United States District Court, M.D. North Carolina
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For TAMMIE CATHEY, Plaintiff: KIRK J. ANGEL, THE ANGEL LAW FIRM, PLLC, CONCORD, NC.
For WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, Defendant: KRISTINE M. SIMS, WILLIAM RANDOLPH LOFTIS, JR., LEAD ATTORNEYS, CONSTANGY BROOKS & SMITH, LLP, WINSTON-SALEM, NC; WILLIAM JOSEPH MCMAHON, IV, LEAD ATTORNEYS, CONSTANGY BROOKS & SMITH, LLC, WINSTON-SALEM, NC.
MEMORANDUM OPINION AND ORDER
Thomas D. Schroeder, United States District Judge.
Before the court is the motion for summary judgment filed by Defendant Wake Forest University Baptist Medical Center (" Baptist" ) on Plaintiff Tammie Cathey's disability discrimination claims. (Doc. 17.) For the reasons set forth below, the motion will be granted in part and denied in part.
The undisputed facts, viewed in the light most favorable to Cathey as the non-moving party, are as follows:
Cathey worked for Baptist from July 1996 to May 13, 2011. (Doc. 22-5 (Cathey Decl.) ¶ 2.) When Cathey began working there, the number of Baptist's Spanish-speaking patients was growing. (Doc. 19-2 (Smith Dep.) at 23.) During this time, Baptist relied on its employees, including Cathey, who happened to speak Spanish to help interpret. (Id.) The need for interpreters eventually became so great that in 1998 Baptist transferred Cathey to the service excellence department as Baptist's first, full-time interpreter. (Id. at 25-26; Cathey Decl. ¶ 3.) Since that time, the department has grown and now employs eleven Spanish interpreters. (Smith Dep. at 27-28.) The majority of the time the interpreters are at work, they provide " live interpreting services" ; by contrast, the time interpreters spend interpreting telephone calls is " very minimal," less than two percent of their time. (Dorton Dep. at 29-30, Doc. 22-1; Cathey Dep. at 138, Doc. 22-4.)
One of the interpreters Baptist added was Linda Dorton. Eventually, Dorton, who speaks Spanish as a first language, was promoted to manager of language services and now supervises the interpreters. (Dorton Dep. at 16-20, Doc. 19-4; Smith Dep. at 30-32.) At the time of the incident at issue, the interpreters reported to Dorton, who reported to Terri Childress, who reported to Amanda Smith. (Dorton Dep. at 20-22, Doc. 19-4.)
Cathey suffers from hearing loss. In several conversations from 2007 to 2009, Cathey told Dorton that she was having difficulty hearing patients face-to-face and callers over the phone, and she had particular difficulty using a type of phone found in the human resources department (regardless of the language of communication). (Cathey Dep. at 97, Doc. 22-4.) Dorton provided her a hearing device called a " Pocket Talker" to amplify sounds, but it did not help. (Cathey Dep. at 111,
Doc. 19-1; Dorton Dep. at 82-83, Doc. 19-4.) Dorton also suggested that Cathey use a sound amplifier on her phone, but she declined because the volume button for the phone at her desk was sufficient so long as there was not significant background noise or nearby conversation. (Cathey Dep. at 112, Doc. 19-1.)
Cathey then sought hearing aids. In 2009, she made an informal inquiry with Baptist's human resources department about a possible insurance waiver to help cover the cost, but was told that would not be possible. (Cathey Dep. at 99, 102, Doc. 22-4.) In 2010, she made a formal request to Dana Hughes in human resources for hearing aids to assist her. (Id. at 102.) Ultimately, Baptist provided Cathey with hearing aids; the cost was $5,100.00, and Cathey was required to pay ten percent. (Id. at 106-07.) From that point on, Cathey always used the hearing aids at work. (Id. at 108.)
