Sumler v. Univ. of CO Hospital Authority ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2019
_______________________________________
Elisabeth A. Shumaker
Clerk of Court
ELENA SUMLER,
Plaintiff - Appellant,
No. 18-1443
v. (D.C. No.16-CV-02557-RM-KLM)
(D. Colo.)
UNIVERSITY OF COLORADO
HOSPITAL AUTHORITY,
Defendants - Appellees.
_________________________________________
ORDER AND JUDGMENT *
__________________________________________
Before BACHARACH, MCKAY, and CARSON, Circuit Judges.
___________________________________________
This appeal involves Ms. Elena Sumler’s claims under the Americans
with Disabilities Act (ADA) against the University of Colorado Hospital
Authority. 1 This statute restricts the use of medical examinations for
incoming employees and discrimination against applicants who are
regarded as disabled. 42 U.S.C. § 12112(a), (d); Mason v. Avaya
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
Ms. Sumler also sued under the Rehabilitation Act. Ms. Sumler states
that her Rehabilitation Act claim bears the same elements as her ADA
claim. She thus declined to separately address her claim under the
Rehabilitation Act. See Appellant’s Opening Br. at 2 n.1.
Commc’ns, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004). But exceptions
exist, and the district court applied these exceptions in granting summary
judgment to the Hospital. We affirm.
I. The Hospital rescinded a job offer to Ms. Sumler.
Ms. Sumler applied to the Hospital for a job as a sonographer, which
required these duties:
Perform patient assessment on neonatal, pediatric, adult, and
geriatric patients. Obtain, correlate, and document pertinent
patient history and clinical data to support medical necessity,
and facilitate optimum diagnostic results. Acquire and analyze
data obtained using ultrasound; systematically use technical
skills to position and obtain the best images possible. Optimize
computer images to enhance diagnostic information for physical
interpretation. Determine normal from pathological variants
through sonographic recognition of characteristics for normal
and abnormal tissue, structure, blood flow, proper patient
positioning and transducer-instrument selection.
Joint App’x, vol. 2, at 265. Given the nature of these duties, the Hospital
contends that sonographers need mental acuity; and Ms. Sumler does not
disagree.
The Hospital offered Ms. Sumler a job as a sonographer, but the offer
was conditional on an inquiry into her medical condition. The Hospital
began its inquiry with a form asking about Ms. Sumler’s medications,
medical conditions, and work restrictions. Ms. Sumler answered that she
had fibromyalgia and was taking four medications, including two narcotic
pain medications (oxycodone and fentanyl). But she also reported
2
 no “medical or physical disabilities, permanent or temporary
work restrictions, or weightlifting restrictions” and
 no restrictions that would “prevent [her] from performing [her]
essential job functions.”
Id. vol. 1, at 77.
A nurse for the Hospital reviewed the responses and referred Ms.
Sumler for further analysis by an occupational health physician, Dr. Henry
Roth. Ms. Sumler told Dr. Roth that she had a pain disorder involving (1)
spinal pain, for which she received epidural steroid injections, and (2)
fibromyalgia, which “invariably requires manual therapies and narcotic
medication to maintain activity.” Id. vol. 2, at 251. Dr. Roth then obtained
treatment records from Dr. Joseph Brooks, a Colorado physician who had
treated Ms. Sumler.
These records led Dr. Roth to seek further information from Dr.
Brooks. In response, Dr. Brooks told Dr. Roth that Ms. Sumler
 could function normally and
 had previously worked as a sonographer at a different facility
without any difficulty, even while taking the narcotic pain
medications.
According to Dr. Roth, Dr. Brooks was “very positive about Ms. Sumler
being a responsible user of prescription narcotics and in his opinion Ms.
Sumler would be respectful of her medication use and the work
environment.” Id.3
Despite this positive assessment, Dr. Roth concluded that Ms.
Sumler’s use of narcotic medications would interfere with her mental
acuity:
Although there may be no personally appreciable euphoria or
obtundation, that is not the same as there being no measurable
impairment. Current literature indicates impairment as the result
of narcotic medications far exceeds the three or four hours with
which lay persons commonly associate drug effects. The use of
multiple medications simultaneously exacerbates the intensity
and the duration of cerebral deficits.
Id. vol. 2, at 254. Given this conclusion, Dr. Roth recommended that the
Hospital prohibit Ms. Sumler from using (1) a fentanyl patch within 24
hours of a work shift and (2) other narcotic or tranquilizing medication
within 8 hours of a shift. These recommendations led the Hospital to
rescind its job offer. 2
II. The district court granted summary judgment to the Hospital on
Ms. Sumler’s claims involving an improper medical examination
and discrimination.
