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Sumler v. University of Colorado Hospital Authority

United States District Court, D. Colorado

October 17, 2018

ELENA SUMLER, Plaintiff,



         Plaintiff claims that the Defendant failed to hire her for a sonographer position at Memorial Health System in Colorado Springs, Colorado because it regarded her as disabled when she was not. The parties' cross-motions for summary judgment ask the Court to determine several issues relating to Plaintiff's alleged violations of the Rehabilitation Act, 29 U.S.C. § 701, et seq. and the Americans with Disabilities Act (“ADA”), as amended by ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, 42 U.S.C. § 12101, et seq. Plaintiff seeks partial summary judgment arguing that Defendant violated the ADA by subjecting her to improper medical inquiries after extending a conditional offer of employment. (ECF No. 46.) Defendant moves for summary judgment as to all of Plaintiff's claims. (ECF No. 51.) Defendant first contends that Plaintiff failed to administratively exhaust her medical inquiry claim and that, in any event, its medical questionnaire and examination complied with the ADA-thus, it fails as a matter of law. Defendant then maintains that Plaintiff was not qualified for the position that she sought with the hospital, meaning that her claims under the Rehabilitation Act and ADAAA also fail.

         For the reasons discussed below, the Court DENIES Plaintiff's motion for partial summary judgment (ECF No. 46). The Court GRANTS Defendant's motion for summary judgment (ECF No. 51).

         I. BACKGROUND

         The following are the undisputed and material facts taken from the parties' statements of undisputed facts and accompanying exhibits.

         A. Plaintiff's Application for Employment

         Plaintiff is a sonographer.[1] (ECF No. 62, Pl.'s Sep. Statement of Undisputed Mat. Facts (“Pl.'s SUMF”), Pl.'s SUMF ¶ 1.) Defendant sought to employ a PRN Sonographer at its Memorial Health System in Colorado Springs, Colorado. (ECF No. 68, Def.'s Sep. Statement of Undisputed Mat. Facts (“Def.'s SUMF”), Def.'s SUMF ¶ 1.) On September 24, 2014, Plaintiff applied to be hired for the PRN Sonographer position with Defendant. (Id.) On October 20, 2014, Defendant extended a conditional offer of employment to Plaintiff for the position. (ECF No. 62, Pl.'s SUMF ¶ 3.) Defendant's employment offer was conditioned on successful completion of its pre-employment screening, which required Plaintiff to complete an “Employee Health Questionnaire.” (ECF No. 62, Pl.'s SUMF ¶ 4; ECF No. 68, Def.'s SUMF ¶¶ 4-5.) All candidates seeking employment must complete the Employee Health Questionnaire, including Plaintiff. (ECF No. 68, Def.'s SUMF ¶¶ 5-6.)

         The Employee Health Questionnaire requested that applicants list current medical conditions and current medications. (ECF No. 62, Pl.'s SUMF ¶ 5-7.) As a current medical condition, Plaintiff identified “Fibromyalgia.” (ECF No. 62, Pl.'s SUMF ¶ 8; ECF No. 68, Def.'s SUMF ¶ 7.) As current medications, Plaintiff listed the following: “Metaxalone, Cymbalta, Oxycodone, [and] Fentanyl.” (ECF No. 62, Pl.'s SUMF ¶ 6; ECF No. 68, Def.'s SUMF ¶ 7.) Oxycodone and Fentanyl are narcotic painkillers; Cymbalta is an antidepressant; and Metaxalone is a muscle relaxer. (ECF No. 68, Def.'s SUMF ¶ 8-9.) Defendant's standing policy required that use of narcotics, muscle relaxers, or antidepressants triggered a further examination by an occupational health physician, Dr. Roth. (ECF No. 68, Def.'s SUMF ¶ 10.) Dr. Roth has contracted with Defendant to provide pre-employment health screenings of prospective employees. (ECF No. 58-3, Empl. Contract at 12.)

