Painter v. Illinois Department of Transportation
Filing
71
OPINION entered by Judge Richard Mills on 07/20/2016. SEE WRITTEN OPINION. The Defendants Motion for Summary Judgment (d/e 58 ) is ALLOWED. The final pretrial conference and trial settings are Canceled. The Clerk will enter Judgment in favor of the Defendant and against the Plaintiff. Upon entry of Judgment, the Clerk shall terminate this case. (DM, ilcd)
E-FILED
Thursday, 21 July, 2016 09:36:10 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
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DEANNA SUE PAINTER,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
TRANSPORTATION,
Defendant.
NO. 13-3002
OPINION
RICHARD MILLS, U.S. District Judge:
This is an action pursuant to the Rehabilitation Act, 29 U.S.C. § 791
et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq.
Pending is the Motion of Defendant Illinois Department of
Transportation for Summary Judgment.
In her amended complaint, Plaintiff Deanna Painter asserted claims
for unnecessary medical examinations under 42 U.S.C. § 12112(d)(1)(2),
disability discrimination under § 12112(a), and retaliation for filing a charge
of disability discrimination.
Because the Plaintiff has withdrawn her
disability discrimination and retaliation claims, the only pending claim is for
unnecessary medical examinations.
The Plaintiff asserts the medical
examinations were not “job-related and consistent with business necessity,”
as required by the ADA and the Rehabilitation Act’s incorporation of the
ADA remedies
I. FACTS
A. Background
On September 1, 2010, Plaintiff Deanna Painter was assigned to a
position of Office Administrator at Traffic Safety, a division of the Illinois
Department of Transportation (“IDOT”).
The Defendant alleges that in the Spring of 2011, Mike Stout,
Director of Traffic Safety at IDOT, became aware of an incident involving
the Plaintiff and Amber Biermann during which the Plaintiff loudly accused
Biermann of prank calling her at the office. The Plaintiff disputes this on
the basis that Stout testified at his deposition that he had no recollection of
2
the Plaintiff. Stout was shown a document regarding the Plaintiff that he
had prepared. He testified it was the first time he had seen the document
in years and did not remember it. In his affidavit, Stout states that he was
shown several documents by the Defendant’s counsel which have refreshed
his recollection. The documents include statements from 2011 that were
written by other employees at Traffic Safety detailing incidents with the
Plaintiff as well as a memorandum Stout wrote on or around May 4, 2011
to Marie Malek-Robinson, explaining the safety concerns he had with the
Plaintiff’s employment. Malek-Robinson is the Manager of the Employee
Assistant Program at IDOT and Coordinator of Fit-for-Duty Examinations
of IDOT employees. Stout states that prior to the Plaintiff’s April 2011
administrative leave, he became aware of incidents between the Plaintiff and
other employees.
The Plaintiff admits that before her first leave, she was having
difficulties with certain co-workers including Cindy Titus, Susan Nevitt,
Isabel Ziogas and Amber Biermann.
3
On or around April 4, 2011, when the Plaintiff was first placed on
administrative leave, Stout instructed Tom Kirk, Traffic Safety’s Personnel
Manager, to conduct an investigation about the incident. In his affidavit,
Kirk states that he learned of other witnesses to the incident and
interviewed them as well.
After each interview, Kirk instructed the
witnesses to submit a written statement to him. Stout states he reviewed
the statements gathered by Kirk and made the decision, in conjunction with
Labor Relations and the Finance and Administrative Division, to put the
Plaintiff on paid administrative leave. The leave began on April 14, 2011.
The Plaintiff disputes the allegation based on Stout’s lack of recollection.
The statements taken by Kirk, between April 5, 2011 and April 14,
2011, were provided to Marie Malek-Robinson, the Fit-For-Duty
Coordinator at IDOT. Typically, when Malek-Robinson receives statements
from a unit of IDOT, she submits the statements to IDOT’s fit-for-duty
physician. The physician then makes the decision as to whether a fit-forduty exam of the employee is necessary.
