            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


SUZANNE WILGUS,                           :
                                          :
                  Plaintiff,              :         K17C-07-032 JJC
                                          :         In and for Kent County
                  v.                      :
                                          :
BAYHEALTH MEDICAL CENTER,                 :
INC.,                                     :
                                          :
                  Defendant.              :


                   MEMORANDUM OPINION & ORDER

                               Submitted: July 13, 2018
                               Decided: July 23, 2018


Daniel C. Herr, Esquire, Law Office of Daniel C. Herr, LLC, Wilmington, Delaware,
Attorney for the Plaintiff

Samuel L. Moultrie, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware, &
Johnine P. Barnes, Esquire, Greenberg Traurig, LLP, Washington, DC, Attorneys
for the Defendant.




Clark, J.
          Plaintiff Suzanne Wilgus (hereinafter “Ms. Wilgus”) sues Defendant
Bayhealth Medical Center, Inc. (hereinafter “Bayhealth”) for alleged violations of
Delaware’s Persons With Disabilities Employment Protections Act 1 (hereinafter
“DEPA”). Ms. Wilgus, a Bayhealth employee for twenty-seven years, suffered a
2016 back injury that required surgery. At the end of her disability period, she
sought to return to work when released to full duty. Bayhealth terminated her
because she told Bayhealth she would require a back-brace for her first several weeks
after returning to work. She claims that Bayhealth refused to make a reasonable
accommodation for her disability and also failed to engage in an interactive process
with her. Bayhealth asserts that it appropriately terminated her because it has a leave
of absence policy that prohibits the use of assistive devices in the work place that
are “not covered by law.”
          Bayhealth moves for summary judgment arguing that Ms. Wilgus did not
qualify as a “person with a disability,” and therefore does not qualify for DEPA
protection.       Ms. Wilgus concedes the appropriateness of summary judgment
regarding some of her claims. The only issue remaining is whether Ms. Wilgus had
“a record of” an impairment when she returned to work because her doctor had
provided Bayhealth a note than she was able to return to full duty. For the reasons
that follow, summary judgment is appropriately DENIED as to that claim. Without
opposition, summary judgment regarding other aspects of Ms. Wilgus’s claims is
GRANTED.


                                   I.    Facts of Record
          The following facts are those of record viewed in the light most favorable to
Ms. Wilgus. Ms. Wilgus was employed by Bayhealth for approximately twenty-


1
    19 Del. C. § 720 et seq.
                                            2
seven years in various capacities, including as a registered nurse in the neonatal
intensive care unit. Ms. Wilgus began experiencing pain due to a herniated disc in
July 2016 and began Family Medical Leave (hereinafter “FMLA”) on July 12, 2016.
After her FMLA period expired, Bayhealth approved her for an additional leave of
absence through January 6, 2017. Ms. Wilgus testified that during those six months
she suffered impaired mobility and pain that affected her ability to work, sit, stand
and sleep. She also testified that she required the help of third-parties to do house
work and care for her children.
      While on leave, Ms. Wilgus obtained medical treatment from Dr. Boulos for
her back. Dr. Boulos performed an anterior lumbar interbody fusion on Ms. Wilgus
on November 15, 2016. Dr. Boulos also restricted her from working due to limited
mobility and pain. The record includes October 13, 2016 and November 3, 2016
“Disability Determination” notes from Dr. Boulos providing that Ms. Wilgus was
on “total temporary disability” for approximately three months before her return to
work date
      On January 5, 2017, Ms. Wilgus had a follow-up appointment with Dr.
Boulos. At that point, he cleared her to return to work with no restrictions. She in
turn provided his return to work note to Bayhealth. Dr. Boulos also gave Ms. Wilgus
oral instructions to wear a back-brace while at work for at least two weeks because
the job required 12-hour shifts with frequent standing.
      Ms. Wilgus next went to a “fit for duty” exam at Bayhealth on January 5,
2017. There, she indicated that she would require the use of a back-brace for “a
couple of weeks.” The Bayhealth employee told her, however, that she could not
return to work with a back-brace. At that time, Ms. Wilgus provided Bayhealth no
documentation from her doctor other than the return to work note that indicated she
had no restrictions.


