Anthony et al v. Village of South Holland et al

Filing 38

MEMORANDUM Opinion and Order. Signed by the Honorable Joan B. Gottschall on 11/8/2013. Mailed notice(meg, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RICK ANTHONY and MAJOR
COLEMAN III,
Plaintiffs,
v.
VILLAGE OF SOUTH HOLLAND and,
WARREN MILLSAPS,
Defendants.

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Case No. 13 C 3068
Honorable Joan B. Gottschall

MEMORANDUM OPINION & ORDER
Plaintiff Rick Anthony is a police officer in the Village of South Holland. On April 23,
2013, he sued the Village, alleging unlawful racial discrimination and retaliation. Anthony now
moves for a temporary restraining order and preliminary injunction prohibiting the Village from
requiring Anthony to submit to a fitness-for-duty psychological examination. He also seeks to
enjoin the Village from disclosing his mental health records. He contends that the Village has
ordered the fitness-for-duty examination to unlawfully retaliate against him for complaining
about racial discrimination and for filing this lawsuit. For the following reasons, the motion is
granted in part and denied in part. The court will not enjoin the Village from requiring Anthony
to submit to a fitness-for-duty examination, but, as discussed below, the examination procedures
must comply with the Illinois Developmental Disabilities and Mental Health Confidentiality Act
(“Confidentiality Act”).

I. BACKGROUND
On July 6, 2013, Anthony attended a roll call supervised by Lieutenant James Tavernaro.
Several months earlier, Anthony had requested to take a vacation day on the 4th of July. The
Village denied his request. At the July 6 roll call, Anthony asked Tavernaro why he had to work
on the 4th of July while another officer was allowed to take the day off. Tavernaro told Anthony
that he should take the grievance up with the Chief of Police. Anthony told Tavernaro, “This is
bullshit.” According to Tavernaro, Anthony stated that he knew that the other officer did not
have to work because Anthony was “brown” and the other officer was not. (Def.’s Br. Ex. 1
(Tavernaro Decl.) ¶ 11.)1
Anthony then threw a cup of coffee toward a wastebasket, but the cup landed on the
floor. Tavernaro told Anthony to clean up the coffee. Anthony responded that “the maintenance
personnel could clean it up, and [he] was not clearing up shit.” (Pl.’s Br. Ex. 3 (Anthony Decl.)
¶ 12.) Anthony then cleaned up the spill and told Tavernaro that he was experiencing anxiety
and requested a personal illness day. Tavernaro asked Anthony if was able to drive home, and
Anthony told him that he would sit in his car for a short time and then drive home. According to
Tavernaro, Anthony also told him that Anthony was having a panic attack and that he was “liable
to hurt someone if he stayed on duty.” (Tavernaro Decl. ¶ 16.)
The next day, Chief of Police Gregory Baker called Anthony into his office. Baker told
Anthony that he had heard about the incident that had occurred the day before and that Anthony
would be suspended sixty days without pay until Baker investigated the incident. Baker later
ordered Anthony to take a fitness-for-duty psychological examination on September 5, 2013,