In district court, Ms. Sumler claimed that the Hospital had violated
 the ADA’s medical-examination provision by using
exclusionary criteria that were not job-related or consistent
with business necessity and
2
The Hospital contends that sonographers not only need mental acuity
but also need the ability to occasionally move patients. The Hospital thus
requires sonographers to be able to lift 50 pounds. In district court and our
court, the Hospital argued that it had rescinded the offer in part because
Ms. Sumler couldn’t do the required lifting. But we need not address the
impact of the lifting restriction because we rest our decision on the
requirement of mental acuity.
4
 the ADA’s discrimination provision because of a perception
that Ms. Sumler was disabled.
The district court granted summary judgment to the Hospital on both
claims, concluding as a matter of law that
 the medical inquiries were based on exclusionary criteria that
were job-related and consistent with business necessity and
 Ms. Sumler could not perform the essential functions of the
Hospital’s sonography job.
III. We engage in de novo review.
We engage in de novo review of summary-judgment rulings and
apply the same legal standard as the district court. Black & Veatch Corp. v.
Aspen Ins. (Uk) Ltd., 882 F.3d 952, 957 (10th Cir. 2018). In applying this
legal standard, we consider the summary-judgment record in the light most
favorable to Ms. Sumler and determine whether the Hospital has
established its entitlement to judgment as a matter of law. High Desert
Relief, Inc. v. United States, 917 F.3d 1170, 1181 (10th Cir. 2019).
IV. Medical-Examination Claim: The Hospital did not violate the
ADA by requiring Ms. Sumler to provide information about her
medical condition.
The medical-examination claim grew out of Ms. Sumler’s responses
to the questions about her medications, medical conditions, and work
restrictions. Based on these responses, the Hospital required Ms. Sumler to
meet with Dr. Roth to address her medical condition and use of narcotic
5
pain medications. Ms. Sumler claims that this procedure violated the
ADA’s restrictions on medical examinations. We disagree.
A. The ADA’s Restrictions on Medical Inquiries and
Examinations
The ADA restricts employers from requiring medical inquiries and
examinations for hiring decisions. 42 U.S.C. § 12112(d). These restrictions
vary among three categories:
1. pre-offer job applications, id. § 12112(d)(2),
2. post-offer pre-employment examinations, id. § 12112(d)(3), and
3. inquiries of current employees, id. § 12112(d)(4).
Ms. Sumler fell into the second category, someone who had received a job
offer but not yet started.
For individuals in this category, the employer may condition an offer
on the results of medical inquiries and examinations if they are required
for all incoming employees. 42 U.S.C. § 12112(d)(3)(A); 29 C.F.R.
§ 1630.14(b). 3 And if the employer uses medical inquiries or examinations
to screen out employees, “the exclusionary criteria must be job-related and
consistent with business necessity . . . .” 29 C.F.R. § 1630.14(b)(3).
3
The district court concluded that this regulation was entitled to
deference because it involved a reasonable interpretation of the ADA. Joint
App’x, vol. 4, at 690. Ms. Sumler does not challenge this conclusion. To
the contrary, she relies in part on the regulatory requirements.
6
Ms. Sumler argues that the Hospital violated these provisions by
improperly requiring an in-person visit with Dr. Roth after she had
answered questions about her medications, medical conditions, and work
restrictions. But the Hospital required the in-person visit based on its
requirement of mental acuity for sonographers. In the Hospital’s view,
mental acuity could be compromised by Ms. Sumler’s painful conditions
and use of narcotic pain medications. These concerns involved criteria that
were related to performance of the sonography job and consistent with
business necessity. The Hospital thus did not violate the ADA by requiring
an in-person meeting with Dr. Roth.
B. Difference in Treatment Between Applicants and Employees
Ms. Sumler questions the necessity of the in-person visit with Dr.
Roth based on a difference in the Hospital’s treatment of applicants (like
herself) and current employees. According to Ms. Sumler, this difference
shows that the Hospital did not need more information about her medical
condition or use of narcotic pain medications.
As evidence of different treatment, Ms. Sumler cites policies for
current employees with medical conditions like her own. Based on these
policies, Ms. Sumler argues that
 existing employees can withhold information about their
medications if a physician certifies an ability to work and
 Ms. Sumler could have continued working if she’d been an
existing employee because her treating physician (Dr. Brooks)
7
had certified an ability to work while taking narcotic
medication.
Ms. Sumler has misread the policy for current employees. This policy
does not suggest that a current employee’s treating physician bears final
authority over an employee’s ability to return to work. Regardless of what
a treating physician says, current employees can return to work only after
obtaining the Hospital’s approval. 4 Ms. Sumler has thus failed to create a
genuine issue of material fact on the medical-examination claim.