                                          3
      The next day, January 6, 2017, Ms. Wilgus called Bayhealth Human
Resources employee Lisa Lorea (hereinafter “Ms. Lorea”). Ms. Wilgus told Ms.
Lorea that she had no restrictions and could still perform her job duties. Ms. Wilgus
testified that she inquired more about the policy that prohibited back-braces and she
asked if any accommodations could be made since she would only need to wear the
brace for a short time. The email to Ms. Lorea on January 6, 2017 included the
following request:
      [p]lease give reasonable consideration to a slight exception in this case.
      I will be happy to provide you with any information you request,
      including a statement from my surgeon.

      Ms. Wilgus testified that Bayhealth denied her the option to seek an
amendment to her return to work documentation from Dr. Boulos. Furthermore, she
testified that Bayhealth personnel did not ask her whether Dr. Boulos would clarify
his oral instruction regarding the need for a back-brace.
      On January 10, 2017, Ms. Wilgus next met with Ms. Lorea and Bayhealth
employee Ruby Bower. Ms. Wilgus testified that she explained at the meeting that
she would only need the back-brace for a few more weeks. They told her that
nothing could be done because the brace was considered an assistive device that
Bayhealth could not accommodate pursuant to their policy. For summary judgment
purposes, the evidence of record establishes that Bayhealth took no action to
investigate whether it could provide her a reasonable accommodation. Nor did it
engage in an interactive process with Ms. Wilgus regarding that issue. Bayhealth
then terminated Ms. Wilgus.


                                    II. Standard
      Summary judgment is appropriate when the pleadings, discovery, disclosure
materials on file, and supporting affidavits show that there is no genuine issue as to

                                          4
any material fact and that the movant is entitled to judgment as a matter of law. 2 The
Court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in the non-moving party’s favor.3 Only when the
record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, is there no genuine issue of material fact. 4


                                         III.   Analysis
       Ms. Wilgus and Bayhealth stipulated in their briefing that disability claims
under DEPA are evaluated using the same legal standards and framework used by
federal courts in applying the Americans With Disabilities Act (hereinafter the
“ADA”).5 This is consistent with the General Assembly’s direction in DEPA to use
comparable federal law when interpreting that Act.6
       This summary judgment motion turns solely on whether there is a genuine
issue of material fact regarding Ms. Wilgus’s status as a “person with a disability.”
DEPA defines a “person with a disability” to include a person who:
       a. Has a physical or mental impairment which substantially limits one
       or more major life activities;
       b. Has a record of such impairment; or
       c. Is regarded as having such an impairment.7




2
  Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979)
3
  Brozaka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
4
  Lum v. Anderson, 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).
5
  See Testerman v. Chrysler, 1999 WL 820934, at *11 (For the purposes of evaluating state law
claims of disability discrimination under 19 Del. C. § 720, courts have utilized the same legal
standards and framework established by the federal courts for actions under the ADA).
6
  See 19 Del. C. § 721(b) (providing “in defining the scope or extent of any duty imposed by this
subchapter; including the duty of reasonable accommodation, higher or more comprehensive
obligations established by otherwise applicable federal . . . enactments may be considered.”).
7
  19 Del. C. § 722(4).
                                                5
       In opposing the motion, Ms. Wilgus focuses solely on the second prong of
the definition; she alleges that she has “a record of such impairment.” 8 She argues
that the evidentiary record contains significant evidence that as of January 6, 2017,
she had a “record of” a physical impairment that substantially limited one or more
major life activities. In addition to her testimony regarding the injuries effect on her
during a six month period, she relies on two statements of “total temporary
disability” provided to Bayhealth by her back surgeon. Ms. Wilgus argues that this
evidence of record establishes for purposes of summary judgment that she had a
substantially limiting impairment and that there was a clear record of it.
       In contrast, Bayhealth argues that that Ms. Wilgus did not have a record of
such impairment as of January 6, 2017 because she was cleared to return to work
without restrictions. At that point, because her doctor’s note provided her a clean
bill of health with no further restrictions, Bayhealth argues that Ms. Wilgus no longer
had a record of such impairment. Namely, Bayhealth argues that in order to qualify
as having a record of such impairment, there must also be some present, ongoing
impairment or lingering condition.
       Accordingly, the parties arguments are distilled to the narrow issue of whether
or not a “record of impairment” requires evidence of some ongoing impairment at
the time of the allegedly adverse action in order to trigger obligations under DEPA.
It does not.     The Court finds that to accept Bayhealth’s argument would require


