Deanna Painter v. Illinois Department of Transp
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Issued by the Court. [6888353-1]  [16-3187]--[Edited 12/07/2017 by MM to correct docket text.]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2017
Decided December 6, 2017
By the Court:
DEANNA S. PAINTER,
ILLINOIS DEPARTMENT OF
Appeal from the
United States District Court for the
Central District of Illinois.
No. 13 C 3002
O R D E R
Deanna Painter claims that her former employer, the Illinois Department of
Transportation (“IDOT”), required her to undergo unnecessary mental‐health
examinations in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101–
12213. The district court entered summary judgment for the IDOT, reasoning that a fact
finder would have to conclude from the undisputed evidence that the challenged
examinations were “job‐related and consistent with business necessity.” We affirm the
Painter began working as an Office Administrator for the IDOT’s Division of
Traffic Safety in September 2010. After many employees complained about her
behavior, the IDOT put Painter on paid administrative leave and required that she
submit to a fitness‐for‐duty examination. Dr. Fletcher, an occupational‐medicine
specialist, examined Painter and concluded that she could perform the essential
functions of her job without posing a threat to herself or others. He did note, however,
that Painter “displayed some hypomania” and “could be bipolar,” so he recommended
that she be reevaluated in 45 days. At that reevaluation he deferred making a
fitness‐for‐duty recommendation until Painter could be seen by a mental‐health
specialist. He referred her to Dr. Karen Lee, a psychologist. Painter met with Dr. Lee,
but the psychologist did not send the IDOT a report because Painter retained her for
Despite Dr. Fletcher’s inconclusive reevaluation, the IDOT allowed Painter to
resume working in response to a grievance her union filed. She returned in
October 2011 but transferred to a different division, still as an Office Administrator.
Again she had difficulties with coworkers. Painter used work time to keep a detailed
log of her new coworkers’ conversations and other actions. She insisted the log was
necessary for her to learn why she “was put on leave since no one would tell” her.
Painter also sent numerous emails to her new supervisor, Stuart Hunt, often after the
workday ended. For example, she emailed Hunt at 8 p.m. on October 30, 2011:
I didn’t talk about God . . . other than the one time Mike Fitzgerald asked
me what I was listening to and I said a Christian radio station talking
about blended families. . . . Isabel, for whatever reason one day told me
that her mom works at the Marian Center downtown. I told her I had just
bought a cross necklace there a couple of months back. It’s a Catholic
store. Also, she told me her little brothers and sisters had gone to Little
Flower. I said I had gone to Little Flower from K–8 and sent my kids there
for a little while but couldn’t afford the entire time.
Hunt reacted by documenting his involvement in handling complaints about
Painter’s behavior. For example, on October 31, 2011, he noted for his file that one of
Painter’s coworkers had told him she was “fearful of . . . Deanna and was making other
arrangements for her car‐pool to pick her up in the evening as she and Deanna both
leave work at the same time.” Hunt gathered similar statements from other coworkers.
He disciplined Painter for keeping the log, and he gave his file and the employee
statements to Ryan Amerson, a labor‐relations specialist. Amerson recommended that
Hunt again place Painter on paid administrative leave, which, after conferring with his
supervisor, Hunt did on November 23, 2011.
Five days later Marie Malek‐Robinson, the IDOT’s fitness‐for‐duty coordinator,
retained psychiatrist Dr. Terry Killian to evaluate Painter’s mental health. Dr. Killian
met with Painter on December 2 and 16, 2011. He concluded that Painter was
psychiatrically fit for duty, but the statements from her coworkers and supervisors
caused him to suspect she might suffer from a personality disorder. Even so, Dr. Killian
cleared Painter to return to work.
She returned in January 2012, and the complaints from coworkers started anew.
Hunt gathered more written statements about her behavior and forwarded them to
Amerson. In March 2012 Hunt gave Painter a written reprimand for being
argumentative. He also reprimanded her for speaking to coworkers in an
unprofessional tone. Malek‐Robinson contacted Dr. Killian in late April requesting that
he again examine Painter. The next day Painter once more was placed on paid
A few days later Painter emailed her union representative, Tim Lynch.
She wrote: “For the record, the clock in the small conference room being set to 4:30 p.m.
when it was only 4:00 p.m.—that was a tell‐tale sign for me. It told me everything
I needed to know. Thanks.” Lynch replied that he did not understand the reference to
the clock and said that he thought the battery in the clock was dead. Painter responded,
“Something’s dead alright—however, I prefer to be ‘a lady’ and not say what I think is
dead. :).” Lynch interpreted that statement as a death threat. He told Painter he would
no longer represent her and demanded that she cease communicating with him. The
IDOT also interpreted Painter’s email as threatening and contacted the Illinois State
Police. Whether the state police took any action is not disclosed in the record.
