United States District Court, D. Colorado
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.
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