Zehnder v. Mayo Clinic

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Shina R Zehnder, No. CV-23-00355-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Mayo Clinic Arizona, 13 Defendant. [14] 15 Plaintiff Shina Zehnder (“Plaintiff”) asks the Court to reconsider its Summary 16 Judgment Order (“the MSJ Order”) (Doc. 123) dismissing her claims against Defendant 17 Mayo Clinic Arizona (“Mayo or Defendant”). (Doc. 129). Mayo has responded in 18 opposition to Plaintiff’s Motion. (Doc. 132). Plaintiff also seeks to supplement the 19 evidentiary record in support of her Motion, which Defendant opposes.1 20 (Docs. 136 & 138). The Court denies Plaintiff’s Motion for Reconsideration for the 21 following reasons. 22 I. Background2 23 Plaintiff is a medical doctor who works as a resident for Defendant in its Radiology 24 Department. (Doc. 105 at 4; Doc. 104 at 2). During their second and third years of 25 1 Defendant argues that the Court should not consider Plaintiff’s supplement because the evidence she presents is not “new.” (Doc. 138 at 1). The Court will consider the additional 26 evidence which Plaintiff has advanced in support of her Motion as the issue currently before the Court is whether Plaintiff’s purported “newly discovered evidence” warrants a 27 reversal of the Court’s MSJ Order. (Doc. 136). 28 2 The facts are fully set forth in the Court’s MSJ Order and need not be wholly repeated here. (See Doc. 123). 1 residency at Mayo, radiology residents spend six weeks each year on an Interventional 2 Radiology (“IR”) rotation. (Doc. 104-1 at 106). During this rotation, the residents work 3 an eight to ten-hour Monday through Friday schedule and are also on at-home call for six 4 nights during the six-week rotation until the following morning. (Id.) A resident on an IR 5 rotation also works and serves on-call three days on the weekend. (Id.) 6 During their third and fourth years, residents work a night shift rotation—commonly 7 referred to as a graveyard shift—running from 9:00 p.m. to 7:00 a.m. for seven days. (Id.) 8 They work five weeks of night shift per year in their third year and eight weeks of night 9 shift per year in their fourth year. (Id.) The residents on these graveyard shifts have 10 fourteen hours until the start of their next shift. (Id. at 38–39). 11 Before her residency started, on March 19, 2022, Plaintiff requested 12 accommodations for her night shift duties due to her physical limitations believed to be 13 caused by Hypermobile Ehlers-Danlos Syndrome (“EDS”) complicated by Generalized 14 Dysautonomia with multisystem end-organ manifestations. (Doc. 105 at 6). She stated 15 that sleep dysregulation impairs her physiological system to the point where she is unable 16 to perform major life activities such as sleep, stand upright, think, see clearly, and have 17 regular bowel movements. (Id. at 5). Plaintiff’s treating physician noted that these 18 symptoms can take as long as two months to fully normalize after comparatively brief 19 periods of circadian disruption caused by after-hours shift assignments. (Id.) Due to these 20 alleged disabilities, Plaintiff asked Defendant to make the following accommodations: [21] • That none of her shift end later than 22:00; [22] • That there be a minimum of 10 hours, 30 minutes between her consecutive shifts; 23 • That she not be assigned to a shift longer than 14 hours; 24 • That where feasible, assignment of late work hours get scheduled on a day 25 preceding a regularly scheduled day off; • That she have permission to wear footwear that allows for needed plantarflexion; [26] • That she have routine scheduled meetings, at pre-determined intervals with [27] supervisors, to provide explicit expectations and discuss feedback. [28] (“Proposed March 2022 Accommodations”) (Doc. 104 at 4; Doc. 105 at 5–6; Doc. 104-3 1 at 57). On June 6, 2022, Plaintiff also asked that she be allowed to have a minimum of 8 2 hours of sleep per 24-hour period and a schedule that allows for very gradual adjustments 3 to sleep and wake hours. (Doc. 104-3 at 89). She also suggested scheduling her overnight 4 work at the end of her residency but said that she would then need a period of medical 5 leave or a fixed schedule if that were to occur. (Id. at 37–38). 