Submitted: July 13, 2018
C. Herr, Esquire, Law Office of Daniel C. Herr, LLC,
Wilmington, Delaware, Attorney for the Plaintiff
L. Moultrie, Esquire, Greenberg Traurig, LLP, Wilmington,
Delaware, & Johnine P. Barnes, Esquire, Greenberg
Traurig, LLP, Washington, DC, Attorneys for the Defendant.
MEMORANDUM OPINION & ORDER
JEFFREY J CLARK JUDGE
Plaintiff Suzanne Wilgus (hereinafter "Ms. Wilgus")
sues Defendant Bayhealth Medical Center, Inc. (hereinafter
"Bayhealth") for alleged violations of
Delaware's Persons With Disabilities Employment
Protections Act (hereinafter "DEPA"). Ms.
Wilgus, a Bayhealth employee for twenty-seven years, suffered
a 2016 back injury that required surgery. At the end of her
disability period, she sought to return to work when released
to full duty. Bayhealth terminated her because she told
Bayhealth she would require a back-brace for her first
several weeks after returning to work. She claims that
Bayhealth refused to make a reasonable accommodation for her
disability and also failed to engage in an interactive
process with her. Bayhealth asserts that it appropriately
terminated her because it has a leave of absence policy that
prohibits the use of assistive devices in the work place that
are "not covered by law."
moves for summary judgment arguing that Ms. Wilgus did not
qualify as a "person with a disability," and
therefore does not qualify for DEPA protection. Ms. Wilgus
concedes the appropriateness of summary judgment regarding
some of her claims. The only issue remaining is whether Ms.
Wilgus had "a record of" an impairment when she
returned to work because her doctor had provided Bayhealth a
note than she was able to return to full duty. For the
reasons that follow, summary judgment is appropriately
DENIED as to that claim. Without opposition,
summary judgment regarding other aspects of Ms. Wilgus's
claims is GRANTED.
Facts of Record
following facts are those of record viewed in the light most
favorable to Ms. Wilgus. Ms. Wilgus was employed by Bayhealth
for approximately twenty- seven years in various capacities,
including as a registered nurse in the neonatal intensive
care unit. Ms. Wilgus began experiencing pain due to a
herniated disc in July 2016 and began Family Medical Leave
(hereinafter "FMLA") on July 12, 2016. After her
FMLA period expired, Bayhealth approved her for an additional
leave of absence through January 6, 2017. Ms. Wilgus
testified that during those six months she suffered impaired
mobility and pain that affected her ability to work, sit,
stand and sleep. She also testified that she required the
help of third-parties to do house work and care for her
on leave, Ms. Wilgus obtained medical treatment from Dr.
Boulos for her back. Dr. Boulos performed an anterior lumbar
interbody fusion on Ms. Wilgus on November 15, 2016. Dr.
Boulos also restricted her from working due to limited
mobility and pain. The record includes October 13, 2016 and
November 3, 2016 "Disability Determination" notes
from Dr. Boulos providing that Ms. Wilgus was on "total
temporary disability" for approximately three months
before her return to work date
January 5, 2017, Ms. Wilgus had a follow-up appointment with
Dr. Boulos. At that point, he cleared her to return to work
with no restrictions. She in turn provided his return to work
note to Bayhealth. Dr. Boulos also gave Ms. Wilgus oral
instructions to wear a back-brace while at work for at least
two weeks because the job required 12-hour shifts with
Wilgus next went to a "fit for duty" exam at
Bayhealth on January 5, 2017. There, she indicated that she
would require the use of a back-brace for "a couple of
weeks." The Bayhealth employee told her, however, that
she could not return to work with a back-brace. At that time,
Ms. Wilgus provided Bayhealth no documentation from her
doctor other than the return to work note that indicated she
had no restrictions.
next day, January 6, 2017, Ms. Wilgus called Bayhealth Human
Resources employee Lisa Lorea (hereinafter "Ms.
Lorea"). Ms. Wilgus told Ms. Lorea that she had no
restrictions and could still perform her job duties. Ms.
Wilgus testified that she inquired more about the policy that
prohibited back-braces and she asked if any accommodations
could be made since she would only need to wear the brace for
a short time. The email to Ms. Lorea on January 6, 2017
included the following request:
[p]lease give reasonable consideration to a slight exception
in this case. I will be happy to provide you with any
information you request, including a statement from my
Wilgus testified that Bayhealth denied her the option to seek
an amendment to her return to work documentation from Dr.
Boulos. Furthermore, she testified that Bayhealth personnel
did not ask her whether Dr. Boulos would clarify his oral
instruction regarding the need for a back-brace.
January 10, 2017, Ms. Wilgus next met with Ms. Lorea and
Bayhealth employee Ruby Bower. Ms. Wilgus testified that she
explained at the meeting that she would only need the
back-brace for a few more weeks. They told her that nothing
could be done because the brace was considered an assistive
device that Bayhealth could not accommodate pursuant to their
policy. For summary judgment purposes, the evidence of record
establishes that Bayhealth took no action to investigate
whether it could provide her a reasonable accommodation. Nor
did it engage in an interactive process with Ms. Wilgus
regarding that issue. Bayhealth then terminated Ms. Wilgus.
judgment is appropriate when the pleadings, discovery,
disclosure materials on file, and supporting affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
The Court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
the non-moving party's favor. Only when the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, is there no genuine issue of
Wilgus and Bayhealth stipulated in their briefing that
disability claims under DEPA are evaluated using the same
legal standards and framework used by federal courts in
applying the Americans With Disabilities Act (hereinafter the
"ADA"). This is consistent with the General
Assembly's direction in DEPA to use comparable federal
law when interpreting that Act.
summary judgment motion turns solely on whether there is a
genuine issue of material fact regarding Ms. Wilgus's
status as a "person with a disability." DEPA
defines a "person with ...