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Nikole J. Hansen v. Jerome Joint School District#261

May 7, 2012

NIKOLE J. HANSEN, PLAINTIFF,
v.
JEROME JOINT SCHOOL DISTRICT#261,
DEFENDANT.



MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it Defendant Jerome Joint School District #261's ("JSD") Motion for Summary Judgment and related Motion to Strike. (Dkt. 20, 24.) Plaintiff Nikole "Nikki" Hansen ("Hansen") alleges that she suffers from post-concussion syndrome. She maintains her condition qualifies as a disability under the Americans with Disabilities Act ("ADA"), and that JSD failed to renew her teaching contract because of her disability. Hansen asserts claims for discrimination and failure to accommodate under the ADA.

The Court conducted a hearing on May 3, 2012, at which the parties appeared and argued their respective positions. At the conclusion of the hearing, the Court took the matter under advisement. After carefully considering the parties memoranda, their arguments, and relevant authorities, the Court will deny the motion for summary judgment and the related motion to strike for the reasons explained below.

FACTS*fn1

JSD hired Hansen as a physical education teacher at Jerome High School under a one year contract for the 2008-2009 school year. Hansen also was hired to coach girls volleyball and basketball. On September 9, 2008, Hansen was hit in the head during a team volleyball practice with a volleyball served at high velocity. After the incident, Hansen sought medical treatment and later filed a workers' compensation claim. Hansen first saw physician assistant William Jacobs on September 12, 2008, for treatment for her injury. P.A. Jacobs diagnosed Hansen with a concussion. (Capps Aff. Ex. A, Dkt. 20-4.) Although Jacobs released Hansen to work, she was restricted to sedentary work.

On September 18, 2008, Hansen again saw Jacobs, who diagnosed Hansen with traumatic vertigo and post-concussion syndrome. On this visit, Jacobs referred Hansen to a neurologist, and did not release Hansen to return to work. (Capps Aff. Ex. B, Dkt 20-4.) On September 23, 2008, Hansen returned to Jacobs, who on this appointment cleared Hansen to return to work provided she did not walk on rough, uneven ground, did not jump, and did not participate in sports. (Capps Aff. Ex. C, Dkt. 20-4.) On September 26, 2008, Hansen followed up with Jacobs, who on this appointment referred Hansen to a chiropractor, and limited her activities to exclude sports. (Capps Aff. Ex. D.) By October 13, 2008, Jacobs had cleared Hansen to return to work with no restrictions. (Capps Aff. Ex. F.) However, on November 18, 2008, Hansen presented to the emergency room, and the emergency room physician was of the opinion that Hansen's injury rendered her "totally incapacitated" and unable to return to work. (Capps Aff. Ex. H.)*fn2 On November 20, 2008, P.A. Bob Gruver determined she could return to work without restriction. (Capps Aff. Ex. I.) On November 24, 2008, P.A. Jacobs cleared Hansen to return to sedentary work. (Capps Aff. Ex. K.)

Throughout the fall school semester, Hansen communicated primarily with Marsha Capps, the Jerome School District Payroll Specialist, about her condition and her absences. (Capps Aff.; Castleton Aff. Ex. B, Hansen Depo. at 34-35, Dkt. 30-3.) Between November 24, 2008, and March 10, 2009, Capps did not receive any further medical reports from Hansen other than notes excusing Hansen for missing partial days for doctor's appointments. (Capps Aff. ¶ 20.) On March 10, 2009, after seeing Dr. Brait, a neurologist, Hansen provided Capps with a "disability certificate" dated March 10, 2009, excusing Hansen from work "until 4/9/09." (Capps Aff. ¶21, Ex. L.) The certificate contained no further diagnosis or notation.

Hansen returned to work on April 10, 2009, and continued to teach until the end of the school year. (Capps Aff. ¶26, Ex. O.)However, on April 17, 2009, JSD informed Hansen that her teaching contract was not being renewed for the 2009-2010 school year. (Capps Aff. ¶27; Muscat Aff. ¶17, Ex. B, Dkt. 20-5.) Hansen's Teacher Evaluation Form dated February 16, 2009, which was received and signed by Hansen on April 16, 2009, indicated that she had received an "unsatisfactory" evaluation for serving students' needs because of "missing more school than allowed under leave policy." (Muscat Aff. Ex. A, Dkt. 20-5 at 11.) The explanation for the unsatisfactory mark further stated that Hansen was "expected to perform duties in accordance with the board of education policies and this has been a concern with employee attendance at school. Ms. Hansen has exceeded the JSD policy of established number of days gone from work and we are concerned at this point if the conditions of employment established by the JSD can be followed in the future." (Id.)

Hansen's final evaluation, dated May 26, 2009, and signed by administrator Jones on May 19, 2009, but not by Hansen, contained a similar handwritten notation at the end of the evaluation stating that Hansen had "exceeded the JSD policy of established number of days gone from work," and there "has been a concern with employee attendance at school" in conflict with board of education policies. Hansen does not dispute that, over the course of the school year, she missed a total of 47.3 days of work, and of that total, 38.6 days were absences directly related to her medical condition, including partial absences for doctor's appointments. (Capps Aff. ¶16, Ex. S.)