Meanwhile, in 2009, Dorton began advocating that Baptist employ a language proficiency test for its interpreters. (Dorton Dep. at 43-46, Doc. 19-4.) Cathey herself had, over the years, advocated for a standard to test the skills of medical interpreters and translators. (Cathey Dep. at 60, Doc. 22-4.) Previously, the interpreters had been evaluated " face-to-face." (Id. at 145-46.) To set new standards and methods of evaluation for the interpreters, Dorton organized and led a committee of human resources employees. (Dorton Dep. at 47-51, Doc. 19-4.) In the language interpretation and translation industry, the American Council on the Teaching of Foreign Languages (" ACTFL" ) creates guideline levels of language proficiency. (Id. at 42.) Separately, there are businesses that provide language examination services using the proficiency guidelines set by ACTFL. (Id. at 43.) Dorton and the rest of the committee hired one of those businesses, Language Testing International (" LTI" ), to examine the proficiency of Baptist's interpreters and translators. (Id. at 43, 47.)
Once Baptist hired LTI, Baptist's interpreters and translators had to contact the company to set up a time for the examination. (Dorton Dep. at 52-53, Doc. 22-1.) Dorton required her interpreters, like Cathey, to take a telephone-based examination with an LTI employee. (Id. at 54.) Dorton does not know if LTI provides a live, in-person evaluation as an alternative to the telephone assessment, because she never asked. (Id.) After the oral exam, LTI would issue a certificate stating the employee's proficiency level. (Dorton Dep. at 57, Doc. 19-4.)
On December 17, 2009, Cathey took one of these oral examinations over the telephone and received a proficiency level of " intermediate high."  (Cathey Dep. at 87-88, Doc. 19-1.) Cathey had trouble using the phone during the exam because of her hearing problems but does not recall whether she told Dorton about such problems. (Id. at 95-98.) At the time Cathey took this exam, Dorton and her committee had not yet determined what proficiency levels they would require for the interpreters. (Id. at 88; Doc. 19-7 (Dorton Aff.) ¶ 5.)
By 2010, however, Dorton's committee determined -- independently of ACTFL or
LTI -- that it would require its interpreters to achieve a proficiency level of " advanced high" by January 26, 2011. (Dorton Dep. at 65-66, Doc. 19-4; Dorton Aff. ¶ 6.) On Cathey's July 26, 2010 performance review, Dorton told Cathey that she would need to raise her proficiency level to " advanced high" by January 2011, and she recommended that Cathey take Spanish language courses. (Dorton Aff. ¶ 6.) Two other Baptist interpreters, Debbie Salazar and Melissa Vaquera, also scored below " advanced high" and were told to raise their proficiency levels. (Id.)
Cathey took her second telephonic exam in March 2011. (Cathey Dep. at 21-22, Doc. 22-4.) The phone provided for her use had technical problems. The audio sounded " staticky," and every time she tried to adjust the volume, it would mute the conversation. (Id. at 22-23.) In addition, the telephone did not accommodate her hearing aid; she could not get the telephone close enough to her ear to use the phone, so she had to remove her hearing aid during the examination. (Id. at 24-25.) The phone she used did not comply with the FCC's requirements for someone with a hearing disability. (Id. at 25-26; Doc. 22-4 at 45-46.) When Cathey left the examination, she told one of the receptionists outside the testing room that the phone did not work properly and did not accommodate her hearing aid. (Cathey Dep. at 123-24, Doc. 22-4.)
Cathey ultimately received a proficiency score of " intermediate high," which was less than the target level of " advanced high." (Dorton Aff. ¶ 8.) However, Cathey believes she would have met her proficiency goal had the test been given through any medium besides the telephone. (Cathey Dep. at 62, 153, Doc. 22-4.) Shortly after taking the test, on March 11, 2011, Cathey participated in a conference call with Dorton and Childress, who advised Cathey that she had only scored an " intermediate high" on her exam. (Id. at 126-27.) They told her that, since she had scored below " advanced high," she would be working as a dispatcher for the time being. (Id. at 127-28; Dorton Dep. at 104, Doc. 22-1.) They also told her they would get back to her as soon as they had a plan for her, but they did not eliminate the possibility that she may return to interpreting. (Cathey Decl. ¶ 4; Dorton Dep. at 104, Doc. 22-1.)
A few days later, Cathey told Dorton about the problems she had encountered with the phone. (Cathey Dep. at 124, 128, Doc. 22-4.) Cathey asked Dorton whether there was some other way to do the evaluation. (Id. at 125.) Dorton told her that the phone-based examination was what had been established and would continue to be the standard medium used. (Id.) Dorton suggested that Cathey brush up on her Spanish. (Cathey Dep. at 129, Doc. 19-1.) Cathey told Dorton that she did not feel like there was any point in taking the test again because the equipment was inadequate; she said she needed a face-to-face evaluation like the one Baptist had previously been using for the interpreters. (Id.) In response, Dorton said, " This is what we have in place, and this is what the department is willing to pay for." (Id.) Cathey did not reduce her request to writing or complain about it to Dorton's supervisors, Smith and Childress. (Id. at 130-32.)
