Paystrup v. Benson et al

Filing 46

MEMORANDUM DECISION and Order Granting Defendants' Motion for Summary Judgment. See order for details. Signed by Judge Dee Benson on 2/5/15. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PATRICIA PAYSTRUP,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
MICHAEL T. BENSON, in his official
capacity; JAMES MCDONALD, in his
official capacity; and SOUTHERN UTAH
UNIVERSITY,

Case No. 2:13cv00016-DB
District Judge Dee Benson

Defendants.

Plaintiff Patricia Paystrup (“Plaintiff” or “Professor Paystrup”) filed the instant
employment discrimination lawsuit against Michael T. Benson, in his official capacity, James
McDonald (“Dean McDonald”), in his official capacity, and Southern Utah University
(collectively “Defendants”), alleging that Defendants committed several violations of the
Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act of 1973
(“Rehabilitation Act”). The case is now before the court on Defendants’ Motion for Summary
Judgment. (Dkt. No. 27.)
The court heard oral argument on the motion on November 6, 2014. At the hearing,
Plaintiff was represented by Austin Egan. Defendants were represented by Daniel Widdison.
Prior to the hearing, the court considered the memoranda and other materials submitted by the
parties. Since taking the matter under advisement, the court has further considered the law and
facts relating to the motion. Now being fully advised, the court renders the following
Memorandum Decision and Order.

BACKGROUND
Professor Paystrup began working at SUU as an assistant professor in 1985. (Dkt. No. 36
at 3.) After a brief time away from the University, she returned in 1995 and was granted tenure
in 1998. (Id.) Professor Paystrup is still a tenured professor at SUU at the present time. (See
Dkt. No. 2.) Between 1994 and 2001, Professor Paystrup was diagnosed with systemic lupus,
fibromyalgia, and chronic anemia. (Id. at 3.) These diseases have limited her ability to read,
concentrate, think, and communicate in writing. (Id.)
In 2002, Plaintiff Paystrup’s department chair told her that “[t]he dean wants to know if
you want to go on medical leave.” (Dkt. No. 41 at 10-11.) She responded that medical leave
would not help. (Id.) However, she asked for a couch in her office so that she could rest. The
University promptly granted that request. (Id.) Between 2003 and the spring of 2008, Professor
Paystrup discussed with her department chair the possibility of not teaching technical writing and
news writing courses at the same time, but she did not specifically request an accommodation
during this time period. (Id. at 11-12.) The department chair responded that the University
needed to provide two sections of news writing because many students had “problems” with the
other professor who taught the course. (Id.)
In June 2003, the department chair conducted an annual review of Professor Paystrup’s
performance and noted that her student evaluations were “much lower” than the department
average. (Id. at 11.) Around this same time, Professor Paystrup experienced a significant flare
up of her symptoms, but did not report it to her department chair or to the dean. (Id.)

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Pursuant to SUU policy, Professor Paystrup was to submit her mandatory Post-Tenure
Review documents in September 2005, but she failed to do so. (Id. at 12.) She finally submitted
the documents in October 2007. (Id.)
A few months after submitting her Post-Tenure Review documents, Professor Paystrup
made a request to her department chair for a one hour break between classes for the upcoming
Fall 2008 semester. (Id. at 12-13.) After initially indicating that he would grant the break, the
department chair ultimately denied Professor Paystrup’s request and scheduled her to teach three
consecutive classes without a break. (Id. at 14-15.) Additionally, three to four weeks into the
Fall 2008 semester, the department chair asked Professor Paystrup if she could teach an
additional writing class. (Id. at 15.) Professor Paystrup assumed this additional responsibility.
(Id.) However, Professor Paystrup later informed her department chair that the workload was
“killing her.” (Id. at 59.)
Around this same time, Professor Paystrup submitted her Faculty Annual Activity Report
(“FAAR”) for the ‘07-‘08, school year, as required by SUU policy. (Id. at 13.) The Report
indicated that Professor Paystrup’s teaching evaluations were “considerably below” the
university and college average. (Id.) As a result, Professor Paystrup committed to submit a
teaching and research development plan. (Id.) However, Professor Paystrup did not submit the
plan by the end of the school year despite the fact that she had been given a one hour break
between all of her classes during the Spring 2009 semester. (Id. at 17-18.) This prompted a
meeting between Professor Paystrup and Dean McDonald on June 18, 2009, to discuss why the
plan had not yet been submitted. (Id.) At that time or earlier, Dean McDonald sent a

