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Canning v. Creighton University

United States District Court, D. Nebraska

September 25, 2019

MARY E. CANNING, Plaintiff,



         The plaintiff, Dr. Mary Elizabeth (Mary Beth) Canning, alleges in her amended complaint claims of discrimination based on age pursuant to 29 U.S.C. § 623(a)(1) and Neb. Rev. Stat. § 48-1004, disability pursuant to 42 U.S.C. § 12112(a) and Neb. Rev. Stat. § 48-1104(1), national origin pursuant to 42 U.S.C. § 2000e-2(a)(1) and Neb. Rev. Stat. § 48-1104(1), and retaliation pursuant to 42 U.S.C. § 12203(a) and Neb. Rev. Stat. § 48-1114. Filing 21. The defendant, Creighton University, has moved for summary judgment regarding all claims. Filing 45. The Court will grant the defendant's motion and dismiss the plaintiff's amended complaint.


         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id.But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


         The plaintiff graduated from Vassar College with a Bachelor of Arts in philosophy in 1979. In 1981, she earned a master's degree in accounting from Bentley College in Waltham, Massachusetts. Filing 46-1 at 3. After graduating from Bentley, she worked as a credit analyst at Depositors Trust Company in Augusta, Maine, and continued working in the financial services industry for a variety of employers for around twelve years. In 1993, the plaintiff joined her family's business, a wholesale distributor for convenience stores. After five years in the family business, and now in her late thirties, the plaintiff decided to go back to school. In 2003, the plaintiff earned a Bachelor of Science in biology from the University of Southern Maine. Filing 46-1 at 3-4. She next attended medical school in Ireland at University College Dublin, graduating in 2008. Filing 46-1 at 3. After earning her medical degree, the plaintiff experienced a period of personal and family ill health. In 2011, she resumed her medical studies with Kaplan Medical in Chicago, where she prepared for the first two of the three required step examinations that she had to pass before she could be accepted into a residency program. Filing 46-1 at 5. In 2013 the plaintiff participated in a hospital-based program (but not a residency program) at Drexel University Hahnemann Hospital in Philadelphia. This program was for physicians who were from foreign medical schools or who had been out of practice for a period of time. Filing 46-1 at 3, 5-6.

         The plaintiff was accepted into Creighton's residency program in 2014. Filing 46-1 at 7. It was her second attempt at obtaining placement in a residency program. Prior to her acceptance, the plaintiff interviewed with Drs. Erica Cichowski, Carrie Valenta and Eric Peters in December 2014, and began her responsibilities as a first-year internal medicine resident on July 1, 2015. Filing 46-1 at 8-9. The plaintiff was now a fifty-seven-year-old first-year internal medicine resident. Filing 21 at 1-2.

         An in-service examination is given to all residents in July. Filing 46-1 at 34-35, filing 46-15 at 4. The plaintiff scored in the lowest 15 percent in the country. In November 2015, a supervising resident reported to Program Director Dr. Tammy Wichman that the plaintiff was struggling. Filing 46-1 at 12. The plaintiff met with Dr. Wichman and Dr. Bradley DeVrieze, and admitted that she was feeling overwhelmed trying to complete her duties. Filing 46-1 at 12-13. In December Dr. Jason Lambrecht evaluated the plaintiff's performance and expressed concerns about her basic skills and level of competence. Filing 46-1 at 11. The concern with the plaintiff's level of competence was generally attributed to her perceived limitations with memory. A third-year supervising resident made a joke on one occasion concerning the plaintiff's memory lapse, calling it dementia. Filing 46-1 at 15. Although the plaintiff understood the comment to be a joke (filing 46-1 at 16), she nonetheless found the comment to be demeaning. Filing 53-9 at 51.

         First-year residents train under the direct supervision of physicians at hospitals and clinics affiliated with the defendant. Filing 46-15 at 2. The residents are evaluated by the faculty physicians, usually every four weeks. Filing 46-15 at 3. The Clinical Competency Committee is responsible for overseeing the evaluation process and the resident's progress. Relevant members of the Committee for the purposes of this matter included Dr. Cichowski, Dr. DeVrieze, Dr. Wichman, and Dr. Theresa Townley. On December 18, 2015, the Committee met to review the progress of all residents in the program. Filing 46-3 at 1. The Committee determined that the plaintiff had not progressed in several areas such that she could transition to the next level of training. In a letter dated January 22, 2016 the plaintiff was advised that she would be required to repeat her first year of training under the direct supervision of Dr. Townley. The letter outlined several deficiencies and the expected milestones that the plaintiff must achieve in order to progress to the next level.