When Dorton received Cathey's results on the oral proficiency test, she also received the results for Salazar and Vaquera. (Dorton Dep. at 71-75, Doc. 22-1.) Dorton learned that Salazar and Vaquera had also failed to achieve " advanced high" proficiency, achieving only " advanced mid." (Id. at 75, 78.) In response to learning of these results, Dorton decided to investigate lowering the required proficiency level and determined that one language industry organization (the National Board for Certification of Medical Interpreters) required only " advanced mid" proficiency. (Id. at 73-75.) Acting upon Dorton's request, a subset of the committee then changed the required proficiency level to " advanced mid." (Id. at 75.) This change rendered Salazar and Vaquera's proficiency levels sufficient for them to continue working as interpreters but was not low enough for Cathey. (Id. at 74-79.)
On or around March 17, 2011, Cathey was told that she had sixty days to continue working as a dispatcher, retake the telephonic proficiency test, or find another job at Baptist. (Cathey Decl. ¶ 5.) The details of the dispatcher position were still being worked out, since the position itself had not officially been approved, and nothing was definite regarding the dispatcher position until management got back to her. (Id.; Dorton Dep. at 104, Doc. 22-1; Doc. 19-3 (Childress Dep.) at 47.) Dorton specifically told Cathey " to not interpret for the time being until a resolution was achieved." (Dorton Dep. at 104, Doc. 22-1.) During this time period, Cathey was paid at her interpreter pay rate. (Dorton Dep. at 90, Doc. 19-4.) On April 28, 2011, Cathey asked Childress if the deadline to decide could be shortened to May 13 instead of May 20, although she was continuing to look for other jobs with Baptist and still hoping to hear back about management's plan for her future employment. (Cathey Decl. ¶ 6.) The request was granted.
On or about May 5, 2011, Smith told Cathey that her dispatcher position had been approved by human resources, but that she would only make $18.00 per hour in that position, which was less than the $21.86 per hour rate of her interpreter position. (Compl. ¶ 16; Cathey Decl. ¶ 7.) Cathey found this demotion to be " humiliating" and decided to quit rather than to accept it. (Doc. 22-4 at 39.) On May 9, 2011, Childress asked Cathey whether she was still comfortable deciding to quit; Cathey confirmed that she was comfortable with the decision, writing, " I am very excited about starting [nursing] school in the fall. I'm not excited about being 'unemployed.' If I had my 'rathers' it would be here interpreting until I retire but GOD has me securely in HIS hand and will take me where HE wants me." (Doc. 19-1 at 97; Childress Dep. at 54.) On May 11, 2011, Cathey learned that the standard had been lowered for Salazar and Vaquera; however, Cathey still declined to retake the test at the time she quit because Dorton had been " adamant" that the exam could only be taken over the telephone. (Cathey Dep. at 232, Doc. 19-1; Cathey Decl. ¶ 8.) Cathey quit her job on May 13, 2011. (Cathey Dep. at 17, Doc. 22-4.) On that day, her pay rate had not yet been decreased from the interpreter rate to the dispatcher rate. (Id. at 137.)
After Cathey quit, she approached the Equal Employment Opportunity Commission (" EEOC" ) about filing a charge of discrimination against Baptist. She was referred to the EEOC by an attorney who did not handle employment discrimination work. (Cathey Decl. ¶ 9.) She contacted the EEOC on or about October 4, 2011, by telephone and received a questionnaire in the mail, which she completed and returned through the mail, arriving at the EEOC on October 17, 2011. (Id.) In this intake questionnaire, Cathey did not specifically claim that Dorton had failed to make a reasonable accommodation for her hearing disability; she did, however, explain that she had to take the test on a phone that was not FCC compliant for hearing disabilities. (Cathey Dep. at 153-59, Doc. 19-1; Doc. 22-4 at 45-46.) Cathey went to the EEOC on October ...