    MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
    Decision:	 2017	ME	161	
    Docket:	 Cum-16-528	
    Argued:	 June	14,	2017	 	
    Decided:	 July	20,	2017	
    	
    Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
    	
    	
                                     BETH	CARNICELLA	
                                             	
                                            v.	
                                             	
                                     MERCY	HOSPITAL	
    	
    	
    MEAD,	J.	

	       [¶1]		Beth	Carnicella	appeals	from	a	summary	judgment	entered	by	the	

Superior	Court	(Cumberland	County,	Mills,	J.)	in	favor	of	Mercy	Hospital	on	her	

complaint	 that	 Mercy	 discriminated	 against	 her	 in	 violation	 of	 the	

Maine	Human	Rights	Act	(MHRA).		See	5	M.R.S.	§§	4551-4634	(2016).		Carnicella	

argues	 that	 the	 court	 erred	 by	 determining	 that	 she	 was	 not	 a	 “qualified	

individual	with	a	disability”	as	defined	by	the	MHRA,	and	by	failing	to	determine	

that	Mercy	did	not	meet	its	obligation	to	identify	a	reasonable	accommodation	

for	her	disability.		We	affirm	the	judgment.	
2	

                                      I.		BACKGROUND	

     	   [¶2]	 	 The	 following	 facts	 are	 presented	 in	 the	 light	 most	 favorable	 to	

Carnicella	 and	 are	 supported	 by	 the	 summary	 judgment	 record.	 	 See	

Trott	v.	H.D.	Goodall	Hosp.,	2013	ME	33,	¶	2,	66	A.3d	7.	

     	   [¶3]		In	2011,	Beth	Carnicella	was	hired	by	Mercy	Hospital	as	a	part-time	

registered	 nurse	 (RN)	 at	 Mercy’s	 Express	 Care	 facility	 in	 Gorham.	 	 On	

July	 29,	 2013,	 Carnicella	 was	 diagnosed	 with	 a	 serious	 medical	 condition.		

Carnicella	 requested	 a	 leave	 of	 absence	 to	 begin	 on	 August	 9,	 2013,	 to	 have	

surgery;	she	expected	to	be	out	of	work	for	only	two	weeks.		In	a	letter	dated	

August	 1,	 2013,	 Mercy	 granted	 her	 up	 to	 ten	 weeks	 of	 leave	 pursuant	 to	

Maine’s	Family	Medical	Leave	statute.		See	26	M.R.S.	§	844	(2016).		The	letter	

also	stated:	“Once	you	are	ready	to	return	to	work,	have	your	Physician	fax	.	.	.	

a	letter	.	.	.	stating	the	date	you’re	cleared	to	return	to	work.”	

     	   [¶4]		After	her	surgery,	Carnicella	developed	complications	that	affected	

her	ability	to	move	her	left	arm	properly.		On	September	20,	2013,	Mercy	sent	

Carnicella	 a	 letter	 reminding	 her	 that	 her	 leave	 would	 expire	 on	

October	18,	2013,	and	that	if	she	needed	an	extension,	she	must	file	a	written	

request	with	the	human	resources	department.		The	letter	also	stated	in	bold	

print	that	she	“must	have	clearance	from	[her]	Physician	before	[she]	return[s]	
                                                                                   3	

to	work.”		At	that	time,	Carnicella’s	medical	provider	had	not	released	her	to	

return	to	work.	

  	   [¶5]	 	 Carnicella	 requested	 an	 extension	 of	 her	 leave	 through	

November	18,	2013,	which	Mercy	granted.		In	the	October	10	letter	granting	

the	request,	Mercy	reiterated	the	need	for	Carnicella’s	physician	to	clear	her	to	

work	 prior	 to	 her	 return.	 	 Carnicella	 was	 unable	 to	 return	 to	 work	 on	

November	 19	 and	 requested	 a	 second	 extension	 of	 her	 leave.	 	 Mercy	 again	

extended	Carnicella’s	leave	and	held	her	position	open	for	her.	

