United States District Court, D. Nebraska
MARY E. CANNING, Plaintiff,
CREIGHTON UNIVERSITY, Defendant.
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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