4
B. Plaintiff’s initial fit-for-duty exams
In this case, Malek-Robinson provided David Fletcher, M.D., with the
statements given to her by Kirk, and Dr. Fletcher determined that a fit-forduty exam was necessary. On April 22, 2011 Dr. Fletcher, following a fitfor-duty exam of the Plaintiff, submitted a report to IDOT finding the
Plaintiff fit for duty but recommending a reevaluation of the Plaintiff in 45
days for continued observation, based on the Plaintiff’s supervisor’s
observation of mood swings and her fast pressurized speech during his
evaluation. Malek-Robinson also attended the fit-for-duty examination.
Dr. Fletcher’s April 22, 2011 report does not indicate that he reviewed any
employee statements in making his determination that Plaintiff was fit-forduty.
During the Plaintiff’s administrative leave but before her first fit-forduty exam, employees continued to come to Mike Stout and Tom Kirk to
describe incidents with the Plaintiff. Although the Plaintiff disputes the
allegation based on Stout’s lack of recollection, Kirk states that five to seven
5
employees talked to him about problems and issues they were having with
the Plaintiff.
After Dr. Fletcher determined that Plaintiff was fit for duty, Kirk
reached out to Marie Malek-Robinson who instructed him to gather more
statements from the employees who had approached him after the Plaintiff
went on administrative leave. This second set includes statements from
seven different employees and is generally more detailed than the first set.
The employees describe the Plaintiff’s outbursts and habit of walking
around the office while talking to herself. Many of the employees expressed
fears for their safety, that they were afraid of being alone with the Plaintiff
in this office and that they feared she might become physically violent.
On May 4, 2011, Stout wrote a memo to Marie Malek-Robinson
detailing his concerns for his employees’ safety if he were to return the
Plaintiff to work at Traffic Safety. Based on a review of the new statements
from employees, both Stout and Kirk believed that employees felt genuinely
threatened by the Plaintiff and that Plaintiff’s continued employment would
be a security risk. Although the Plaintiff disputes this based on Stout’s
6
alleged lack of recollection, Kirk’s affidavit also supports the assertion. Kirk
states that two or three employees were being escorted by security guards to
their cars at the end of the day while the Plaintiff was on administrative
leave because they were fearful of the Plaintiff approaching them while they
left work.
The Plaintiff admitted at her deposition that she had issues with
Traffic Safety employees Amber Biermann, Susan Nevitt, Steve Esslinger,
Isabelle Ziogas, JoAnn Ragland, Julie Cowgill, Cindy Clasing, Courtney Bee,
Debbie Trepainer, Joan Egizii and Colleen Moore.
After receiving the second set of statements from employees, MalekRobinson forwarded the statements to Dr. Fletcher.
Malek-Robinson
testified that “the decision as to whether Deanna Painter needed a fit-forduty examination would have been done by the medical doctor.” On July
18, 2011, the Plaintiff saw Dr. Fletcher for a fit-for-duty second exam.
Following his second exam, Dr. Fletcher stated that he “reviewed additional
documentation that shows disturbing inter-personal skills.” Dr. Fletcher did
not make a fit-for-duty finding at this time. He deferred such a finding
7
pending testing by Dr. Karen Lee, Ph.D., a psychologist. Dr. Fletcher also
expressed a concern that Plaintiff might be bi-polar.
In August 2011, the Plaintiff saw Dr. Karen Lee. Although Dr. Lee
authored a report following her exam of the Plaintiff, Dr. Lee retained the
Plaintiff as a patient thereafter. The Plaintiff testified she understood that
by retaining the Plaintiff as a patient, Dr. Lee created a conflict of interest
and IDOT could no longer rely on her report. IDOT did not receive a copy
of Dr. Lee’s report until litigation began in this matter.