V. Discrimination Claim: Ms. Sumler failed to present evidence that
she was qualified to perform the essential functions of the
sonographer job while taking narcotic pain medications.
Ms. Sumler also challenges the district court’s grant of summary
judgment on the discrimination claim. On that claim, the district court
reasoned that
4
The policy states:
Employees shall, when receiving prescription medication from a
medical professional, inquire of the prescribing professional
whether the medication has any side effects that may impair the
employee’s ability to perform their job and whether the side
effects may create a risk to their own safety, the safety of their
co-workers or the public. If the answer to either question is yes,
the employee shall obtain a written statement from the medical
professional indicating any recommended work restrictions and
the duration of those work restrictions. The employee shall
provide this statement to Employee Health Services (EHS) and
secure approval to return to work.
Joint App’x, vol. 3, at 420 (emphasis added).
8
 “the use of mental acumen to obtain ultrasound images for a
physician’s diagnosis, treatment, and prevention of medical
conditions” constituted an essential job function and
 Ms. Sumler’s medications “cause compromised cognitive
function and decision-making.”
Joint App’x, vol. 2, at 696–97. We agree with the district court.
A. The ADA’s Restrictions on Discrimination in Hiring
Ms. Sumler does not allege an actual disability, but she does allege
discrimination based on the Hospital’s view that she was disabled. 5 (This is
called a “regarded-as-disabled” claim.) To prevail, Ms. Sumler must prove
that she can perform the essential functions of the job. Adair v. City of
Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016). These functions consist
of the “fundamental job duties” for a sonographer. Mason v. Avaya
5
The burden-shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), is not useful here. We apply that framework
to employment-discrimination claims that are based on circumstantial
evidence of discriminatory intent. DeWitt v. Sw. Bell Tel. Co., 845 F.3d
1299, 1306 (10th Cir. 2017). Here, however, no dispute exists concerning
the Hospital’s reasons for rescinding the job offer. The parties agree that
the Hospital rescinded its offer based on Dr. Roth’s report. See Rakity v.
Dillon Cos., Inc., 302 F.3d 1152, 1165 (10th Cir. 2002) (observing that the
defendant “freely admit[ted] the decision not to promote [the plaintiff] was
made because of [his] lifting restriction” and declining to apply the
McDonnell Douglas framework for that reason); accord Nall v. BNSF Ry.
Co., 917 F.3d 335, 349–52 (5th Cir. 2019) (Costa, J., specially
concurring).
9
Comc’ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004) (quoting 29 C.F.R.
§ 1630.2(n)(1)).
Using its judgment, the Hospital decided that narcotic pain
medications impaired mental acuity; and we will not second-guess that
judgment if the prohibition against narcotic pain medication was “job-
related, uniformly enforced, and consistent with business necessity.” Id. at
1119. In assessing relationship to the job, uniformity of enforcement, and
consistency with business necessity, courts consider “[t]he consequences
of not requiring . . . perform[ance] [of] the function.” 29 C.F.R.
§ 1630.2(c)(3); see Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877,
884 (10th Cir. 2015) (stating that “our disability-discrimination caselaw
explicitly incorporates the EEOC’s regulations”). We also consider the
employer’s judgment and written description of the job. 42 U.S.C.
§ 12111(8). In doing so, we give considerable weight to the employer’s
judgment. Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1221–22
(10th Cir. 2016).
Ms. Sumler does not question the necessity of mental acuity for the
sonography job. The only issue is whether Ms. Sumler’s painful conditions
and narcotic pain medications would interfere enough with her mental
acuity to prevent her from performing the essential functions of the job.
We’ve already concluded that the Hospital could require an in-person
meeting with Dr. Roth because the Hospital’s criteria for mental acuity
10
were job-related and consistent with business necessity. In addressing
mental acuity, the Hospital prohibited Ms. Sumler—as an incoming
employee—from working as a sonographer while taking narcotic pain
medications. This requirement was uniformly enforced, for the Hospital
prohibits any employee from working under the influence of a drug if it
would impair the employee’s job performance. Joint App’x, vol. 1, at 121–
23. 6
This prohibition entails particular significance for the Hospital’s
sonographers, who acquire and analyze ultrasound data, using technical
skills to
 obtain the best possible images and
 differentiate among normal and pathological variants through
recognition of normal and abnormal characteristics of tissue,
structure, and blood flow.
Id. vol. 2, at 265; see Part I, above. And the Hospital viewed the use of
narcotic pain medication (like oxycodone and fentanyl) as incompatible
with the mental acuity required for sonography.
