Doe v. Ann Arbor Public Schools et al
Filing
33
OPINION & ORDER denying Plaintiff's 13 Motion for Preliminary Injunction. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIANNE DOWN,
Case No. 14-10086
Plaintiff,
Honorable Nancy G. Edmunds
v.
ANN ARBOR PUBLIC SCHOOLS, ET AL,
Defendants.
/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION [13]
At a hearing held on July 1, 2014, this matter came before the Court on Plaintiff’s
motion for a preliminary injunction. (Dkt. 13.) Plaintiff’s complaint alleges one federal
(violation of Fourth Amendment rights) and one state law claim (violation of Michigan’s
Persons With Disabilities Civil Rights Act, as amended, Mich. Comp. Laws § 37.1101, et
al.). Plaintiff’s motion seeking a preliminary injunction addresses her federal civil rights
claim, brought pursuant to 42 U.S.C. § 1983, alleging that Defendants’ requirement that
Plaintiff submit to an Independent Medical Examination conducted by a psychologist
violates her Fourth Amendment right prohibiting unreasonable searches and seizures.
Plaintiff filed her complaint and initial motion for a temporary restraining order (“TRO”)
and preliminary injunction on January 9, 2014. (Dkt. 1, 3.) Plaintiff subsequently withdrew
her motion for a TRO and preliminary injunction because the parties agreed that the
medical examination would be postponed.
On May 22, 2014, Plaintiff filed a renewed motion for a TRO and preliminary
injunction. (Dkt. 13.) At a status conference held that same day, the Court informed
Plaintiff that her motion for a TRO was denied, and she should proceed on her renewed
motion for a preliminary injunction as set out in the Court’s detailed Scheduling Order.
(Dkt. 15.) This matter is now before the Court.
Because Plaintiff has not met her burden, her motion for preliminary injunction is
DENIED.
I.
Findings of Fact
1. Plaintiff Dianne Down applied for a position with the Ann Arbor Public Schools
(“AAPS”) and was hired in September 1999. (Def.’s Ex. 501, 9/14/99 Appl.)
2. Upon being hired, Dianne Down was provided a series of documents, including
the master agreement between AAPS and the applicable union. (Def.’s Ex. 501, 9/14/99
Appl.)
3. After her first semester of teaching, Ms. Down received a performance review. It
was generally positive, although it stressed certain areas in which improvement was
necessary, i.e., that she should “work on classroom management, which would lessen the
student/teacher confrontation.” (Def.’s Ex. 502, 12/08/99 Prof. Staff Eval. at 4.)
4. Out of concern for Plaintiff’s continued development and correction of any issues,
the AAPS placed Plaintiff on an individualized development plan (“IDP”) for the 2000-2001
school year. (Def.’s Ex. 503, 5/17/01 IDP Type: Developmental (Probationary).)
5. On October 22, 2004, the AAPS issued a formal written reprimand to Plaintiff for
her conduct toward a particular student. It summarized an incident involving two students
that occurred in Plaintiff’s classroom. Rather than stop the name-calling from the initiating
student, Plaintiff joined in against the targeted student, telling him to “Shut up, chipmunk,”
2
which was one of the names the targeted student was called by the initiating student.
(Def.’s Ex. 504, 10/22/04 Ltr. of Reprimand from Huron High Sch. Asst. Principal.)
6. Plaintiff received additional IDPs for the 2004-2005 school year and the 2005-2006
school year. (Def.’s Ex. 505, 11/22/04 IDP Type: Enhancement (Tenured teacher wit
satisfactory evaluation); Ex. 506, 4/24/06 Prof. Staff Eval.)
7. Cynthia Ryan, Executive Director of Human Resources for the Ann Arbor School
District, testified at the July 1, 2014 hearing. The Court found her to be a credible witness.
8. According to Cynthia Ryan’s testimony, which this Court found credible, IDPs are
not issued for every teacher for each year of their employment. Rather, they are generally
issued only for teachers having difficulty with student/parent complaints about teaching
performance and/or class management issues. Plaintiff’s multi-year IDP (Def.’s Ex. 505)
was issued because she exhibited areas that needed improvement, i.e., teaching
performance and classroom management skills.