6 Defendant responded to Plaintiff’s March 2022, request for accommodations on 7 June 28, 2022, through its Disability and Accommodations Resource Specialist, Ms. Kara 8 James, and proposed allowing Plaintiff to schedule her night shifts in consecutive six-day 9 weeks and allowing her time off before and after her rotation to ramp up and down to the 10 new schedule. (Doc. 104-4 at 23; Doc. 104-3 at 103). Defendant stated that the emergency 11 radiology rotation runs from 5:00 pm to midnight for four weeks and to help her adjust to 12 the night shift, this rotation could be done immediately before her six weeks night shift. 13 (Doc. 104-3 at 102). Defendant also agreed to some of Plaintiff’s accommodations, such 14 as wearing footwear that allows for needed plantarflexion, i.e., high heels. (Doc. 10515 8 at 2). It denied her other accommodations related to her night shift rotation, however. 16 (See id.)3 17 On December 2, 2022, through counsel, Plaintiff rejected Defendant’s proposed 18 allowable accommodations as they were not “reasonable accommodations” for Plaintiff’s 19 disabilities, and she asked for the original accommodations she sought in March of 2022. 20 (Doc. 104-3 at 105). On December 23, 2022, Defendant declined to grant Plaintiff’s 21 proposed March 2022 accommodations, but said that it would slightly modify the hours of 22 her emergency radiology rotation “assuming other residents in the program are willing to 23 cover the scheduled hours in exchange for your willingness to alleviate some of those 24 residents’ other duties.” (Doc. 104-3 at 112). Defendant also agreed to other 25 accommodations such as taking unpaid leave to provide relief. Defendant also re-iterated 26 that it needs residents to be present overnight to provide patient care. (Id.) Plaintiff did 27 3 After filing her Complaint on February 27, 2023, Plaintiff also asked that she be permitted to complete her IR rotation at St. Joseph’s hospital in Phoenix through Creighton Medical 28 School’s Radiology Residency because Creighton does not require that its radiology residents perform a 24-hour call shift or night float shift. (Doc. 105 at 6). 1 not respond to Defendant’s offer and instead filed her Complaint. (Doc. 104-4 at 77). 2 Plaintiff’s Complaint alleged claims against Defendant for: disparate impact under 3 the Americans with Disabilities Act, 42 U.S.C. § 12112 (“ADA”) (Doc. 1 at ¶¶ 57–66), 4 failure to accommodate under the ADA (Id. at ¶¶ 67–78), refusal to accommodate under 5 the Rehabilitation Act, 29 U.S.C. § 794 (Id. at ¶¶ 79–87) and disability discrimination under 6 the Arizona Civil Rights Act (“ACRA”) (Id. at 88–93). 7 Both parties moved for summary judgment, and the Court entered summary 8 judgment in Defendant’s favor. Specifically, the Court found that Plaintiff (1) was not a 9 “qualified individual” under the ADA because she could not do her job with or without a 10 reasonable accommodation, i.e., she could not perform the night shift; and (2) the night 11 shift is a business necessity, providing Defendant with a dispositive affirmative defense. 12 (Doc. 123 at 6, 15). The finding that Plaintiff was not a qualified individual necessitated 13 summary judgment on her ADA, Rehabilitation Act, and ACRA claims because these 14 claims are all evaluated using the standards set forth for ADA claims and a plaintiff must 15 show that they are a “qualified individual able to perform the essential functions of the job 16 with reasonable accommodation.” Merkley v. Maricopa Cnty. Cmty. Coll. Dist., 2006 WL 17 8440535, at *2 (D. Ariz. June 29, 2006) (citing Ransom v. State of Arizona Bd. of Regents, [18] 983 F. Supp. 895 , 899 n.3 (D. Ariz. 1997) (consolidating analysis of ADA, Rehabilitation 19 Act, and ACRA claims); Allen v. Pacific Bell, 348 F.3d 1113, 1114 (2003). Now, Plaintiff 20 argues she has “newly discovered evidence” that warrants a reversal of the Court’s MSJ 21 Order. (Doc. 129). 22 II. Legal Standard 23 Federal Rule of Civil Procedure 59 provides that a party may move “to alter or 24 amend a judgment” or dismissal with prejudice within 28 days after the order or judgment 25 is entered. Fed. R. Civ. P. 59(e). Because Rule 59(e) does not identify “specific grounds 26 for a motion to amend or alter. . . , the district court enjoys considerable discretion in 27 granting or denying the motion.