  	   [¶6]		Based	on	the	information	provided	to	Mercy	by	Carnicella’s	medical	

providers,	 Mercy	 expected	 her	 to	 return	 to	 work	 on	 or	 about	

December	31,	2013.		Anticipating	her	return	to	work,	Mercy	sent	Carnicella	a	

memorandum	dated	December	13	regarding	any	reasonable	accommodation	

she	may	need	due	to	a	disability.		The	memorandum	explained,	among	other	

things,	that	it	was	“up	[to	her]	to	alert	[her]	supervisor	or	human	resources	to	

[her]	need	for	accommodation.”		Carnicella	returned	the	form	having	checked	

a	 box	 indicating	 that	 she	 “would	 like	 to	 go	 forward	 with	 the	 process	 of	

requesting	a	reasonable	accommodation.”	

  	   [¶7]		On	or	around	December	18,	2013,	Mercy	received	a	“Health	Care	

Provider	 Questionnaire	 Regarding	 Employee	 Disability	 and	 Accommodation”	
4	

completed	 by	 Carnicella’s	 surgeon.	 	 The	 form	 asked,	 among	 other	 things,	

whether	there	was	a	medical	reason	why	Carnicella	could	not	work	her	normal	

twenty-four-hour-per-week	 schedule,	 to	 which	 Carnicella’s	 surgeon	

responded,	 “Yes.	 	 Cannot	 lift	 over	 3	 pounds	 or	 do	 repetitive	 computer,	

telephone	work.”		Another	question	on	the	form	asked:	“Will	Patient	require	

any	 reasonable	 accommodations	 to	 enable	 him/her	 to	 perform	 the	 essential	

functions	of	his/her	job	(please	consult	enclosed	job	description).		If	so,	what	

accommodations	 do	 you	 recommend?”	 	 In	 response,	 Carnicella’s	 surgeon	

wrote:	“Pending	return	to	work	–	anticipated	return	to	work	3/15/14.”	

     	   [¶8]		On	January	21,	2014,	Carnicella’s	primary	care	physician—who	had	

taken	 over	 management	 of	 Carnicella’s	 medical	 issues—wrote	 to	 Mercy	

regarding	Carnicella’s	return	to	work.		The	physician	explained:	

         I	know	that	[Carnicella’s	surgeon]	recommended	that	[Carnicella]	
         return	 to	 work	 on	 March	 15,	 2014[,]	 without	 restrictions.		
         However,	in	the	setting	of	her	left	arm	weakness	and	the	need	for	
         further	 evaluation,	 I	 do	 not	 believe	 that	 this	 is	 an	 appropriate	
         return	to	work	date.		It	is	always	difficult	to	estimate	recovery	time,	
         particularly	 when	 an	 evaluation	 is	 ongoing.	 	 However,	 I	 would	
         estimate	that	she	will	be	able	to	work	full	time	without	restrictions	
         by	June	1,	2014.	
            	
         [Carnicella]	loves	her	job	and	is	highly	motivated	to	return	to	work.		
         She	 is	 understandably	 frustrated	 at	 the	 thought	 of	 having	 to	
         postpone	her	return	to	work	date.		However,	she	cannot	use	her	left	
         arm	and	I	have	told	her	that	she	needs	to	recover	sufficient	strength	
         in	her	arm	to	do	her	job	safely.		I	am	confident	that	we	will	be	able	
                                                                                          5	

       to	help	[Carnicella]	achieve	this	and	I	would	ask	that	you	grant	us	a	
       little	more	time	.	.	.	.	
          	
  	    [¶9]	 	 On	 January	 24,	 2014,	 Carnicella	 met	 with	 the	 director	 of	

Mercy’s	human	resources	department	and	with	Carnicella’s	direct	supervisor.		

At	that	meeting,	Carnicella	did	not	represent	that	she	had	work	capacity,	either	

with	 or	 without	 reasonable	 accommodations.	 	 The	 HR	 director	 informed	

Carnicella	that	Mercy	would	extend	her	leave	until	March	15,	2014,	and	that	if	

she	 were	 unable	 to	 return	 to	 work	 by	 that	 time,	 it	 would	 attempt	 to	 fill	 her	

position	due	to	business	needs,	but	Carnicella	could	then	transition	to	working	

on	a	per	diem	basis.		Both	the	HR	director	and	Carnicella’s	supervisor	assumed	

that	if	and	when	Carnicella	returned	to	work,	it	would	be	with	restrictions.	