3

memorandum to Professor Paystrup asking her to submit her improvement plan and indicating
that her non-performance was an issue that may necessitate a fitness for duty examination. (Id.)
A few days after her meeting with Dean McDonald, Professor Paystrup suffered a lifethreatening inguinal hernia and strangulated bowel. (Id. at 51.) Although this condition first
arose on June 26, 2009, she had to wait several weeks before the surgery could take place
because of her anemia. (Id.) The surgery was eventually conducted on July 15, 2009 and it took
a few weeks for Professor Paystrup to recover. (Id.) The day prior to her surgery, Paystrup and
her department chair met and discussed her medical condition. (Id.) She asked the department
chair to inform anyone who needed her that she was having surgery and needed to recover. (Id.)
The department chair did not notify Dean McDonald or Provost Brad Cook (“Provost Cook”) of
the surgery. (Id.)
Due to her medical emergency, Professor Paystrup did not immediately see letters sent by
Provost Cook dated June 22, 2009 and July 30, 2009. (Id. at 20.) These letters informed
Professor Paystrup that Dean McDonald had suggested that Professor Paystrup be placed on
probation due to her failure to timely submit her Post-Tenure Review documents and her
teaching and research improvement plan. (Id. at 18-19.) The letters also gave Professor
Paystrup a deadline for challenging the recommendation. (Id. at 19.) Professor did not see the
letters until at least October 2009. (Id. at 20.)
Despite her surgery, Professor Paystrup taught four courses during the Fall 2009
semester. (Id.) Again, her request for a one hour break between classes was not specifically
granted for this semester. (Id. at 21.) However, this time the department chair provided
Professor Paystrup with a graduate student to help with her grading, teaching, and other duties.

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Professor Paystrup requested a specific student for the position because the student wanted to
help teach one of her classes. (Id. at 22-23.)
In the middle of the semester, on October 9, 2009, the University placed Professor
Paystrup on probation. (Id. at 67.) At that time, Professor Paystrup had still not submitted her
teaching and research improvement plan (which was then eleven months overdue) and had never
requested an extension. (Id. at 22-23.) Consequently, Dean McDonald sent Professor Paystrup a
memorandum that informed her that he would no longer accept the plan and that he was going to
formally request that the University “undertake a ‘Fitness for Duty’ evaluation as the next due
process step during [her] probation.” (Id. at 23-24.)
Professor Paystrup did not respond to the memorandum. (Id. at 24-25.) In fact, other
than the memorandum, there was no communication between Professor Paystrup and Dean
McDonald from June 2009 until March 3, 2010. (Id.) At this later date, Dean McDonald went to
Professor Paystrup’s office and, while standing in the hallway outside of the doorway, informed
Professor Paystrup that she was “being ordered to undergo a psychological examination.” (Id. at
26.) A fellow professor and a student witnessed this exchange. (Id. at 60.) During this
encounter, Dr. Paystrup informed Dean McDonald about her emergency surgery. (Id. at 52.)
She further informed him that that she had asked her department chair to inform anyone who
needed to know that she had surgery, and to take care of anything that needed her attention. (Id.)
Dean McDonald acknowledged the department chair’s failure and stated, “Oh, this is a pattern
with him.” (Id.) Dean McDonald followed up this encounter by sending another memorandum
to Professor Paystrup on March 18, 2010, requesting that she attend a fitness for duty evaluation
with Dr. Joanne Brown-Cameron (“Dr. Cameron”). (Id. at 26.)