8
  Bayhealth also argues that summary judgment is appropriate because (1) Ms. Wilgus no longer
had a physical impairment that substantially limited major life activities as of January 6, 2017, (2)
Bayhealth did not regard Ms. Wilgus as disabled and (3) Bayhealth articulated a legitimate, non-
discriminatory reason for Ms. Wilgus’s termination irrespective of her alleged disability. Ms.
Wilgus concedes that there are no genuine issues of fact regarding both the active impairment and
“regarded as” issue. With respect to Bayhealth’s alleged legitimate, non-discriminatory reason for
terminating her, Bayhealth cites no support for that premise, either in law or fact. Nor did
Bayhealth address that issue at oral argument. Under those circumstances, summary judgment on
that ground is not appropriate.


                                                 6
conflating the first and second prongs of the definition at issue. They constitute
separate and distinct prongs, and the statute’s language referring to “a record of such
impairment” does not require ongoing impairment to qualify.
       First, the Court finds persuasive the Equal Employment Opportunity
Commission’s regulations promulgated to implement the ADA. There the EEOC
clearly sides with Ms. Wilgus’s position. Namely, in the context of seeking a
reasonable accommodation, EEOC regulations provide:
       [a]n individual with a record of a substantially limiting impairment may
       be entitled . . . to a reasonable accommodation if needed and related to
       the past disability. For example, an employee with an impairment that
       previously limited, but no longer substantially limits, a major life
       activity may need leave or a schedule change to permit him or her to
       attend follow-up or “monitoring” appointments with a health care
       provider.9

       Such language evidences at least the EEOC’s clear intent that the Federal
ADA does not require an ongoing disability when a person’s claim is brought
because of “a record of such impairment.” While the EEOC adopted this regulation
after enactment of DEPA, the General Assembly provided when enacting DEPA that
it “shall be liberally construed to promote the full employment opportunity of
qualified persons with . . . disabilities who seek such opportunity in good faith.” 10
Furthermore, DEPA specifically provides for the interpretation of DEPA’s
reasonable accommodation requirements by using federal law, when such laws
create “higher or more comprehensive obligations.”11
       The Court also finds persuasive the reasoning of the Eastern District of
Pennsylvania regarding the same issue. Namely, that Court held that prohibiting
discrimination against an individual with a record of disability is intended to protect

9
  29 C.F.R § 1630.2 (k)(3) (emphasis added).
10
   19 Del. C. § 722(b).
11
   Id.
                                               7
individuals with a history of disability, regardless of whether they are currently
substantially limited in a major life activity. 12 According to that Court, to establish
a record of disability, an individual must show that at the time he or she experienced
an impairment, the impairment substantially limited a major life activity. 13 There
is no ongoing requirement.14 The “record of ” prong is designed to protect, from
discrimination based on their medical history, those who have recovered or are
recovering from substantially limiting impairments.15
       Notably, lay testimony can be sufficient to demonstrate the degree of an
individual's impairment.16 Nevertheless, here, Ms. Wilgus’s surgeon’s “total
temporary disability” notes, covering the period between October 13, 2016 and
January 5, 2017 singularly generate a genuine issue of material fact regarding
whether she had a record of such an impairment. In addition, her lay testimony
regarding her restrictions throughout the six month period, and Bayhealth’s
acceptance of her temporary disability leave, provide further evidence of record that
precludes summary judgment.
       At oral argument, Bayhealth cited three cases it argues supports the necessity
for an ongoing impairment. Namely, Bayhealth cites Nichols v. OhioHealth Corp.17,
Gleason v. Food City 654 18, and Jennings v. Dow Corning Corp 19. All three cases




12
   Eshelman v. Agere Sys., 2004 WL 2922074, at *4 (E.D. PA Dec. 16, 2004).
13
   Id.
14
   Id.
15
   LABOR AND EMPLOYMENT LAW: COMPLIANCE AND LITIGATION § 4:110.50 (3d ed. 2018).
16
   See Bennett v. State, 933 A.2d 1249, 2007 WL 2286055 (Del.2007) (TABLE) (holding that
expert testimony to establish that an individual met the statutory definition of an infirm adult was
unnecessary where there was testimony from lay witnesses that the victim was diabetic, had
balance problems, was completely incontinent).
17
   2017 WL 3537184 (S. D. Oh. 2017).
18
   2015 WL 1815686 (E. D. Tenn. 2015).
19
   2013 WL 1962333 (E. D. Mich. 2013).
                                                 8
examine claims under the separate “regarded as” prong. 20 The plain language
included in that portion of the definition includes a present requirement for such a
regard. Furthermore, those cases are distinguishable because the “regarded as”
prong, at least in the ADA, does not trigger the right to a reasonable accommodation.
Namely, EEOC regulations provide:
      [a] covered entity is required . . . to provide a reasonable
      accommodation to an otherwise qualified individual who meets the
      definition of disability under the “actual disability prong . . ., or “record
      of” prong . . ., but is not required to provide a reasonable
      accommodation to an individual who meets the definition of disability
      solely under the “regarded as” prong . . .21

