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Schuler v. Banner Health

United States District Court, D. Arizona

July 30, 2018

Patricia A Schuler, Plaintiff,
v.
Banner Health, et al., Defendants.

          ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge.

         Plaintiff Patricia A. Schuler has difficulty hearing and uses a hearing aid. In 2014, Schuler began working for Defendant Banner Health.[1] 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.

         BACKGROUND

         Most of the relevant facts are undisputed. Unless otherwise noted, the following summary presents the facts in the light most favorable to Schuler.

         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).

         In 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.

         From 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.[2](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.

         The 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.[3] 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).

         On 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.

         During 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).

         After 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 review……”

         Dr. 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.[4] Schuler responded to Loudenslagel's email, copying Wicke and Dr. Bortz, that same day.

         In that 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).

         Wicke 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).

         The 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 part:

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 ...


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