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In response to this memorandum, Professor Paystrup drafted a letter outlining her version
of the events that led to her failure in submitting her teaching improvement plan. (Id. at 26.) In
her letter, Professor Paystrup noted the emergency surgery and her failed attempts to finalize her
teaching improvement plan with her department chair. (Dkt. No. 23-15.) Specifically, she
indicated that although she was ready to finalize her teaching improvement plan with her
department chair on April 22, 2009, the department chair scheduled over their meeting and did
not make himself available to discuss the plan with her before her emergency surgery. (Id. at 23.) Professor Paystrup further informed Dean McDonald that while she was recovering from her
surgery, the department secretary moved all of her paperwork to a new location without the
Professor’s knowledge. (Id. at 4-5.) After this move, Professor Paystrup was unable to locate
some of the vital paperwork for her teaching improvement plan. (Id.)
Dean McDonald responded to Professor Paystrup’s letter with a memorandum dated
March 22, 2010. (Dkt. No. 41 at 27.) No later than this time, Dean McDonald knew about
Professor Paystrup’s disability because he noted her claim for serious chronic health conditions
and lupus-related chronic anemia. (Id. at 47, 59.) However, Dean McDonald also noted that
Professor Paystrup’s response did not include any justification for her failure to comply with
deadlines from 2005 through 2008. (Id. at 27.) Consequently, Dean McDonald renewed his
demand that Professor Paystrup submit her teaching and research improvement plan. (Id. at 52.)
Dean McDonald also declined to rescind his order for Professor Paystrup to attend a fitness for
duty examination. (Id. at 27.)
Professor Paystrup attended the fitness for duty evaluation on March 31, 2010. (Dkt.
No. 36-5.) After conducting the evaluation, Dr. Brown-Cameron concluded that, “The

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development of a corrective action plan or the implementation of steps toward termination would
be appropriate.” (Id. at 11.) This was based on Dr. Cameron’s finding that, “It is clear that for
the last several years Patricia has not been performing the essential functions of her position.”
(Id.) It is disputed whether Dr. Cameron knew what Professor Paystrup’s essential functions
were at the time of the FFD.
On May 5, 2010, Professor Paystrup and her attorney met with David McGuire (SUU
HR) and Michael Carter (SUU’s general counsel). (Dkt. No. 41 at 29.) During this meeting,
McGuire presented Professor Paystrup with the option of applying for long-term disability
benefits. (Id.) While represented by counsel, Professor Paystrup agreed to apply for long-term
disability and filled out a form to that effect. (Id.) She did so because she was experiencing
significant health problems “and couldn’t see living like that for the next ten years.” (Id.)
In July 2010, the University provided a copy of Dr. Cameron’s report to Professor
Paystrup after several requests. (Id.) Professor Paystrup was dissatisfied with the results of the
report and exercised her right to have a follow-up fitness for duty evaluation performed by a
doctor of her choice. (Id. at 29-30.) This follow-up evaluation was performed by Dr. James
Ottesen (“Dr. Ottesen”) on August 19, 2010. (Id. at 30.) In his report, Dr. Ottesen indicated that,
“Even when she was feeling better physically . . . this past summer of 2010, Dr. Paystrup still did
not make efforts to bridge the gap between herself and the administration. That is not a question
of intelligence, that is a reflection about her judgment and personality flaws.” (Id. at 31-32.) Dr.
Ottesen additionally found that,
If Dr. Paystrup is content with her interpersonal style and believes that the issue is not
hers and that she is just being treated wrongfully by the university, she will not improve
much over time. If Dr. Paystrup is willing to commit herself to psychotherapy and to
addressing her maladaptive personality traits, she should be able to function better at the