  	    [¶10]		In	late	February	2014,	Carnicella’s	supervisor	was	preparing	the	

schedule	for	April,	May,	and	June;	when	she	completed	the	schedule,	she	was	

unable	to	fill	all	of	the	shifts.		Mercy	contends	that	the	supervisor	sent	Carnicella	

a	text	message	and	left	her	a	voicemail	asking	whether	she	wanted	to	be	on	the	

schedule,	 and	 that	 Carnicella	 never	 responded.	 	 Carnicella,	 however,	 asserts	

that	the	supervisor	contacted	her	only	to	see	how	she	was	doing	and	did	not	

inquire	 about	 adding	 her	 to	 the	 schedule	 although	 Carnicella	 had	 been	 in	

regular	contact	with	the	supervisor.	
6	

     	   [¶11]		Around	March	15,	2014,	the	HR	director	left	Carnicella	a	voicemail	

asking	for	a	status	report	concerning	her	work	capacity.		Carnicella	returned	

the	HR	director’s	call	and	left	a	voicemail	stating	that	she	was	not	able	to	return	

to	work.		The	HR	director	interpreted	the	voicemail	to	mean	that	Carnicella	did	

not	want	to	remain	as	a	per	diem	employee,	and	so	she	processed	Carnicella’s	

termination	from	employment.		The	HR	director	sent	Carnicella	a	letter	dated	

March	20,	2014,	explaining	that	her	employment	would	end	on	March	21	and	

inviting	her	to	“please	reach	out	to	explore	job	opportunities”	when	she	was	

able	to	return	to	work.	

     	   [¶12]		When	Carnicella	received	the	letter,	she	called	her	supervisor	to	

discuss	why	she	had	been	terminated	instead	of	put	on	a	per	diem	status.		The	

supervisor	then	contacted	the	HR	director	and	explained	that	Carnicella	wished	

to	remain	on	per	diem	status.		Accordingly,	on	April	3,	2014,	the	HR	director	

directed	that	Carnicella’s	termination	be	reversed	and	that	she	be	reinstated	as	

a	per	diem	employee.		Carnicella	was	restored	to	per	diem	status	within	a	few	

days	and	remains	a	per	diem	employee	to	this	day.1		As	of	June	2016,	however,	

no	doctor	had	cleared	Carnicella	to	actually	return	to	work.	




     1		Beginning	in	July	2014,	the	supervisor	emailed	Carnicella	on	several	occasions	inviting	her	and	

other	per	diem	employees	to	pick	up	available	shifts.	
                                                                                          7	

  	    [¶13]	 	 In	 April	 2014,	 Carnicella	 applied	 for	 Social	 Security	 disability	

benefits,	 which	 she	 concedes	 was	 premised	 on	 her	 inability	 to	 work.	 	 In	 a	

“Function	Report”	dated	April	7,	Carnicella	described	herself	as	unable	to	lift	

more	than	three	pounds,	having	ongoing	pain	and	weakness	in	her	left	arm	and	

shoulder,	and	having	minimal	use	of	her	left	arm.		She	stated	on	the	form,	“This	

disability	has	been	life	altering.	.	.	.	I	was	employed	as	an	RN	and	was	also	an	

avid	cook.		Now	I	cannot	do	either	due	to	my	strict	functional	limitations,	pain,	

and	 neuropathies.”	 	 Carnicella	 filled	 out	 another	 Function	 Report	 in	

August	2014,	where	she	represented	that	she	experienced	pain	and	immobility	

in	 her	 left	 arm	 and	 shoulder,	 and	 that	 she	 could	 not	 lift	 or	 make	 lateral	 or	

overhead	movements	with	her	left	arm	and	shoulder.		Carnicella	admits	that	

the	August	2014	report	accurately	reflected	her	restrictions	and	limitations	at	

that	time.	

