Painter v. Illinois Department of Transportation

Filing 53

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins regarding request to re-open discovery. See written order. (LB, ilcd)

E-FILED

Wednesday, 26 August, 2015 02:05:39 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
DEANNA SUE PAINTER,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
TRANSPORTATION,
Defendant,

)
)
)
)
)
)
)
)
)
)

No. 13-cv-3002

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE :
On August 6, 2015, this Court conducted a motion hearing in this
case. At that time, the Court directed the parties to file any requests for
discovery pertaining to only the events concerning Plaintiff's recent June
23, 2105, fitness for duty examination (2015 Fitness Examination). Minute
Entry entered August 6, 2015. The Plaintiff Deanna Painter previously
indicated that she wanted to conduct such discovery. See Withdrawal of
Motion to Withdraw as Attorney & Motion for Order Denying Motion to
Withdraw as Attorney as Moot & for Scheduling Conference (d/e 51), at 2.
Painter submitted a memorandum requesting such additional discovery.
Plaintiff’s Memorandum in Response to August 6, 2015 Court Order

Page 1 of 8

(d/e 52) (Request), at 8-10. For the reasons set forth below, the Request is
DENIED with leave to renew if the jury finds Defendant Illinois Department
of Transportation (IDOT) liable on her claims.
BACKGROUND
From September 1, 2010 to May 2011, Painter was employed by
IDOT. She alleges that IDOT wrongfully subjected her to unnecessary
mental fitness for duty examinations on April 21, 2011; July 18, 2011;
August 2 and 5, 2011; December 2 and 16, 2011; and May 8, 2012. A
psychiatrist, Dr. Terry Killian, M.D., conducted the December 2011 and
May 2012 examinations. In December 2011, Dr. Killian opined that Painter
was fit for duty. The health professionals who conducted the prior
examinations in 2011 also opined that Painter was fit for duty. In May
2012, however, Dr. Killian opined that Painter was not fit for duty. Painter
was placed on unpaid leave after the final May 8, 2012, examination and
never returned to work for IDOT. Amended Complaint (d/e 15), ¶¶ 9-49.
Painter alleges that these examinations constituted discrimination or
retaliation in violation of the Americans with Disabilities Act (ADA) and the
Rehabilitation Act. Amended Complaint, ¶¶ 50-58; 29 U.S.C. § 794(d); 42
U.S.C. §§ 12112(a) and (d)(1)(2) and 12203. The ADA and Rehabilitation
Act prohibit employers from requiring employees to undergo physical or
Page 2 of 8

mental examinations unless such examinations are “job related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(1)(A). The
ADA also prohibits retaliation against an employee for exercising her rights.
42 U.S.C. § 12203.
IDOT has asserted an affirmative defense that the examinations were
job-related and consistent with the business needs of IDOT. Answer and
Affirmative Defenses to Amended Complaint (d/e 20), at 35. IDOT has the
burden of proof to establish this affirmative defense. Wright v. Illinois
Department of Children and Family Services, __ F.3d__, 2015 WL
4863400, at *6 (7th Cir. August 14, 2015).
Painter states that on April 1, 2014, she began working for the Illinois
Department of Human Services (DHS). She states that on June 18, 2015,
DHS placed her on medical leave and required her to undergo a mental
fitness for duty examination. Painter further states that on June 18, 2015,
DHS placed her on medical leave and required her to undergo a mental
fitness for duty examination. On July 23, 2015, Dr. Killian conducted this
examination. Painter states that Dr. Killian has not issued a report on this
examination. Request, at 4-5. Painter seeks to reopen fact and expert
discovery about Dr. Killian’s anticipated report from the July 23, 2015,
examination (2015 Report). Request, at 8-10.
Page 3 of 8

ANALYSIS
Fact and expert discovery closed on July 15, 2015. Text Order
entered June 23, 2015. The Court allowed Painter to depose IDOT
employees Marie Maelek-Robinson and Stuart Hunt by August 20, 2015,
after discovery closed. Minute Entry entered August 6, 2015. The Court
extended discovery deadlines twice before. Text Order entered February
12, 2015; Minute Entry entered March 23, 2015. Painter now seeks to
reopen both fact and expert discovery once Dr. Killian issues the 2015
Report.
The Court has discretion to reopen discovery. See Winters v. FruCon Inc., 498 F.3d 734, 743 (7th Cir. 2007). Reopening discovery requires
a showing of good cause. Balschmiter v. TD Auto Finance, LLC, 2015 WL
2451853, at *9 (E.D. Wis. May 21, 2015). In evaluating good cause in the
discovery context, the Court considers factors such as whether the party
seeking discovery had ample opportunity to obtain the information before
discovery closed and whether the burden of the proposed discovery
outweighs the benefit. See Winters, 498 F.3d at 734; Gucci America, Inc.
v. Guess?, Inc., 790 F.Supp.2d 136, 140 (S.D. N.Y. 2011); Fed. R. Civ. P.
26(b)(2)(C)(ii) and (iii).