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university as long as her work load is not so extensive that her working memory deficit is
exposed. (Id.)
Dr. Ottesen concluded that, “It also appears to this clinician that Southern Utah
University can do more to support Dr. Paystrup and can reach a working plan with her instead of
just releasing her. It is likely that Dr. Paystrup still has more to offer this university as she
manages her issues.” (Id. at 32.)
The day before this second fitness for duty examination, Professor Paystrup was
informed by Provost Cook that she was being placed on administrative leave. (Id. at 33.) The
Provost hoped that the leave would allow Professor Paystrup the opportunity to address the
missed deadlines and get caught up, but he did not express this hope to Professor Paystrup. (Id.
at 34.)
Around September 2010, the new department chair informed Professor Paystrup that
Dean McDonald had requested her to submit a FAAR for the ’09-’10 academic year. (Id. at 36.)
At that time, Professor Paystrup believed that because she was on administrative leave she was
relieved of her obligation to submit a FAAR. (Id. at 36-37.) Nevertheless, she did not convey
this belief to either her department chair or Dean McDonald. (Id.)
On October 18, 2010, Provost Cook initiated formal proceedings to evaluate Professor
Paystrup’s fitness for duty by requesting to convene the Faculty Review Board. (Id. at 62.)
Provost Cook doubted that Dr. Paystrup’s lupus and fibromyalgia caused Dr. Paystrup to
experience fatigue and depression, and was “weary” and “untrustful” that Dr. Paystrup actually
required a one-hour break between classes. (Id.)
In November 2010, Provost Cook cancelled his request to convene the Faculty Review
Board after the University received a letter from Professor Paystrup that included a point-by-

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point response to the petition as well as scores of supporting documentation including narratives
and correspondence. (Id. at 35.) Provost Cook further responded to Professor Paystrup by
prompting her to address the three issues that had been the basis for her being placed on
probation: scholarship, teaching, and the teaching improvement plan. (Id. at 36; Dkt. No. 27-3 at
154-155.)
On December 7, 2010, Dean McDonald informed Professor Paystrup that because she
had not submitted a FAAR for the ’09-’10 school year, he was recommending that she be placed
on suspension with pay. (Dkt. No. 41 at 37.)
On December 10, 2010, Professor Paystrup sent a letter to Provost Cook outlining why
she was unable to comply with the Dean’s requests that she submit her teaching improvement
plan. (Id.) In her letter, Professor Paystrup noted an improvement in her symptoms based on the
use of a newly-prescribed medication. (Id.)
Provost Cook responded to the December 10th letter on December 13, 2010, noting that
Prof. Paystrup’s response did not fully address her chronic failure to respond to policy-mandated
deadlines. (Id. at 38.) The next day, Provost Cook placed Professor Paystrup on suspension with
pay. (Id.) He testified that had she submitted her policy-mandated documents, he would not
have done so. (Id.) As with the administrative leave, Provost Cook did not explain to Professor
Paystrup what the terms of her suspension were. (Id. at 53.) Professor Paystrup finally
submitted her FAAR for the ’09-’10 school year the day after she was officially suspended. (Id.
at 38.)
On February 28, 2011, Dean McDonald requested that Professor Paystrup attend an
updated fitness for duty evaluation because of the time that had passed since the previous

9

examination in March 2010 and because of Professor Paystrup’s reports of improved health. (Id.
at 39.) Although two evaluations were scheduled in early 2011, Professor Paystrup failed to
attend either of them. (Id. at 39-41.) In a letter to Professor Paystrup dated April 27, 2011,
Provost Cook informed her that her department chair and Dean McDonald both recommended
that she be placed on suspension without pay for an entire year. (Id. at 50.)
Despite these recommendations, the University allowed Professor Paystrup to resume
teaching a full load of classes in the fall of 2011. (Id. at 41.) During this semester, Professor
Paystrup and the University entered into EEOC mediation wherein Professor Paystrup
specifically requested accommodations of an hour break between classes and a schedule that
required her to teach only one writing class per semester. (Id.) A communication error
prevented Professor Paystrup from having the one hour break during the Spring 2012 semester,
but she accepted an alternative accommodation of having a graduate student help her with her
duties. (Id. at 43.) Since that time, she has been granted both of her requested accommodations
every semester. (Id. at 44.)
Professor Paystrup filed a Complaint on January 7, 2013, alleging that the Defendants
continuously discriminated against her based on her medical condition. (Id. at 3-8.) The alleged
discriminatory actions include failing to grant her requested accommodations of a one-hour
break between classes and a schedule that that required her to teach only one writing class per
semester in 2008; requiring her to submit to a fitness for duty examination in March 2010;
refusing to give her the University-wide College and University Professional Association salary
increase every year since 2009; placing her on administrative leave for the Fall 2010 semester;
petitioning to convene the Faculty Senate Board of Review in October 2010; suspending her with

