The opinion of the court was delivered by: B. Lynn WinmillChief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant Joint Jerome School District #261's Motion for Summary Judgment (Dkt. 18). Plaintiff Lisa Atencio argues that she suffers from colitis with possible Crohn's disease. She maintains her condition qualifies as a disability under the Americans with Disabilities Act. According to Atencio, the School District fired her because of her disability. Atencio asserts claims for discrimination and failure to accommodate under the ADA.
The Court heard oral argument on July 27, 2011, and took the matter under advisement. For the reasons expressed below, the Court will grant summary judgment in favor of the District.
On September 24, 2007, Defendant Joint Jerome School District #261 hired Plaintiff Lisa Atencio as a full-time custodian. Capps Aff. ¶ 3, Dkt. 18-16. In March 2008, Atencio informed Payroll Specialist, Marsha Capps, that she had been diagnosed with colitis and possible Crohn's Disease. Id. Atencio had her medical provider fax her medical records to Ms. Capps. Capps Aff. ¶ 6, Dkt. 18-16. The medical records faxed to Ms. Capps did not mention Crohn's Disease, but they did mention colitis and depression. Faxed Medical Records at JSD 130-131 Ex. E to Nelson Aff, Dkt. 18-15. Atencio's symptoms included severe pain in her stomach, chronic diarrhea, nausea, headaches, muscle fatigue, and rectal bleeding. Atencio Aff. ¶ 5, Dkt. 23; Independent Medical Evaluation at 2, Ex. A to Cook Aff., Dkt. 22.
Pursuant to the District's policy and practice, Atencio was required to inform her supervisors of any absences and leave requests before her work shift began. Plaintiff's Response to Defendant's Request for Admission No. 1. On those rare occasions when it was not possible to notify a supervisor of an unexpected absence prior to her work shift, Atencio was instructed to contact her supervisor immediately thereafter. Plaintiff's Response to RFA No. 2.
Because of her condition, Atencio asked to miss two weeks of work in March 2008. Atencio Aff. ¶ 5; Capps Aff.¶ 4, Dkt. 18-16. Although Atencio had not accrued sufficient sick days since her hiring in September, Ms. Capps helped Atencio obtain 77 hours of additional sick leave from the sick bank and granted Atencio's request. Capps Aff.¶ 4, Dkt. 18-16. But at that point Atencio had exhausted all of her sick leave until the new fiscal year began on July 1, 2008. Capps Aff.¶ 7, Dkt. 18-16.
In April, however, Atencio called Elaine McLimore, a supervisor, to
tell her she would be late for work because of a doctor's appointment.
Atencio Aff. ¶ 9, Dkt. 23. At the appointment, Dr. Johnson prescribed
Atencio morphine for her abdominal pain and told her to stay home to
see how she would react to the morphine. Id. Atencio called and left a
message with Ms. McLimore, informing her that she would not return to
work until April 23 because of the morphine. On April 23, Atencio
returned to work with a doctor's note, which cleared Atencio for work.
Id. The District claims that Atencio failed to give her supervisor the
proper notification for the absences on April 21 and 22.*fn1
Capps Aff. ¶ 8, Dkt. 18-16. The District considers Atencio's
absences for those days as unexcused.
Atencio testifies that she continued to feel lethargic, and she hurt all day after being prescribed several medications, including prednisone.*fn2 Atencio Aff. ¶ 10 & ¶ 12. The pain and lethargy made it difficult for Atencio to complete her custodial work, which caused Atencio to set up a meeting with Linda Adams, the District's head of Human Resources. Id. ¶ 13. Atencio told Ms. Adams that she had been diagnosed with possible Crohn's and that she was struggling to do the custodian's job. Id. Atencio asked to be transferred to a paraeducator position so she could keep her insurance and remain productive for the District. Id.
With assistance from Human Resources, Atencio applied for all of the positions that the District had listed open at the time. Id. ¶ 17. Atencio applied for seven full-time position from May 12, 2008 to July 6, 2008, as well as a job as a Social Studies teacher, a bowling coach and as an English as a second language teacher. Id. She was not granted an interview for any of these positions.
Still working as a custodian in July 2008, Atencio requested leave to have both a colonoscopy and an EGD on July 23, 2008. Atencio Aff. ¶ 26. Atencio told both her immediate supervisor, Cindy Blackmon-Moser, and Ms. McLimore that she needed this procedure and that she may miss more days because she would be put under general anesthesia. Atencio says that Ms. Blackmon-Moser told her to just put down July 23, and if a problem arose, they would know why she did not come to work. Id. ¶ 28. Atencio only requested July 23 off. Id. ¶ 29.
On Monday, July 21, 2008, Atencio had severe diarrhea and called Ms. Blackmon-Moser to tell her that she could not make her 2:00 am shift. Id. ¶ 28. Atencio claims she left a message, id. ¶ 31, but Ms. Blackmon-Moser claims she did not. Blackmon-Moser Aff. ¶ 5, Dkt. 18-18. The phone records show Atencio made the call. Phone Records, Ex. A to Atencio Aff., Dkt. 23.
On July 22, 2008, Atencio missed work again, but there is no dispute that Atencio called Ms. Blackmon-Moser and left a message stating that she would miss work that day but planned to return to work on Thursday, July 24, 2008 with a doctor's note. Atencio Aff. ¶ 33; Blackmon-Moser Aff. ¶ 7. On July 24, 2008, Atencio claims that she felt very sick after her procedure and she did not go into work and she did not call. Atencio Aff. ¶ 36. She felt that her absence was already excused based on her conversation with Ms. Blackmon-Moser and Ms. McLimore. Id. The next day she still felt sick and stayed home from work without calling but under the belief that her absence was excused. Id. ¶ 37. On Saturday, July 26, Atencio did not have to work; she claims that she had to go to the emergency room because she was vomiting blood. Id. ¶ 38. Again, on Sunday, July 27, Atencio did not have to work, but she emailed Ms. Blackmon-Moser stating that she had an appointment on Monday at 3:00 pm with the doctor and that she would get a release to return to work. Before she could return to work, however, Atencio received a call from James Fultz, head of maintenance. He terminated her employment because the District considered the July 24 and 25 absences unexcused. Id. ¶ 41.
At the time of her termination, Atencio had not received a definitive diagnosis for either colitis or Crohn's Disease. Atencio Dep. at 129-33, Dkt. 18-4. Indeed, the medical records she provided JSD while she was employed do not even mention Crohn's Disease and only indicate that her doctor could not exclude the possibility of colitis. Faxed Medical Records at JSD 129-32, 154, 210, 205-07, 209, Ex. E to Nelson Aff., Dkt. ...