United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
Patricia A. Schuler has difficulty hearing and uses a hearing
aid. In 2014, Schuler began working for Defendant Banner
Health. Schuler believes Banner failed to
accommodate her disability and later terminated her because
of her disability. Viewing the facts in the light most
favorable to Schuler, she was responsible for Banner's
alleged failure to accommodate her disability, she has no
evidence establishing she was terminated because of her
disability, and Banner did not retaliate against her for
engaging in protected activity. Therefore, Banner is entitled
to summary judgment on all of Schuler's claims.
the relevant facts are undisputed. Unless otherwise noted,
the following summary presents the facts in the light most
favorable to Schuler.
was diagnosed with hearing problems at the age of five. At
present, she has “moderate to severe hearing loss in
her right ear and is functionally deaf in her left
ear.” (Doc. 92-1 at 14-15). Schuler uses a hearing aid
in her right ear and, with that aid, is able to understand
speech provided it is at a “comfortable loudness
level.” (Doc. 92-2 at 4).
2008, Schuler began working as a psychometrist. (Doc. 93-2 at
2). Psychometrists administer and score psychological and
neuropsychological tests under the supervision and direction
of a clinical psychologist or clinical neuropsychologist.
(Doc. 20 at 1). Those tests “assess various aspects of
cognition such as memory, attention, language, speed of
thinking, and problem solving abilities.” (Doc. 88 at
2). The test results are used by a psychologist or
neuropsychologist “to determine which parts of a
patient's brain are not functioning as expected.”
(Doc. 88 at 2). These tests are often conducted verbally and
a psychometrist often must be able to interact with patients
and respond to statements made by patients.
2008 to 2013, Schuler worked as a psychometrist in Ohio. On
January 9, 2014, Schuler accepted a psychometrist position
with Banner in Phoenix. (Doc. 88-1 at 88). Schuler moved to
Phoenix and began working at Banner on February 10,
2014.(Doc. 88-1 at 8). Schuler's supervisor
at Banner was Dr. Jennifer Bortz, a neuropsychologist. (Doc.
88-1 at 9). One of Schuler's coworkers was Sheila
Vadovicky, a part-time psychometrist. Dr. Bortz's
procedure with new psychometrists was to “conduct
practice sessions” and directly observe the
psychometrist's “test administration skills.”
(Doc. 88-2 at 3). Dr. Bortz followed that procedure when
Schuler started work by observing tests administered by
Schuler and providing feedback based on those tests. (Doc.
88-2 at 3). Vadovicky also observed Schuler's work and
provided her with feedback.
parties have not provided a complete picture of the
interactions between Schuler, Dr. Bortz, and Vadovicky but
the record establishes there were difficulties very shortly
after Schuler started working. In Banner's view, most of
those difficulties stemmed from Dr. Bortz's observations
of Schuler's testing and disagreements over the manner in
which tests should be administered. On an unidentified date
prior to March 6, 2014, Dr. Bortz observed Schuler's
administration of a memory test. On March 6, Dr. Bortz sent
Schuler an email stating she hoped they could “do
another run-through on memory test administration” to
address issues Dr. Bortz had identified. (Doc. 88-2 at 14).
On March 10, 2014, Dr. Bortz sent Schuler an email stating
they needed to discuss “responses and patterns in test
administration” and Schuler should speak with Dr. Bortz
before proceeding with tests. (Doc. 88-2 at 16).
March 12, 2014, Schuler administered a test to a patient with
Parkinson's Disease. (Doc. 92-3 at 4). Because of her
disease, that patient suffered from “hypophonia, or
reduced speech loudness.” (Doc. 88-2 at 6). Dr. Bortz
met with the patient on March 13, 2014, to review her test
results. The patient allegedly told Dr. Bortz that Schuler
had acted “frustrated” and “angry”
during the testing and the patient had become upset as a
result. The patient allegedly claimed Schuler had asked her
to repeat her answers and that some of the tests “had
to be restarted because there was an administration
error.” The patient believed her performance had been
compromised by Schuler's behavior. (Doc. 88-2 at 6).
After speaking with the patient, Dr. Bortz spoke with
Schuler. During that conversation Schuler stated she had
experienced “difficulty in understanding and
documenting verbal responses during the examination”
because of her hearing problems. (Doc. 88-2 at 10); (Doc.