10

pay for the Spring 2011 semester; failing, from November 2010 through February 2011, to
respond to her attorney’s phone calls, e-mails, and letters regarding a mediation date; ordering
her to submit to a follow-up fitness for duty examination—which she did not attend—in March
2011; and treating her unfairly after she returned to work in the fall of 2011. (Id.) Plaintiff
alleges that these discriminatory actions demonstrate that Defendants failed to provide her with
reasonable accommodations, subjected her to adverse employment actions based on her
disabilities, retaliated against her for asserting her rights, and failed to enter into the interactive
process as required by the ADA. (Id.)
Defendants argue that they cannot be liable for some of the allegedly discriminatory
actions because they are time barred by the relevant statutes of limitations. (Dkt. No. 27 at 2.)
Additionally, Defendants deny that any of their actions were discriminatory. (Id. at viii-ix.)
Instead, they assert that Plaintiff’s unrebutted history of missing deadlines and her overall
decline in work performance caused the University to take disciplinary action against her. (Id. at
8-16.) Defendants also argue that they granted every request for accommodation made within
the statutes of limitations and participated in the interactive process in good faith. Accordingly,
the Defendants have moved for summary judgment, contending that there are no genuine issues
of material fact that would preclude the court from ruling as a matter of law that the Defendants
cannot be found liable under the ADA or the Rehabilitation Act.
DISCUSSION
Summary judgment is proper if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “[T]he plain language
of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon

11

motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). Moreover, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
Statutes of Limitations:
For ADA claims, a plaintiff must file a discrimination charge with the EEOC within 300
days of the discriminatory action. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002). In this case, Professor Paystrup filed a charge with the EEOC on May 5, 2011. (Dkt.
No. 2 at 6.)
For Rehabilitation Act claims, a plaintiff must file a complaint within four years of the
discriminatory action. See Baker v. Board of Regents of State of Kan., 991 F.2d 628, 632 (10th
Cir. 1993); Utah Code Ann. § 78B-2-307. Professor Paystrup filed her Complaint in this case on
January 7, 2013. (Dkt. No. 2.)
Nevertheless, under both the ADA and the Rehabilitation Act, certain actions are not time
barred if they are part of a continuing violation and at least one similar discriminatory action
occurred within the relevant statute of limitations. See National Railroad Passenger Corp., 536
U.S. 101; Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003).
The court finds that the allegedly discriminatory actions against Professor Paystrup do
not constitute a continuing violation of the ADA or the Rehabilitation Act. Additionally,

12

although SUU’s Policy 6.22 XIV explicitly states that a faculty member may be “terminated or
given a position with reduced states for substantially impaired performance for medical reasons”
(Dkt. No. 41 at 46), Professor Paystrup does not provide any evidence that indicates that SUU
used this policy to discriminate against her or any other disabled employee. Therefore, Policy
6.22 XIV cannot be used to demonstrate a continuing violation of the ADA or the Rehabilitation
Act.
Consequently, any ADA claims based on acts prior to July 9, 2010 and any Rehabilitation
Act claims based on acts prior to January 7, 2009 are time barred.
ADA Claims
The ADA prohibits employers from discriminating against employees and perspective
employees on the basis of a disability: “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). However, the ADA does not
excuse an employee from performing the essential functions of her job. Milton v. Scrivner, Inc.,
53 F.3d 1118, 1124 (10th Cir. 1995). Thus, where a disabled employee has been accommodated
and is still not performing the essential functions of her job, discipline is appropriate. Anderson
v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999) (holding that where an employee does not
perform the essential function of the job, termination is appropriate); Morgan v. Hills, Inc., 198
F.3d 1319, 1323 (10th Cir. 1997); see also Cross v. Valley Services, Inc., 963 F.Supp 2d 1232
(D. Utah 2013).

