Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding D.C. No. 3:09-cv-01182-AC
The opinion of the court was delivered by: McKEOWN, Circuit Judge:
Argued and Submitted December 8, 2011-Seattle, Washington
Before: Ralph B. Guy, Jr.,*fn1 M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.
This case tests the limits of an employer's attendance policy. Just how essential is showing up for work on a predict- 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, Providence 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 duration 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 Providence, we affirm.
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 relevant patient population, being understaffed is "highly undesirable 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.
Although Samper claims material issues of fact remain regarding the circumstances surrounding her dismissal, the sequence of events is undisputed.*fn2 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 performance 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 optimistically predicted that because her "personal life [had] dramatically 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 July 2006, Samper admits that she once more exceeded the attendance policy, and received a corrective action notice that was later withdrawn.*fn3 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 ...