  	    [¶14]		On	September	2,	2015,	Carnicella	filed	a	complaint	against	Mercy	

alleging	 that	 Mercy	 discriminated	 against	 her	 in	 violation	 of	 the	 MHRA	 by	

terminating	her	employment	because	of	her	disability	and	refusing	to	provide	

her	 with	 a	 reasonable	 accommodation.	 	 Mercy	 filed	 a	 motion	 for	 summary	

judgment	 on	 August	 3,	 2016.	 	 On	 November	 3,	 2016,	 the	 court	 granted	
8	

Mercy’s	 motion	 and	 entered	 summary	 judgment	 for	 Mercy.	 	 Carnicella	

appealed.		See	M.R.	App.	P.	2.	

                                      II.	 DISCUSSION	

     	   [¶15]	 	 Carnicella	 argues	 that	 the	 court	 erred	 by	 granting	 summary	

judgment	in	favor	of	Mercy	on	her	discrimination	claim.		We	review	de	novo	the	

grant	of	a	summary	judgment.		Daniels	v.	Narraguagus	Bay	Health	Care	Facility,	

2012	ME	80,	¶	13,	45	A.3d	722.		“Summary	judgment	is	appropriate	if	the	record	

reflects	that	there	is	no	genuine	issue	of	material	fact	and	the	movant	is	entitled	

to	a	judgment	as	a	matter	of	law.”		Dussault	v.	RRE	Coach	Lantern	Holdings,	LLC,	

2014	ME	8,	¶	12,	86	A.3d	52	(quotation	marks	omitted);	see	M.R.	Civ.	P.	56(c).	

     	   [¶16]	 	 We	 ordinarily	 use	 a	 “three-step,	 burden-shifting	 analysis”	 in	

employment	 discrimination	 cases	 at	 the	 summary	 judgment	 stage.	 	 Daniels,	

2012	ME	80,	¶	14,	45	A.3d	722.		Pursuant	to	that	analysis,	“an	employee	must	

first	 establish	 a	 prima	 facie	 case	 that	 (1)	 [s]he	 has	 a	 disability;	 (2)	 [s]he	 is	

otherwise	qualified,	with	or	without	reasonable	accommodations,	to	perform	

the	essential	functions	of	[her]	job;	and	(3)	[her]	employer	adversely	treated	

[her]	based	in	whole	or	in	part	on	[her]	disability.”		Id.		If	the	employee	produces	

prima	 facie	 evidence	 of	 each	 element,	 the	 burden	 shifts	 to	 the	 employer	 to	

establish	that	it	had	a	legitimate,	nondiscriminatory	basis	for	its	actions;	if	the	
                                                                                                                9	

employer	does	so,	“the	burden	shifts	back	to	the	employee	to	produce	evidence	

that	the	employer’s	proffered	reason	is	a	pretext	to	conceal	an	unlawful	reason	

for	the	adverse	employment	action.”2		Trott,	2013	ME	33,	¶	15,	66	A.3d	7.	

	        [¶17]	 	 Here,	 there	 is	 no	 dispute	 that	 Carnicella	 is	 disabled,	 and	 Mercy	

concedes	 that	 it	 terminated	 Carnicella’s	 employment	 because	 her	 disability	

prevented	her	from	working.		The	only	issue	pertains	to	the	second	element	of	

Carnicella’s	prima	facie	case:	whether	Carnicella	is	“qualified,	with	or	without	

reasonable	accommodations,	to	perform	the	essential	functions”	of	her	job.	

    	    [¶18]	 	 The	 MHRA	 provides	 that	 “[t]he	 opportunity	 for	 an	 individual	 to	

secure	employment	without	discrimination	because	of	.	.	.	physical	or	mental	

disability	.	.	.	is	recognized	as	and	declared	to	be	a	civil	right.”		5	M.R.S.	§	4571.		