9. During the summer of 2008, Plaintiff was contracted to teach mathematics during
summer school.
Several students, however, complained about her performance
deficiencies, withdrew from Plaintiff’s class, and forfeited their $250 enrollment fees. The
Co-Summer School Principals subsequently informed Plaintiff that “[t]he withdrawal and
forfeitures causes a significant adverse effect on students, families, and the Ann Arbor
Public School System; and, “[a]s a consequence of your behavior your supplemental
contract for summer school teaching programs shall not be renewed.” (Def.’s Ex. 507,
10/23/08 ltr. from Co-Summer School Principals.) It also reminded Plaintiff that she had
“been placed on notice, and received Individualized Development Plan goals in the past,
to decrease the number of student withdrawals from your classroom.” (Id.) As Ms. Ryan
3
testified at the July 1, 2014 hearing, there were numerous student/parent complaints about
Plaintiff’s performance and classroom management during summer school in 2008.
10.
On October 23, 2008, Plaintiff received a written letter of reprimand from the
Co-Summer School Principals for demeaning behavior directed to students and was
“placed on notice that similar incidents in the future could lead to discipline up to and
including discharge.” (Def.’s Ex. 509, 10/23/08 ltr of reprimand.) The letter of reprimand
informed Plaintiff that, on July 16, 2008, a student and his mother filed a formal complaint
about Plaintiff’s behavior. They characterized Plaintiff as “a very rude teacher” who
reportedly interrupted repeatedly in a phone conversation, caused the student to “feel
humiliated, ignorant, and stupid” by yelling at him, telling him that hers was not a calculator
class, not providing the student with assistance, and embarrassing him by commenting that
he probably wanted a bathroom pass so he could make a phone call. (Id.) Plaintiff was
further notified that she had “continually received reoccurring parental complaints, that she
received IDPs for the 2004-2005 and 2005-2006 school years that included the objective
of allowing “students to feel free to discuss with teacher areas of concern without feeling
demeaned,” and was reminded that “[e]stablishing a positive rapport with parents is an
integral part of your job duties.” (Id.)
11.
On October 2, 2008, Plaintiff received a written letter of reprimand from the
Assistant Principal of Huron High School, Virginia Bell, for failing “to maintain appropriate
standards of professional behavior when you participated in a student conversation about
another student’s negative behavior” on September 2, 2008. (Def.’s Ex. 508, 10/2/08 ltr.
of reprimand.) The letter of reprimand also warned Plaintiff that “[f]ailure to behave in a
professional way in the future will result in further discipline up to and including termination.”
4
(Id.) Ms. Ryan testified that Assistant Principal Bell investigated the allegations before
issuing the letter of reprimand.
12.
On October 8, 2013, Plaintiff met with Dr. Arthur Williams, the Principal of
Huron High School. They discussed various parent and student complaints about her
interactions with students. (See, e.g., Pl.’s Ex. 112-16 through 112-22, parent emails
detailing complaints about Plaintiff and inquiring about the School District’s response to
those complaints.) Plaintiff submitted a written response to those complaints on October
13, 2013. (Pl.’s Mot., Ex. 4, 10/13/13 Ltr. Resp. from Plaintiff.) Ms. Ryan testified that she
spoke with Plaintiff about the parent/student complaints in October 2013 and reviewed
Plaintiff’s written response.
13.