C. Return to work and transfer to Day Labor
On September 26, 2011, the Plaintiff was returned to work and, on
October 1, 2011, the Plaintiff was transferred to Day Labor (another
division of IDOT) as an office administrator. At Day Labor, the Plaintiff’s
supervisor was Stuart Hunt. On November 18, 2011, the Plaintiff was
given an oral reprimand by Hunt for keeping an extensive and detailed log
of her co-workers’ actions and conversations. The Plaintiff made at least
one entry in her log every day between September 26, 2011 and October
27, 2011. During the last week of the Plaintiff’s log, the Plaintiff made
8
several entries per hour.
The Plaintiff’s purpose for the log was to
“document every single thing that was said to [her] so [she] could try to
figure out why [she] was put on leave.” The Plaintiff acknowledged that no
one in her new division, Day Labor, made the decision to put her on paid
administrative leave while she was at Traffic Safety. The Plaintiff’s log
contained descriptions of conversations between co-workers that she
overheard; the Plaintiff believed that co-workers would have conversations
near her on purpose to make sure she overheard them. The Plaintiff used
work time to complete her log.
The Defendant asserts that, during this time period, Hunt began
receiving reports from co-workers complaining of incidents with the
Plaintiff. The Plaintiff admits having issues with Michelle Kelley, who the
Plaintiff claims was her only co-worker in Day Labor. The Plaintiff also had
issued with Lori Perry but claims any such conflict is immaterial because she
did not perform any employment duties with Perry.
Stuart Hunt consulted with Labor Relations regarding the Plaintiff.
Labor Relations recommended that Hunt gather and review statements from
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the employees making the reports about the Plaintiff’s behavior. Hunt
gathered statements and sent them to Ryan Amerson in Labor Relations.
The Defendant alleges that during this period, around October 31,
2011 to November 28, 2011, Hunt began receiving numerous emails from
the Plaintiff, often during the evening and in the middle of the night. The
content of the emails was often not work-related and nonsensical. The
Plaintiff denies that the emails were not work-related. In one email, sent to
Hunt at 8:00 p.m. on October 30, 2011, the Plaintiff discussed several
individuals unknown to Hunt. In one particular paragraph of this email, the
Plaintiff wrote:
I didn’t talk about God their [sic] either – 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. As a
matter of fact, the [sic] who happens to be Barb Whitlow’s
daughter. 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.
The Plaintiff testified that Mike Fitzgerald was a co-worker at Traffic Safety
10
with whom she had once had a conversation about Christian Radio.
Months later, at Day Labor, the Plaintiff overheard co-workers Lori
Perry and Michelle Kelly talking about exorcisms. The Plaintiff believed it
was a possibility her co-workers might have talked to Fitzgerald, found out
about their earlier conversation about Christian Radio, and purposely
brought up Exorcism in a conversation near the Plaintiff to make fun of her.
During this time period, Hunt began recording his own interactions
with the Plaintiff. At some point, after submitting statements as well as his
own documentation of interactions with the Plaintiff to Ryan Amerson of
Labor Relations, Amerson recommended that Plaintiff go on paid
administrative leave. The Plaintiff testified that prior to this administrative
leave, things were going poorly with co-workers. After consulting with his
supervisor,
Rich
Telford,
Hunt
decided
to
accept
Amerson’s
recommendation to put the Plaintiff on paid leave.
According to his affidavit, Hunt’s decision was based on the Plaintiff’s
log, emails that Plaintiff had sent to him and other employees, personal
conversations he had with the Plaintiff and his review of the Plaintiff’s
11
statements. Moreover, Hunt believed that Plaintiff was a safety concern to
the office. In addition, two of his employees, Lori Perry and Michelle Kelly,
expressed to him that they believed the Plaintiff was violent and dangerous.1
D. Additional fit-for-duty exams and Plaintiff’s administrative leave
On November 23, 2011, the Plaintiff was placed on paid
administrative leave. On December 2, 2012 and December 16, 2012, the
Plaintiff saw Terry Killian, M.D., for a fit-for-duty exam.
Dr. Killian
ultimately concluded that, although comments from coworkers and
supervisors suggest substantial behavioral and psychiatric illness, the
Plaintiff was psychiatrically fit for duty. Malek-Robinson did not pass Dr.
Killian’s report on to Painter’s managers.
