Howard L. Bolter, Esq. and Borkon, Ramstead, Mariani,
Fishman & Carp, Ltd., counsel for plaintiff.
Aaron M. Scott, Esq., Elizabeth A. Patton, Esq., Robert C. Castle, Esq. and Oppenheimer, Wolff & Donnelly LLP, counsel for defendant.
DAVID S. DOTY, District Judge.
This matter is before the court upon the motion for summary judgment by defendant SE Rolling Hills LLC, doing business as The Colony at Eden Prairie (The Colony). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion.
This employment dispute arises out of the June 3, 2010, termination of plaintiff Comfort Attiogbe-Tay by The Colony. Attiogbe-Tay was employed as a Licensed Practical Nurse (LPN) at The Colony, a senior living facility in Eden Prairie, Minnesota, from 2004 until her termination. Am. Compl. ¶¶ 2, 5. Attiogbe-Tay worked the overnight shift at The Colony and cared for approximately 160 assisted living patients. Attiogbe-Tay Dep. 71:14-23, 72:11-17.
During her employment with The Colony, Attiogbe-Tay began experiencing severe knee pain due to degenerative joint disease and arthritis. Attiogbe-Tay Aff. ¶ 2. On several occasions, Director of Nursing Christy Anderson questioned Attiogbe-Tay about her knees, including asking Attiogbe-Tay if she was able to complete her assigned duties. Anderson Dep. 18:4-9, 21:2-6. On March 9, 2010, Attiogbe-Tay elected to have knee replacement surgery and was granted twelve weeks of Family and Medical Leave Act (FMLA) leave. Attiogbe-Tay Dep. 39:3-19.
The Colony informed Attiogbe-Tay that her FMLA leave would expire on June 2, 2010, and that she needed to return to work without restrictions by that date. See Bolter Aff. Ex. 5. On June 2, Attiogbe-Tay returned to work and provided a note from her physician saying that she could not kneel, squat or lift more than 50 pounds, but that she was otherwise cleared to return to work. Scott Aff. Ex. 8; Attiogbe-Tay Dep. 57:17-59:15. According to the note, the restrictions were to be in place for six weeks. Scott Aff. Ex. 8.
The Colony's handbook provides that:
If an employee has taken leave for his or her own serious health condition, prior to returning from leave, the employee must provide The [Colony] with certification from his or her health care provider that the employee is able to resume work. If medical restrictions exist at the end of the leave, The [Colony] will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.
Bolter Aff. Ex. 8. The Colony never initiated discussion of potential reasonable accommodations with Attiogbe-Tay. Anderson Dep. 39:2-15. On June 3, 2010, The Colony terminated Attiogbe-Tay and invited her to reapply once her temporary restrictions were lifted. Scott Aff. Ex. 1.
The job description for the LPN position notes that LPNs are occasionally required to kneel, squat and lift up to 100 pounds. Scott Aff. Ex. 3. During her time at The Colony, Attiogbe-Tay would have to lift patients if they had fallen. Attiogbe-Tay was the only LPN scheduled for the overnight shift, but, in the past, had called for assistance from other staff members when lifting patients. Attiogbe-Tay Dep. 107:12-20.
On May 7, 2012, Attiogbe-Tay filed this action in Minnesota court, alleging disability discrimination, failure to accommodate,  FMLA interference and FMLA retaliation. The ...