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Plaintiff does not contend that Defendants failed to reasonably accommodate her at any
time within the statute of limitations. Nevertheless, Plaintiff argues that the University violated
the ADA within the relevant time period because it subjected her to adverse employment actions
based on her disability and failed to enter into the interactive process. (Dkt. No. 36 at 55-56.)
Adverse Employment Actions
Professor Paystrup alleges that, within the statute of limitations, the University subjected
her to adverse employment actions based on her disability and as retaliation against her for
asserting her rights. (Dkt. No. 36 at 55-56.) Specifically, Professor Paystrup alleges that the
University discriminatorily placed her on administrative leave; suspended her with pay; withheld
some annual pay increases; and demanded that she submit to an updated fitness for duty
examination. (Id.)
Defendants respond that, given Professor Paystrup’s multiple failures to meet deadlines
and address the University’s concerns, the disciplinary actions against her were justified. The
court agrees.
Despite numerous warnings of the consequences of missed deadlines, it is undisputed that
Professor Paystrup failed to turn in her mandatory Post-Tenure Review documents, her teaching
and research improvement plan, and her ’09-’10 FAAR until several months—or even years—
after they were due. Professor Paystrup also failed to respond at all to several of the attempts to
get her to submit the documents after they were past due. Additionally, Professor Paystrup did
not ask for an accommodation concerning her ability to submit the documents. In fact, even
during times when her medical conditions were not acting up, she still failed to turn in her
mandatory documents in a timely manner.

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Turning in mandatory documents in a timely manner and being responsive to the
administration are clearly essential functions of Professor Paystrup’s job—and she repeatedly
failed to perform them. This conclusion is supported by the history of events listed above as well
as the reports of both doctors who performed fitness for duty examinations on Professor
Paystrup. Therefore, the court finds as a matter of law that Professor Paystrup cannot show that
the University’s reasons for undertaking disciplinary action were pretextual.
In addition to finding that Professor Paystrup has failed to come forward with sufficient
evidence to support her claim of pretext, the court finds that no jury could reasonably find that
any of the specific disciplinary actions undertaken by the University constitute a violation of the
ADA. As to the administrative leave and suspension with pay, Professor Paystrup was paid her
full salary throughout the entire process and returned to her full teaching position the next school
year. Such circumstances are sufficient to conclude that these disciplinary actions did not violate
the ADA. See Benavides v. City of Oklahoma City, 508 F. App’x 720 (10th Cir. 2013)
(unpublished) (indicating that administrative leave restrictions are de minimis when the
employee is paid his full salary). Additionally, Professor Paystrup’s health improved during her
paid time off—which is significant considering the fact that she agreed to apply for long-term
disability benefits just a few months earlier because of her health problems. It also appears that
the suspension with pay was the catalyst for Professor Paystrup’s decision to finally turn in her
past due FAAR for the ’09-’10 school year. After all, she did not respond to the multiple
requests and warnings concerning the delinquent report until immediately after she was officially
suspended. Consequently, the court finds that neither the administrative leave nor the suspension
constitutes a violation of the ADA in this case.