On November 20, 2013, Plaintiff was sent a written letter of reprimand from the
Principal of Ann Arbor’s Huron High School, Dr. Williams. (Def.’s Ex. 510, 11/20/13 ltr. of
reprimand.) The letter notified Plaintiff that she was being reprimanded for “inappropriate
behavior and failure to exercise the professional judgment of an Ann Arbor Public Schools
employee.” (Id. at 1.) Principal Williams informed Plaintiff that he had completed “a
thorough investigation of the 16 parent complaints and 8 student complaints that were
discussed at a meeting held on October 8, 2013.” (Id.) Complaints demonstrating Plaintiff’s
“unprofessional conduct” were placed into three categories: (1) Plaintiff’s statements during
Huron Capsule Night “to multiple parents that you were irritated with Huron High School
administration” for assigning you to a teach a certain math class with a curriculum that you
had not been exposed to for over 30 years; (2) Plaintiff’s “numerous rude, sarcastic and
intimidating comments to students when they pose[d] questions to [Plaintiff] about the
material;” and (3) Plaintiff’s “wasting class time by divulging inappropriate items about [her]
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own personal life, such as your husband beating you, and a parent relayed that her children
felt very insulted when you stated that it was your own personal belief that homosexuality
is wrong and should not be accepted.” (Id.)
Plaintiff was also reminded that this was not her first written reprimand, she had
received written reprimands on October 22, 2004; on October 2, 2008; and on October 23,
2008. (Id. at 2.) It concluded by informing Plaintiff that:
Based upon prior history and this current incident, you continue to display
inappropriate behavior despite numerous reprimands. You are hereby directed
to cease and desist any and all comments to parents disparaging Ann Arbor
Public Schools and Huron High School and its administration, disrespecting and
intimidating students during instructional time and divulging details regarding
your personal life to students. Any failure in this regard will result in further
discipline up to and including termination.
(Id.) At the July 1, 2014 hearing, Ms. Ryan testified that she had reviewed this letter of
reprimand and agreed with Principal Williams that it should be issued.
14.
On December 6, 2013, a parent emailed Principal Williams, informing him that,
while investigating concerns expressed by his daughter, a student in Plaintiff’s math class,
about Plaintiff’s mistreatment of her students, he discovered a web site that contained
about 40 negative comments about Plaintiff’s classroom behavior that backed up his
daughter’s concerns.
I was distressed to find that my daughter’s concerns were backed up by
uniformly damning reviews posted by Huron students describing verbal abuse
(e.g. calling student “whores”), emotional abuse (denigrating comments, racist
comments), and even physical abuse (throwing a pencil at a dozing student)
during instruction time. I think it would be well worth the time for each of you to
review the 40 odd comments regarding Ms. Down. . . . I have equally grave
concerns about this teacher’s competence, and I know that i [sic] am in good
company. I do not want my daughter to return to that classroom . . . . Please
let me know in the next few days what action has been taken to investigate these
problems.
6
(Pl.’s Ex. 106, 12/06/13 email chain.) Principal Williams forwarded the email message to
Cynthia Ryan, David Comsa, and Robyne Thompson asking for suggestions on how to
respond. (Id.)
15.
On December 9, 2013, Cynthia S. Ryan, Executive Director, Human Resources
and Employee Relations for Ann Arbor Public Schools, sent Plaintiff a letter informing her
that she was “being placed on administrative paid leave of absence effective immediately
pending an investigation of allegations of verbal abuse of students.” (Pl.’s Ex. 107,
12/09/13 ltr.) Plaintiff was further directed “not to contact any students, parents, or staff”
and was informed that “[p]ursuant to MCL 750.552 you are also directed not to enter onto
District buildings or property” and that she would be notified once the investigation had
been concluded. (Id.)
16.
On December 11, 2013, Ms. Ryan sent Plaintiff a letter notifying her that she
had been scheduled for an Independent Medical Exam with Dr. Gerald Williams on Friday,
January 10, 2014 at 10:00 a.m. and that the exam “takes most of the day.” (Pl.’s Ex. 108,
12/11/13 ltr.)
17.
On December 11, 2013, Principal Williams received numerous parent/student
emails reacting positively to the School District’s decision to place Plaintiff on administrative
leave and urging the School Board to make Plaintiff’s removal permanent. Principal
Williams forwarded those emails to Cynthia Ryan; David Comsa, J.D., Deputy
Superintendent HR/General Counsel; and Robyne Thompson, Executive Director for
Secondary Education. (Pl.’s Ex. 112-1 through 112-13, 12/11/13 email chain.)
18.
