HOUSTON – The Equal Employment Opportunity Commission has filed suit against a rehabilitation and assisted living facility in Katy, which it claims violated federal law when it denied a registered nurse an accommodation for her sleep disorder and then fired her.
The EEOC of Washington, D.C. filed suit on Aug. 1 in U.S. District Court for the Southern District of Texas against VibraLife of Katy, LLC, in Austin.
“VibraLife is a rehabilitation center and assisted living facility located in Katy, Texas. Kara Burgess is a registered nurse and nurse practitioner. She has Circadian Rhythm Disorder (sleep disorder) which substantially limits one or more of her major life activities, including sleeping. Burgess is a qualified individual with a disability under Sections 3 and 101(8) of the ADA, 42 U.S.C. Sections 12102 and 12111(8), in that she has an impairment that substantially limits a major life activity or major bodily function, she has a record of an impairment that substantially limits a major life activity or major bodily function. Since at least Sept. 25, 2022, defendant has engaged in unlawful employment practices on the basis of disability, in violation of Sections 101 et seq. of Title I of the ADA,” the suit says.
“On Aug. 15, 2022, Burgess applied for an advertised full-time night-shift nursing position with VibraLife. The job posting provided that the selected candidate would be required to work 36 hours per week (three x 12-hour shifts). In Burgess’s cover letter to VibraLife, she voluntarily disclosed her sleep disorder which causes day/night reversal. During her job interview with VibraLife’s Assistant Director of Nursing Helen Sparks, Burgess was advised that she would work a rotating 7 p.m. – 7 a.m. schedule, including every other weekend and some holidays. Burgess was offered the position pending a drug screen, background check, and CPR class. According to Burgess’s personnel file, she was hired as a full-time employee at a rate of $41/hour.”
The suit continues that during her onboarding process Burgess realized that, contrary to the defendant’s job posting, VibraLife scheduled its nurses to work a fourth 12-hour shift every other week. Burgess confirmed with a co-worker that VibraLife scheduled its nurses to work three 12-hour shifts one week followed by four 12-hour shifts the next week. Upon realizing that she would be required to work an additional shift every other week, Burgess immediately attempted to contact VibraLife’s Director of Nursing, Bernadette Boamah, via phone and email regarding her inability to work more than three 12-hour shifts per week because of her sleep disorder.
Burgess also submitted a written note under the door of the Assistant Director of Nursing and the Director of Nursing, requesting that her schedule be limited to the express terms of the job posting and offer; that is three 12-hour shifts per week.
“On Sept. 20, 2022, Burgess spoke with the Director of Nursing about her accommodation request to only work three 12-hour shifts per week. The Director of Nursing informed Burgess that nurses were required to work four 12-hour shifts every other week and that Burgess needed to notify her whether she could do the job. The Director of Nursing declined to engage in the interactive process or otherwise provide Burgess with a reasonable accommodation. On Sept. 23, 2022, Burgess slid another written note along with an article discussing how schedule modifications could be considered a reasonable accommodation under the ADA under the Assistant Director of Nursing and Director of Nursing’s door. On Sept. 25, 2022, the Director of Nursing sent a text message to Burgess stating she didn’t think the job was a good fit for her due to Burgess’s health concerns,” the suit states.
“On Sept. 28, 2022, the Director of Nursing recommended to Burgess that she consider transitioning from full-time status to PRN (as needed) status. Burgess rejected the offer and re-urged her request that her work schedule be limited to the express terms of defendant’s job posting. The Director of Nursing denied Burgess’s request and responded that the work schedule was ‘mandatory.’ The next day, on or around Sept.29, 2022, the Director of Nursing sent an email to VibraLife’s HR Assistant Betsy Tucker stating ‘the nurse Kara Burgess, RN, will be PRN for now as she is dealing with a few health issues and not able to meet the needs of the facility…’ The same day, without notifying Burgess, VibraLife demoted Burgess; converting her employment to PRN and retroactively reduced her pay to $37/hour, effective as of Sept. 25, 2022. On Oct. 1, 2022, Burgess sent a message to the Director of Nursing again imploring her to consider her request for a reasonable accommodation. The Director of Nursing did not respond.”
From there, Burgess says she sent an email to VibraLife’s Talent Acquisition Partner Ryan Beaver – the person that recruited her for the position – on Oct. 4, 2022, asking for his help in getting placed on the work schedule. He did not respond.
“On Oct. 5, 2022, Burgess sent a text message to the Director of Nursing pleading to be placed on the upcoming night-shift schedule. The Director of Nursing did not respond. There is no indication that anyone from VibraLife ever responded to Burgess’s messages or placed her on the work schedule. On or around Nov. 13, 2022, VibraLife terminated Burgess’s employment. Under the reason for Burgess’ termination, Defendant’s staff wrote ‘PRN unavailable,” the suit says.
The plaintiff maintains that the defendant “discriminated and retaliated against her when it subjected her to adverse employment actions – demotion and termination – because of her disability, and because she engaged in protected activity when she requested a reasonable accommodation of her disability.”
Both the EEOC and plaintiff counsel offered statements on the motivations behind bringing the case.
“The EEOC remains steadfast in its commitment to enforce the ADA. The agency will take legal action against those who engage in unlawful discrimination,” EEOC Houston District Director Rayford Irvin said.
“The ADA requires employers to accommodate employee disabilities and prohibits them from firing people because of those conditions. This lawsuit demonstrates that employees have the right to exercise their right to request reasonable accommodation under the ADA and should not be treated adversely when they do,” EEOC attorney and plaintiff counsel Neil Joseph Unruh added.
An inquiry on the litigation made by the Southeast Texas Record to Ignite Medical Resorts, the facility’s parent company, was received by a spokesperson who stated that the facility was transferred to new ownership on April 1. A similar request for comment to VibraLife of Katy was not returned.
For counts of violating the Americans with Disabilities Act, the plaintiff is seeking the following relief:
• A permanent injunction enjoining defendant, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with it, from engaging in discrimination on the basis of disability;
• A permanent injunction enjoying defendant, its officers, agents, servants, employees, attorneys and all persons in active concert or participation with it, from engaging in retaliation against employees who have requested reasonable accommodation under the ADA or otherwise exercised their rights under the ADA;
• An order for the defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices;
• An order for the defendant to make the plaintiff whole by providing appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices described above, including, but not limited to, reinstatement and/or front pay;
• An order for the defendant to make the plaintiff whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, including, but not limited to, the value of lost insurance benefits, job search expenses, and out out-of-pocket expenses in amounts to be determined at trial;
• An order for the defendant to make the plaintiff whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including, but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial;
• An order for the defendant to make the plaintiff whole by ordering instatement of Burgess to a comparable position and shifts she would have had absent defendant’s discrimination; or, if instatement is impractical, award Burgess front pay in the amounts to be proven at trial;
• An order for the defendant to pay punitive damages for its malicious and reckless indifference to Burgess’s federally protected rights, as described above, in amounts to be determined at trial;
• Such further relief as the Court deems necessary and proper in the public interest; and awarding the EEOC its costs of this action.
The plaintiff is represented by Neil Joseph Unruh of the Equal Employment Opportunity Commission, in Houston.
The defendant has not yet secured legal counsel.
U.S. District Court for the Southern District of Texas case 4:24-cv-02861
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com