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 28 2011) (internal quotation marks and citation omitted). Caselaw generally recognizes that 1 a Rule 59(e) motion to alter or amend a judgment may be granted in four limited 2 circumstances: (1) when necessary to correct manifest errors of law or fact upon which the 3 judgment rests; (2) when necessary to present newly discovered or previously unavailable 4 evidence; (3) when necessary to prevent manifest injustice; or (4) if the amendment is 5 justified by an intervening change in controlling law. Id. Rule 59(e) may not, however, 6 “be used to relitigate old matters, or to raise arguments or present evidence that could have 7 been made prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471 , 8 485 n.5 (2008) (citation omitted); see also Banister v. Davis, 590 U.S. 504, 508 (2020) 9 (same); Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000) (noting 10 that Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the interests of 11 finality and conservation of judicial resources”) (internal quotation omitted); Bollenbacher 12 v. Comm’r of Soc. Sec., 621 F. Supp. 2d 497, 501 (N.D. Ohio 2008) (stating that a Rule 13 59(e) “motion is not a substitute for appeal and does not allow the unhappy litigant to 14 reargue the case”). Nor should parties ask a court “to rethink what the court had already 15 thought through—rightly or wrongly.” Defenders of Wildlife v. Browner, 909 F. Supp. 16 1342, 1351 (D. Ariz. 1995). 17 Indeed, disagreement with an order is an insufficient basis for reconsideration under 18 Rule 59. Ariz. Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049, 1078 (D. Ariz. 2013). 19 Such disagreements should be dealt with in the normal appellate process. See Ramsey v. 20 Arizona, 2006 WL 2711490 , at *1 (D. Ariz. Sept. 21, 2006). Denial of a motion for 21 reconsideration under Rule 59(e) will not be reversed absent a showing of abuse of 22 discretion. See Allstate Ins. Co., 634 F.3d at 1111 . Thus, the moving party has a “high 23 hurdle” in order to obtain post-judgment relief. See Weeks v. Bayer, 246 F.3d 1231 , 1236 24 (9th Cir. 2001). 25 III. Discussion 26 In her Motion for Reconsideration, Plaintiff states that she underwent a medical 27 procedure to alleviate a previously undiagnosed medical syndrome, May-Thurner [28] 1 syndrome,4 in June of 2024 and that her health has improved. (Doc. 129 at 1–2). She 2 clarifies that she has not been “fully cured” but that “she can be medically cleared to 3 complete the (1) Emergency Radiology rotation as currently scheduled, and (2) the Night 4 Float rotation, so long as Mayo provides her with a reasonable accommodation.” (Id. at 2). 5 Due to this “new evidence” in the form of a new medical condition and treatment, Plaintiff 6 argues that the Court should reconsider its finding that she is not a qualified individual as 7 the facts supporting this decision have changed. (Id.) She also argues that the Court did 8 not specifically address the on-call portion of the IR rotation. 9 Defendant argues in response that Plaintiff’s “new evidence” is unsupported, this 10 “new evidence” should have been disclosed before the Court issued its MSJ Order, and 11 Plaintiff’s Motion recycles the same arguments that the Court has addressed. 12 (Doc. 132 at 1–3). 13 A. Plaintiff’s Evidence is Not Newly Discovered 14 To support a motion for reconsideration of a grant of summary judgment based upon 15 newly discovered evidence, the movant must show both that the proffered evidence was 16 newly discovered or unknown to it until after the Court’s disposition, and that the evidence 17 could not with reasonable diligence have discovered and produced prior to its disposition. 18 Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985). 19 Plaintiff has not shown either. 20 Plaintiff’s Complaint alleged that she had a sleep disorder, Hypermobile Ehlers21 Danlos Syndrome complicated by Generalized Dysautonomia with multisystem end-organ 22 manifestations, which prevented her from working night shifts without an accommodation. 23 (Doc. 1 at ¶ 12). She initially requested accommodations based on these disorders and 24 complications and Mayo made its accommodation decisions based on these allegations. 25 (Doc. 104-4 at 23; Doc. 104-3 at 103). Both parties based their summary judgment 26 arguments on these facts. (See Docs. 104 & 105). [27] 4 Plaintiff was diagnosed with May-Thurner syndrome, a condition that interrupts blood 28 flow through the legs, on April 5, 2024, and underwent an endovascular stent placement for treatment on June 13, 2024. (Doc. 129 at 3–4). 1 Likewise, on September 30, 2024, the Court issued its MSJ Order based on the 2 record evidence before and available to it at the time. (Doc. 123). At no time prior to its 3 resolution did Plaintiff ask the Court to stay its ruling to account for any developments or 4 changes to these facts. Despite knowledge of her June 2024 medical procedure, subsequent 5 improvement, and her then communications with Mayo regarding her new accommodation 6 requests, Plaintiff did not seek to supplement the record with this evidence until after the 7 Court had ruled on the pending dispositive motions. 