Considering the above evidence and the testimony at the July 1, 2014 hearing,
this Court finds that there were a large number of parent/student complaints over many
7
years, i.e., from 1999 through December 2013, about Plaintiff’s poor teaching performance,
classroom management issues, and behavioral issues involving interactions with
students/parents.
19.
The 2009-2011 Master Agreement between the Ann Arbor Board of Education
and the Ann Arbor Education Association provides, in relevant part, that:
4.900 Independent Medical Exam
4.911 Should the Board or its agent have reason to suspect that
a teacher is unable to perform his/her professional duties
due to physical, mental, and/or emotional disability, they
may demand that said teacher submit to a physical or
psychological/psychiatric evaluation. Upon such demand
the Association will be notified with permission of the
individual. The Board may designate an examiner, who
must be a licensed physician, neuro psychologist or allied
health care professional, osteopath or psychiatrist and the
Board will assume the cost of the examination. When the
Board exercises its right for the fitness of duty test, the
teacher will be placed on paid administrative leave. Upon
receipt of the report by Human Resources and Legal
Services a copy will be provided to the teacher. Should the
teacher be found not fit for duty, they are eligible to use any
days as allowed in the Master Agreement.
An additional examiner may be selected by the teacher at his/her
expense. Should the teacher exercise his/her right to select their
own examiner whose professional opinion differs from that of the
Board’s examiner on the issue of fitness for duty, the parties will
select a third examiner and share equally in that expense. The
parties will be bound by the third examiner’s findings on fitness for
duty.
(Pl.’s Br., Ex. 3, Master Agreement at 29, ¶ 4.911 (emphasis added).)
20.
The Court interprets the plain language of the Master Agreement § 4.911 to
mean that if the School Board or its agent has reason to suspect that a teacher is unable
to perform his/her professional duties due to physical, mental, and/or emotional disability,
8
then they may demand that the teacher submit to a physical or psychological/psychiatric
evaluation.
21.
The Court finds that there was reason to suspect that Plaintiff was unable to
perform her professional duties and that Defendants properly invoked ¶ 4.911 and directed
Plaintiff to submit to a psychological IME.
22.
Ms. Ryan, whose testimony the Court fully credits, testified that the Ann Arbor
School District has invoked ¶ 4.911 many times and has requested an IME by a mental
health professional, on average, about three or four times a year.
23.
Ms. Ryan also testified that, if concerns arise about a teacher’s performance
in the classroom, either due to physical, emotional, or mental issues, the teacher is placed
on paid administrative leave, ¶ 4.911 is invoked, and the teacher is instructed to attend an
IME scheduled by the School District.
24.
Other than Plaintiff’s challenge here, no teacher has refused to go to the
scheduled IME.
25.
If the teacher does not object, his or her union representative is notified about
the impending IME.
26.
Privacy procedures are in place. After the IME is completed, the doctor sends
the results to Ms. Ryan in Human Resources. The only other School District Official who
sees the results is Ms. Ryan’s boss, the School District’s General Counsel. Other than Ms.
Ryan and General Counsel, the results are shared only with the teacher. The teacher
decides whether he or she wants to share the doctor’s report with his or her union
representative. Generally, they agree to share the information with the union.
27.
As set out in ¶ 4.911, procedures exist for the teacher to dispute the IME
9
results. The teacher may obtain a second opinion. And, if a conflict exists between the first
and second opinions, then a third medical examiner is chosen by both parties, and that
doctor’s opinion will be binding.
28.
Ms. Ryan took part in negotiating ¶ 4.911. She explained that its intent is to
protect school children, to make sure that teachers are fit for duty, and to make sure that
teachers are able to handle the emotional stress of teaching.
29.
Plaintiff testified that she first learned about the scheduled IME from a phone
call from Ms. Ryan who told her to expect a letter about her IME. Plaintiff asked Ms. Ryan
why the IME was being requested, and Ms. Ryan responded that the School District had
concerns, and that she would contact Plaintiff’s union representative. Plaintiff testified that
Ms. Ryan hung up without giving her the opportunity to object to her union representative
being contacted. Plaintiff did not call Ms. Ryan back or otherwise object to having her
union representative contacted. In fact, Plaintiff testified that she subsequently spoke with
her union representative, Linda Carter, who told Plaintiff to “do it” (to go to the IME) in no
uncertain terms.