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With respect to the University’s decision to deny Professor Paystrup’s annual College
and University Professional Association (“CUPA”) pay increases, the court finds that although
Professor Paystrup has not received a CUPA salary increase since 2009, she does not show any
connection between this decision and her disability. CUPA sets salary benchmarks for
performance based on region and type of institution and SUU uses this information to calculate
their own salary benchmarks.1 The CUPA salary increases are ultimately given at Dean
McDonald’s discretion “based on performance and productivity,” but Provost Cook can overrule
his decisions. (Dkt. No. 36-2 at 111-112; Dkt. No. 36-3 at 208.)
Due to Professor Paystrup’s repeated failures to act in accordance with the University’s
policies and requests from 2005 on, it is not readily apparent how the University’s denial of a
discretionary salary increase could be deemed discriminatory. Furthermore, Professor Paystrup
does not demonstrate that she was entitled to the salary increases (i.e. she provides no evidence
that her performance and productivity merited the salary increases). She also has not provided
any evidence that any other professors who have consistently failed to meet deadlines have
received CUPA salary increases. Therefore, the court finds that Professor Paystrup has not
provided sufficient evidence for a jury to reasonably find that the University’s decision to deny
her CUPA salary increases violates the ADA.
Finally, the University’s demand for an updated fitness for duty examination cannot be
construed as an adverse employment action in this case. The Tenth Circuit has made it clear that
subjecting an employee to a psychological examination can be vital for understanding an
employer’s ADA obligations to that employee. See McKenzie v. Dovala, 242 F.3d 967 (10th
1

In the oral hearing, counsel estimated that the CUPA salary increases were only as much as a couple thousand
dollars a year.

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Cir. 2001). In fact, the McKenzie court reversed the district court, which had granted an
employer’s motion for summary judgment, in part because the employer did not subject the
employee to a psychological examination. Id. at 975 (“Dovala did not even submit McKenzie for
a standard psychological test as provided for by Wyo. Stat. Ann. § 9-1-704(b)(vii). Without an
‘individualized assessment’ of the precise nature and likelihood of the risk stemming from
McKenzie's illness, a genuine dispute of material fact remains regarding whether she is qualified
to resume a position in the Office where she worked successfully for a decade.”); see also
Koessel v. Sublette Cnty. Sheriff's Dep't, 717 F.3d 736, 744 (10th Cir. 2013) (“Koessel relies on
McKenzie, where we reversed a district court's grant of summary judgment in part because the
plaintiff's employer had not ordered her to undergo a psychological examination. . . . But here,
Sheriff Bardin ordered Koessel to undergo not one but two individualized assessments.”)
In that light, the court finds that the fitness for duty examination and the proposed
updated examination do not constitute adverse actions in this case. After all, Professor Paystrup
made a disability claim and the University needed to figure out how to properly accommodate
her. Moreover, the updated examination was requested only after Professor Paystrup reported
improved health due to her medication and therapy. This indicates that Professor Paystrup’s
limitations and necessary accommodations might have changed—something an updated
examination could have helped the University determine. Finally, even if an updated
examination could be construed as an adverse employment action in this case, the University
merely “demanded” that Professor Paystrup subject herself to a follow-up examination—she
never actually attended one.
Interactive Process

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Plaintiff also alleges that Defendants failed to participate in the interactive process in
good faith. “The federal regulations implementing the ADA envision an interactive process that
requires participation from both parties.” Templeton v. Neodata Services, Inc., 162 F.3d 617, 619
(10th Cir. 1998); 29 C.F.R. § 1630.2(o)(3). This interactive process should identify the precise
limitations resulting from the disability and potential reasonable accommodations that could
overcome those limitations. 29 C.F.R. § 1630.2(o)(3). The employer’s duty to engage in the
interactive process is triggered once an employee makes an adequate request for an
accommodation, thereby placing the employer on notice. EEOC v. C.R. England, Inc., 644 F.3d
1028, 1049 (10th Cir. 2011).
To demonstrate that the University failed to enter into the interactive process, Plaintiff
alleges that Defendants refused to discuss the two fitness for duty reports with her, failed to
answer several letters and e-mails between November 2010 and March 2011, and wrongfully
petitioned to convene the Faculty Review Board. (Dkt. No. 36 at 60-65.) Plaintiff also asserts
that Provost Cook and Dean McDonald did not participate in the interactive process in good
faith, but wished to terminate her. (Id.)
However, it is clear that the University was participating in the interactive process at all
relevant times. Both of Professor Paystrup’s requested accommodations, the one hour break and
a schedule that did not require her to teach more than one writing class per semester, dealt with
the teaching duties of her job. Thus, the interactive process was ultimately geared toward
accommodating Professor Paystrup in her teaching duties. Due to the administrative leave and
the suspension with pay imposed for the ’10-’11 school year, Professor Paystrup was not
teaching during the time period in which she says the Defendants failed to participate in the

