Wenrich v. Empowered Management Solutions LLC

          OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on 1) Defendant Empowered Management Solutions, LLC's (“EMS”) Motion for Summary Judgment (# 59), and Mr. Wenrich's response (# 61) ; and 2) Defendant Ryan McCarthy's (“the Army”) Motion for Summary Judgment (# 60), Mr. Wenrich's response (# 52), and the Army's reply (# 64).

         FACTS

         The Court summarizes the pertinent facts here and elaborates as necessary in its analysis. It views all evidentiary disputes in the light most favorable to the non-movant.

         The U.S. Army contracts with private sector entities to provide for medical staffing at certain Army hospitals. In this case, the Army contracted with an entity called Luke & Associates to staff an Army hospital in Fort Carson, Colorado. In turn, Luke & Associates subcontracted with Defendant EMS. EMS then retained the Plaintiff, Dr. Wenrich, to provide services at the hospital.

         Dr. Wenrich worked the night shift at the hospital, during which time he was the only OB/GYN on duty. Dr. Wenrich suffers from diabetes and occasionally experiences instances of hypoglycemia, which can result in confusion, abnormal behavior, and loss of consciousness.

         On February 15, 2015, staff nurses paged Dr. Wenrich to attend to a patient. Dr. Wenrich did not respond. The nurses investigated and found him unconscious in the call room. He was taken to the emergency room, found to be suffering from extremely low blood sugar, and treated with dextrose. He recovered and went home. Dr. Wenrich's supervisor, Dr. Anthony Sullivan, reported this incident (as well as a “less severe” one that had occurred “several months back, in which nurses detected “a slight change in [his] behavior, ” which resolved after he had something to eat) to a superior, in case it was necessary for the Army to notify Luke & Associates.^[2]

         Dr. Wenrich had a second hypoglycemic episode about a month later, on March 10, 2015. A patient in labor was in distress and nurses found Dr. Wenrich unable to perform an emergency C-section. The evidence as to his state is inconsistent - one report is that the nurses found Dr. Wenrich to exhibit an “altered mental state” as a result of low blood sugar and another account reports that he was asleep and “unresponsive.” The nurses administered a glucose IV to Dr. Wenrich in order to revive him and raise his blood sugar. He apparently recovered and then completed his shift. Once again, there is a slight inconsistency in the evidence. One version of events report that he completed his shift “without further incident, ” while another version reports that he “remained visibly abnormal and slow in decision making during the caesarian section, ” but completed the procedure without harm.

         In reporting this incident to his superiors, Dr. Sullivan stated that “This now appears to be a patient safety issue.” Dr. Sullivan removed Dr. Wenrich from the night shift and placed him on the day shift where there would be other doctors available to cover. Dr. Wenrich testified, however, that he agreed not to come back to work until he “got the problem fixed.” It appears that both parties understood that Dr. Wenrich would contact his endocrinologist and look into obtaining an insulin pump that would provide constant glucose monitoring.

         Dr. Sullivan and other Army supervisors were also concerned about Dr. Wenrich's forthrightness and ability to self-assess because Dr. Wenrich did not promptly report the incidents to Dr. Sullivan. The team requested that an Army contracting official advise Luke & Associates of the incidents. In an email to Luke & Associates, the Army contracting official described the two incidents, noted that “patient safety is now a concern” and advised Luke & Associates that notification was made “so that appropriate corrective actions can be taken.” In addition, the official asked that Luke & Associates “inform us on [your] plan to resolve the [Army's] concerns going forward.” Luke & Associates responded that neither it nor EMS were “ever made aware by Dr. Wenrich of any medical issues that exist, ” and that it intended to investigate the matter. Luke & Associates inquired whether “it [is] your intention to remove Dr. Wenrich from the schedule.” The contracting official replied that the hospital team agreed that “Dr. Wenrich should not practice at [the] hospital any longer, given his current health issues and inability to provide full scope of practice” and that they “recommended that Dr. Wenrich be removed from delivering care.”

         According to Charissa Power, EMS' President, Luke & Associates then contacted EMS and advised that the Army would no longer allow Dr. Wenrich to work at the hospital. Ms. Power wrote to Mr. Wenrich on March 13, 2015, informing him that “we have been formally notified by [the hospital's] Contracting Office that . . . your position as an OB/GYN physician has been terminated.” Although the letter thanked Dr. Wenrich for his service and wished him “the best in all your future endeavors, ” Ms. Powers states that EMS “attempted to provide [Dr. Wenrich] with alternate employment opportunities, but he refused them all because they were not located in or near Colorado Springs.”

         Dr. Wenrich commenced this action in which he brings a single claim for disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. against EMS and the Army. Both Defendants now move for summary judgment. EMS' motion (# 59) argues that Dr. Wenrich cannot show that EMS took any adverse employment action against him, as it was the Army and Luke & Associates that terminated Dr. Wenrich's ability to work at the hospital. The Army's motion (# 60) argues that: (i) Dr. Wenrich cannot bring a claim of employment discrimination against the Army under the Rehabilitation Act because he was an independent contractor, not an employee; (ii) that the Army's actions regarding Dr. Wenrich were not based on the fact of him having a disability but rather, were based on his failure to control his condition; (iii) that Dr. Wenrich was not an “otherwise qualified” individual because his condition posed a direct threat to the health and safety of others; and (iv) that Dr. Wenrich lacks standing to sue the Army because the Army is immune from claims for money damages and that injunctive relief restoring Dr. Wenrich to practice at the hospital is impossible because Dr. Wenrich has since surrendered his medical license.

         ANALYSIS

         A. ...