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Wilgus v. Bayhealth Medical Center, Inc.

Superior Court of Delaware, Kent

July 23, 2018


          Submitted: July 13, 2018

          Daniel C. Herr, Esquire, Law Office of Daniel C. Herr, LLC, Wilmington, Delaware, Attorney for the Plaintiff

          Samuel L. Moultrie, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware, & Johnine P. Barnes, Esquire, Greenberg Traurig, LLP, Washington, DC, Attorneys for the Defendant.



          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[1] (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."

         Bayhealth 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.

         I. Facts of Record

         The 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 children.

         While 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

         On 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 frequent standing.

         Ms. 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.

          The 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 surgeon.

         Ms. 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.

         On 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.

         II. Standard

         Summary 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 law.[2] 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.[3] 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 material fact.[4]

         III. Analysis

         Ms. 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").[5] This is consistent with the General Assembly's direction in DEPA to use comparable federal law when interpreting that Act.[6]

         This 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 ...

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