It	 further	 provides	 that	 “[a]	 covered	 entity	 may	 not	 discriminate	 against	 a	

qualified	individual	with	a	disability	because	of	the	disability	of	the	individual	

in	 regard	 to	 .	 .	 .	 [the]	 discharge	 of	 employees.”	 	 5	 M.R.S.	 §	 4572(2);	 see	 also	

5	M.R.S.	§	4553(1-B)	(defining	“covered	entity”).		An	employer’s	failure	to	make	



    2	
     	 We	 have	 dispensed	 with	 the	 three-step,	 burden-shifting	 analysis	 as	 applied	 to	 summary	
judgment	motions	in	claims	of	employment	discrimination	arising	from	alleged	violations	of	Maine’s	
Whistleblowers’	 Protection	 Act,	 26	 M.R.S.	 §§	 831-840	 (2016).	 	 See	 Brady	 v.	 Cumberland	 Cty.,	
2015	ME	143,	126	A.3d	1145.		In	Brady,	we	held	that	once	an	employee	presents	a	prima	facie	case	
of	unlawful	activity	and	thereby	satisfies	the	first	of	the	three	steps,	the	employer	is	not	entitled	to	
summary	 judgment.	 	 Id.	 ¶	 39.	 	 Because	 in	 this	 case	 we	 conclude	 that	 Carnicella	 did	 not	 present	 a	
prima	facie	case	of	employment	discrimination,	we	do	not	reach	the	question	of	whether	our	analysis	
in	Brady	would	apply	to	disability-based	claims	of	employment	discrimination.	
10	

“reasonable	accommodations	to	the	known	physical	or	mental	limitations	of	an	

otherwise	qualified	individual	with	a	disability”	is	also	a	form	of	discrimination.		

5	 M.R.S.	 §	 4553(2)(E);	 see	 Winslow	 v.	 Cty.	 of	 Aroostook,	 No.	 1:11-cv-162-GZS,	

2013	U.S.	Dist.	LEXIS	20605,	at	*32	(D.	Me.	Feb.	15,	2013).	

	     [¶19]	 	 In	 the	 context	 of	 employment,	 a	 “‘qualified	 individual	 with	 a	

disability’	means	an	individual	with	a	physical	or	mental	disability	who,	with	or	

without	reasonable	accommodation,	can	perform	the	essential	functions	of	the	

employment	 position	 that	 the	 individual	 holds	 or	 desires.”	 	 5	 M.R.S.	

§	4553(8-D).		The	employee	bears	the	burden	of	showing	that	he	or	she	is	a	

qualified	 individual	 with	 a	 disability	 and	 thus	 protected	 from	 employment	

discrimination	 by	 the	 MHRA.	 	 See	 Gillen	 v.	 Fallon	 Ambulance	 Serv.,	 Inc.,	

283	F.3d	11,	24	(1st	Cir.	2002).		“The	examination	of	an	employee’s	‘qualified’	

status	 requires	 consideration	 of	 available	 reasonable	 accommodations.”		

Ward	v.	Mass.	Health	Research	Inst.,	Inc.,	209	F.3d	29,	33	(1st	Cir.	2000).		“The	

analysis	 is	 generally	 broken	 into	 two	 steps:	 (1)	 whether	 the	 employee	 could	

perform	 the	 essential	 functions	 of	 the	 job;	 [and]	 (2)	 if	 not,	 whether	 any	

reasonable	 accommodation	 by	 the	 employer	 would	 enable	 him	 to	 perform	

those	functions.”		Id.	
                                                                                                              11	

	        [¶20]	 	 Federal	 courts,	 interpreting	 provisions	 of	 the	 Americans	 with	

Disabilities	Act	(ADA)	that	closely	track	those	of	the	MHRA,3	have	held	that	an	

employee	cannot	prove	that	she	is	a	qualified	individual	with	a	disability	when	

she	 has	 not	 established	 that	 she	 has	 been	 cleared	 to	 return	 to	 work	 by	 her	

medical	provider.		See	Gantt	v.	Wilson	Sporting	Goods	Co.,	143	F.3d	1042,	1047	

(6th	Cir.	1998)	(“[B]ecause	[the	employee]	was	not	released	by	her	doctor	to	

return	to	work,	she	has	not	met	the	.	.	.	requirement	that	she	be	qualified	to	

perform	 the	 essential	 functions	 of	 the	 job.”).4	 	 Here,	 Carnicella	 has	 not	




    3	 	 “Because	 the	 MHRA	 generally	 tracks	 federal	 anti-discrimination	 statutes,	 it	 is	 appropriate	 to	

look	to	federal	precedent	for	guidance	in	interpreting	the	MHRA.”		Doyle	v.	Dep’t	of	Human	Servs.,	
2003	ME	61,	¶	14	n.7,	824	A.2d	48	(alteration	and	quotation	marks	omitted).	
    	
