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Faulkner v. Douglas County

United States District Court, D. Nebraska

December 22, 2016

LINDA L. FAULKNER, an individual, Plaintiff,
DOUGLAS COUNTY, NEBRASKA, a political subdivision of the State of Nebraska, Defendant.


          Laurie Smith Camp, Chief United States District Judge

         This matter is before the Court on the Motion for Summary Judgment (ECF No. 26) submitted by Defendant Douglas County, Nebraska, a Political Subdivision of the State of Nebraska (“Douglas County”). For the reasons discussed below, the Motion will be granted.


         The following facts are those stated in the parties' briefs, ECF Nos. 27, 36, and 38, supported by pinpoint citations to evidence in the record, ECF Nos. 28, 29, 30 and 37, and admitted or not properly resisted by the opposing party as required by NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         At all relevant times, Douglas County operated the Douglas County Correctional Center (“DCCC”) through the Douglas County Department of Corrections (“DCDC”), and Dr. Mark Foxall (“Foxall”) was DCDC's Director.

         Plaintiff Linda L. Faulkner (“Faulkner”) is an African-American female, who was age 56 at the time of the filing of her Complaint in 2015. Faulkner worked at the DCCC from April 22, 2003, to January 31, 2014, and at all relevant times was a Correctional Officer II (“COII”). DCDC's job description for a COII included among the primary job duties and responsibilities the maintenance of custody and control of inmates, including the restraint of combative or disruptive inmates through use of necessary force. The job description further provided that officers are required to physically engage inmates, and must remain physically fit and without medical conditions that would prevent them from subduing or restraining inmates who pose a threat to officers or other inmates.

         The DCDC mandated that those holding the position of COII meet specific job-related physical requirements, including the ability to stand, walk, sit, climb stairs, run, kneel, stoop, crouch, and move quickly from kneeling to standing positions. The DCDC also required that COIIs maintain the ability to lift, grip, push, and pull certain minimal weights and forces, including the ability to lift twenty pounds frequently, lift up to 350 pounds occasionally as part of a team lift, push up to 100 pounds and pull up to 80 pounds occasionally, and push/pull up to 40 pounds on a frequent to occasional basis.

         Faulkner was aware that inmate contact was a COII a job requirement, as was the ability to intervene physically to stop fights between inmates, and the ability to restrain combative persons.

         On August 6, 2012, Faulkner was involved in an inmate altercation. She suffered a left shoulder strain, hand contusion, contusion of the lumbar region, and a lumbar strain. The incident was reported to the Nebraska Workers Compensation Court as an occupational injury. Faulkner received medical care, worked intermittent light duty[2] from August 12 to 20, and was released to full work duty with no limitations on August 23, 2012. Faulkner was involved in another inmate altercation on September 4, 2012, resulting in another report of occupational injury to the Nebraska Workers Compensation Court, in which she alleged that she injured her upper back, left face, and shoulder. On October 26, 2012, Faulkner underwent left shoulder surgery and was absent from work until on or about November 26, 2012, when she was released by her treating physician, Dr. Jonathon E. Buzzell (“Dr. Buzzell”), with permission to perform sedentary work with a ten-pound lifting restriction.

         On January 16, 2013, Dr. Buzzell prescribed physical therapy for Faulkner, because she suffered from cervical spondylosis with radiculopathy. On January 17, 2013, Dr. Buzzell noted that Faulkner was experiencing soreness in her neck, and diminished cervical range of motion. Dr. Buzzell also noted that x-rays revealed degenerative disc disease in Faulkner's cervical spine, and he referred her to a spinal surgeon, Dr. Bradley S. Bowdino (“Dr. Bowdino”). Dr. Bowdino ordered an MRI that revealed multilevel bilateral neural foraminal stenosis and degenerative disc disease in Faulkner's cervical spine. On or about April 11, 2013, another physician, Dr. Alicia Feldman (“Dr. Feldman”), met with Faulkner and noted that Faulkner would undergo an epidural steroid injection in her cervical spine, administered by Dr. James Devney (“Dr. Devney”), and could benefit from a functional capacity exam (“FCE”) to determine permanent work restrictions.