On January 17, 2012, the Plaintiff returned to her position at Day
Labor at IDOT. Employees, including Michelle Kelly, began submitting
statements about the Plaintiff’s behavior in the work place. Hunt shared
the statements with Labor Relations. The Plaintiff notes that Kelly was the
The Plaintiff disputes these allegations on the basis that Hunt did not
testify as to this. However, the Court notes that affidavits may be cited in
support of a summary judgment motion.
1
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only employee with whom she worked under Hunt. At the end of March
2012, Hunt gave the Plaintiff a written reprimand for being argumentative.
On April 20, 2012, the Plaintiff sent an email to her union
representative, Tim Lynch, which said in part, “for the record, the clock in
the small conference room being set to 4:30 PM when it was only 4:00 PM
– that is a telltale sign for me. It told me everything I needed to know.
Thanks.” Lynch responded that he did not understand what the reference
to the clock meant and that he thought the battery was dead. The Plaintiff
responded to Lynch, “Something’s dead alright–however, I prefer to be ‘a
lady’ and not say what I think is dead.” The Plaintiff included a smiley face
emoticon at the end of the sentence.
The Plaintiff’s email was treated as a potential threat by IDOT and
the Illinois State Police were contacted. The Plaintiff alleges the email
contained no threat.
On April 24, 2012, the Plaintiff was placed on paid administrative
leave. On May 8, 2012, the Plaintiff attended a fit-for-duty examination
with Dr. Killian. Dr. Killian had told the Plaintiff on May 5, 2012 that he
13
“expected to find her fit for duty.” In June 2012, however, Dr. Killian
submitted his report to IDOT, concluding that Plaintiff was “psychiatrically
unfit for duty as a result of paranoid thinking (caused by either paranoid
personality disorder or Delusional Disorder) and the disruptive behavior
which results from her paranoia. Dr. Killian continued “that it is not her
paranoia, per se, that makes her unfit, but rather the highly disruptive
behavior that is resulting from her paranoia.”
Malek-Robinson did not send Dr. Killian’s report to Stuart Hunt. She
simply told Hunt that Dr. Killian had found the Plaintiff unfit for duty.
The Plaintiff was examined by Stephen Dinwiddie, M.D., Professor of
Psychiatry at the Feinberg School of Medicine at Northwestern University,
who was retained by the Plaintiff’s counsel. After examining the Plaintiff,
Dr. Dinwiddie believed she was fit to work. The Defendant contends that
any outside examination and the results thereof are not relevant to the
Plaintiff’s only claim that her IDOT fit-for-duty exams were not a business
necessity. Additionally, Dr. Killian’s 2014 and 2015 examinations of the
Plaintiff are irrelevant.
14
The Plaintiff was hired for employment at the Illinois Department of
Human Services – formerly the Department of Public Aid – as a caseworker
on April 1, 2014. She completed her year of probation and was certified.
The Plaintiff is a caseworker who responded to requests by email or
telephone on what benefits are available.
In an Order entered on September 21, 2015, the Court concluded that
Dr. Killian’s fourth medical exam in July 2015 is not subject to discovery
and is inadmissible.
The Plaintiff asserts that the fit-for-duty exams were not “job-related
and consistent with business necessity,” as required under the statutes. The
Defendant seeks summary judgment on the Plaintiff’s claim for unnecessary
medical examinations.
II. LEGAL DISCUSSION
A. Legal standard
Summary judgment is appropriate if the motion is properly supported
and “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The
15
Court construes all inferences in favor of the non-movant. See Siliven v.
Indiana Dept. of Child Services, 635 F.3d 921, 925 (7th Cir. 2011). To
create a genuine factual dispute, however, any such inference must be based
on something more than “speculation or conjecture.” See Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (citation omitted).
Because summary judgment “is the put up or shut up moment in a lawsuit,”
a “hunch” about the opposing party’s motives is not enough to withstand
a properly supported motion. See Springer v. Durflinger, 518 F.3d 479,
484 (7th Cir. 2008). Ultimately, there must be enough evidence in favor
of the non-movant to permit a jury to return a verdict in her favor. See id.