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The Village has indicated that the reason the other officer did not work on the 4th of July was
because the other officer works as an undercover officer for the U.S. Drug Enforcement Agency
(“DEA”). As such, the DEA controls his schedule.
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with Dr. Eric Ostrov. (Pl.’s Br. Ex. 8 (Exam Order).) The Exam Order stated that Baker was
ordering the exam because Anthony was seeing a physician for anxiety and because of his
“bizarre interaction with Lieutenant Tavernaro on or about July 6, 2013.” (Id.) Before the exam,
Anthony was provided with a release authorizing Dr. Ostrov to “fully release any/all
conclusion(s) as well as the information upon which the conclusion(s) is/are based that he
obtains/concludes as to my psychological fitness . . . .” (Id. Ex. 10 (Ostrov Release).) Anthony’s
attorney advised Anthony that he believed the release did not comply with the Health Insurance
Portability and Accountability Act (“HIPAA”). In light of Anthony’s concerns about the release,
Dr. Ostrov declined to go forward with the examination.
Baker then ordered Anthony to take the examination with Dr. Sayed I. Ali on September
27, 2013. At that examination, Anthony was provided with a different release. This release
stated:
I also understand that the professionals performing the evaluation may
communicate with my employer and others involved in processing the
consultation. In other words, privileged communication/confidentiality does not
apply because examiners will report and discuss any/all information and findings
with those who have a need to know.
(Id. Ex. 12 (Ali Release).) This time, Anthony signed the release, but wrote below his signature
that he reserved the right to challenge the legality of the scope of the release. In light of this
reservation, Dr. Ali also declined to go forward with the examination.
Baker then suspended Anthony without pay for insubordination and asked Anthony to
explain the basis for his challenge to the medical release. On October 1, 2013, Anthony’s
attorneys submitted a memorandum to Baker and Village attorney Thomas McGuire explaining
Anthony’s objections to the release. At the same time, Anthony provided Baker and McGuire
with an executed release that was satisfactory to Anthony. In an email to Anthony’s attorney,
McGuire stated that Anthony’s proposed release was “unacceptable” because it was “too
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cumbersome and contains too many loopholes.” (Id. Ex. 13 (Oct. 4, 2013, Email from McGuire
to Ray Garza).) McGuire stated that the medical release “must irrevocably authorize the release
of Dr. Ali’s report stating whether or not Officer Anthony is fit to perform the duties of a Patrol
Officer . . . .” (Id.)
Anthony remains suspended without pay. On October 29, 2013, Anthony moved for a
temporary restraining order and preliminary injunction prohibiting the Village from requiring
Anthony to submit to the examination and to consent to the Village’s medical release as part of
that examination. He claims that the Village has unlawfully retaliated against him in violation of
the First Amendment and Title VII, 42 U.S.C. § 2000e, et seq. He also claims that the release
that the Village has required him to execute violates HIPAA and the Confidentiality Act.
II. LEGAL STANDARD
A “preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Boucher v.
Sch. Bd. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998). The standards for issuing temporary
restraining orders are identical to the standards for preliminary injunctions. See Bernina of Am.,
Inc. v. Fashion Fabrics Int’l, Inc., No. 01 C 585, 2001 WL 128164, at *1 (N.D. Ill. Feb. 9,
2001). To obtain either a temporary restraining order or a preliminary injunction, Anthony must
show that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3)
the harm he would suffer is greater than the harm that the temporary restraining order would
inflict on the defendants; and (4) the temporary restraining order is in the public interest. Judge
v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). “[T]he more net harm an injunction can prevent,
the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary

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relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721,
725 (7th Cir. 2009).
Anthony brings retaliation claims under Title VII and the First Amendment. A plaintiff
may establish unlawful retaliation under Title VII using either the direct or indirect method of
proof. Under the direct method, Anthony must demonstrate that (1) he engaged in a statutorily
protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal
connection exists between the two. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
Under the indirect method, the first two elements remain the same, but instead of proving a direct
causal link, Anthony must show that he was performing his job satisfactorily and that he was
treated less favorably than a similarly situated employee who did not complain of discrimination.
Id. at 786-87. If Anthony establishes the prima facie case under the indirect method, the Village
must articulate a nondiscriminatory reason for its action; if it does, the burden remains with
Anthony to demonstrate that the Village’s reason is pretextual. Id. at 787.
To establish a prima facie case of First Amendment retaliation, Anthony must allege that
his speech was constitutionally protected, he suffered a deprivation likely to deter free speech,
and his speech was a factor motivating the deprivation. Massey v. Johnson, 457 F.3d 711, 716
(7th Cir. 2006). If he makes this threshold showing, then the burden shifts to the Village to show
that retaliation was not the but-for cause for the firing. Id. at 717. If the Village carries that
burden, then Anthony must demonstrate that the Village’s reason is pretextual. Id. at 717.
III. ANALYSIS
A. Retaliation Claims
Anthony advances a number of reasons that he says demonstrate that he is likely to
succeed on the merits of his retaliation claims. He first points to the timing of his suspension.

