Hustvet v. Allina Health Sys.
Hustvet v. Allina Health Sys.
Opinion of the Court
Plaintiff Janice Hustvet brings discrimination, unlawful inquiry, and retaliation claims against Defendant Allina Health System under the Americans with Disabilities Act ("ADA") and the Minnesota Human Rights Act ("MHRA"), primarily arising from Allina's decision to terminate Hustvet for failing to fulfill a job requirement that she have immunity to rubella. Both Parties moved for summary judgment. (See Dkt. Nos. 25, 46.) Allina also moved to exclude the testimony of Hustvet's expert witness. (See Dkt. No. 38.) For the reasons that follow, the Court denies Hustvet's motion and grants summary judgment in Allina's favor on all claims. The Court denies Allina's motion to exclude as moot.
I. STANDARD OF REVIEW
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
II. BACKGROUND
Hustvet worked for Courage Center, out of its Golden Valley campus, as an Independent Living Specialist ("ILS") for several years. (See, e.g. , Compl. ¶ 6, Dkt. No. 1.) In May 2013, Courage Center announced it would be merging with Sister Kenny Rehabilitation Institute, part of Allina, on June 1, 2013. (Id. ¶ 7.) As a condition of continued employment, Allina required all ILSs to complete a health screen, which, among other things, included *738testing for immunity to certain communicable diseases and a "Respirator Medical Evaluation" ("RME"). (See id. ¶¶ 7-8.) The RME, which is based on OSHA standard forms, asked questions about potential health conditions directed at evaluating safe respirator fit and use. (See Dkt. No. 28-10.)
Testing revealed that Hustvet had immunity to mumps, measles, and varicella (chickenpox ), but that she lacked immunity to rubella. (See Dkt. No. 29.) Hustvet did not complete the RME and instead wrote "N.A." on the form because her supervisor told Hustvet that the form did not pertain to her position as an ILS. (See Deposition of Janice Hustvet ("Hustvet Dep.") 185:17-23, Dkt. No. 66.) Allina informed Hustvet that she would need to submit a full RME and develop immunity to rubella by taking a Mumps, Measles, Rubella ("MMR") vaccine. (See Dkt. No. 28-13 at 3-4.) Hustvet did not comply with either request, but later stated she was willing to complete the RME, despite her feeling that it was invasive and unnecessary. (See Hustvet Dep. 66:10-16, 118:3-6, 140:2-5, 170:10-15, 186:15-25, 214:6-9 216:25-2; Deposition of Heather Lindblom ("Lindblom Dep.") 184:13-19, Dkt. No. 28-2; Dkt. No. 28-13 at 3.) However, Hustvet never completed the RME, nor did she develop immunity to rubella. (See Dkt. No. 28-13 at 1.)
Hustvet told Allina that she was concerned about taking the MMR vaccine because her "health is of the utmost concern" and because she "had severe cases of mumps and measles-the MM part of the MMR." (See id. at 3.) She also stated that she has "many allergies and chemical sensitivities," such that she needed to limit her "exposure." (Id. ; see Hustvet Dep. 76:7-77:5, 82:9-21.) Based on these factors, she concluded that "[i]t would be unwise and unhealthy to expose [her]self to those unneeded parts of the vaccine." (Dkt. No. 28-13 at 3.) She offered to take a rubella-only vaccine instead of the MMR vaccine. (See id. at 2.) However, a rubella-only vaccine was not available in the U.S. (See id. at 1; Dkt. No. 28-19 at 20.)
Allina's immunization policy applies to all employees who have patient or client contact, regardless of location or job title. (See Dkt. Nos. 28-9 at 1-2, 28-13 at 4.) The policy aligns with the CDC's recommendation that all healthcare professionals
On July 9, 2013, Allina terminated Hustvet's employment due to her failure to comply with immunity requirements and to complete the RME. (See Dkt. No. 28-13 at 1.)
*739III. ANALYSIS
A. Disability Discrimination
Hustvet brings disability discrimination claims under the ADA and MHRA against Allina for utilizing discriminatory qualification standards, not making reasonable accommodations, and denying employment on the basis of disability. (See Compl. ¶¶ 28, 36-37.)
Claims for disability discrimination in violation of the ADA or MHRA are analyzed under the McDonnell Douglas burden-shifting framework. See Dovenmuehler v. St. Cloud Hosp.,
1. Disability
To demonstrate that she is disabled within the meaning of the ADA and MHRA, Hustvet must show that she: (1) has a physical, sensory, or mental impairment which substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. See
A limitation must be "substantial." See § 12102(1)(A) ; § 363A.03, subd. 12.