30.
Plaintiff also testified that, one day earlier, she had spoken with Ms. Carter
about her suspension. Ms. Carter informed Plaintiff that she was suspended because she
allegedly called someone a whore. Plaintiff denied that she did this.
31.
At the July 1, 2014 hearing, Plaintiff also denied that she derogatorily replied
to student remarks with “duh,” explaining that she has a hearing condition that causes
ringing in her ears and her “huh” must have been misinterpreted by students as “duh.” She
denied that she yells at students, explaining that her hearing problems cause her to
inadvertently speak loudly or raise her voice. She did admit that she called a student a
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“chipmunk,” which gave rise to her October 22, 2004 written reprimand.
32.
At the hearing, when asked about the November 20, 2013 reprimand letter,
Plaintiff denied that she told parents that she was irritated by the School Administration’s
decision to place her in her current math class. She denied that she wasted class time
talking about personal matters. She denied that she told students that her husband beat
or abused her. She denied that she ever told a student or parent about her personal beliefs
about homosexuality. She denies that she made derogatory remarks to her students like
“what drug are you on.”
33.
When asked about the suggestion on her 1999 Evaluation, her first year of
teaching in the Ann Arbor School District, that she “should work on classroom
management, which would lessen the student/teacher confrontation,” Plaintiff explained
that she was hired the 11th day of school, after the class had had five substitutes, and had
to fight an uphill battle the rest of the year to manage the students.
34.
This Court finds that, at the July 1, 2014 hearing, Plaintiff was defensive and
not fully credible; she was unable to fully acknowledge her long history of difficulties and
problematic interactions with students and parents about her teaching performance and
class management skills. The Court believes that Plaintiff believes what she is testifying
to but is concerned that there may be issues that are preventing her from being the most
effective teacher she could otherwise possibly be.
35.
The Court finds that Plaintiff has a long history of difficult and problematic
interactions with students and complaints from parents, beginning in 1999 when she was
first employed by the Ann Arbor Public Schools and lasting up until the time she received
notice of the scheduled IME in December 2013.
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36.
The Court finds that Plaintiff was unable to acknowledge these difficulties and
deal with them in the most effective manner, a manner which would permit her to exercise
her best teaching practices and control of her class and allow her to interact with students
in a positive way, a way that produces positive educational value.
37.
The Master Agreement (or CBA) at ¶ 4.911 establishes the right of the School
District to order an independent medical examination by a psychologist.
38.
Ms. Ryan testified that this provision (¶ 4.911) has been invoked many times
since 2007 when she was first hired by the Ann Arbor Public Schools; that it has been
invoked many times for mental health; that no teacher has refused to undergo an IME; that
the School District’s policies reflect sensitivity to privacy concerns; that the results of the
IME are not disseminated or distributed or shared with anyone other than the teacher, Ms.
Ryan, and her boss, who is the District’s General Counsel, unless the teacher requests that
the IME results be shared with the union.
39.
Given the long history of issues that have evolved with Plaintiff over the years,
the long history of parent complaints and student difficulties, including the summer school
problems which seem particularly difficult, the Court finds that the Ann Arbor Public Schools
have established that it is reasonable for them, under these circumstances, to require
Plaintiff to undergo an IME to see if there is some medical or mental or emotional condition
which is preventing Plaintiff from becoming an effective teacher and performing her
teaching job. The Ann Arbor Public Schools have satisfied the requirement for invoking ¶
4.911 by showing that it had reason to suspect that Plaintiff was unable to perform her
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professional duties due to physical, mental, and/or emotional disability.1
II.
Preliminary Injunction Standard
As the Sixth Circuit recently stated in a unanimous en banc decision, the district court
must balance the following four factors when considering a motion for preliminary
injunction:
(1) whether the movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by issuance of the injunction.