18

interactive process. In fact, as soon as she resumed teaching, Professor Paystrup was
appropriately accommodated. Therefore, it is unclear how more immediate responses to
Professor Paystrup’s letters and e-mails could have affected her requested accommodations. The
same is true of a more immediate discussion of the fitness for duty reports. Regardless, it is
evident that the University was responding to Professor Paystrup’s communications throughout
the relevant time period.
For example, several of the letters and e-mails that the Defendants allegedly ignored refer
to ongoing communications between Professor Paystrup and the University. (See e.g. Dkt. No.
37-7 ; 37-10.) Similarly, Provost Cook cancelled the Faculty Review Board petition upon
receipt of Professor Paystrup’s letter responding to the petition. At that time, he further opened
the channels of communication by inviting her to address the bases of the University’s
disciplinary actions. Moreover, the University worked with Professor Paystrup so that she has
retained her position at the University and has been paid her full salary throughout the relevant
time period. The University has also granted every requested accommodation—or provided an
acceptable alternative accommodation—within the statute of limitations. This is the best
imaginable result of the interactive process and the University did its part to facilitate this end.
Based on the foregoing, the court grants Defendants’ Motion for Summary Judgment
regarding all of Plaintiff’s ADA claims
Rehabilitation Act Claims:
Courts have long recognized that claims under the ADA and the Rehabilitation Act are
almost entirely overlapping. See Woodman v. Runyon, 132 F. 3d 1330 (10th Cir. 1997) ;
Fleming v. State Univ. of New York, 502 F. Supp 2d 324 (D.N.Y. 2007). Therefore, to the

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extent that the Rehabilitation Act claims are based on the same actions as the ADA claims, the
Court similarly finds that there is insufficient evidence for a jury to reasonably find for Plaintiff
on her Rehabilitation Act claims.
Insofar as the Rehabilitation Act claims are based on actions that took place between
January 7, 2009 and July 9, 2010, they are not time barred as are any parallel ADA claims.
However, in Plaintiff’s Complaint, she alleges only that one relevant action occurred during that
time period: the University required Professor Paystrup to submit to a fitness for duty
examination and failed to provide a copy of the exam to her for up to four months. (Dkt. No. 2 at
3-4.)2 As discussed above, a psychological examination is judicial encouraged and can be vital
to helping an employer understand its ADA obligations to an employee—as was the case here
where SUU was able to better understand Professor Paystrup’s disability as a result of the
examination. Therefore, the University’s decision to subject Professor Paystrup to the original
fitness for duty examination did not violate the Rehabilitation Act.
Based on the foregoing, the court grants Defendants’ Motion for Summary Judgment
regarding all of Plaintiff’s Rehabilitation Act claims
CONCLUSION
In sum, the court concludes that no jury could reasonably find in favor of the Plaintiff on
any of her claims. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED.
DATED this 5th day of February, 2015.
2

In her Opposition to Defendants’ Motion for Summary Judgment, Plaintiff also seems to argue that she was
discriminated against in the fall of 2009 when, despite her request, the University did not give her an hour long
break and required her to teach a writing class. (Dkt. No. 36 at 59-60.) This allegation was not in the Complaint
and cannot be relied upon for purposes of this motion. Even if it was in the Complaint, the University provided
Professor Paystrup with a graduate assistant to help with teaching and grading. (Id.) This was a reasonable
alternative accommodation—as is clear from the fact that Professor Paystrup accepted the same accommodation in
2012.

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BY THE COURT:

Dee Benson
United States District Judge

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