8 Plaintiff says this information “could not have been disclosed to the Court any 9 sooner because it took four months of monitoring her health data before Dr. Zehnder felt 10 confident that she could revisit her requests for accommodation.” (Doc. 129 at 2). The 11 Court disagrees. Plaintiff should have supplemented the record much earlier than it did as 12 she was diagnosed with May-Thurner syndrome months before the Court issued its MSJ 13 Order. See Cooper v. Tokyo Elec. Power Co., Inc., 166 F. Supp. 3d 1103, 1116 (S.D. Cal. 14 2015), aff’d, 860 F.3d 1193 (9th Cir. 2017) (“A party may not raise new arguments or 15 present new evidence [on reconsideration] if it could have reasonably raised them 16 earlier.”). As Defendant notes, the Federal Rules of Civil Procedure require timely 17 supplementation, and both parties supplemented their disclosures while the motions for 18 summary judgment were pending. (Doc. 132 at 2 citing Fed. R. Civ. P. 26(e)). Plaintiff’s 19 delay in bringing “new evidence” to the Court’s attention does not show reasonable 20 diligence on her part and the Court declines to amend its judgment on the facts that were 21 fairly before it at that time. Because Plaintiff could have and should have presented this 22 evidence earlier in the litigation, the Court will not grant her Motion. See Wereb v. Maui 23 Cnty., 830 F. Supp. 2d 1026, 1031 (D. Hawai’i 2011) (“reconsideration may not be based 24 on evidence and legal arguments that a movant could have presented at the time of the 25 challenged decision”) (citing Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th 26 Cir. 2000)); Fed. R. Civ. P. 59(e). 27 To be clear: the Court’s finding that Plaintiff is not a qualified individual is based 28 solely on the facts and conditions that existed at the time of the Court’s Order. In her 1 Motion, Plaintiff suggests that Defendant is “reneging” on a subsequent accommodation 2 agreement she made with Defendant following her June 2024 procedure. That grievance 3 certainly was not before the Court at the time it issued its Order, however, and Rule 59(e) 4 does not provide the means or justification for the Court to take the extraordinary step of 5 amending its judgment to account for the changed circumstances Plaintiff’s “new 6 evidence” may present or any agreement the parties may have had that was unknown to 7 the Court. See Banister, 590 U.S. at 508 (noting that in keeping with its “corrective 8 function, federal courts generally have used Rule 59(e) only to reconsider matters properly 9 encompassed in a decision on the merits”) (cleaned up, internal citations omitted). 10 Now, three years after her initial accommodation request and denial, she seeks 11 amendment of an unfavorable judgment on the grounds that “new evidence” would have 12 changed that outcome. But Plaintiff’s proposed “new evidence” completely changes the 13 factual basis of Plaintiff’s claims, as none of the information, despite being in Plaintiff’s 14 possession, was before the Court at the time of its ruling.5 Plaintiff’s “new evidence” arose 15 too late in the proceedings and is too varied from her prior claims to suggest either party 16 considered it in their summary judgement arguments. Other district courts in this circuit 17 have refused similar requests as the purported new evidence “is too far removed in time to 18 be relevant to the circumstances surrounding” the adverse employment action. Evans v. 19 Univ. Med. Ctr., 2019 WL 1049382 , at *4 (D. Nev. Mar. 5, 2019) (“Events several years 20 subsequent to Plaintiff’s termination do not bear directly on whether Plaintiff’s termination 21 was pretextual, and thus are not new evidence as regards Plaintiff’s case.”). The Court will 22 similarly refuse Plaintiff’s reconsideration request because the “new evidence” she [23] 5 Indeed, the symptoms associated with May-Turner syndrome appear to significantly 24 differ from those described in her Complaint. Compare Plaintiff’s Complaint (Plaintiff “is requesting accommodations for her physical limitations caused by Hypermobile Ehlers25 Danlos Syndrome complicated by Generalized Dysautonomia with multisystem end-organ manifestations . . . disruption to [her] regular sleep patterns causes an observable inability 26 to restore normal sleep patterns for a prolonged period.”) (Doc. 1 at ¶ 12) with May-Thurner Syndrome, CLEVELAND CLINIC (last updated Sept. 7, 2022), 27 https://my.clevelandclinic.org/health/diseases/17213-may-thurner-syndrome (“MayThurner syndrome is a condition that affects blood flow. It occurs when the right iliac 28 artery, which sends blood to your right leg, presses on the left iliac vein, which carries blood from your left leg to your heart.”). 