    4		See	also	Gamble	v.	JP	Morgan	Chase	&	Co.,	No.	16-6488,	2017	U.S.	App.	LEXIS	8376,	at	*12-13,	15	

(6th	Cir.	May	9,	2017)	(holding	that	an	employee	“was	not	a	qualified	individual	for	the	purpose	of	
the	ADA”	and	was	unable	to	establish	the	second	prong	of	his	prima	facie	discrimination	case	when	
he	 “was	 not	 released	 to	 work	 by	 his	 doctor	 and	 remained	 completely	 disabled	 at	 the	 time	 of	 his	
termination”);	Crews	v.	Dow	Chem.	Co.,	287	F.	App’x	410,	412	(5th	Cir.	2008)	(“[The	employee]	is	not	
a	‘qualified	individual	with	a	disability’	under	the	ADA.		According	to	her	own	physician,	[she]	cannot	
return	to	work	in	the	foreseeable	future.		Thus,	[she]	cannot	perform	the	essential	functions	of	her	
job,	with	or	without	reasonable	accommodation.”);	Anderson	v.	Inland	Paperboard	&	Packaging,	Inc.,	
11	F.	App’x	432,	438	(6th	Cir.	2001)	(holding	that	an	employee	could	not	establish	the	second	prong	
of	a	prima	facie	case	under	the	ADA	when,	at	the	time	she	was	terminated,	her	doctor	had	not	given	
her	 permission	 to	 return	 to	 work);	 Rogers	 v.	 Int’l	 Marine	 Terminals,	 Inc.,	 87	 F.3d	 755,	 759	
(5th	Cir.	1996)	(“[Plaintiff]	remained	unavailable	for	work	until	released	by	his	physician	.	.	.	.	Because	
[he]	could	not	attend	work,	he	is	not	a	‘qualified	individual	with	a	disability’	under	the	ADA.”);	Tyndall	
v.	Nat’l	Educ.	Ctrs.,	Inc.	of	Cal.,	31	F.3d	209,	213	(4th	Cir.	1994)	(“An	employee	who	cannot	meet	the	
attendance	requirements	of	the	job	at	issue	cannot	be	considered	a	“qualified”	individual	protected	
by	 the	 ADA.”);	 Kitchen	 v.	 Summers	 Continuous	 Care	 Ctr.,	 LLC,	 552	 F.	 Supp.	 2d	 589,	 594	
(S.D.	W.	Va.	2008)	(“It	is	well-settled	that	an	individual	who	has	not	been	released	to	work	by	his	or	
her	 doctor	 is	 not	 a	 ‘qualified	 individual	 with	 a	 disability.’”);	 Crow	 v.	 McElroy	 Coal	 Co.,	
290	F.	Supp.	2d	693,	696	(N.D.	W.	Va.	2003)	(“Because	[the	employee]	failed	to	obtain	a	release	to	
work	from	his	doctor,	[he]	has	not	shown	that	he	can	perform	the	essential	functions	of	the	job	with	
or	without	reasonable	accommodation.”).	
12	

established	 that	 she	 was	 ever	 cleared	 to	 return	 to	 work	 by	 any	 medical	

provider.		Since	her	initial	leave	of	absence,	Mercy	made	clear	that	Carnicella	

needed	 to	 have	 clearance	 from	 her	 physician	 in	 order	 to	 return	 to	 work.		