City of Pontiac Retired Emps. Assoc. v. Schimmel, ___ F.3d ___ , 2014 WL 1758913, at
*2 (6th Cir. May 5, 2014) (en banc) (internal quotation marks and citations omitted).
The Sixth Circuit also stated its standard on review: “Whether the movant is likely to
succeed on the merits is a question of law we review de novo. We review for abuse of
discretion, however, the district court’s ultimate determination as to whether the four
preliminary injunction factors weigh in favor of granting or denying preliminary injunctive
relief. This standard is deferential, but the court may reverse the district court if it
improperly applied the governing law, used an erroneous legal standard, or relied upon
clearly erroneous findings of fact.” Id.
III.
Analysis
A. Burden of Proof
“The party seeking a preliminary injunction bears a burden of justifying such relief,
including showing irreparable harm and likelihood of success.” McNeilly v. Land, 684 F.3d
611, 615 (6th Cir. 2012). It is Plaintiff’s burden to prove that Defendant did not have a
1
In light of the Court’s findings and conclusions of law, there is no need to address
Defendants’ “waiver” argument (Resp. at 8-11).
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reason to suspect Plaintiff could not perform her teaching responsibilities and thus ordered
the psychological examination as allowed under the Master Agreement, ¶ 4.911.
B. Likelihood of Success On the Merits
Plaintiff has not shown that requiring a public school teacher with Plaintiff’s record to
submit to an IME with a psychologist is an unreasonable search in violation of her Fourth
Amendment rights. Moreover, “[w]hen a party seeks a preliminary injunction on the basis
of a potential constitutional violation, the likelihood of success on the merits often will be
the determinative factor.” City of Pontiac Retired Emps. Assoc., 2014 WL 1758913, at *2
(internal quotation marks and citations omitted).
Contrary to Plaintiff’s arguments here, an Independent Medical Examination by a
psychologist under the facts presented here is not an unreasonable search. Contrary to
Defendants’ argument, however, this Court does not predict that the Sixth Circuit will follow
the Seventh and hold that a psychological examination does not constitute a search for
Fourth Amendment purposes. Rather, the Court predicts that the Sixth Circuit will find that
a compelled psychological examination is a search for Fourth Amendment purposes.
Applying the relevant law to the facts presented here, Plaintiff has a diminished
expectation of privacy because, as a school teacher, (1) she is employed in a safetysensitive position in a highly regulated industry and plays a unique role in the lives of school
children; and (2) her union contract provides for psychological examinations. In contrast,
as evidenced by the decisions discussed below, the School District’s interest in ensuring
a safe, effective, and productive educational environment is strong. Balancing Plaintiff’s
privacy interests against Defendants’ interests results in a conclusion that Plaintiff’s
constitutional rights were not violated. Plaintiff has not been able to prove (as is her burden
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on a motion for preliminary injunction) that Defendants’ request that she submit to a
psychological IME was unreasonable. Reasonableness, not necessity is the test.
The precise issue presented in this case is apparently a matter of first impression in
the Sixth Circuit. The Sixth Circuit and other federal courts, however, have dealt with
substantially similar issues. In the Sixth Circuit, the closest case addresses drug testing
of teachers. See Knox Cnty. Educ. Assoc. v. Knox Cnty. Bd. of Educ., 158 F.3d 361 (6th
Cir. 1998).
In Knox, the Sixth Circuit held that drug testing constituted a search for Fourth
Amendment purposes.
It then determined whether the school board’s policy of
suspicionless drug testing of teachers was reasonable and thus constitutional. To do so,
the Knox court balanced the government’s interest in testing against the individual teacher’s
privacy expectations. Id. at 373. It concluded that suspicionless drug testing of teachers
was constitutional because the government’s interest in testing individuals who held
“safety-sensitive” positions and played a unique role in the lives of school children
outweighed the teacher’s privacy interests which had been “diminished by their participation
in a heavily regulated industry and by the nature of their job. . . .” Id. at 379. In Knox, the
Sixth Circuit also considered the school district’s suspicion-based drug testing policy and
similarly found that it too was constitutional. Id. at 384-85.