Hansen claims she received accommodations that allowed her to continue to teach successfully despite her medical condition by receiving time off for medical appointments, having substitute teachers cover her classes, having teaching assistants, and having a first period prep class during the spring trimester, which began on March 2, 2009, and continued until June of 2009. (Hansen Aff. ¶18, Dkt. 23-2; Muscat Aff. ¶15, Dkt. 20-5.) However, Hansen acknowledges that these accommodations, including the teaching assistants and first period prep class, were arranged in the regular course of JSD's business prior to the beginning of the school year. (Hansen Aff. ¶18.) Clark Muscat, the Jerome High School Principal, explained that the timing of the prep hour was determined by a computerized class scheduling system, and was dependent upon student schedule requests. (Muscat Aff. ¶¶ 4-13, Dkt. 20-5.) Principal Muscat contends he was never aware that Hansen specifically requested any special accommodation while employed at JSD. (Muscat Aff. ¶14.) Similarly, Capps indicates that she did not receive any communication regarding any accommodation that would assist Hansen. (Capps Aff. ¶34.) And Hansen likewise alleges that JSD did not discuss or present potential accommodations, nor did she raise the issue. (Castleton Aff. Ex. B, Hansen Depo. at 63, 70-71, Dkt. 20-3.)

Hansen contends, however, that upon her return to work on April 10, 2009, she had recovered to the extent that she was able to perform all of her teaching duties up through the end of the school year, with accommodations such as the first period prep hour and teaching assistants, plus accommodations to attend doctor's appointments. (Second Hansen Aff. ¶ 2, Dkt. 23-3.) Hansen avers that, at the end of the 2008-09 school year, she would have been able to return for the 2009-10 school year "with even less accommodation than [she] had been receiving." (Hansen Aff. ¶18, Dkt. 23-2.)

After her return to work in April of 2009, Hansen continued to receive medical care. On June 1, 2009, Dr. Brait provided Jacobs with an examination progress note.

(Castleton Aff. Ex. C, Dkt. 20-3.) Dr. Brait indicated Hansen had a "bit of a setback" with worsening headaches and neck pain, along with nystagmus, which he attributed to the primary injury from September of 2008. Dr. Brait indicated that he would "anticipate that [Hansen] will continue to slowly improve" over the next 6 months, and if she did not, he recommended evaluation at the Dizzy Imbalance Center. However, he hoped that in the next six months, Hansen would become "virtually asymptomatic." Capps received an email communication about the progress note on June 15, 2009, from Greg Taylor, in which Taylor relayed Hansen's concerns that she would be "off work for another six months," and although Hansen "wants to return to teaching [she] thinks it could be 1 to 2 years before she can do it." (Capps Aff. Ex. R, Dkt. 20-4.)

After a follow-up visit with Dr. Brait on November 4, 2009, Dr. Brait provided a progress update to P.A. Jacobs and informed him that Hansen "had not changed very much" and was "still unable to return to work at her former job." (Castleton Aff. Ex. E, Dkt 20-3.) However, on September 29, 2009, an intra-office memo dictated by Dr. Brait noted that an independent medical evaluation performed by Dr. V. Kadyan in August of 2009 concluded that there was "no objective basis for restrictions." (Castleton Aff. Ex. D, Dkt. 20-3.) Hansen was told by Dr. Kadyan in August of 2009 that she could return to work. (Castleton Aff. Ex. G, Apr. 16, 2010, Hansen Depo. at 102-03, Dkt. 20-3.)

On December 10, 2009, Hansen filed a complaint seeking workers compensation benefits with the Idaho Industrial Commission, claiming total temporary disability status and requesting that the Commission pay benefits. (Castleton Aff. Ex. F.) In connection with her workers compensation case, Hansen was deposed on April 16, 2010. Hansen confirmed that, in September of 2009, Dr. Brait indicated to her that she could not return to work as a physical education teacher. (Castleton Aff. Ex. G, Apr. 16, 2010, Hansen Depo. at 100.) When asked about her other teaching credential, history, which is a more sedentary job, Hansen was asked and testified as follows:

Q: Do you feel that you could have done a history teacher's job?

A: I don't.

Q: Why couldn't you do a history teacher's job?

A: There's a lot more to teaching than just sitting at a desk and standing up instructing students. You know, you have the grading of the papers and the--you know, the daily just mental grind that it takes, and right now I don't have that capability.

Q: What in particular do you feel about your accident from September 2008 would prevent you from functioning as a history teacher for the Jerome School District?

A: The medications that I have to take on a daily basis to function. I don't have the mental capabilities to have that level of expertise to teach. I don't have the ability to focus and recall those--the information as well.

Q: Do you feel that is going to change substantially by June of this year?

A: I don't. (Castleton Aff. Ex. G, Apr. 16, 2010, Hansen Depo. at 113-114.)

As for her ability to teach physical education, Hansen was asked and testified as follows:

Q: Well, according to Drs. Beaver and Kadyan, there's no reason that you couldn't go back to being a PE teacher, and I take it ...


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