) The physician questionnaire stated that Roberts visited Dr. Slawson on July 5, 2012, with “severe right shoulder pain” and the following limitations: “Unable to use right arm. At 7/5/12 office visit-restricted to activities not requiring use of right arm.” (ECF No. 53-28 at 1.) Dr. Slawson also noted that he considered the impairment “temporary” and “[a]t 7/5/12 visit she was referred to orthopedic surgeon, Dr. Mlsna, who will further clarify and treat condition-[a]nd determine future disability.” (ECF No. 53-28.) The doctor's certification form provided Roberts's “probable duration of condition” as “unknown.” (ECF No. 53-26 at 2.)

         On July 18, 2012, after Roberts's FMLA leave had been exhausted, Dr. Jacqueline Mlsna saw Roberts for her shoulder injury. (ECF No. 81-20.) In her report Dr. Mlsna noted that the probable duration of Roberts's condition was “several months.” (ECF No. 81-20 at 4.) With regard to the “job functions the employee is unable to perform, ” Dr. Mlsna wrote, “unable to use right arm.” (ECF No. 81-20 at 4.) Dr. Mlsna further wrote that the estimated duration of Roberts's incapacity was “unknown-at least 6 wks- may be 3-6 mos.” (ECF No. 81-20 at 5.) Dr. Mlsna signed and dated the form August 4, 2012, although a fax cover sheet indicates that it was sent to Tricia Evans (a Silver Spring employee (ECF No. 79, ¶ 37)) on August 7, 2012. (ECF No. 81-20 at 1, 6.)

         In a letter dated August 6, 2012, Hayden informed Roberts that her employment was terminated. (ECF Nos. 79, ¶ 32; 53-30.) Hayden's letter was drafted by Petersen, who had reviewed Roberts's leave requests and the information from Dr. Slawson. (ECF No. 79, ¶ 33.) Whether Petersen also reviewed Dr. Mlsna's report prior to drafting the termination letter is apparently disputed. He says he did (ECF No. 92-4 at 12), but relying on the fax cover sheet accompanying Dr. Mlsna's report (dated one day after the date of Hayden's termination letter to Roberts) the EEOC contends he could not have. (ECF No. 79, ¶ 33.)

         On or about November 29, 2012, Roberts filed an EEOC Charge of Discrimination and Intake Questionnaire related to her termination, naming her employer as “Golden Living Silver Spring” with an address of “1300 W. Silver Spring Dr., Glendale, Wisconsin.” (ECF Nos. 79, ¶ 37; 53-33.) Neither Administrative Services nor Holdings were named as respondents on the EEOC charge. (ECF No. 79, ¶ 38.) In a space on the EEOC charge where the claimant is to identify the number of employees the employer had, someone had typed in “500 or more, ” but Roberts crossed-off “500” and wrote “100” above it. (ECF Nos. 79, ¶ 40; 53-33.)

         According to Roberts, she “intended to file her charge against her employer, the nursing home that operates as part of the Golden Living organization.” (ECF No. 91, ¶ 4.) On July 17, 2014, the EEOC determined that there was “reasonable cause to believe that there is a violation of the ADAAA in that the Respondent [Golden Living-Silver Spring] denied [Roberts] a reasonable accommodation and discharged her on the basis of her disability.” (ECF Nos. 52, ¶ 42; 21-2.) The EEOC sent its determination letter (ECF No. 21-2) naming “Golden Living-Silver Spring” as the respondent to William Kropp (whom it identified as “Assistant General Counsel for Golden Living”), informing him that “the respondent” was invited to engage in conciliation efforts with the EEOC. (ECF Nos. 21-2; 91, ¶ 59). Kropp is an employee of Administrative Services. (ECF No. 91, ¶ 97.)

         On December 19, 2014, the EEOC filed this lawsuit against “GGNSC Holdings, LLC, d/b/a Golden LivingCenter--Silver Spring” under Title I of the Americans with Disabilities Act of 1990 and Title I of the ...


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