BETHANY SCHEER v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SYSTEM INC (2026)

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

This case arises from a dispute between Plaintiff Bethany Scheer and her former employer, Defendant Sisters of Charity of Leavenworth Health System, Inc. (SCL). Ms. Scheer alleges that SCL perceived her as having a mental health disability and discriminated against her by conditioning her employment on a willingness to engage mental health support services—a condition which she refused. She brought claims of discrimination and retaliation under both the ADA Amendment Act (for simplicity's sake, “the ADA”), and the Rehabilitation Act. I granted SCL's motion for summary judgment which Ms. Scheer appealed. While that appeal was pending, the Supreme Court issued Muldrow v. City of St. Louis, changing the standard for evaluating claims of disability discrimination. 601 U.S. 346 (2024). SCL has filed a renewed motion for summary judgment on all claims under this new standard. Because there are material facts in dispute, the motion is denied.

BACKGROUND

For purposes of the present motion, the following facts are not disputed per the parties’ statements of undisputed facts unless otherwise noted. Doc. 77 at 2–10; Doc. 79 at 2–11; Doc. 83 at 2–7.¹

Ms. Scheer was employed as a Denials Representative in SCL's Physician Billing Department. Doc. 77 at 2. During her employment, she was counseled at least two times for professionalism or behavioral issues. Doc. 79 at 2 ¶8. The extent of this counseling and associated reprimands is disputed. Ms. Scheer admits that she missed some monthly productivity goals. Id. at ¶9. Taking a non-disciplinary approach, her supervisor drafted a performance improvement plan and sent it to a human resources employee. Doc. 77 at 4 ¶¶12-14. On SCL's telling, while the plan was being drafted, Ms. Scheer had been making a series of concerning comments to her coworkers indicating suicidality, later conveyed to her supervisor. Id. at 4-5 ¶15-16. On this basis, her supervisor added a provision to the plan requiring Ms. Scheer to use SCL's “Employee Assistance Plan.” Id. at 6 ¶¶19-20. This additional condition would require Ms. Scheer to participate in counseling services that SCL paid for. Id. at ¶20. Ms. Scheer agreed to the performance improvement plan but objected to the counseling requirement. The parties disagree on the next events, but Ms. Scheer ultimately refused to sign the counseling plan. Id. at 8 ¶35.

Most of the disagreement stems from what would have been disclosed to Ms. Scheer's employer about her counseling sessions. SCL describes the disclosure form that Ms. Scheer would have signed as allowing the counseling provider to confirm whether Ms. Scheer 1) attended her sessions and 2) complied with the counselor's recommendations. Id. at 7 ¶ 28. Ms. Scheer concedes this, and that she did not object to the information that would have been released. Doc. 79 at 5. But she later had a change of mind, did not sign the release form, and was fired. Doc. 77 at 8 ¶35. She objected to being forced to attend counseling, something she regarded as associated with substance abuse or workplace violence, and to her employer overseeing her counseling, something she regarded as outside a normal employment relationship. Doc. 79 at 8 ¶3, 15. Each concern implicated her sense of self-determination. Id.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 56, a court should grant a motion for summary judgment “if but only if the evidence reveals no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” MarkWest Hydrocarbon, Inc. v. Liberty Mut. Ins. Co., 558 F.3d 1184, 1190 (10th Cir. 2009). The court views “the facts and all reasonable inferences those facts support in the light most favorable” to the nonmoving party. Id. at 1189-90. An issue of material fact is genuine “only if the nonmovant presents facts such that a reasonable factfinder could find in favor of the nonmovant.” S.E.C. v. Thompson, 732 F.3d 1151, 1157 (10th Cir. 2013) (alteration adopted).

“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ․ the court may ․ consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2). Conclusory statements based merely on conjecture, speculation, or subjective belief, however, do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party must, instead, offer “specific facts that would be admissible in evidence in the event of trial, from which a rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). That is, the party must provide “significantly probative evidence” supported by materials such as “affidavits, deposition transcripts, or specific exhibits incorporated therein” that would support a verdict in her favor. Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2012).