*740Hustvet does not argue or put forth evidence showing that Allina regarded her as having a disability. Instead, Hustvet asserts that she is actually disabled, as shown by her impairments and/or her record of impairments. (See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment ("D.S.J. Pl. Br.") 10-11, 34-37, Dkt. No. 77; Plaintiff's Memorandum in Support of Her Motion for Summary Judgment ("P.S.J. Pl. Br.") 8-9, Dkt. No. 61.) She argues that her conditions limited her performance of major life activities (such as breathing, eating, caring for oneself, cleaning, and socializing) and major bodily functions (including the functioning of her immune, digestive, neurological, respiratory, circulatory, cardiovascular, and musculoskeletal systems). (See D.S.J. Pl. Br. 11, 35.)
There is insufficient evidence in the record to support the conclusion that Hustvet's conditions substantially limit her ability to perform major life activities. For example, the record shows that Hustvet has garden-variety allergies to various foods, grass, pets, trees, etc. (See Hustvet Dep. 82:25-86:14.) She has "typical" allergic reactions, such as "itchy runny eyes and nose." (Id. at 87:6-9.) She has never been prescribed an Epi-Pen. (See id. at 87:18-19.) She is generally able to breath, eat, care for herself, clean, and socialize, but sometimes she must avoid certain fragrances and chemicals by relocating herself farther away from the source of an offending emanation. (See, e.g. , id. at 165:12-167:11.) She has never been hospitalized due to any allergic or chemical reactions. (Id. at 103:16-104:2, 176:10-12.)
In her deposition, Hustvet claimed that her chemical sensitivities and allergies derive from an immune system disability. (See id. at 109:5-19.) However, the record does not show that any doctor has diagnosed Hustvet with an immune system disability. (See, e.g. , id. at 110:20-23; Deposition of Dr. Tammy Chiesa ("Chiesa Dep.") 17:14-16, 62:13-16, Dkt. No. 71; Dkt. No. 32.) Allergies and sensitivities may be indicative of an immune system disorder, (see Chiesa Dep. 74:11-75:3), but Hustvet has not shown that these conditions substantially impaired the functioning of her immune system, see Land ,
The closest Hustvet comes to demonstrating the existence of a disability is her assertion that she suffers from a seizure disorder. The record indicates that Hustvet has a remote history of seizures. (See, e.g. , Chiesa Dep. 49:4-8; Dkt. Nos. 32 at 3, 30, 50 at 1, 51 at 1, 60 at 1.) This may constitute a substantial limitation on the functioning of the neurological system. See § 1630.2(j)(3)(iii) (stating that epilepsy substantially limits neurological function). But the record does not sufficiently disclose how her seizures substantially limit *741her ability to perform major life activities. Hustvet manages her seizures with a prescription medication,
2. Qualified
Although the Court determines that Hustvet fails to show that she is disabled within the meaning of the ADA or MHRA, the Court will continue to analyze her prima facie case.
"The determination of qualification takes two parts: (1) whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation." Benson v. Nw. Airlines, Inc.,
Allina argues that Hustvet was not qualified because of the risk that Hustvet posed to clients due to her non-vaccinated status. (See Defendant's Memorandum in Support of Its Motion for Summary Judgment ("D.S.J. Def. Br.") 23, 30, Dkt. No. 27.) Setting aside the question of whether Hustvet was qualified to work as an ILS despite safety concerns, in all other respects, Hustvet had the education, experience, training, and credentials required of an ILS, as demonstrated by her long history of employment as an ILS and short-lived employment with Allina. (See Hustvet Dep. 19:5-7, 130:20-131:18, 214:6-9.) Apart from safety concerns, Hustvet could perform the fundamental duties of the ILS position. The Court assumes, without deciding, that Hustvet is therefore qualified for the purpose of making out her prima facie case.