The Hospital’s judgment on the effect of narcotic pain medication
was job-related, uniformly enforced, and consistent with business
6
Ms. Sumler relies on evidence that Dr. Roth didn’t know of the
prohibition against working under the influence of drugs. But Ms. Sumler
has not presented a reason for Dr. Roth to know about this policy. His role
was to assess Ms. Sumler’s medical restrictions, not to express opinions on
the Hospital’s drug policy.
11
necessity. We thus have no reason to second-guess the Hospital’s
judgment. See p. 10, above.
B. The Opinions of Dr. Roth and Dr. Brooks
Ms. Sumler contends that the summary-judgment evidence allows a
reasonable factfinder to determine that she could perform the essential
functions of the Hospital’s sonography job. For this contention, Ms.
Sumler acknowledges Dr. Roth’s opinion that narcotic pain medication
compromised cognitive functioning and prevented performance of the job’s
essential functions. But Ms. Sumler contends that a factfinder could
reasonably reject Dr. Roth’s opinion, pointing to evidence of
 Dr. Roth’s bias based on his experience in testifying for the
Hospital in workers compensation cases,
 his lack of board certification in occupational health, and
 the Hospital’s lack of a written policy addressing employees’
use of narcotic pain medications. 7
Ms. Sumler characterizes Dr. Roth as an interested witness whom a
factfinder could reasonably disbelieve and whose testimony was thus
insufficient for an award of summary judgment to the Hospital.
7
Ms. Sumler does not allege the denial of an accommodation. For
example, she does not suggest that the Hospital should have reduced her
hours or provided a different form of supervision. She instead argues that
despite her use of narcotic pain medications, she could perform the
essential functions of the sonographer position without any
accommodation.
12
We disagree. Both sides agree that the Hospital rescinded the job
offer because Ms. Sumler had painful conditions and needed narcotic
medications to relieve her pain. The issue is whether the narcotic pain
medications interfered with Ms. Sumler’s ability to perform the essential
functions of work as a sonographer at the Hospital. Resolution of this issue
turns on how the job’s essential functions are defined.
The definition of these functions was undisputed. The job required
mental acuity, and Dr. Roth reported that Ms. Sumler needed to avoid
taking narcotic pain medications before starting a shift. Given this report,
the factfinder need not decide whether it would discount Dr. Roth’s
credibility for reasons like bias or lack of board certification. The issue is
instead whether the Hospital reasonably, consistently, and uniformly
viewed abstention from narcotic pain medication as essential to a
sonographer’s mental acuity.
On this issue, Ms. Sumler contrasts Dr. Roth’s opinion with Dr.
Brooks’s. Dr. Brooks 8 opined that Ms. Sumler could perform as a
sonographer job based on her
8
Dr. Brooks’s own consent form for opioid therapy suggests that
narcotic pain medications could compromise a patient’s mental acuity. Dr.
Brooks’s form requires patients to state:
I am aware that the use of such medicine has certain risks
associated with it. . . . I will not be involved in an activity that
may be dangerous to me or someone else if I feel drowsy or am
not thinking clearly. I am aware that even if I do not notice it,
13
 past work as a sonographer at another facility and
 belief that she could perform the same job at the Hospital.
But Dr. Brooks’s opinion could create a genuine issue of fact only if he
had an adequate basis for his opinion. See Vollmert v. Wis. Dep’t of
Transp., 197 F.3d 293, 298 (7th Cir. 1999) (“For an expert report to create
a genuine issue of fact [on the plaintiff’s ability to perform the essential
functions of the job], [the expert report] must provide not merely the
conclusions, but the basis for the conclusions.”). And Dr. Brooks’s opinion
was not based on the Hospital’s requirements for the sonography job.
Indeed, Dr. Brooks admittedly didn’t know what the Hospital required and
relied solely on Ms. Sumler’s belief that she could perform the job. Dr.
Brooks’s opinion thus doesn’t undermine the Hospital’s ability to define
for itself the essential functions of the job.
Given the Hospital’s requirements, Ms. Sumler did not present
evidence of her ability to satisfy the essential functions of the sonography
job. The district court thus acted correctly in granting summary judgment
to the Hospital on Ms. Sumler’s claim of discrimination. See Milton v.
my reflexes and reaction time might still be slowed. Such
activities include but are not limited to: using heavy equipment
or a motor vehicle, working in unprotected heights or being
responsible for another individual who is unable to care for
his/herself.
Joint App’x, vol. 2, at 277.
14
Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (upholding summary
judgment for the employer on a discrimination claim under the ADA based
on the applicant’s failure to rebut the employer’s evidence involving an
inability to satisfy a job requirement).
* * *
We thus affirm the district court’s grant of summary judgment to the
Hospital on Ms. Sumler’s claims involving an improper medical
examination and discrimination.
Entered for the Court
Robert E. Bacharach
Circuit Judge
15