Thursday, April 12, 2012

Ninth Circuit Holds Predictable Attendance an Essential Function of the Job of NICU Nurse

The case is Samper v. Providence St. Vincent Medical Center, ___ F.3d ___ (9th Cir., Apr. 11, 2012), and the opinion is here.  Now, I could tell you that the decision (which upholds summary judgment to the hospital in an ADA Title I case brought by a nurse who worked in the neonatal intensive care unit) is a bit sloppily reasoned.  And I'd be right!  The hospital defendant did seem to allow its NICU nurses to have unplanned absences for a number of reasons and on a number of occasions.  The Ninth Circuit's opinion doesn't really grapple with the degree to which those facts undermined the hospital's claim that it really did insist on predictable attendance from its NICU nurses.  But who am I kidding?  To describe the question presented in the case is to tell you everything you need to know.  Of course a court is going to say predictable attendance is an essential function of a NICU nurse position!

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