      During oral argument, Bayhealth also cited Tice v. Centre Area Transp.
Authority,22 asserting that it holds that an individual with a “record of disability”
must demonstrate that he or she remains currently impaired at the time of
discrimination. Specifically, Bayhealth points to the following language:
      [a] plaintiff attempting to prove the existence of a “record” of disability
      still must demonstrate that the recorded impairment is a “disability”
      within the meaning of the ADA. Tice has only presented evidence that
      his impairment limited his ability to drive a bus-once again, because an
      impairment that limits only bus driving is not a “disability,” Tice has
      not demonstrated the existence of a record of disability. 23

Ms. Wilgus counters that the correct interpretation of this language is that the
recorded impairment must have qualified as a disability during the period it was
recorded, not that the individual demonstrate that he or she was presently impaired.
The Court agrees. A plain reading of the Third Circuit’s holding in Tice does not
require such a plaintiff to show he or she was presently disabled, but only that the

20
   Nichols, 2017 WL 3537184, at *7; Gleason, 2015 WL 1815686, at *5; Jennings, 2013 WL
1962333, at *8.
21
   29 C.F.R. § 1630.0(e).
22
   247 F.3d 506 (3d Cir. 2001).
23
   Id. at 513.
                                            9
recorded impairment qualified as a disability under the ADA. Bayhealth’s
interpretation does not logically follow because it would conflate the “record of”
prong with the first prong.
       Moreover, the plain language of the statute, provides that the person “[h]as a
physical or mental impairment”, “[h]as a record of such impairment”, or “[i]s
regarded as having such impairment.” 24 The first and the third prongs clearly
require either current manifestations of the disability or current subjective
interpretations by the employer that the employee has a current disability. The
second prong has no such contemporaneous requirement. A “record” necessarily
records a past event. Accordingly, with regard to the “record of” prong, there is a
genuine issue of material fact regarding whether Ms. Wilson was a person with a
disability at the time Bayhealth allegedly failed to provide her a reasonable
accommodation.
       Independent of the one contested matter, the Court is otherwise satisfied that
the evidence, when viewed in the light most favorable to Ms. Wilgus, generates
triable issues of fact regarding all other aspects of Ms. Wilgus’s failure to provide a
reasonable accommodation claim. Namely, genuine issues of material fact exist on
this record as to (1) Ms. Wilgus’s request for an accommodation, (2) if Bayhealth
investigated whether it could provide a reasonable accommodation, and (3) whether
Bayhealth ultimately made a reasonable accommodation for her. 25 Consequently,
considering the evidence of record that Ms. Wilgus’s back-brace would not be
disruptive and would only be required for a few weeks, a genuine issue of material
fact exists as to whether Bayhealth failed to investigate reasonable accommodations
for Ms. Wilgus and also whether Ms. Wilgus’s permissible use of a back-brace,


24
  19 Del. C. § 722(4) (emphasis added).
25
  See 19 Del. C. § 723(b) (providing the reasonable accommodation duties of an employer after
request by an employee).
                                              10
while being able to fulfill all of her job duties, would have been a reasonable
accommodation.


                                  IV.    Conclusion
      Without opposition by Ms. Wilgus, Bayhealth’s motion for summary
judgment regarding the triggering of her DEPA reasonable accommodation claim
because of her alleged (1) current substantial impairment, and (2) her being regarded
as having such impairment is GRANTED.             For the reasons set forth above,
Bayhealth’s motion for summary judgment is DENIED regarding Ms. Wilgus’s
claim that Bayhealth denied her a reasonable accommodations based on her record
of a qualifying impairment. The start of trial shall remain as scheduled on August
27, 2018.
      IT IS SO ORDERED


                                                    /s/Jeffrey J Clark
                                                          Judge




                                         11
