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Lamm v. Devaughn James, LLC

United States District Court, D. Kansas

July 10, 2019

Allison Lamm, Plaintiff,
v.
DeVaughn James, LLC., Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Allison Lamm worked for the DeVaughn James law firm as one of two case managers. Lamm suffers from anxiety disorder, and in 2016 was absent from work for numerous days after experiencing panic attacks. She requested accommodation under the Americans with Disabilities Act (ADA) by being allowed to work half days. The firm refused the request, informed her of the need to schedule absences, and terminated her employment after additional absences. In the present Order, the court grants the firm's motion for summary judgment as to two key claims advanced by Lamm - that the firm failed to accommodate her disability under the ADA, and that it retaliated against her for her ADA disability request and prior anxiety-related absences.[1]

         Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

         In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

         Lamm worked for DeVaughn James from September of 2013 until the firm terminated her employment on June 23, 2016. When she was terminated, Lamm was a legal assistant/litigation case manager for the firm. According to one of the principal attorneys of the firm, the essential functions of the litigation case manager include:

• starting and preparing pleadings;
• coordinating with firm attorneys to finalize pleadings;
• meeting with clients to go over and complete discovery such as responses to interrogatories;
• interviewing clients;
• coordinating with a firm attorney to finalize discovery responses;
• communicating with medical providers to ensure the accuracy of medical bill amounts on the firm's cases;
• scheduling depositions, meetings with experts, and court hearings;
• answering intake phone calls;
• preparing notebooks and assisting with trial preparation; and
• being in the office during regular work hours.

         The requirement of being in the office Monday through Friday was not explicitly memorialized within the case manager job description.

         In comparison to her previous position of prelitigation case manager, the plaintiff testified that the case manager position included “a lot more dealing with the courts and the defense counsel and their paralegals, including a lot of contact with clients, contact with defense counsel, and that kind of thing.” Lamm further testified that the firm expected that a person in her position:

• handle multiple tasks at once;
• talk with clients and customers on a regular basis on the phone and sometimes meet with them in person;
• be in the office every day Monday through Friday during normal business hours;
• serve as backup to answering the phones at the office;
• interact with firm attorneys;
• coordinate with opposing counsel and courts;
• calendar deadlines;
• draft pleadings and discovery; and
• schedule meetings with experts.

         The uncontroverted evidence establishes that a case manager was expected to work at least 40 hours per week, during regular office hours. Under normal business conditions, the defendant expected the case managers to perform this work at the office.

         Lamm agreed in her deposition that it would be hard to coordinate with other persons during off hours, but asserted there were “a lot of my responsibilities that I could have done without needing anyone else.”

         Lamm knew she was expected to work 40 hours per week, Monday through Friday, between the hours of 7:00 a.m. and 6:30 p.m. She acknowledged in her deposition that she was told “repeatedly” she was not allowed to work outside of those hours. In addition, she had to have at least five business days advance approval for absences. The firm informed Lamm of its attendance policies during her new-hire orientation.

         Lamm was one of two litigation case managers at DeVaughn James in 2016. The other manager, Velma Thompson, worked approximately 40 hours per week at the firm office.

         The firm's prelitigation case managers did not work anything other than Monday through Friday for 40 hours per week, except when the needs of a client required work on evenings or weekends.

         The firm's paid time off (PTO) policy provided that employees would use paid leave for “doctor's appointments, dentist appointment's, etc., ” and that “[t]here will be no allowances for making up time.” The policy further provided:

If the event that you use all your PTO and go negative in PTO, you will be penalized and sent home for one (1) day without pay and [attorney owners Dustin DeVaughn] and [Richard James] will determine what day you will take off. If you continue to go negative after your day with no pay, more severe consequences will occur at the discretion of management up to and including termination.

         Lamm had attendance issues in 2015, before she began having anxiety and panic attacks. Although she did not exceed the 120 total of hours paid time off allowed by the firm, she was cautioned about her attendance.

         At some point in late 2015 or early 2016, Lamm had a conversation with Brandy Farris, the firm's office manager and human resources representative. According to Lamm's version of the conversation, Farris told her “what was going on behind the scenes with the partners and other employees.” Farris discussed her own health, and that of another worker at the firm. Because she “couldn't deal with the emotions that some of that information would bring up, ” Lamm “felt like it was hindering the work” and told Farris that she “needed to not hear all that anymore.” Farris then “got really upset” and was “almost screaming at me, crying in her office.” Lamm is not sure why Farris became upset, and remembers that Farris had also said she wasn't feeling good that day.

         Lamm does not remember exactly what she said that day, and this conversation apparently preceded “the full-on panic attacks” she later experienced. She simply told Farris that Farris's sharing details about firm happenings “was causing an emotional response from me and I felt it was hindering me from doing my job because it was extremely distracting.” There is no indication that Lamm told Farris she suffered from an anxiety disorder. The plaintiff's allegation in her Response (Dkt. 52, ¶ 7) that in this conversation, Lamm told Farris “about her potential health impairment” and “identified a specific trigger” is not supported by the deposition testimony.

         During the first half of 2016, Lamm had missed a total of 159.5 hours, across thirty scheduled work days. Under its PTO policy, the firm could have refused Lamm permission to go on a trip to San Francisco during this period. However, it allowed her to go.

         Lamm stated in her deposition that in the Spring of 2016:

I was dealing with numerous panic attacks, and these panic attacks would consist of shallow breathing, almost to like a hyperventilating state, crying uncontrollably, physically shaking, and that would go on for up to an hour and then it would just be absolute exhaustion after that. The other symptoms that weren't part of an actual panic attack were constant chest pain, a constant state of on the verge of a breakdown or a panic attack. I know I had upset stomachs during that time. Headaches were definitely more frequent. And then like I said before, just the exhaustion after all of it.

         After Lamm returned from her trip, she continued to miss work. Lamm's counselor, Kristin Kroeker diagnosed her as having Generalized Anxiety Disorder, and wrote a recommendation for Lamm which she gave to the firm. Kroeker wrote:

Her symptom complex includes apprehension, chest pain, a choking or smothering sensation, insomnia, paresthesias, shortness of breath, and tachycardia. True panic attacks occur in addition to generalized anxiety. The frequency of symptoms is nearly every day. Current treatment includes counseling (started counseling w/ Kristen Kovak), a scheduled (rather than p.r.n.) benzodiazepine, and Zoloft.

Kroeker recommended that Lamm should only work half days when she experienced “intense anxiety.” Kroeker also wrote that “the details and arrangement of this should be discussed with your HR department.”

         It is uncontroverted that Lamm requested only one accommodation for her symptoms - Kroeker's recommendation that Lamm be allowed to take half days off from work whenever she experienced intense anxiety. And Lamm in fact has testified that she does not recall requesting any specific additional accommodations.

         However, in response to the summary judgment motion, the plaintiff has scoured the record to identify other events which might be considered requests for accommodation. Thus she suggests that request for accommodation are implicit in (1) her earlier requests for days off, (2) her statement that she believed her medications would begin working by June 4 or 5, and (3), her statement that her frequent cell phone use allowed her to take “brain breaks.”

         As noted below, Lamm advanced the “brain breaks” theory only after she was criticized on the job for excessive cell phone use, and there is no evidence to support it as a request for an accommodation or for its medical necessity. More importantly, as with the other events now identified by the plaintiff, all of these possible accommodation requests were contradicted by her therapist, whose explicit and only suggestion was that Lamm should be allowed to work half days. Neither Kroeker, nor ...


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