There is no Sixth Circuit decision addressing psychological testing of teachers. The
decision most directly on point comes from the Western District of Pennsylvania. In Murray
v. Pittsburgh Bd. of Educ., 759 F. Supp. 1178 (W.D. Pa. 1991), the district court considered
and rejected the plaintiff teacher’s fourth motion for a preliminary injunction seeking to
enjoin the defendant school board from requiring her to attend a psychiatric examination.
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Id. at 1179. After rejecting the plaintiff’s argument that the exam was retaliatory, the court
focused on plaintiff’s argument (similar to Plaintiff’s argument here) that “a compelled
psychiatric examination is an unconstitutional search and seizure in violation of the Fourth
and Fourteenth Amendment.” Id. Based on testimony provided at the motion hearing, the
court credited the defendant school board’s witnesses’ testimony about the reasons for
seeking a psychiatric examination of the plaintiff teacher, i.e., the “growing concern about
[the plaintiff teacher]’s ability to interact with others and fitness to teach, and because of
[the plaintiff teacher]’s almost unique history of prolonged absences from work.” Id. at
1180.
The Murray court then applied the relevant law to its factual findings. It examined the
Third Circuit and United States Supreme Court decisions regarding employee privacy. It
determined that “Supreme Court decisions make it explicit that the School Board’s
collection of medical information from a teacher must be analyzed by balancing ‘the
individual’s privacy expectations against the Government’s interests,’ [National Treasury
Employees Union v.] Von Raab, 489 U.S. [656], 665 [(1989)], in light of the Fourth
Amendment’s prohibition of unreasonable searches and seizures.” Id. at 1181.
From the Supreme Court and Third Circuit’s decisions, the Murray court determined
that the following factors are to be considered when balancing the plaintiff’s privacy
expectations and the government’s interests: (1) the “type of information requested;” (2)
the “potential for harm from nonconsensual disclosure;” and (3) the “degree of need for the
information, and whether there is an express statutory mandate, articulated public policy,
or other recognizable public interest militating toward disclosure.” Id. at 1181-1183.
The Murray court acknowledged that, similar to here, it was “not being asked to determine
16
the constitutional adequacy of the procedure for deciding whether to seek an examination.”
Id. at 1183 (emphasis added).
As to the first factor, the district court determined that “[t]here can be do doubt that
medical and particularly psychiatric information are of the types most associated with
expectations of privacy.” Id. at 1181 (citations omitted). Nonetheless, the court further
observed that it must also recognize “that psychological testing and psychiatric interviews
are routine features of occupations which involve stress and sensitive interpersonal
contact.” Id. at 1181. The court discredited the plaintiff’s testimony that her “medical and
psychological information is dear to her personally,” finding that testimony “greatly
diminished when one considers that [the plaintiff] ha[d] indicated throughout that she [was]
willing to provide information compiled by her internist and her psychologist and her
therapist.” Id.
As to the second factor, the potential for harm from disclosure, the Murray court
concluded that “[t]he harm likely to occur from nonconsensual disclosure is embarrassment
and disclosure of sensitive personal information, which [the court] would rank as an
exceptionally serious matter.” Id. It then found, however, that “the evidence given at the
preliminary injunction hearing” satisfied the court that “the risk of nonconsensual disclosure”
was “sufficiently small that the danger can be disregarded.” Id. It made this finding
because (1) the plaintiff presented no evidence of nonconsensual disclosure; (2) the
defendant school board showed that there was no dissemination to the school
administration, teachers’ union, or public and was not made part of an employee’s
personnel file; rather, the full report was kept in the School Board’s separate medical unit
and a summary “from the examining physician with a recommendation as to the employee’s
17
fitness to return to work” may be received by others. Id. The Murray court rejected the
plaintiff teacher’s argument that “a compulsory examination is per se unconstitutional,” and
found that “the confidentiality practices observed by the School Board’s medical unit” was
sufficient. Id.
