UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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JEFFREY P. RHOADS, M.D., 

 Plaintiff - Appellant,

v.

STORMONT VAIL HEALTHCARE, 

INC., 

 Defendant - Appellee.

No. 23-3125

(D.C. No. 5:22-CV-04005-JWB)

(D. Kan.)

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ORDER AND JUDGMENT*

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Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges.

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Dr. Jeffrey Rhoads appeals the district court’s grant of summary judgment to 

his former employer, Stormont Vail Healthcare, Inc. (Stormont), in his action 

alleging unlawful failure to accommodate under the Rehabilitation Act (RA), 

29 U.S.C. § 794 and Americans with Disabilities Act (ADA), 42 U.S.C. § 12112. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 15, 2024

Christopher M. Wolpert

Clerk of Court

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BACKGROUND1

Dr. Rhoads specializes in internal medicine. He was a hospitalist at Stormont 

employed under a contract he signed in 2019. In 2020, other doctors at Stormont 

reported concerns that Dr. Rhoads was exhibiting signs of dementia and that his work 

was showing a steady decline in quality. These concerns led to the formation of an 

internal committee at Stormont. That committee recommended a temporary 

restriction of Dr. Rhoads’s clinical privileges and referred him to Acumen 

Assessments, Inc. (Acumen) for evaluation. Dr. Rhoads scheduled an appointment 

with Acumen for January 2021 and worked his last shift as a hospitalist in November 

2020. Also beginning in January 2021, Dr. Rhoads requested and received up to one 

year of leave under the Family and Medical Leave Act. 

Acumen diagnosed Dr. Rhoads with mild neurocognitive disorder. He was not 

considered fit to return to the practice of medicine at that time, and he agreed he 

would likely not be able to return to his work as a hospitalist. Dr. Rhoads admitted 

that, if he made a mistake with a patient, it could cause harm or death. He did not 

reapply for clinical privileges before his existing privileges were due to expire, which 

Stormont policy considers a voluntary withdrawal. 

Through their respective attorneys, Dr. Rhoads and Stormont engaged in the 

interactive process to determine whether, and under what conditions, Dr. Rhoads 

could return to work. Dr. Rhoads’s counsel conceded Dr. Rhoads could not return to 

1 The facts we recite here are either undisputed or, where disputed, construed 

in the light most favorable to Dr. Rhoads. See Markley v. U.S. Bank Nat’l Ass’n, 

59 F.4th 1072, 1080 (10th Cir. 2023).

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work as a hospitalist, but he requested a position as an outpatient physician as an 

accommodation. 

Dr. Rhoads took the position that he should work with an Advanced Practice 

Registered Nurse (APRN) or a Physician’s Assistant (PA) for supervision as an 

accommodation. This position would have cost Stormont between $112,050 and 

$225,432 per year. For a physician to perform this type of supervision, it would have 

cost between $458,625 and $1,473,958 per year. Stormont has in place a process 

called proctoring, which it generally uses for new physicians who recently received

privileges. The proctoring process, however, requires a peer (meaning neither an 

APRN nor a PA could proctor Dr. Rhoads) and it is not designed for open-ended, 

indefinite-term use in the way Dr. Rhoads proposed. 

Dr. Rhoads, through counsel, also initially requested reassignment to an 

administrative position that did not require patient care. Stormont’s attorney 

requested a conference call with Dr. Rhoads and his attorney to discuss potential 

reassignment to an administrative position, but no call ever occurred. Later, during 

the parties’ mediation, Stormont proposed reassignment to the Door Screener job, 2

but Dr. Rhoads did not accept that proposal. Dr. Rhoads made no further inquiries 

regarding reassignment in his correspondence with Stormont. 

2 The Door Screener role at Stormont paid $15 per hour. According to his 

employment contract, Dr. Rhoads’s base salary as a hospitalist was $305,000 

per year. At some point during discussions with Stormont, Dr. Rhoads joked that he 

hoped to become “the best paid copy boy ever.” Aplt. App. vol. 2 at 379. 

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Dr. Rhoads filed a charge of discrimination in July 2021. Stormont terminated 

his employment in September 2021. Dr. Rhoads brought suit thereafter, alleging 

unlawful failure to provide reasonable accommodation, retaliation, and breach of 

contract. The district court granted Stormont’s motion for summary judgment, and 

this timely appeal followed. 