         On October 29, 2014, Dr. Roth met Plaintiff to explain that he would need to review her medical records and discuss her medical conditions with her treating physician, Dr. Brooks, who specializes in pain management. (ECF No. 49-12 at 3; ECF No. 68, Def.'s SUMF ¶ 17.) Dr. Roth reviewed Plaintiff's treatment notes and spoke directly to Dr. Brooks. (ECF No. 68, Def.'s SUMF ¶¶ 16, 22.) Dr. Roth met with Plaintiff again on November 6, 2014, where he explained that he would be assigning work restrictions based on her medical conditions and medication use. (ECF No. 49-12 at 4; ECF No. 68, Def.'s SUMF ¶ 17.) Based on his meeting with Plaintiff, review of her medical records, and discussion with Dr. Brooks, Dr. Roth concluded that Plaintiff suffered from widespread pain disorder comprised of two components: (1) a spine-related issue that caused back pain; and (2) fibromyalgia. (ECF No. 68, Def.'s SUMF ¶ 23.) It is undisputed that Plaintiff's pain disorder required narcotic pain medication in order for her to maintain her activity. (Id., Def.'s SUMF ¶ 24.) Based on Plaintiff's medical conditions and medication use, Dr. Roth recommended the following seven restrictions and limitations on Plaintiff's work activities:

1. Not able to utilize fentanyl patch within 24 hours of work;
2. Not able to utilize a narcotic medication or tranquilizer within eight hours of a work shift;
3. Employee health to periodically monitor the Prescription Drug Monitoring Program and treatment records;
4. No prolonged postures sustained greater than 30 minutes;
5. Maximum materials handling 20 pounds;
6. No repetitive reaching above chest, reaching overhead or reaching away from her body;
7. No patient transfers or boosting.

(Id., Def.'s SUMF ¶ 25.) Defendant's ADA Coordinator, Chris Esser, reviewed Dr. Roth's restrictions and the sonographer job description. (Id., Def.'s SUMF ¶ 29.)

         The parties agree that the sonographer job description requires the following from Plaintiff: mental acuity and great uninterrupted concentration; acquisition and analysis of data using ultrasound; optimization of computer images to enhance diagnostic information for physician interpretation; determining normal from pathological variants through sonographic recognition of characteristics for normal and abnormal tissue, structure, blood flow, proper patient positioning and transducer-instrument selection. (Id., Def.'s SUMF ¶¶ 31, 48.) Sonographers maintain responsibility for all exams and provide a preliminary summary of findings to the physician. (Id., Def.'s SUMF ¶ 47.) Defendant requires sonographers to have the ability to lift up to fifty pounds as they are responsible for assisting patients who have fallen or are falling-and Defendant's patients may be pediatric, elderly, obese, or immobilized. (Id., Def.'s SUMF ¶¶ 35, 36, 40.) Based on the limitations imposed by Dr. Roth when compared to the job description, on November 11, 2014, Defendant rescinded its conditional offer of employment to Plaintiff after concluding that she was not qualified for the position. (Id., Def.'s SUMF ¶¶ 50-51.)

         Plaintiff counters that she was qualified for the position, which is the heart of the parties' dispute. Plaintiff ardently disagrees with Dr. Roth's restrictions: “To describe all the reasons that Dr. Roth's opinion is not entitled to credence would fill pages.” (Id., Pl.'s Resp. to Def.'s SUMF ¶ 25.) According to Plaintiff, Dr. Roth's opinion should not be considered because he is paid a salary of $156, 000 per year by Defendant to perform these exams, making him a biased and interested witness. (Id. (citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 149-51 (2000).) Regarding the physical limitations, Plaintiff argues that Dr. Roth did not order or perform a functional capacity exam which would have provided objective medical evidence of Plaintiff's ability to lift. (Id., Pl.'s Resp. to Def.'s SUMF ¶ 26.) Plaintiff also points out that her own doctor, Dr. Brooks, had not issued any work restrictions. (Id.)

         Finally, Dr. Roth opined that Plaintiff could not use her pain medications within the specified periods of time described above because the sonographer position is “safety-sensitive.” Plaintiff contests whether Dr. Roth actually considered the sonographer position to be “safety-sensitive.” (Id., Pl.'s Resp. to Def.'s SUMF ¶ 27.) Dr. Roth supports his conclusion to issue the above-described restrictions regarding Plaintiff's medication use with a guideline from the American College of Occupational and Environmental Medicine titled, ACOEM Practice Guidelines: Opioids and Safety-Sensitive Work. (Id., Def.'s SUMF ¶ 26.) The ACOEM guideline states: “Other evidence suggests cognitive compromise among those with chronic opioid use, especially decision-making.” (Id., Def.'s SUMF ¶ 26; see also ECF No. 49-18 at 1.) Plaintiff's rejoinder is to attach a declaration and video to establish that she could lift fifty pounds of horse chow and dog chow at the time she was being evaluated by Dr. Roth. (Id., Pl.'s Resp. to Def.'s SUMF ¶ 27.) Additionally, Plaintiff's declaration attests that she performed the same types of physical labor, without incident, in her previous sonographer job with ASAP Labs. (Id.; see also ECF No. 58-17, Decl. of Elena Sumler.)