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Anthony filed the complaint in this case on April 23, 2013. The court held an initial status
hearing on June 25, 2013, and Baker suspended Anthony on July 7, 2013. Anthony also asserts
that the Village’s reasons for ordering the psychological examination were pretextual. While
Baker claimed to order the examination in part because Anthony’s attorney told McGuire that
Anthony was being treated for anxiety, Anthony claims that the Village has known about
Anthony’s anxiety for years.
Anthony also accuses the Village and its attorneys of engaging in a pattern of retaliating
against him. He points to an incident in 2006 when, shortly after filing a discrimination charge
against the Village with the Illinois Department of Human Rights, Anthony was served with an
order from then Chief of Police Millsaps. The order required Anthony to be interviewed about
several topics, including why Anthony believed that the Village was prejudiced against him.
(Pl.’s Br. Ex. 2 (Sept. 28, 2006 Memo) ¶ 7.) Anthony contends that he was interrogated in a
hostile manner during the interview.
Anthony also relies heavily on the case of McGreal v. Ostrov, 368 F.3d 657 (7th Cir.
2004). In McGreal, the plaintiff claimed that the Village of Alsip retaliated against him by
ordering him to undergo a fitness-for-duty examination. Id. at 668. McGreal was ordered to
meet with the same Dr. Ostrov that Anthony was ordered to meet with in this case, who was
hired by the same attorney, Thomas McGuire. Id. McGreal was also ordered to sign a waiver of
his right to privacy under the threat of termination. Id.
Dr. Ostrov then wrote a 21-page evaluation of McGreal, which contained “a great deal of
personal information about McGreal’s family life, some of it very sensitive.” Id. at 687. He
forwarded the report to the Alsip Chief of Police, its Field Operations Manager, and McGuire,

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without labeling the report “confidential.” Id. McGreal then filed a complaint against Ostrov
under the Confidentiality Act arising from the dissemination of Ostrov’s report. Id. at 671.
The district court dismissed the Confidentiality Act claim. On appeal, the Seventh
Circuit reversed, holding that the Confidentiality Act’s provisions applied. Id. at 688. The court
noted that “[t]he Confidentiality Act contains no disclosure exception for police departments
performing mental health examinations to determine fitness for duty.” Id. The court further
noted that although the Confidentiality Act does allow for disclosure on consent, the form used
for McGreal did not meet the standards set forth by Illinois law. Id. (citing 640 Ill. Comp. Stat.
110/5(b)). The court held that “defendants were not entitled under Illinois law to force the
disclosure of the intimate and irrelevant details of McGreal’s home life.” Id. at 690.
The Village contends that Anthony’s case is distinguishable from McGreal because of
Anthony’s admitted anxiety and his alleged statement about hurting himself and others. The
Village claims that Baker suspended Anthony not to retaliate against him, but because of his
outburst during the July 6 incident.

In support of its position, the Village has submitted

affidavits from Lieutenant Tavernaro and three other police officers who witnessed the July 6
incident. (See Def.’s Br. Exs. 1-4.)
According to Tavernaro, Anthony came to his office after the incident and told him that
he was sick and experiencing an anxiety attack. He then told Tavernaro that he was having a
panic attack and that he was “liable to hurt someone if he stayed on duty.” (Id. Ex. 1 (Tavernaro
Aff.) ¶ 16.) Marita Patterson, another officer at the roll call, states that she overheard Anthony
tell Tavernaro that Anthony needed to go home because he was having an anxiety attack and that
he was afraid that he was going to hurt himself or someone else. (Id. Ex. 3 (Patterson Aff.).)
The other two officers, Brodrick Burke and Marcel Hartwell, were not present when Anthony

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allegedly told Tavernaro that he might hurt someone, but their versions of the July 6 incident are
otherwise consistent with Tavernaro’s. (Id. Exs. 2, 4.) Chief Baker also submitted an affidavit
in which he states that he was notified that Anthony told Tavernaro that he was suffering from
anxiety and that he was going to hurt himself or someone else. (Id. Ex. 5 ¶ 14.) Baker says that
this was the sole basis for his request for a fitness-for-duty examination.
Based on the record before it at this point in time, the court cannot conclude that Anthony
has demonstrated a likelihood of success on his retaliation claims. The Village has articulated
legitimate reasons for suspending Anthony and requiring him to undergo a fitness-for-duty
examination, and Anthony has not shown that these reasons are pretextual. The timing of the
suspension cuts in favor of the Village, not Anthony, who filed his complaint on April 23, 2013.
The Village took no action against him until July 7, 2013, immediately after Anthony told
Tavernaro that he was experiencing anxiety and needed to take a personal illness day. Anthony
does not dispute this. The fact that the Village may have known about Anthony’s anxiety issues
before July 6 does not show that the Village’s reasons were pretextual, given the seriousness of
the July 6 incident.
Even if Anthony were likely to succeed on the merits, he also has not shown that the
harm he would suffer is greater than the harm that would be inflicted on the Village were the
temporary restraining order issued, or that a temporary restraining order is in the public interest.
Anthony notes that he has an unblemished record and has received numerous commendations,
but he ultimately agrees that there is a strong public interest in assuring that police officers have
the psychological ability to perform their duties. See Krocka v. City of Chi., 203 F.3d 507, 515
(7th Cir. 2000) (“The position of Chicago police officer certainly presents significant safety
concerns, not only for other CPD employees but for the public at large.