However,	 a	 report	 from	 her	 primary	 care	 physician	 dated	 January	 24,	 2014,	

indicated	 that	 Carnicella	 would	 not	 be	 able	 to	 return	 to	 work	 until	 possibly	

June.		Moreover,	Carnicella	did	not	dispute	her	physician’s	assessment	of	her	

abilities	or	estimate	of	her	return-to-work	date	and	did	not	represent	to	Mercy	

that	she	had	any	work	capacity	at	any	time	prior	to	her	termination.		See	Hwang	

v.	Kan.	State	Univ.,	753	F.3d	1159,	1161	(10th	Cir.	2014)	(“By	[plaintiff’s]	own	

admission,	 she	 couldn’t	 work	 at	 any	 point	 or	 in	 any	 manner	 for	 a	 period	

spanning	 more	 than	 six	 months.	 	 It	 perhaps	 goes	 without	 saying	 that	 an	

employee	who	isn’t	capable	of	working	for	so	long	isn’t	an	employee	capable	of	

performing	a	job’s	essential	functions	.	.	.	.”).		Because	Carnicella	did	not	have	

medical	 clearance	 to	 return	 to	 work,	 she	 was	 thus	 unable	 to	 perform	 the	

essential	functions	of	her	job	at	the	time	that	she	was	terminated.5	




   5		The	record	includes	considerable	detail	and	dispute	regarding	the	“essential	functions”	of	the	

RN	position.		Whether	a	task	is	an	“essential	function”	of	a	job	is	ordinarily	a	question	of	fact	for	the	
fact-finder.	 	 See	 Daniels	 v.	 Narraguagus	 Bay	 Health	 Care	 Facility,	 2012	 ME	 80,	 ¶	 16,	 45	 A.3d	 722;	
Pinkham	v.	Rite	Aid	of	Me.,	Inc.,	2006	ME	9,	¶	9,	889	A.2d	1009.		However,	because	Carnicella	was	
never	 cleared	 to	 return	 to	 work	 under	 any	 circumstances,	 the	 determination	 of	 the	 essential	
functions	of	the	position	is	immaterial.	
                                                                                    13	

	     [¶21]		Carnicella	also	has	not	proposed	a	reasonable	accommodation	that	

would	have	enabled	her	to	perform	the	essential	functions	of	her	job	in	March	

when	 she	 received	 the	 termination	 letter,	 in	 April	 when	 she	 was	 restored	 to	

per	 diem	 status,	 or	 at	 any	 other	 time.	 	 Although	 Carnicella	 submitted	 a	

“checkbox”	form	to	Mercy	dated	December	17,	2013,	indicating	only	that	she	

“would	 like	 to	 go	 forward	 with	 the	 process	 of	 requesting	 a	 reasonable	

accommodation,”	in	a	questionnaire	dated	December	18,	Carnicella’s	surgeon	

did	 not	 specify	 any	 potential	 reasonable	 accommodations	 for	 Carnicella	 and	

noted	that	Carnicella’s	anticipated	return	to	work	would	be	March	15,	2014.		

About	one	month	later,	Carnicella’s	primary	care	physician	indicated	that	she	

“estimate[d]”	 that	 Carnicella	 would	 be	 able	 to	 return	 to	 work	 “without	

restrictions”	by	June	1,	2014.		Thereafter,	on	January	24,	2014,	Carnicella,	the	

HR	 director,	 and	 Carnicella’s	 supervisor	 had	 a	 meeting	 at	 which	 Carnicella	

made	no	representation	that	she	had	the	capacity	to	work.	

	     [¶22]		The	only	accommodation	that	Carnicella	arguably	requested	was	

additional	leave.		However,	this	accommodation	was	unreasonable	as	a	matter	

of	 law.	 	 As	 a	 statutory	 defense	 to	 liability	 for	 discrimination,	 the	 MHRA	

provides:	“This	subchapter	does	not	prohibit	an	employer	from	discharging	.	.	.	

an	individual	with	physical	or	mental	disability,	or	subject	an	employer	to	any	
14	

legal	liability	resulting	from	.	.	.	the	discharge	of	an	individual	with	physical	or	

mental	disability,	if	the	individual,	because	of	the	physical	or	mental	disability,	

is	unable	to	perform	the	duties	.	.	.	or	is	unable	to	be	at,	remain	at	or	go	to	or	

from	the	place	where	the	duties	of	employment	are	to	be	performed.”		5	M.R.S.	