         The plaintiff met with Drs. Wichman, DeVrieze, and Cichowski on January 22 to discuss the Committee's decision to have her repeat the first year. Filing 46-1 at 12. The plaintiff agreed with the Committee's decision and felt that it would be beneficial for her to repeat the first year. Filing 46-1 at 13-14. The plaintiff said that there was a discussion on what could be done to help her learn, and that Dr. Cichowski asked her if she would be willing to meet with a psychologist, Dr. Geoffrey Anderson. Filing 46-1 at 16, filing 46-15 at 4-5. The plaintiff believed that Dr. Anderson would be like a learning skills coach. Filing 46-1 at 16. Dr. Anderson contacted the plaintiff by email on February 9, reporting that he had been contacted by the Committee to meet with her and facilitate a plan of remediation for her when she repeats her first- year residency program. Dr. Anderson asked the plaintiff to schedule a time to meet. Filing 46-4.

         The plaintiff asked Dr. Cichowski to be her faculty mentor, and Dr. Cichowski agreed. They would meet or have telephone conferences regularly. On February 12, Dr. DeVrieze told the plaintiff that he would be attending her meeting with Dr. Cichowski set for later that day. Filing 46-1 at 16. Dr. Cichowski's documentation of that meeting indicates that she and Dr. DeVrieze told the plaintiff that they had grave concerns that her knowledge and experience gap may be too large to overcome. Filing 46-15 at 7. The plaintiff was told that the chief residents have been expressing concerns about her performance since August 2015. The plaintiff said that in this meeting Dr. DeVrieze asked her if she had a memory problem, and said that Dr. Lambrecht had mentioned something about the plaintiff's memory issues. Filing 46-1 at 16. Dr. DeVrieze also asked the plaintiff if she had met with Dr. Anderson yet.

         On February 13, the day after her meeting with Dr. DeVrieze, the plaintiff responded to Dr. Anderson's February 9 email. Filing 46-4. The plaintiff then had her meeting with Dr. Anderson on February 16. The plaintiff said that after introducing himself, Dr. Anderson told her that he was going to develop a plan for her to learn certain things that she needed to learn. Filing 46-1 at 18. Dr. Anderson brought up neurocognitive testing. The plaintiff asked, "what if the testing came up negative?" According to the plaintiff, Dr. Anderson said, "well, we're going to keep testing you." The plaintiff said that Dr. Anderson started a line of persistent questioning about how she understood the difficulties that she was having. The plaintiff indicated that Dr. Anderson's questioning frustrated and flustered her. According to the plaintiff, near the end of the meeting Dr. Anderson told her, "you don't understand what they are trying to do to you." Filing 46-1 at 18.

         Dr. Anderson documented his meeting with the plaintiff in a brief note in which he expressed his and the Committee's concerns. Filing 53-8 at 5. He reported that there were concerns about the plaintiff's capacity to learn and retain complex and abstract information, and whether this problem was due to an organic cause such as dementia, or a functional cause such as anxiety or substance abuse. Dr. Anderson noted several deficiencies in the plaintiff's knowledge base such as the basic hospital infrastructure, use of the computer system, and the ability to synthesize facts and data so as to diagnose a condition and formulate a care plan. Dr. Anderson acknowledged that the plaintiff did not report any unusual stressors, but that she felt overwhelmed much of the time. Dr. Anderson concluded that there was reason to be concerned that the plaintiff could make a critical error in patient care leading to injury or death. Filing 53-8 at 5.