Dr. Killian conducted his second examination of Painter on May 8, 2012.
This was the fifth medical examination directed by the IDOT: two with Dr. Fletcher, the
occupational‐medicine specialist; one with Dr. Lee, the psychologist retained by Painter;
and two with Dr. Killian, the psychiatrist. This time Dr. Killian declared Painter unfit
for duty because of her “paranoid thinking and the highly disruptive behavior which
results from her paranoia.”
Painter then filed this action claiming that the IDOT had violated the ADA by
forcing her to attend unnecessary medical examinations. The ADA prohibits covered
employers from requiring their workers to undergo medical exams that are not “shown
to be job‐related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).
Damages may be awarded for a violation, see id. §§ 12117, 1981a(a)(2), and Illinois has
legislatively waived its Eleventh Amendment immunity against claims for damages
under the ADA, 745 ILL. COMP. STAT. 5/1.5(d). Painter also asserted in her complaint, but
later abandoned, claims that the IDOT had discriminated against her on the basis of a
real or perceived mental impairment and retaliated against her for filing a charge of
discrimination. As the case progressed, Painter further narrowed her § 12112(d)(4)(A)
claim to exclude all but the two examinations by Dr. Killian. In entering summary
judgment, the district court reasoned that the only conclusion a jury reasonably could
draw is that the IDOT’s “actions were based on legitimate concerns and its employees
reasonably responded to the situation which they encountered.” Thus, jurors would
have to find that Dr. Killian’s medical examinations were “job‐related and consistent
with business necessity.”
As was true at summary judgment, this appeal concerns only the two medical
exams by Dr. Killian. Painter principally argues that a jury could conclude that those
examinations were not job‐related or consistent with business necessity. Employers bear
the “quite high” burden of establishing that compelled medical examinations are
consistent with business necessity. Wright v. Ill. Depʹt of Children & Family Servs.,
798 F.3d 513, 523 (7th Cir. 2015).
The Equal Employment Opportunity Commission has issued guidance for
§ 12112(d)(4)(A). According to the EEOC, a medical examination is job related and
consistent with business necessity if the employer has a reasonable belief based on
objective evidence that a medical condition will impair an employeeʹs ability to perform
essential job functions or that the employee will pose a threat due to a medical
condition. EEOC Enforcement Guidance: Disability‐Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance‐inquiries.html#6; see Wright, 798 F.3d at 523
(discussing EEOC’s enforcement guidance); Coffman v. Indianapolis Fire Depʹt, 578 F.3d
559, 565 (7th Cir. 2009) (same). “That an employee’s behavior could be described as
‘annoying or inefficient [does not] justify an examination; rather, there must be genuine
reason to doubt whether that employee can perform job‐related functions.’” Wright,
798 F.3d at 524 (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.
1999) (alteration in Wright).
Preventing employees from endangering their coworkers is a business necessity:
“a safe workplace is a paradigmatic necessity of operating a business.” EEOC v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1283 (7th Cir. 1995). Employers need not retain workers
who, because of a disability, might harm someone; such a rule would force an employer
to risk a negligence suit to avoid violating the ADA. Timmons v. Gen. Motors Corp.,
469 F.3d 1122, 1129 (7th Cir. 2006); Palmer v. Circuit Court of Cook Cty., 117 F.3d 351, 352
(7th Cir. 1997).
We start with Dr. Killian’s first examination. Like the district court, we conclude
that the undisputed evidence compels a finding that Dr. Killian’s initial exam of Painter
was job related and consistent with business necessity. Dr. Killian conducted that
examination after Painter had precipitated the same type of complaints from coworkers
in her new position as she had with coworkers in the Division of Traffic Safety.
Dr. Killian reviewed complaints from Painter’s former coworkers, including allegations
that she snapped and screamed at them, gave blank stares and intimidating looks,
ranted, constantly mumbled to herself, repeatedly banged drawers in her office, and
had mood swings. Her coworkers also feared she would “go postal” or “blow up at any
time.” Similarly, Dr. Killian reviewed complaints from Painter’s new coworkers,
including allegations that she glared and growled at them; kept the log; was rude,
angry, abrasive, aggressive, and threatening; and had mood swings. Her supervisor
said that in 20 years as a manager he had never dealt with a similar employee.
Several of Painter’s coworkers had even alerted supervisors that they feared she might
become physically violent. That Painter was paranoid is evident from the fact that she
felt compelled to write extensively about coworkers in her log, often making at least one
entry per hour. One time, according to Hunt, Painter burst into his office, her eyes
darting back and forth, and pointed a finger at him while growling incoherently about
approaching a coworker to ask her about God, the Bible, and the Ten Commandments.
After that Hunt felt compelled to document their interactions. Painter admitted having
issues with all of her new coworkers.