Plaintiff has brought claims under both the ADA and the Rehabilitation Act. Unless the ADA expressly states otherwise, these claims are analyzed under the same standards, and cases considering one are applicable to the other. Rivero v. Bd. of Regents of Univ. of New Mexico, 950 F.3d 754, 758 (10th Cir. 2020) (citing Woodman v. Runyon, 132 F.3d 1330, 1339 n.8 (10th Cir. 1997)).

DISCUSSION

When SCL first moved for summary judgment, the standard for these sorts of claims required plaintiffs to show that the adverse employment action cased a significant change in employment status, such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision that causes a significant change in benefits.” Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 761 (1998); Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003). I granted that motion, and while Ms. Scheer's appeal was pending, the Supreme Court adopted a new, less demanding standard. Scheer v. Sisters of Charity of Leavenworth Health Sys., Inc., 144 F.4th 1212 (10th Cir. 2025). The Tenth Circuit remanded the case to be decided under that new standard. Id.

SCL argues that, even under the new more permissive standard, Ms. Scheer has failed to establish her prima facie case. To establish a claim of disability discrimination under the ADA, a plaintiff must prove she is “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1038 (10th Cir. 2011) (quoting Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1086 (10th Cir. 2008). Consequently, SCL argues, Ms. Scheer's claims should be evaluated under the McDonnel Douglas burden-shifting framework. See McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973). Scheer argues that this framework is not applicable as there is evidence of direct discrimination. See Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1165 (10th Cir. 2002).

Ms. Scheer's claim is not that she was disabled, but that SCL perceived her that way, emphatically denying that she was actually suicidal. But, on her telling, SCL was concerned for her wellbeing and sought to get her help at its own expense to address her problems. SCL argues otherwise, that her comments to coworkers were disruptive to the workplace and that while they tried to get her help for her, they did not regard her as disabled. A core of the claim turns on this factual matter. While all the relevant witnesses have been deposed, a genuine issue of material fact remains over why SCL took the actions it did.

Another issue of material fact remains disputed as well. Muldrow found that most circuit courts had been incorrectly using a heightened standard for the level of harm that constituted an adverse employment action. “[T]he third element of the prima facie case ․ requires the plaintiff to come forth with evidence showing that the adverse employment decision was because of [her] disability.” Butler v. City of Prairie Village, Kan., 172 F.3d 736, 748 (10th Cir. 1999); see also 42 U.S.C. § 12102(3)(A) (“An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter ․”) (emphasis added). This is true of both discrimination and retaliation claims. See Foster v. Mountain Coal Co., 830 F.3d 1178, 1186–87 (10th Cir. 2016).

Under Muldrow, an employee must show “some harm respecting an identifiable term or condition of employment.”² 601 U.S. at 347. Some harm means an act that leaves the plaintiff “worse off, but need not have left her significantly so.” Id. at 359. The parties disagree about Ms. Scheer's condition at various times of the relevant period. SCL contends that Ms. Scheer was troubled, needed counseling, and eventually used SCL's employee assistance program at its expense even after her termination. Doc. 77 at 9 ¶38. Ms. Scheer describes herself as less-than-cheery but not suicidal. Doc. 79 at 8-9 ¶¶8-23. And Ms. Scheer argues that she was harmed by the requirement to seek counseling (overseen by SCL) rather than the ability to seek it herself. Under Muldrow, the exact standard we lower courts are to apply is murky, but this appears to suffice. See Muldrow at 362-63 (Alito, J. concurring in the judgment). And viewing the facts and inferences in the light most favorable to Ms. Scheer, that is enough to preclude summary judgment.

CONCLUSION

It is ORDERED that:

Defendant's Motion for Summary Judgment, Doc. 77, is DENIED.

FOOTNOTES

1.   Neither party heeded my warning about not using these sections as additional argument space. See Doc. 53 at 2 n.1.

2.   Although Muldrow was a Title VII case, the 10th Circuit applies an identical standard for ADA and Rehabilitation Act claims. Scheer v. Sisters of Charity Leavenworth Health Sys., Inc., 114 F.4th 1212, 1216 n.3. (2025).

Daniel D. Domenico Chief United States District Judge