         On February 18, the plaintiff met with Dr. Cichowski and Dr. Joann Porter, the Associate Dean of Graduate Medical Education. Filing 46-15 at 5. Dr. Cichowski informed the plaintiff that the Committee had made two further decisions regarding her residency. Filing 46-15 at 8. First, the plaintiff was to be put on a leave of absence with pay until a fitness-for-duty evaluation deemed her safe for patient care. The evaluation was to be scheduled as soon as possible and if she were deemed fit, she could return to finish her first year and receive credit. The plaintiff said that Dr. Porter compared this fitness evaluation to the kind of evaluations that pilots undergo. Filing 46-1 at 19, 42-43. Second, the Committee decided that instead of having the plaintiff repeat the first year, it was in her best interests that her contract to remain in the program not be renewed. Dr. Cichowski explained that these two decisions were separate issues. Even if the plaintiff were deemed fit for duty, she would not be eligible for the renewal of her contract. The decision to not renew her contract was based on the plaintiff's inability to progress in terms of skill and competency during her first year. At the end of the meeting, the plaintiff was given a letter confirming that her contract would not be renewed. Filing 46-7. She was also advised that she had a right to appeal the non-renewal decision, and was given copies of the defendant's Corrective Action Policy and Resident Due Process Policy. Filing 46-15 at 8.

         On February 26, the plaintiff emailed Dr. Anderson to request a copy of the record or assessment that he had made of their meeting. Filing 46-5. Dr. Anderson responded that same day, advising the plaintiff that their February 16 meeting was not an evaluation or assessment. Filing 46-6. Instead, the meeting, according to Dr. Anderson, was to determine how the plaintiff understood the learning difficulties she was experiencing and if there was a need for a fitness-for-duty evaluation. Dr. Anderson felt a referral for a clinical evaluation of possible cognitive impairments would be beneficial. He also emphasized again what the plaintiff was told in the February 18 meeting- that any fitness-for-duty evaluation would not change the decision to not renew her contract. Filing 46-6.

         The plaintiff filed a grievance, dated February 27, 2016, addressed to Dr. Porter. Filing 46-9. The grievance focused on the plaintiff's interactions with the third-year supervising resident, a native of India, who had made the joke about the plaintiff's dementia. The plaintiff described several disagreements, both personal and professional, she had with this supervising resident, and how she had to deal with his several mistruths. Filing 46-9.

         In a letter dated March 7 and addressed to Dr. Cichowski, attorney Edward F. Pohren advised that he was consulting with the plaintiff regarding the actions of February 18. Filing 53-9 at 22-25. Pohren was critical of the plaintiff's meeting with Dr. Anderson, and characterized the meeting as an unconsented-to mental health evaluation or assessment. Pohren repeated the several deficiencies that Dr. Anderson noted in his report, and argued that by relieving the plaintiff of her duties, the defendant had violated the plaintiff's rights pursuant to the Americans with Disabilities Act (ADA), in that the plaintiff was being regarded as a person with an impairment involving mental health. Pohren objected to the fitness-for-duty evaluation that had been scheduled with Dr. Ty Callahan, arguing that the evaluation was contrary to the protections found in the ADA. Pohren requested that the defendant rescind all of the adverse actions taken on February 18 without the need for an appeal hearing or further process.

         In an April 6 letter, the defendant's general counsel, James Jansen, acknowledged speaking with Pohren, and proposed a resolution to the plaintiff's situation. Filing 53-9 at 44. In pertinent part, Jansen's proposal called for the plaintiff to submit to a fit-for-duty evaluation arranged by the defendant, and if the plaintiff was cleared for duty, she would be permitted to repeat her first-year residency in the defendant's internal medicine program. Pohren responded in a letter dated April 14, and advised Jansen that the plaintiff had undergone a full wellness examination with a specific request to look for dementia issues, and was tested by a neuropsychologist for neurocognitive deficits or a psychological disorder that would interfere with her competency. Filing 53-9 at 46. He reported that the testing ruled out any kind of disorder, and that he would be willing to share these results if the plaintiff were reinstated to full-time duty and permitted to repeat her first year of residency. The neuropsychologist who evaluated the plaintiff was Colleen Connolly. Filing 46-1 at 23.

         Although Pohren's letter did not specifically address Jansen's proposal for a fitness evaluation by Dr. Callahan, the plaintiff was evaluated by Dr. Callahan on May 27. Filing 53-8 at 12-15. Dr. Callahan's report, dated June 7, indicates that the plaintiff brought a copy of Dr. Connolly's report with her to the evaluation, which Dr. Callahan reviewed along with the defendant's referral request. Dr. Callahan reported that his examination and testing lasted for about five and a half hours. His conclusion was that he did not find any evidence of a medical or psychiatric condition compared to peers similar in age, gender, and education. Filing 53-8 at 14. Dr. Callahan did, however, conclude that the plaintiff likely experienced mild ...

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