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It was entirely

reasonable, and even responsible, for CPD to evaluate [plaintiff’s] fitness for duty once it learned
that he was experiencing difficulties with his mental health.”)

The court finds that the

extraordinary remedy of compelling a police department to reinstate an employee who
admittedly suffers from anxiety without first undergoing a fitness-for-duty examination would
not be appropriate, especially in light of the scant evidentiary record before the court at this time.
B. HIPAA / Confidentiality Act Claims
Anthony also requests that if he must undergo a psychological evaluation, that he not be
compelled to sign an irrevocable release of his mental health records. The court finds that
Anthony is entitled to a preliminary injunction prohibiting the Village from requiring him to
“irrevocably” release his mental health records. The Confidentiality Act expressly requires that a
consent form must include “the right to revoke the consent at any time.” 740 Ill. Comp. Stat.
110/5(b). It also must specify (1) the person or agency to whom disclosure is to be made; (2) the
purpose for which disclosure is to be made; (3) the nature of the information to be disclosed; (4)
the right to inspect and copy the information to be disclosed; (5) the consequences of a refusal to
consent, if any; and (6) the calendar date on which the consent expires. Id.; see also McGreal,
368 F.3d at 688 (finding that the Confidentiality Act applied to McGreal’s fitness-for-duty
examination and that the consent form did not meet standards set forth by Illinois law).
There can be no serious dispute that the Village’s consent form does not conform to these
requirements, and, indeed, the Village does not argue that it does. (See Def.’s Br. at 11.)
Instead, the Village argues that Anthony has not exhausted his administrative remedies on this
issue, that disclosure to certain parties is necessary to determine whether Anthony suffered a
non-duty or duty-related mental illness, and that he has waived any privilege under the
Confidentiality Act by placing his mental condition in issue. Each of these arguments is flawed.

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Anthony appears to be diligently exhausting his administrative remedies.

He has

demonstrated that, ultimately, he would likely succeed on the merits of his claim, and the Village
cannot compel him to sign an illegal release simply because it scheduled his psychological
examination before he could exhaust all administrative remedies. Furthermore, as the court
noted in McGreal, “[t]he Confidentiality Act contains no disclosure exception for police
departments performing mental health examinations to determine fitness for duty.” 368 F.3d at
688. Nor has Anthony waived his rights simply by speaking with Tavernaro, as he has not
“introduce[d] his mental condition as an element of his claim or defense” in a civil or
administrative proceeding. See 740 Ill. Comp. Stat. 110/10(a)(1).
Anthony has shown a likelihood of success on the merits of this claim. He has also
demonstrated an irreparable injury, given the serious privacy concerns that are at stake. See
McGreal, 368 F.3d at 688 (noting that Ostrov’s 21-page report contained very sensitive
information about McGreal’s personal life). This harm outweighs any harm that would be
suffered by the Village, especially because Anthony has agreed that if he is determined to be
unfit, this finding may be communicated to the Chief of Police. See id. at 688-89. (“The Court
also noted that it was in the public interest to zealously guard against erosion of the
confidentiality provision. . . . ‘[A]nyone seeking the nonconsensual release of mental health
information faces a formidable challenge and must show that disclosure is authorized by the
Act.’”) (quoting Norskog v. Pfiel, 755 N.E.2d 1, 10 (Ill. 2001)).
The court finds that Anthony is entitled to a preliminary injunction prohibiting the
Village from requiring him to irrevocably release his mental health records.2

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Both parties have informed the court that they are not requesting a hearing on the preliminary
injunction motion at this time. See Dkt. [36]. If, in light of this opinion, the Village wishes the
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IV. CONCLUSION
For the reasons stated above, Anthony’s motion for a temporary restraining order and
preliminary injunction is granted in part and denied in part. Anthony is directed to present the
court with a proposed order that is consistent with this opinion. At the time the order is
presented, the parties should address what amount of security, if any, they consider proper under
Federal Rule of Civil Procedure 65(c).

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: November 8, 2013

court to hold a hearing on the motion for a preliminary injunction, it should request a hearing
within fourteen days of the issuance of this opinion.
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