Likewise, on this record a reasonable jury also would have to find that
Dr. Killian’s second examination of Painter was job related and consistent with business
necessity. That exam occurred after Painter was reprimanded for unprofessionally
interacting with her coworkers. Dr. Killian reviewed an additional 160 pages of
documentation from Malek‐Robinson, including supervisor notes, discipline directives,
email communications, and statements from other employees. This time, Dr. Killian saw
supervisory notes suggesting that Painter had continued engaging in argumentative,
confrontational, insubordinate, and disruptive behavior.
One coworker wrote about Painter’s brash, condescending, intimidating, and
accusatory manner. Dr. Killian also analyzed emails in which Painter exhibited
paranoid behavior and accused others of hostile body language. Additionally, emails
Painter sent directly to Dr. Killian strongly suggested that she suffered from a
personality disorder. Moreover, around this time Painter sent her union representative
an email that was perceived as threatening and led to police involvement. According to
Dr. Killian, this incident contributed to his conclusion that Painter was paranoid in the
psychiatric sense, which is a risk factor for violence. Inquiries—even multiple
inquiries—concerning a worker’s psychiatric health may be permissible if they reflect
concern for the safety of other employees and the public at large. See Coffman,
578 F.3d at 565. Here, the second examination was again based on the IDOT’s
reasonable concern for the safety of its employees.
Painter’s remaining appellate claims are insubstantial. First, she contends that
Hunt twice contradicted his earlier deposition testimony in the affidavit he submitted at
summary judgment and thus the affidavit should have been stricken. But Painter never
asked the district judge to strike this affidavit, so this appellate claim is waived.
See Beverly v. Abbott Labs., 817 F.3d 328, 335–36 (7th Cir. 2016). Regardless, the supposed
contradictions are illusory.
One “contradiction” is Hunt’s statement in the affidavit that Painter’s coworkers
had told him they feared she potentially was violent and dangerous, leading him to
believe she presented a safety concern. In contrast, Painter asserts, Hunt never
mentioned a safety concern during his deposition. But where is the contradiction?
Hunt never testified that Painter’s coworkers said they felt safe around her.
Indeed, Painter’s lawyer never asked Hunt during his deposition whether Painter’s
coworkers shared concerns that she might be dangerous. Moreover, Hunt testified that
he believed Painter was disruptive, insubordinate, unprofessional, and uncooperative
because he had seen her act harshly toward a coworker and he later read a series of
emails she sent to that employee. Thus, Hunt’s allegation that Painter was a safety
concern augmented, rather than contradicted, his deposition. Augmentations that do
not contradict are admissible. Russell v. Acme‐Evans Co., 51 F.3d 64, 68 (7th Cir. 1995).
The second “contradiction” Painter identifies is that during his deposition Hunt
did not recall which labor‐relations specialist recommended that Painter undergo an
examination. In contrast, Hunt swears in his affidavit that the specialist was Ryan
Amerson. True, there is a difference between “I don’t recall” and “Ryan Amerson.” But
even if that difference is a “conflict,” a later conflicting affidavit is allowed if a memory
lapse plausibly explains the discrepancy. Id. In this case, Hunt was deposed four years
after Painter’s medical examination, and a memory lapse later corrected by reviewing
documents plausibly explains the discrepancy.
Painter also argues that the IDOT could not avoid a trial without evidence
identifying the decision‐maker behind each challenged medical examination.
Although Painter relies on Kroll v. White Lake Ambulance Authority, that Sixth Circuit
opinion does not conclude that the decision‐maker must be identified. 763 F.3d 619, 623
(6th Cir. 2014). Rather, in a paragraph explaining the standards governing claims under
§ 12112(d)(4)(A), the Kroll court said that employers cannot satisfy the “business
necessity” requirement with general assertions that compelling a medical examination
is “convenient or expedient,” but “[r]ather, the individual who decides to require a
medical examination must have a reasonable belief based on objective evidence that the
employee’s behavior threatens a vital function of the business.” Id. That statement
cannot be read as defining a rule of law that a single decision‐maker must be readily
identifiable, especially when, as in this case, multiple people participated in deciding
whether to compel the examination.
Last, Painter argues that the IDOT shopped around for a doctor until it received
an opinion supporting its decision to fire her. But this contention has no support in the
record. The IDOT received reports from two doctors, Dr. Fletcher and Dr. Killian. The
IDOT sent Painter back to those same two doctors for reevaluations even after they
initially had concluded that she was fit for duty. It was Dr. Fletcher, an occupational‐
medicine specialist with no expertise in diagnosing or treating mental health, who
recommended that Painter be evaluated by a mental‐health specialist. The initial
selection of Dr. Lee came from him. And the only reason that the IDOT later substituted
Dr. Killian for Dr. Lee is that Painter chose to continue treatment with Dr. Lee. The
characterization of doctor shopping is frivolous.
Accordingly, we AFFIRM the district court’s judgment.
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