## Facts

- Elizabeth Wells worked as a registered nurse at Cincinnati Children’s Hospital Medical Center (CCHMC) from 2003 to 2009 in a critical care transplant/critical airway setting and received consistently positive evaluations.
- In 2008, Wells developed serious gastrointestinal problems causing pain, vomiting, and diarrhea; she underwent procedures and was prescribed narcotic pain medications, including oxycodone and morphine, at various times.
- Wells took approved intermittent and continuous leave under the Family and Medical Leave Act (FMLA) in late 2008 and into 2009.
- In January 2009, Wells told supervisors she was taking prescribed morphine; CCHMC policy permitted prescription use so long as it did not affect job performance.
- In May 2009, Wells’s supervisors learned of multiple incidents described as unusual or erratic behavior that raised patient-safety concerns, including documentation errors, confusion during report, going to the wrong room, and an episode in which Wells reported a several-hour “blackout” or memory gap while at work.
- CCHMC suspended Wells and required her to undergo a fitness-for-duty psychiatric/chemical-dependency evaluation to determine whether she could safely perform essential job functions.
- The evaluator’s findings were unfavorable and stated Wells posed a significant risk to patients, citing concerns about medication use and impairment.
- Wells also consulted a substance-abuse counselor and a psychologist; both expressed concerns about possible chemical dependency and recommended outpatient counseling/treatment.
- Wells and CCHMC entered a return-to-work arrangement tied to treatment and monitoring while Wells remained off work.
- In September 2009, Wells produced a physician note stating she could return to work with no restrictions, but CCHMC leadership remained concerned about returning her to the critical transplant/airway unit.
- CCHMC provided Wells temporary and part-time assignments and later transferred her to a different unit instead of reinstating her to her prior critical-care role.
- CCHMC reported Wells to the Ohio Board of Nursing in a manner Wells contended characterized her as a substance abuser.
- Wells sued CCHMC asserting ADA disability discrimination (including limits on medical exams and a “regarded as” theory), ADA retaliation, FMLA interference and retaliation, Ohio statutory disability discrimination, and Ohio tort claims for defamation and invasion of privacy.

## Issues

1. Whether CCHMC violated the ADA by suspending Wells and requiring a psychiatric/chemical-dependency fitness-for-duty evaluation based on reports of aberrant behavior and potential patient-safety risk.
2. Whether CCHMC violated the ADA by refusing to return Wells to her prior critical-care position after she completed treatment and presented a doctor’s note stating she could return with no restrictions, on the theory that CCHMC “regarded” her as disabled (including as impaired by substance use).
3. Whether CCHMC established as a matter of law that Wells was not “qualified” or posed a “direct threat” that justified excluding her from the critical airway/transplant unit.
4. Whether Wells could proceed on an ADA failure-to-accommodate theory without evidence that she requested a specific accommodation.
5. Whether CCHMC interfered with Wells’s FMLA rights (including restoration rights) or retaliated against her for using FMLA leave through the suspension, return-to-work conditions, and post-leave job placement decisions.
6. Whether CCHMC’s communications, including its report to the Ohio Board of Nursing and disclosures about Wells’s condition, supported defamation and/or invasion-of-privacy claims under Ohio law, or were protected by privilege.

## Decision

- The court granted in part and denied in part CCHMC’s motion for summary judgment.
- The court granted summary judgment to CCHMC on the ADA claim to the extent it challenged the fitness-for-duty psychiatric/chemical-dependency evaluation and the suspension pending that evaluation, holding the exam requirement was job-related and consistent with business necessity given documented safety concerns.
- The court denied summary judgment on the ADA disparate-treatment claim based on CCHMC’s refusal to reinstate Wells to her critical-care unit, concluding a reasonable jury could find CCHMC acted because it regarded Wells as disabled.
- The court declined to grant summary judgment on CCHMC’s “direct threat” defense as to the refusal-to-reinstate theory, finding factual disputes, including tension between excluding Wells from one unit while permitting her to work in other patient-care roles.
- The court granted summary judgment to CCHMC on Wells’s ADA failure-to-accommodate theory because the record did not show Wells requested a reasonable accommodation that CCHMC denied.
- The court denied summary judgment in part on Wells’s FMLA interference and retaliation claims, finding disputed issues regarding whether CCHMC’s actions improperly affected Wells’s FMLA rights and whether protected leave was a motivating factor in adverse actions; other FMLA theories were narrowed where the record did not support them as a matter of law.
- The court denied summary judgment in part on Wells’s Ohio defamation and invasion-of-privacy claims, while granting summary judgment on other aspects, because factual disputes existed regarding the content, truth or falsity, and privilege of certain statements and disclosures.

## Legal Principles

- Under the ADA, an employer may require a medical or psychological fitness-for-duty examination when it has objective evidence that an employee may be unable to perform essential functions or may pose a safety risk; the examination must be job-related and consistent with business necessity. (42 U.S.C. § 12112(d)(4))
- Removing an employee from a safety-sensitive position pending evaluation can be lawful when based on documented incidents suggesting impairment and patient-safety risk.
- An ADA “regarded as” claim may proceed when evidence would allow a jury to find the employer took adverse action because it believed the employee had an impairment (including perceived substance-use impairment), even if the employee disputes that condition.
- The ADA “direct threat” defense requires an individualized, evidence-based assessment; inconsistencies between claimed safety risks and the employer’s actual job placements may create fact issues that bar summary judgment.
- An ADA failure-to-accommodate claim generally requires evidence that the employee requested an accommodation (or otherwise made the need known) and that the employer refused a reasonable accommodation.
- Under the FMLA, interference includes denying benefits provided by the statute, including restoration to the same or an equivalent position when the employee returns within the protected leave period; retaliation requires proof that protected leave was a motivating factor in an adverse action.
- Under Ohio law, defamation and invasion-of-privacy claims may be limited by statutory or qualified privileges for employment and regulatory reporting, but privilege may not resolve the claim at summary judgment where disputes remain about falsity, good faith, or scope of disclosure.

## Conclusion

In Wells v. Cincinnati Children’s Hospital Medical Center, the Southern District of Ohio held that CCHMC acted within the ADA when it suspended a critical-care nurse and required a psychiatric/chemical-dependency fitness-for-duty evaluation based on specific reports of confusion and safety-related incidents, but the court found triable issues on whether CCHMC later refused to reinstate her to her former unit because it regarded her as disabled, and it allowed portions of Wells’s FMLA interference/retaliation and Ohio defamation/privacy claims to proceed while disposing of the ADA accommodation theory and other claims or sub-theories lacking record support.


Wells v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. LEXIS 19227 (2012)