                                                           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I.   The Hospital rescinded a job offer to Ms.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