Page 4 of 8

Painter argues that good cause exists to reopen discovery because
Dr. Killian has not yet issued his 2015 Report so the information was not
available before discovery closed, and the 2015 Report will be highly
relevant to her claim. See Request, at 8-10. Painter clearly did not have
an opportunity to discover a report that did not exist before discovery
closed. The Court, however, believes that the 2015 Report will be of little
or no relevance at this stage of the proceedings, and further finds that the
burden imposed by the proposed discovery far outweighs any benefit.
Painter’s claims and IDOT’s defenses are based on events in 2011
and 2012. Painter claims that IDOT wrongfully subjected her to illegal
examinations and retaliation in 2011 and 2012 in violation of the ADA and
Rehabilitation Act. IDOT claims the examinations in 2011 and 2012 were
valid actions consistent with its business needs. A fitness for duty
examination three years later, in 2015, will not tend to prove or disprove
any of these issues. The benefit of Painter’s proposed discovery,
therefore, is minimal at best.
The burden of the proposed discovery, however, would be quite
significant. Painter is proposing another round of expert reports and expert
depositions. The expert fees would be a significant expense just to explore
information about Painter’s mental condition three years after the fact.
Page 5 of 8

The proposed discovery would also cause significant delay. The
2015 Report did not exist as of the date that Painter filed the Request. The
proposed discovery would not begin sometime in the future after the parties
had opportunity to review 2015 Report. Painter does not even hazard a
guess on how long the additional discovery would take. The proposed
discovery could easily take six months to a year. The trial is currently set
for November 3, 2015. Text Order entered March 23, 2015. By November,
the case will be close to three years old. The burden caused by a six
month to year long delay outweighs any benefit to securing information with
such little probative value.
Painter argues that the 2015 fitness for duty examination is relevant
to showing what Painter is doing now. Request, at 8. The Court sees little
or no relevance to Painter’s employment in 2015. Her employment
situation in 2015 will not tend to prove or disprove the reasons IDOT took
actions in 2011 and 2012. The anticipated 2015 Report also would have
little relevance to Painter’s mental condition three and four years earlier in
2011 and 2012. A report on her fitness for duty in 2015 would also provide
little information about any suffering she endured in 2011 and 2012. The
minimal value of this evidence to prove or disprove liability or

Page 6 of 8

compensatory damages is clearly outweighed by the burden of the
expense and delay that the proposed discovery would cause.
Painter’s current fitness for duty could be relevant to her request for
reinstatement. See Amended Complaint, ¶ 60. Reinstatement requires the
Court to consider the current feasibility of Painter returning to work for her
past employer. See Bruso v. United Airlines, Inc., 239 F.3d 848, 861-62
(7th Cir. 2001). Reinstatement, however, is an equitable remedy for the
Court to decide after liability is established. See Id., at 860-62.1 Thus, any
such discovery is not necessary before trial. The jury should determine
liability first. If the jury trial finds that IDOT is liable, Painter may renew her
request for discovery on the 2015 Report before the Court decides on
appropriate equitable remedies. After the jury trial, the District Court and
the parties will be in a much better position to ascertain whether additional
discovery regarding the 2015 Report would be appropriate to address any
equitable issues.
THEREFORE Plaintiff Deanna Painter’s request to reopen discovery
to allow additional discovery pertaining to only the events concerning

1

Painter’s fitness for duty in 2015 conceivably might also be relevant for back pay or front pay in lieu of
reinstatement. See e.g., Bruso, 239 F.3d at 862 (plaintiff must present evidence of length of time plaintiff
would have been expected to work for defendant in order to calculate front pay). Back pay and front pay
are also equitable remedies for the Court rather than the jury. See Kramer v. Banc of America Securities,
LLC, 355 F.3d 961, 966 (7th Cir. 2004); 42 U.S.C. §§ 2000e-5(g)(1) and 12117(a). Thus, discovery is not
necessary before the jury trial.

Page 7 of 8

Plaintiff's recent June 23, 2015, fitness for duty examination, as set forth in
Plaintiff’s Memorandum in Response to August 6, 2015 Court Order
(d/e 52), is DENIED, with leave to renew the request if the jury finds
Defendant Illinois Department of Transportation liable on any of her claims
in the Amended Complaint.
ENTER: August 26, 2015

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

Page 8 of 8