         B. Administrative Charge

         On December 27, 2014, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission. (ECF No. 68, Def.'s SUMF, AF ¶ 15; ECF No. 49-21.) Plaintiff's charge asserted disability discrimination. (ECF No. 49-21 at 2.) Specifically, Plaintiff's charge stated: “I have a disability as defined within the meaning of the ADA of which [Defendant] was aware due to its medical questionnaire.” (Id.) And “[o]n or about October 30, 2014, [Plaintiff] was told that [she] could not perform the job because of [her] disability and [her] prescribed medications by Dr. Henry Roth, the physician who interviewed [her] on behalf of [Defendant.]” (Id.) Plaintiff received a right to sue letter from the EEOC on September 29, 2016. (ECF No. 40 at ¶ 6.) Plaintiff initiated this lawsuit on October 13, 2016. (ECF No. 1, Compl.)

         C. This Lawsuit

         Plaintiff's initial complaint and amended complaint alleged three claims for relief: (1) violation of the Rehabilitation Act by rescinding Defendant's offer of employment based on actual and “regarded as” disability and failing to accommodate Plaintiff's disability; (2) violation of the ADA based on Defendant's medical questionnaire; and (3) violation of the ADAA based on rescission of the job offer because of Plaintiff's actual and “regarded as” disability and failing to reasonably accommodate Plaintiff. (ECF No. 4 at ¶¶ 51-56, 59-61, 64-69.) On October 5, 2017, the parties stipulated to dismissal of two claims in Plaintiff's first amended complaint, including “(a) the claims under both the ADA and the [Rehabilitation Act] that Defendant rescinded its job offer based on Plaintiff's having an actual disability and (b) any claim that Defendant failed to provide reasonable accommodations.” (ECF No. 38 at 2, ¶ 3.) As a result, two claims survived the stipulation: “[that] (a) Defendant rescinded its offer of employment to Plaintiff because Defendant regard[ed] Plaintiff as having a disability and (b) [D]efendant's violation of the medical inquiry provisions of the ADA.” (Id. at 2, ¶ 4.) On October 11, 2017, the Court approved the stipulation and dismissed with prejudice “Plaintiff's claims that Defendant rescinded its offer of employment to Plaintiff because she has an actual disability and that Defendant failed to reasonably accommodate Plaintiff's disability[.]” (ECF No. 39.) The Court also ordered Plaintiff to file an amended complaint to include only the remaining claims, which Plaintiff did on October 16, 2017, making the second amended complaint operative in this matter. (ECF No. 40, Sec. Am. Compl.)

         Plaintiff seeks partial summary judgment on her second claim for relief-violation of the ADA alleging she was subjected to a medical examination not required of all applicants. (ECF No. 46 at 2.) Defendant seeks summary judgment in its favor as to all Plaintiff's claims. (ECF No. 51.) Regarding the claim for violation of the ADA based on Plaintiff's medical examination, Defendant asserts that (a) Plaintiff failed to administratively exhaust the claim, and notwithstanding the exhaustion issue, (b) it complied with the applicable statute and regulation addressing such examinations. (Id. at 4-5.) With respect to Plaintiff's claim that she was not hired because Defendant regarded her as disabled, Defendant argues that Plaintiff was not qualified for the position and, even if she was qualified, her use of narcotics would have posed a direct threat to the health or safety of herself and others. (ECF No. 51 at 6-18.) Each party opposes the other's request for summary judgment. (ECF Nos. 52 and 57.)


         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted).

         The Court will consider statements of fact, or rebuttals thereto, which are material and supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Summary judgment evidence need not be submitted in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. Johnson v. Weld Cty., 594 F.3d 1202, 1210 (10th Cir. 2010). Affidavits must be based on personal knowledge and must set forth facts that would be admissible at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). “Conclusory and self-serving affidavits are not sufficient.” Id. “[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (quotations and citation omitted). The Court is “not obligated to comb the record in order to make [a party's arguments].” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000).

         “Where, as here, we are presented with cross-motions for summary judgment, we must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor.” United States v. Supreme Court of New Mexico, 839 F.3d 888, 906-07 (10th Cir. 2016) (citations and quotations omitted). “‘Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.'” Id. (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)). The Court now addresses each claim and motion in turn.

         III. ANALYSIS

         A. ADA ...

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