DISCUSSION

We review the grant of summary judgment de novo. May v. Segovia, 

929 F.3d 1223, 1234 (10th Cir. 2019). Summary judgment is appropriate “if the 

movant shows that 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). “On appeal, we 

examine the record and all reasonable inferences that might be drawn from it in the 

light most favorable to the non-moving party.” Markley v. U.S. Bank Nat’l Ass’n, 

59 F.4th 1072, 1080 (10th Cir. 2023) (internal quotation marks and brackets omitted). 

Although Dr. Rhoads’s Amended Complaint asserted claims under both the 

ADA and RA under theories of failure to accommodate, retaliation, and breach of 

contract, the scope of this appeal is narrower. He raises no argument that the district 

court erred in granting summary judgment on his retaliation claim, and so he has 

waived that issue. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An 

issue or argument insufficiently raised in the opening brief is deemed waived.”). He 

likewise does not contest the district court’s conclusion that his breach of contract 

“claim is redundant of [his] claims for failure to accommodate and for unlawful 

termination” and that “the legal analysis is substantially the same for this claim” as 

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for the ADA and RA claims. Aplt. App. vol. 2 at 518–19. And we apply the same 

substantive standards to ADA and RA claims. See Rivero v. Bd. of Regents of Univ. 

of N.M., 950 F.3d 754, 758 (10th Cir. 2020) So, we limit our review to the district 

court’s grant of summary judgment on Dr. Rhoads’s ADA claims. 

The ADA prohibits employers from discriminating against individuals on the 

basis of their disabilities. “To establish a prima facie failure-to-accommodate claim, 

[Dr. Rhoads] had to show: (1) he was disabled; (2) he was otherwise qualified; (3) he 

requested a plausibly reasonable accommodation; and (4) [Stormont] refused to 

accommodate his disability.” Dansie v. Union Pac. R.R. Co., 42 F.4th 1184, 1192 

(10th Cir. 2022). “Once an employee requests reassignment as an accommodation, 

both the employee and employer have an obligation to engage in an interactive 

process, which . . . requires good-faith communications.” Herrmann v. Salt Lake 

City Corp., 21 F.4th 666, 674 (10th Cir. 2021) (internal quotation marks omitted). 

Dr. Rhoads argues he presented sufficient evidence to create a genuine issue of 

material fact on two failure-to-accommodate theories: reassignment to an outpatient 

physician role with a proctor and reassignment to a role that does not require patient 

care, such as Door Screener. But the district court concluded, and we agree, that the 

first proposed accommodation is not reasonable. The cost alone of hiring an 

additional physician to supervise Dr. Rhoads—between nearly one-half to one-andone-half million dollars—is unreasonable. And the proctoring system at Stormont 

was not designed to facilitate the indefinite supervision of a physician whose 

condition could worsen over time. Neither an APRN nor a PA could perform this 

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work because, as non-physicians, they could not legally assume supervisory authority 

over Dr. Rhoads. See Kan. Stat. Ann. § 65-28a08(a) (“Physician assistants practice 

in a dependent role with a supervising physician . . . .”); id. § 65-2872(m) (“The 

practice of the healing arts shall not be construed to include . . . [n]urses practicing 

their profession when licensed and practicing under and in accordance with [Kansas 

law].”). 

Dr. Rhoads argues the district court overlooked a genuine dispute of material 

fact regarding whether he posed a direct threat to patient safety if he continued to 

practice medicine at Stormont. But he admitted that, were he to make a mistake, it 

could result in serious harm or death to a patient. That is, he admitted that, for the 

role of outpatient physician, “the essential job duties necessarily implicate the safety 

of others” so he bore the burden “to show that he can perform those functions without 

endangering others.” Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1091

(10th Cir. 2008) (internal quotation marks and brackets omitted). He cannot meet 

this burden; his arguments that he did not pose a direct threat to patient safety all rely 

on the availability of his proposed proctoring accommodation, which we have already 

agreed is not reasonable as a matter of law. 

We also agree with the district court that Dr. Rhoads cannot establish 

Stormont’s liability for failure to offer him reassignment to an administrative 

position: Stormont twice broached the possibility of reassignment through its 

negotiations with counsel, and Dr. Rhoads twice declined. We cannot, on this record, 

find a genuine issue of material fact as to whether Dr. Rhoads engaged in the 

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interactive process on this proposed accommodation in good faith. He plainly did 

not. 

CONCLUSION

We affirm the judgment of the district court. 

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

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