3. Causation and Adverse Action
A plaintiff alleging discrimination must show that her employer knew about the limitations serving as the basis for a purported disability when making the challenged adverse decision. See Tusing v. Des Moines Indep. Cmty. Sch. Dist. ,
No reasonable jury could find that Allina's decision to terminate Hustvet or its alleged failure to accommodate resulted from Allina's knowledge of her disability. The only information Hustvet provided to Allina for why she did not want to develop immunity to rubella by taking the MMR vaccine was that she has allergies, chemical sensitivities, and a past history of severe cases of mumps and measles. (See Dkt. No. 28-13; Hustvet Dep. 76:3-77:5, 82:9-21.) None of these conditions is a contraindication or precaution
Nor could any reasonable jury find that Hustvet's claimed limitations are causally related to Hustvet's concerns about taking the MMR vaccine. Severe allergies to components of the MMR vaccine, for example, are contraindications for the vaccine, but there is no evidence that Hustvet has severe allergies to any of the vaccine's components. (See Dkt. Nos. 74-3 at 10, 74-7 at 6.) Sensitivities to chemicals or a past history of severe cases of the underlying diseases included in the vaccine are not listed as contraindications or precautions. (See
Hustvet says she was also concerned that the MMR vaccine would threaten her health because it contained live (attenuated) viruses, but she does not know if she has ever had a negative reaction to a vaccine because it contained live viruses. (See Hustvet Dep. 164:11-13, 170:20-171:10.) Hustvet received other live virus vaccinations (e.g., Zoster )
Lastly, Hustvet claims that Allina's policy requiring immunity to certain diseases is a per se violation of the ADA and MHRA because it is similar to "100% healed" policies. (See D.S.J. Pl. Br. 32-33.) "All courts that have examined the question ... agree that a 100% rule is impermissible as to a disabled person." Henderson v. Ardco, Inc. ,
In summary, Hustvet fails to make out a prima facie case of discrimination. There is no genuine dispute of material fact, based on the record, that Hustvet is not disabled within the meaning of the ADA or MHRA. There is also no genuine dispute of material fact that there is no causal connection between Allina's knowledge of any of Hustvet's proffered limitations and its decision to terminate Hustvet for failure to develop immunity to rubella, nor a causal connection between Hustvet's claimed limitations and any failure to accommodate based on her concerns about taking the MMR vaccine. Because Hustvet fails to make out a prima facie case of discrimination, her discrimination claims fail as a matter of law, and Allina is entitled to summary judgment.
B. Unlawful Inquiries
The ADA and MHRA prohibit, in addition to discrimination, certain medical inquiries and examinations. See
As already noted, Hustvet told Allina representatives that she was willing to complete the RME so long as she did not have to take the MMR vaccine. (See Hustvet Dep. 66:10-16, 118:3-6, 140:2-5, 170:10-15, 186:15-25, 214:6-9; Lindblom Dep. 184:13-19.) Although Allina cited the incomplete RME, in addition to Hustvet's failure to develop immunity to rubella by taking the MMR vaccine, as a reason for termination, (see Dkt. No. 28-13 at 1), the record clearly shows that Hustvet was willing to complete the RME and would have completed it had Allina not required her to develop immunity to rubella. Due to her willingness to complete the RME, her failure to complete it did not cause her termination. Because Hustvet did not suffer any tangible injury as a result of not completing the RME-but, rather, because she did not develop immunity to rubella-her unlawful inquiry claims fail, and Allina is entitled to summary judgment.
C. Retaliation/Reprisal
"The ADA prohibits discrimination against any individual who has opposed an unlawful act of discrimination, made a charge of discrimination, or participated in any manner in an investigation or proceeding under the ADA." Mershon v. St. Louis Univ. ,
1. Direct Evidence
"Direct evidence of retaliation is evidence that demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support *745a finding by a reasonable fact finder that the harmful adverse-action was in retaliation for the protected conduct." Lors v. Dean ,
Hustvet argues she engaged in protected conduct when she refused to complete the health screen, which she claims was unlawful. (See D.S.J. Pl. Br. 30; P.S.J. Pl. Br. 35-36.) She claims that her protected conduct entails: refusal to complete the RME and refusal to take the MMR vaccine. (See D.S.J. Pl. Br. 30; P.S.J. Pl. Br. 35-36.) Allina argues that there is no evidence demonstrating a link between statutorily protected conduct and termination; Allina only fired Hustvet for failure to meet job requirements. (See Defendant's Reply Memorandum in Support of Its Motion for Summary Judgment ("D.S.J. Def. Reply Br.") 10, Dkt. No. 79; Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment ("P.S.J. Def. Br.") 41-42, Dkt. No. 72.) Allina also points out that Hustvet was willing to complete the RME and otherwise develop immunity to rubella. (See D.S.J. Def. Reply Br. 11.)
First, as discussed above, Hustvet cannot claim that her failure to complete the RME is protected conduct because she was willing to complete the RME so long as she did not have to develop immunity to rubella by taking the MMR vaccine. See Part III.B. Even if it was protected conduct, the conduct did not cause her termination for the same reason.