         On April 24, 2013, Dr. Buzzell noted that Faulkner's shoulder had reached maximum medical improvement and that Faulkner's work was not limited as to her shoulder. On May 3, 2013, Dr. Feldman released Faulkner to return to work with “light duty” restrictions, and referred Faulkner for an FCE to determine her permanent work restrictions related to her cervical spine. On May 20, 2013, Faulkner saw Neal Wachholtz, P.T., (“Wachholtz”) for an FCE. Based on the FCE, Faulkner was given the following permanent restrictions: Lifting objects to shoulder level restricted to 20 pounds on an occasional basis and ten pounds on a frequent basis; overhead lifting restricted to 15 pounds or less on an occasional basis; no prolonged or repetitive overhead work; and no pushing or pulling greater than 40 pounds. Dr. Feldman approved those permanent work restrictions on May 28, 2013.

         Faulkner continued to work light duty until July 6, 2013, when Foxall removed Faulkner from light duty status, concluding that she used the maximum allowable number of days of light duty pursuant to the CBA[3].

         On August 27, 2013, Foxall gave Faulkner a letter notifying her that her permanent FCE limitations were inconsistent with the physical requirements of a COII position, and that the medical information provided to DCDC indicated she was unable to perform the essential functions of the job. Foxall suggested that Faulkner advise him if she believed some type of accommodation would allow her to perform the essential functions of the COII position, or some other position with Douglas County.

         On August 28, 2013, the Douglas County workers compensation coordinator sent Faulkner a letter stating that Douglas County no longer would pay her temporary total disability payments or provide medical treatment, because Faulkner reached maximum medical improvement for her work-related shoulder injury, and because her treating physicians agreed her cervical spine condition was not work-related.

         In September 2013, Faulkner sought care from Dr. Matthew P. West (“Dr. West”) due to worsening neck pain. He referred her to Dr. John Hain (“Dr. Hain”) to discuss surgical options. Dr. Hain recommended an anterior cervical discectomy and fusion at ¶ 5-C7.

         On October 7, 2013, Faulkner attended a Douglas County Employee Review Committee meeting, represented by her workers compensation attorney. At the meeting, Faulkner asked to be assigned to DCDC central control or lobby indefinitely, or with the Douglas County Department of Motor Vehicles, as an accommodation for her medical status. On October 11, 2013, Faulkner underwent the anterior cervical discectomy and fusion surgery as recommended by Dr. Hain.

         On January 2, 2014, Faulkner filed a workers compensation claim in the Nebraska Workers Compensation Court.

         On January 22, 2014, Foxall denied Faulkner's request for an extension of her injured-on-duty (“IOD”) benefits, despite a recommendation for the extension by the DCDC's IOD Committee. Foxall relied on the opinions of two physicians, Dr. Buzzell and Dr. Chris Cornett (“Dr. Cornett”), that Faulkner's cervical spine complaints were not work-related.

         On January 23, 2014, Foxall advised Faulkner that DCDC would conduct a hearing on January 31, 2014, to determine whether Faulkner should be separated from employment due to disability. At that time, Faulkner had received light duty assignments at DCDC for a total of 1, 296.83 hours[4]. On January 31, 2014, the hearing took place. Faulkner was asked whether she could perform the essential duties of a corrections officer, and she replied, “Not right now.” Faulkner's employment with DCDC was terminated. No positions were available at Douglas County Department of Motor Vehicles.

         On February 3, 2014, Faulkner began physical therapy to improve her neck function. On February 18, 2014, Brianne J. Walbrecht, P.T., D.P.T., recommended that Faulkner cease physical therapy due to the increased pain suffered with attempts to improve her soft tissue mobility.

         On April 8, 2014, Faulkner met with Dr. Meryl A. Severson (“Dr. Severson”) in connection with a social security disability claim. Dr. Severson opined that Faulkner's degenerative cervical disc disease was permanent and that she likely had received the maximum benefit of medical treatment. He also concluded that Faulkner was unable to lift or carry more than ten pounds, and unable to work with her arms above shoulder level.

         On April 22, 2014, Dr. Hain ordered another FCE for Faulkner. The second FCE conducted on April 24, 2014, by Terry Nelson, P.T. (“Nelson”), restricted Faulkner's lifting, pushing, and pulling activities to levels below the DCDC standards for COIIs. On July 29, 2014, Dr. Hain noted that he adopted the FCE findings, and that Faulkner had achieved maximum medical improvement. On August 19, ...

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