1 advances is too attenuated from her original claims and the associated arguments she 2 advanced at the summary judgment stage. See id. 3 B. The “Night Shift” encompasses both the “Night Float” and “IR oncall” shifts [4] 5 Plaintiff also states that the MSJ Order did not address whether the overnight pager 6 call shifts during the IR rotation are an essential function of Dr. Zehnder’s employment. 7 (Doc. 129 at 7). It did. 8 Both parties conflated the Night Float and IR shifts at certain points in their briefing 9 by referring to both in conjunction as “the Night Shift.” Consequently, so did the Court. 10 Mayo used the “Night Shift” to discuss the “Night Float” as well as the “on-call component 11 of the IR rotation” in its MSJ by stating that: 12 From both patient-care and educational perspectives, the resident position exists to perform Night Shifts. While residents train during the day, the 13 ACGME requires residents to work on-call, after-hours, and weekends throughout their second, third, and fourth years. Mayo has opted to use the [14] Night Float as opposed to the more demanding schedule of having 15 residents work 24 hours on-site up to every third day. On Night Shifts, residents help provide care to patients, and the hospital treats and cares for [16] patients 365 days and nights a year. From 9:00 p.m. to 7:00 a.m., the Night 17 Float resident is the only licensed radiologist at the hospital. That resident performs any patient-needed basic procedures, provides preliminary exam [18] interpretations, handles contrast coverage, and is on-site and available to 19 advise other physicians or technicians about patient care issues. Working Night Shifts is also critical to the resident’s professional training. Those [20] shifts substantially increase residents’ efficiency, speed, ability to triage, and 21 confidence in working across all subspecialities. 22 . . . For example, the on-call component of the IR rotation affords residents the [23] opportunity to work on more complex procedures, where the patient acuity 24 is much higher, e.g., embolizing a bleeding patient. Ex. 6 at 67:22-70:1; 72:373:20. (“every procedure done at night or after hours is considered urgent”). [25] Exempting Dr. Zehnder from Night Shifts will compromise her training. [26] (Doc. 104 at 10–12). This quote exemplifies that the “Night Shift” was used by Mayo to [27] describe both the “Night Float” as well as the “on-call component of the IR rotation.” [28] (See id.) 1 Plaintiff’s Response to Defendant’s Summary Judgment Motion did attempt to 2|| parse out the “Emergency Radiology,” “Interventional Radiology” and “Night Float” || shifts. She addressed each shift in its own section under the essential function argument. 4|| (See Doc. 111 at 13-15). However, in her own Motion for Partial Summary Judgment, she 5 || addresses the “Night-float and Night-call shifts” in one section. (Doc. 105 at 10). She also 6|| refers to “overnight shifts” generally when arguing that “Mayo’s requirement that its residents work overnight shifts unfairly and disproportionately impacts individuals who, || like Dr. Zehnder, suffer from disabilities arising from sleep dysregulation.” (/d. at 17). 9 In addressing Defendant’s essential function argument, the Court noted that || “Defendant states that the IR and night shift rotations are essential functions of the job, and 11 || that no resident has ever been excused from these rotations.” (Doc. 123 at 11). The Court || then found that “Defendant has established that the night shift is a ‘basic duty’ of its 13} radiology residents, so, it is an essential function.” (/d.) The Court addressed both the “night Float” and the “on-call component of the IR rotation” under the umbrella of the |) “Night Shift” in the Order—yjust as the parties had. (See id.) In sum, the Court sufficiently addressed “the Night Shift” as an essential function of the Interventional Residency in the MSJ Order. This is also not a basis for amending the Court’s Judgment. 18 Accordingly, 19 IT IS ORDERED that Plaintiff's Motion to Supplement (Doc. 136) is GRANTED, however, her Motion for Reconsideration (Doc. 129) is DENIED. 21 Dated this 25th day of June, 2025. [22] 23 5 fe □□ 24 norable' Diang/4. Hunfetewa 5 United States District Judge [28] -10-