B. Fit-for-Duty Exams as a Business Necessity
(1)
The ADA states in pertinent part:
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and
shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as to the nature or
severity of the disability, unless such examination or inquiry is
shown to be job-related and consistent with business necessity.
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(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations,
including voluntary medical histories, which are part of an
employee health program available to employees at that work
site. A covered entity may make inquiries into the ability of an
employee to perform job-related functions.
42 U.S.C. § 12112(d)(4)(A-B). The Seventh Circuit has stated:
The EEOC enforcement guidelines state that a medical
examination is job-related and consistent with business necessity
when an employer has a reasonable belief based on objective
evidence that a medical condition will impair an employees’s
ability to perform essential job functions or that the employee
will pose a threat due to a medical condition. We have
acknowledged that inquiries into an employee’s psychiatric
health may be permissible when they reflect concern for the
safety of employees and the public at large.
Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 565 (7th Cir. 2009)
(internal quotation marks omitted).
The Plaintiff contends that the Court should adopt the Sixth Circuit
rule and, pursuant to Kroll v. White Lake Ambulance Authority, 763 F.3d
619 (6th Cir. 2014), require identification of the employee making the
decision for the medical examination and the objective evidence that the
employee threatens a vital business function. See id. at 623.
17
Although the court in Kroll states that “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,” see id., the court does not affirmatively state that the
decision-maker must be identified. Even assuming that Kroll stands for the
proposition that identification is required, the Court is not persuaded by the
Sixth Circuit’s analysis given that the statutory language has no such
requirement and the Seventh Circuit has not adopted such a rule.
The Defendant contends that each of the fit-for-duty exams was jobrelated and consistent with business necessity. The April 22, 2011 exam
followed an incident involving the Plaintiff and Amber Biermann. The
Plaintiff loudly accused Biermann of prank calling her at the office. Other
employees stated that Plaintiff had accused them of spying on her at work.
The Plaintiff admitted having issues with several employees. Dr. Fletcher
found the Plaintiff fit for duty but recommended a re-evaluation in 45 days.
Employees continued to submit statements concerning the Plaintiff’s
behavior. Some employees reported being worried about being alone with
18
the Plaintiff in the office. In a May 4, 2011 memo to Marie MalekRobinson, Mike Stout discussed his concerns for his employees’ safety if the
Plaintiff returned to work. The Plaintiff acknowledged having issues with
more than ten employees. Based on a review of the statements, Both Stout
and Tom Kirk stated they believed that employees felt threatened by the
Plaintiff.
Marie Malek-Robinson forwarded the statements to Dr. Fletcher, who
on July 18, 2011 saw the Plaintiff for a second fit-for-duty exam. Although
he did not make a fit-for-duty finding, Dr. Fletcher stated in his report that
he “reviewed additional documentation that shows disturbing inter-personal
skills” and referred the Plaintiff to Dr. Lee.
The Plaintiff returned to work in September 2011 and began working
at Day Labor in October 2011. The Plaintiff kept a daily log of co-worker
interactions and overheard conversations. The Plaintiff reported having
issues with Michelle Kelly and Lori Perry and her supervisor, Stuart Hunt.
Hunt reported receiving strange emails from the Plaintiff that were not
work-related.
Hunt submitted employee statements and his own
19
documentation to Ryan Amerson, who recommended that Plaintiff be
placed on leave. After talking to his supervisor, Rich Telford, Hunt accepted
Amerson’s recommendation based on several considerations, including the
Plaintiff’s log, emails she had sent, personal conversations with the Plaintiff
and his review of employee’s statements. Hunt believed the Plaintiff was a
safety concern.
On November 23, 2011, the Plaintiff was placed on administrative
leave. On December 2 and 16, 2011, the Plaintiff saw Dr. Killian for a fitfor-duty exam.
Dr. Killian ultimately concluded that, although the
comments and supervisors might suggest substantial behavioral and
psychiatric illness, the Plaintiff was psychiatrically fit for duty.
