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Samper v. Providence St. Vincent Med. Ctr.

United States Court of Appeals for the Ninth Circuit

December 8, 2011, Argued and Submitted, Seattle, Washington; April 11, 2012, Filed

No. 10-35811


 [*1235]  McKEOWN, Circuit Judge:

This case tests the limits of an employer's attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential.

Monika Samper, a neo-natal intensive care unit ("NICU") nurse, sought an accommodation from her employer, Providence St. Vincent ("Providence"), that would have allowed her an unspecified number of unplanned absences from her job. She wanted to opt out of Providence's attendance policy, which sanctioned five unplanned absences of unlimited duration as well  [**2] as other permitted absences. Samper appeals the district court's summary judgment in favor of Providence on her reasonable accommodation claim under the Americans with Disabilities Act ("ADA"). Because regular attendance is an essential function of a neo-natal nursing position at Providence, we affirm.


Providence is a medical facility in Portland, Oregon, that provides a broad range of medical services. Its NICU offers a high level of intensive care to premature infants. According to the NICU charge nurse, absences among NICU staff can jeopardize patient care: NICU nurses require special training such that the universe of nurses that can be called in at the last minute is limited. As the charge nurse explains, given the relevant patient population, being understaffed is "highly undesirable and, potentially, can compromise patient care." Nonetheless, striking a balance between the needs of patients and employees, Providence's attendance policy allows its employees to take up to five unplanned absences during a rolling twelve-month period. In addition, "[u]nplanned  [**3] absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted" towards this limit, and each absence, however long, counts as only one occurrence. Samper challenges the application of this generous absence policy to her circumstances.

Although Samper claims material issues of fact remain regarding the circumstances surrounding her dismissal, the sequence of events is undisputed.2 Samper was employed with Providence as a registered NICU nurse for eleven years. Since at least 2005, she has had fibromyalgia, a condition that limits her sleep and causes her chronic pain. Over the entire period of her employment, Samper never worked full time, but, nonetheless, regularly exceeded the number of unplanned absences permitted even for full-time employees. In July 2000, while on leave of absence, Samper received a performance appraisal that reflected she had taken seven unplanned absences over the year, exceeding the number permitted by the attendance  [*1236]  policy. She was informed her attendance needed improvement. In 2002, Samper was placed on work plans to manage her continued absences, the result, according to her, of a difficult divorce. At  [**4] the time, Samper optimistically predicted that because her "personal life [had] dramatically improved in the last few months," her absences would decrease.

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675 F.3d 1233 *; 2012 U.S. App. LEXIS 7278 **; 26 Am. Disabilities Cas. (BNA) 11

MONIKA SAMPER, Plaintiff-Appellant, v. PROVIDENCE ST. VINCENT MEDICAL CENTER, Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the District of Oregon. D.C. No. 3:09-cv-01182-AC. John V. Acosta, Magistrate Judge, Presiding.

Samper v. Providence St. Vincent Med. Ctr., 2010 U.S. Dist. LEXIS 86238 (D. Or., Aug. 20, 2010)

Disposition: AFFIRMED.


attendance, accommodation, unplanned, essential function, reasonable accommodation, regular, employees, functions, patients, patient care, predictable, neo-natal, exceeded, counted, nurses

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Appeals, Summary Judgment Review, Standards of Review, Labor & Employment Law, Evidence, Burdens of Proof, Employee Burdens of Proof, Disability Discrimination, Reasonable Accommodations, General Overview, Scope & Definitions, Qualified Individuals With Disabilities, Burden Shifting, Defenses