Second, Hustvet cannot claim that refusal to take the MMR vaccine was protected conduct on the basis that the MMR vaccine was an impermissible job requirement because taking the MMR vaccine was not a job requirement. Even though Allina representatives may have spoken as if taking the MMR vaccine was a requirement, Allina only required Hustvet to have immunity to certain diseases, such as rubella. (See Dkt. No. 28-13.) Hustvet did not have immunity to rubella, so Allina requested that she take the MMR vaccine because the vaccine is a safe way to develop that immunity. (See Dkt. Nos. 28-13, 29; see also Dkt. No. 28-19 at 14, 17, 20 (noting that the MMR vaccine has an "excellent safety profile").) If Hustvet would have had immunity to rubella, Allina would not have asked her to take the MMR vaccine. (See Lindblom Dep. 181:25-182:3; Dkt. No. 29.) Thus, taking the MMR vaccine was not a job requirement. The record does not show that Hustvet opposed the immunity-to-rubella requirement. To the contrary, the record shows that Hustvet was willing to develop immunity to rubella by taking a rubella-only vaccine. (See Dkt. No. 28-13 at 2.) Therefore, she fails to show that she engaged in protected conduct by objecting to the requirement that she have immunity to rubella.
2. Circumstantial Evidence
Hustvet's circumstantial evidence case fares no better because under the McDonnell Douglas burden-shifting framework, she must still demonstrate that she engaged in protected conduct. See *746Mershon ,
D. Expert Witness
Because the Court grants summary judgment in favor of Allina, the company's motions to exclude an expert witness's testimony are moot. See Spineology, Inc. v. Wright Med. Tech., Inc. , No. 15-CV-180 (JNE/FLN),
IV. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Defendant Allina Health System's motion for summary judgment [Dkt. No. 25] is GRANTED.
2. Defendant Allina Health System's motion to exclude an expert witness [Dkt. No. 38] is DENIED AS MOOT.
3. Plaintiff Janice Hustvet's motion for summary judgment [Dkt. No. 46] is DENIED.
4. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
"Healthcare professionals" include those who are potentially exposed to infectious agents that can be transmitted to and from other professionals and patients. (See Dkt. No. 28-19 at 4.)
The MHRA defines disability with respect to impairments that "materially," rather than "substantially," limit major life activities. Compare Minn. Stat. § 363A.03, subd. 12 (2017), with
The Court recognizes that these and other cited cases apply the pre-amendment ADA standards, but the Court still finds the cases persuasive in view of the current standards.
The Court does not consider the "ameliorative effects of mitigating measures such as ... medication" when evaluating whether Hustvet is disabled.
Contraindications and precautions are conditions under which a vaccine should not be administered. (See Dkt. No. 74-7 at 1.) The CDC notes that "certain conditions are commonly misperceived as contraindications" but "are not valid reasons to defer vaccinations." (Id. )
Relatedly, Hustvet's assertion that Allina violated the ADA and MHRA by failing to engage in the "interactive process" fails because Allina did not receive adequate "notice that reasonable accommodation [was] requested." Fjellestad v. Pizza Hut of Am., Inc. ,
See Herpes ZosterVaccination , CDC, https://www.cdc.gov/vaccines/vpd/shingles/hcp/hcpvax-recs.html (last visited Aug. 21, 2017) (noting that Zoster is a "live virus vaccine").
Dr. Chisea did not sufficiently explain why, in writing a note supporting Hustvet's decision not to take the MMR vaccine after Allina terminated Hustvet, Dr. Chisea believes that "the risks versus potential benefits of the MMR vaccine are in fact greater." (Dkt. No. 31; see Chiesa Dep. 53:13-54:25.) Moreover, Dr. Chisea appears to lack specialized knowledge to make such a determination because she does not have specific expertise with regard to the immune system, allergies, vaccines, or infectious diseases relevant to this case. (See Chisea Dep. 56:10-16, 66:13-67:1, 77:23-78:2, 85:10-19.)
The "V" in MMRV stands for "varicella," which is the medical term for chickenpox. See Measles, Mumps, Rubella, and Varicella Vaccine , CDC, https://www.cdc.gov/vaccinesafety/vaccines/mmrv-vaccine.html (last visited Aug. 21, 2017).
To the extent Hustvet asserts retaliation related to a request for a reasonable accommodation to the immunity requirement, such a claim fails because, as stated above, Hustvet did not put Allina on notice that she requested or needed a reasonable accommodation. See supra note 6. In addition, even if Hustvet's concern about taking the MMR vaccine can be construed as a request for a reasonable accommodation, the record does not show that Allina terminated Hustvet because she requested an accommodation, but instead because Hustvet did not comply with its immunity requirement. See Withers v. Johnson ,
To the extent Hustvet brings coercion claims, such claims mirror the analysis for the retaliation claims and are not supported by the record.
Reference
- Full Case Name
- Janice HUSTVET v. ALLINA HEALTH SYSTEM
- Cited By
- 3 cases
- Status
- Published