§	 4573-A(1-B).	 	 At	 the	 time	 Carnicella	 was	 terminated,	 she	 was	 unable	 to	

perform	the	duties	of	a	registered	nurse	at	the	Gorham	Express	Care	facility;	

additional	 leave	 would	 necessarily	 continue	 to	 prevent	 Carnicella	 from	

performing	those	duties.		Accordingly,	because	the	statute	provides	a	defense	

to	 discharging	 an	 employee	 who	 cannot	 perform	 her	 duties,	 it	 renders	

additional	 leave	 an	 unreasonable	 accommodation	 and	 permitted	 Mercy	 to	

terminate	Carnicella	without	running	afoul	of	the	MHRA.	

	       [¶23]		Therefore,	because	Carnicella	was	unable	to	perform	the	essential	

functions	of	her	job	with	or	without	a	reasonable	accommodation,	there	is	no	

genuine	 issue	 of	 material	 fact	 that	 she	 is	 not	 a	 qualified	 individual	 with	 a	

disability,	and	the	district	court	properly	granted	summary	judgment	 on	 her	

disability	discrimination	claim.6	




    6		Because	Carnicella	is	not	a	qualified	individual	with	a	disability,	she	is	also	unable	to	establish	a	

prima	facie	case	of	discrimination	based	on	any	failure	of	Mercy	to	accommodate	her	disability.		See	
Freadman	v.	Metro.	Prop.	&	Cas.	Ins.	Co.,	484	F.3d	91,	102	(1st	Cir.	2007).	
                                                                                  15	

  	   [¶24]		Furthermore,	contrary	to	Carnicella’s	assertion,	Mercy	was	under	

no	 obligation	 to	 propose,	 identify,	 or	 consult	 with	 Carnicella	 regarding	

reasonable	accommodations.		Although	the	MHRA	provides	that	damages	may	

not	be	awarded	if	an	employer	“demonstrates	good	faith	efforts,	in	consultation	

with	the	person	with	the	disability	who	has	informed	the	covered	entity	that	

accommodation	is	needed,	to	identify	and	make	a	reasonable	accommodation,”	

5	 M.R.S.	 §	 4613(2)(B)(8)(b),	 this	 statute	 does	 not	 affirmatively	 and	

independently	 establish	 a	 duty	 on	 an	 employer	 to	 identify	 reasonable	

accommodations	 for	 a	 disabled	 employee.	 	 As	 we	 have	 explained,	 “A	 plain	

language	reading	of	[this]	provision	reveals	that	[it]	provides	an	employer	with	

an	affirmative	defense	to	a	disability	discrimination	claim	regarding	a	failure	to	

accommodate	 pursuant	 to	 the	 MHRA”;	 it	 “does	 not	 require	 an	 employer	 to	

engage	in	such	a	consultation.”		Kezer	v.	Cent.	Me.	Med.	Ctr.,	2012	ME	54,	¶	27,	

40	 A.3d	 955;	 see	 Farnham	 v.	 Walmart	 Stores	 E.,	 L.P.,	 No.	 1:13-cv-305-JDL,	

2014	U.S.	Dist.	LEXIS	169202,	at	*16	(D.	Me.	Dec.	8,	2014).		Accordingly,	in	the	

absence	 of	 a	 statutory	 mandate	 to	 the	 contrary,	 we	 conclude	 that	 Mercy	

incurred	no	legal	liability	under	the	MHRA	for	failing	to	consult	with	Carnicella	

concerning	reasonable	accommodations	for	her	disability.	
16	

    	    The	entry	is:	

    	    	        	         Judgment	affirmed.	

	        	        	         	    	     	

Sarah	A.	Churchill,	Esq.	(orally),	Nichols	&	Churchill,	P.A.,	Portland,	for	
appellant	Beth	Carnicella	
	
Katherine	I.	Rand,	Esq.	(orally),	Pierce	Atwood	LLP,	Portland,	for	appellee	
Mercy	Hospital	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2015-397	
FOR	CLERK	REFERENCE	ONLY	