The Plaintiff returned to work on January 17, 2012. In April 2012,
the Plaintiff sent an email to Tim Lynch, a union representative, regarding
the clock being changed. When Lynch responded that he thought the
battery was dead, the Plaintiff replied “something’s dead alright – however,
I prefer to be a ‘lady’ and not say what I think is dead,” and the Plaintiff
added a smiley face emoticon.
20
IDOT interpreted the Plaintiff’s email as a potential threat and she
was placed on leave on April 24, 2012. On May 8, 2012, the Plaintiff saw
Dr. Killian for a fit-for-duty exam. In June 2012, Dr. Killian submitted a
report, concluding that Plaintiff was “psychiatrically unfit for duty as a
result of paranoid thinking (caused by either paranoid personality disorder
or Delusional Disorder) and the disruptive behavior which results from her
paranoia.”
(2)
The record establishes that prior to each leave and subsequent exam,
multiple employees raised concerns about the Plaintiff’s behavior in the
workplace. A number of employees felt unsafe around the Plaintiff. Certain
employees did not want to be alone around her and some were afraid to
walk to their cars at night. The Plaintiff shouted at her co-workers, talked
in a fast-paced manner and talked to herself at times. The Plaintiff’s
supervisors considered the employees’ statements and their own interactions
before determining that Plaintiff was a security risk to the other employees.
21
The plaintiff in Coffman was a firefighter. 578 F.3d at 561. A
number of firefighters expressed concerns about the plaintiff’s well-being,
noting she had difficulty socializing and asking for help, was “often alone or
withdrawn” and seemed “defensive” for “no legitimate reason.” See id. at
562. The plaintiff was sent for a “fitness for duty psychological evaluation.”
See id.
The psychologist determined that although the plaintiff was
unhappy with some aspect of her work life, she was not suffering from any
psychological disorder. See id. The doctor recommended therapy and a
light duty assignment. See id.
The therapist found nothing that would prevent the plaintiff from
doing her job and recommended another fitness for duty evaluation. At the
second exam, the second doctor found the plaintiff to be unfit for duty after
observing her “acting out in an immature and hostile manner” and observing
her to be “extremely resistant.” Id.
The plaintiff was evaluated one month later by another doctor, who
found that she was prepared to return to light-duty status for three or four
22
weeks. See id. Five weeks later, the same doctor found the plaintiff to be
fit for active duty. See id.
The plaintiff in Coffman claimed that no objective evidence supported
the defendants’ decision to refer her for the fit-for-duty exams. See id. at
565. The court observed that plaintiff’s well-being was essential not only
to her safety but to the safety of the public at large and, therefore, the
department had a “particularly compelling interest in assuring that she was
both physically and mentally fit to perform her duties.” Id. The court cited
examples of multiple firefighters expressing concern about the plaintiff’s
behavior and determined that the fit-for-duty exams were consistent with
a business necessity. See id. at 565-66.
The Defendant’s decision here in directing the Plaintiff to undergo fitfor-duty exams is based on some of the same factors as in Coffman.
Specifically, it was based on the statements of co-workers about the
Plaintiff’s behavior and the observations of supervisors. Each leave and fitfor-duty exam was based on some new incident of behavior. Generally,
more than one individual complained about the Plaintiff’s behavior. The
23
decision to act was consistent with business necessity.
The Plaintiff states that a jury could conclude that the Defendant was
using the mental health examination process to attempt to preclude the
Plaintiff from working after the Defendant lost the grievance pertaining to
the Plaintiff’s discipline under the union contract. That discipline was for
the Plaintiff keeping notes of her encounters with other employees which,
the Plaintiff contends, is exactly what employees such as Michelle Kelly did.
Additionally, the Plaintiff claims that the Reprimand of April 23, 2012 was
for “unprofessional tone,” without any specification of what was said or
what about the tone warranted discipline. The Plaintiff contends these
matters are not vital to the operation of IDOT. Instead, they are petty
workplace disputes that occurred because the Plaintiff’s supervisor, Stuart
Hunt, was consistently deciding against her.