88-1 at 16-17). This was the first time anyone at Banner was
aware Schuler suffered from hearing difficulties.
the March 13 conversation with Dr. Bortz, Schuler requested
she be allowed to use a tape recorder during future tests.
(Doc. 88-1 at 19). Schuler seemed to believe using a tape
recorder would alleviate the problems she experienced due to
her hearing loss. Schuler stated she had used a tape recorder
at her prior employer with success. Dr. Bortz informed
Schuler they would need to discuss the request to use a tape
recorder with Banner's Human Resources Department. (Doc.
88-2 at 10).
the March 13 conversation, Schuler sent Dr. Bortz an email to
“review” what they had discussed. (Doc. 88-1 at
93). In that email Schuler explained she was using a hearing
aid that needed “to be programmed specifically for use
at [Banner's] facility and with this patient
population.” Until Schuler was able to do that, she
stated Vadovicky should test patients “who have
documented vocal concerns.” The email also reiterated
Schuler's request to use a “digital tape recorder
for verbal sections of neuropsychological testing.”
(Doc. 88-1 at 93). At the end of the email, Schuler stated
“Let's check back in a month or so to
Bortz did not believe Banner could wait a month to resolve
Schuler's needs. (Doc. 88-2 at 11). Dr. Bortz contacted
her superior, Mark Loudenslagel, and informed him about
Schuler's hearing difficulties. (Doc. 88-2 at 10). On
March 18, 2014, Loudenslagel sent Schuler an email. Erica
Wicke from Banner's Human Resources Department and Dr.
Bortz were copied on that email. The email stated Wicke was
going to set up a meeting “to review the suggestion
[Schuler] made to help . . . with [her] hearing
deficit.” (Doc. 88-1 at 95). Loudenslagel explained
that the meeting would be with Wicke, Dr. Bortz, and Schuler,
and also explained that Wicke had requested Schuler come to
the meeting “prepared . . . with a brief summary
surrounding [her] hearing loss.” Loudenslagel informed
Schuler that the summary should include answers to a number
of questions, such as the exact nature of her hearing loss,
whether hearing aids helped with her hearing, and whether her
hearing aids were functioning properly. Schuler responded
to Loudenslagel's email, copying Wicke and Dr. Bortz,
that same day.
response, Schuler indicated she was not interested in
discussing her hearing loss or possible accommodation.
Schuler's email stated, in relevant part:
To be clear-I am not requesting an accommodation of any sort.
. . . I offered to have my hearing aid looked at to see if it
can be programmed to be more sensitive. I have an alternative
solution [i.e., tape recording] (which I previously
documented in an email). I will check with the ADA to see
what of these questions are necessary for me to answer. As I
have already proposed a solution, I do believe that has to be
looked at first-but let me check. If it is a hardship for you
to allow tape recording of verbal test sections I do know you
would need to prove that Banner would suffer severe losses by
doing so. I will let you know when I have spoken with an
Audiologist as well as an ADA representative.
(Doc. 88-1 at 94).
responded to Schuler's email by explaining Banner's
“process is intended to explore all possible
accommodation options (in this case we would consider the
tape recording solution as one option for accommodation) and
select one that works well for all parties. This is intended
to ensure that we are all understanding the needs and [are]
in agreement with the selected accommodation.” Wicke
further stated Schuler did not “necessarily need to
answer the questions” outlined by Loudenslagel but
Banner would “need documentation that clarifies what
[Schuler's] limitations/restrictions are so that [it
could] appropriately identify an accommodation.” (Doc.
88-1 at 94).
next day, March 19, 2014, Dr. Bortz sent Schuler an email
regarding the planned meeting. (Doc. 88-1 at 97). Schuler
responded to that email by reiterating that she had no
interest in discussing her hearing loss or possible
accommodations at that time. Schuler stated, in relevant
I emailed [Loudenslagel] that I want to talk to an
Audiologist and ADA representative BEFORE I meet with anyone
regarding this!!!!!!! I will likely not be able to answer any
questions until I do so anyway. This may take a few weeks.
Sorry. Not willing to budge on that. Will tape any session
you want me to, however.
(Doc. 88-1 at 96). Dr. Bortz responded that they would
“need to at least informally discuss”
Schuler's situation and her abilities because they had
patients currently scheduled who might need to be rescheduled
and they also needed to discuss how future patients would be
handled. (Doc. 88-1 at 96). Schuler responded with a third
statement that she was not willing to discuss ...