The Court disagrees. As previously noted, the Defendant gathered
significant amounts of information before directing the Plaintiff to receive
a mental health examination. The Plaintiff has not challenged the accuracy
of this information or rebutted the statements of co-workers. The record
24
establishes that due to a number of different occurrences, other employees
and supervisors had legitimate concerns that Plaintiff’s behavior could pose
a threat.
Regarding the email exchange about the stopped clock and the
Plaintiff’s statement, “Something’s dead alright – however, I prefer to be a
‘lady’ and not say what I think is dead,” the meaning of that statement
presumably is known only to the Plaintiff. It may have been an attempt at
humor as the Plaintiff testified. However, it was not unreasonable for the
Defendant to treat the email as a threat. That led to the Plaintiff’s May 8,
2012 fit-for-duty exam with Dr. Killian, after which he found her to be
“psychiatrically unfit for duty.”
The Defendant acted reasonably in taking action following that
incident, just as it did in responding to other incidents by referring the
Plaintiff to fit-for-duty exams.
Accordingly, the Defendant has established that the fit-for-duty exams
were job-related and consistent with business necessity, given that the
Defendant had a reasonable belief based on objective evidence that a
25
medical condition would impair the Plaintiff’s ability to perform essential
job functions or that the Plaintiff would pose a threat due to a medical
condition.
(3)
The Plaintiff also contends that a jury could find there is evidence of
doctor shopping on the part of the Defendant, in order to ensure that
Plaintiff would be taken off work. The Plaintiff notes that practice is
prohibited in worker’s compensation cases and in other contexts.
There is no basis to believe that the Defendant was doctor shopping.
The Defendant sent the Plaintiff to Dr. Fletcher a second time in July 2011
after he previously found the Plaintiff to be a fit for duty in April 2011.
Additionally, the Defendant sent the Plaintiff to Dr. Killian a second time
in May 2012 after he had previously found her to be fit for duty in
December 2011.
As the Defendant contends, if it actually had been doctor shopping,
the Defendant would not have sent the Plaintiff back to either doctor after
both doctors had previously found her to be fit for duty. Rather, the
26
Defendant would have searched for another doctor in order to obtain the
desired result. Accordingly, there is no basis to find that Defendant was
doctor shopping in order to ensure that Plaintiff would be removed from
work.
(4)
The Plaintiff also alleges she suffered an adverse action of prohibited
medical examinations and was off work from June 26, 2012 until April 1,
2014. The Plaintiff contends that because the medical examination was not
justified by business necessity, this constituted an adverse employment
action given that the Plaintiff suffered a loss of employment and the
associated compensation and benefits.
As the Court earlier found, the medical examinations were justified by
business necessity. Accordingly, the Plaintiff cannot show that she suffered
the adverse action of prohibited medical examinations over the nearly two
years when she was on disability leave without income.
Based on the foregoing, upon viewing the evidence in a light most
favorable to the Plaintiff, there is a no genuine issue of material fact. The
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Defendant is entitled to summary judgment because IDOT had a business
necessity for sending the Plaintiff to fit-for-duty exams.
III. CONCLUSION
The Plaintiff has withdrawn her disability discrimination and
retaliation claims.
Upon viewing the evidence in a light most favorable to the Plaintiff,
the Court concludes there are no genuine issues of material fact and
summary judgment is appropriate on the Plaintiff’s claims for medical
examinations. The Defendant’s actions were based on legitimate concerns
and its employees reasonably responded to the situation which they
encountered. Each fit-for-duty exam was job-related and consistent with
business necessity, as required under the ADA and Rehabilitation Act.
Ergo, the Defendant’s Motion for Summary Judgment [d/e 58] is
ALLOWED.
The final pretrial conference and trial settings are Canceled.
The Clerk will enter Judgment in favor of the Defendant and against
28
the Plaintiff.
Upon entry of Judgment, the Clerk shall terminate this case.
ENTER: July 20, 2016
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge
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