As to the third factor, the degree of need for the information, the Murray court
observed that “[t]here is ample reported precedent for the proposition that medical
information, and particularly psychiatric information, is legitimately sought by a school board
from teachers who on a daily basis are charged not just with interacting with students but
also with shaping the course of their lives.” Id. at 1183 (citing Daury v. Smith, 842 F.2d 9,
14 (1st Cir. 1988)). It further observed “[t]hat there is a recognizable public policy favoring
the disclosure to school administrators of medical and behavioral information concerning
a teacher’s actual or potential problems can be seen most easily by examination of the
consequences of failure to investigate problem areas.” Id. (citation omitted).
In Daury, the First Circuit case that the Murray court relied upon, a school principal
brought a § 1983 action alleging substantive due process violations of his privacy and
liberty interests against a school committee’s order that he undergo a psychiatric
examination as a condition for his continued employment. In reviewing the district court’s
grant of summary judgment in the school committee’s favor, the First Circuit acknowledged
that the school principal had a constitutional right to privacy but that privacy right “must
often give way to considerations of public interest.” Daury, 842 F.2d at 13. The Daury
court further observed that “there is a legitimate public interest in providing a safe and
healthy educational environment.” Id. at 14. The First Circuit held that there was no
constitutional violation in the school committee’s requiring the plaintiff to see a psychiatrist.
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“A school committee . . . may justifiably compel a teacher or administrator to submit to a
psychiatric examination as a condition of continued employment if the committee has
reason to believe that the teacher or administrator may be jeopardizing the welfare of
students under his or her supervision.” Id. (emphasis added). The First Circuit reasoned
that “[t]he committee simply sought a professional opinion to insure that Daury would not,
if he returned to work, jeopardize the school system’s interest in providing a safe and
healthy educational environment. And Daury offered no specific evidence contradicting the
committee’s position that it had a reasonable basis for concern.” Id. (internal citation
omitted and emphasis added).
In a non-school public employee setting, the Ninth Circuit Court of Appeals addressed
the issue “whether the state may compel an employee with a prolonged and egregious
history of absenteeism and a record of on-the-job illnesses to undergo a fitness-for-duty
medical examination.” Yin v. State of California, 95 F.3d 864, 866-67 (9th Cir. 1996). In
Yin, a tax auditor for the State of California Employment Development Department, brought
suit against her state employer alleging that “requiring her to submit to an unwanted
medical examination would violate both the American with Disabilities Act (the ADA), . . .
and the Fourth Amendment.” Id. at 867. As to the plaintiff’s Fourth Amendment challenge,
the Ninth Circuit rejected her claims that requiring her to undergo an IME absent a warrant
violated the Fourth Amendment. Id. at 869. Citing various Supreme Court decisions, the
Yin court observed that “neither probable cause nor a warrant is required when ‘special
needs, beyond the need for law enforcement, make the warrant and probable-cause
requirement impracticable.” Id. (citations omitted). It further observed that “[i]n ‘special
needs’ cases . . . the Court dispenses with the probable cause and warrant requirements
19
and simply applies a balancing test to determine if the search or seizure is reasonable and
thus constitutional.” Id. (citations omitted).
Considering the facts presented in Yin, the court determined that “individualized
suspicion” clearly existed. Id. at 869 n. 9 (citing the relevant union contract allowing the
state to require a medical examination when it believes an employee is unable to perform
his or her normal work duties due to illness or injury). Concluding that “requiring someone
to submit to a medical examination” is a search for Fourth Amendment purposes “whether
or not that examination entails any particularly intrusive procedures,” the Ninth Circuit next
determined whether the search was reasonable. Id. at 870, 871. It did so by balancing the
plaintiff’s privacy interests “against the government’s interest in the search.” Id. at 870
(citations omitted). It observed that, “[n]otwithstanding Yin’s assertion to the contrary, the
government does not have to use the least restrictive means to further its interests. Nor
must the government establish a ‘compelling state interest,’ in the sense of an absolute
quantum of interest to justify the search or seizure.” Id. (internal citations omitted). The Yin
court found that several factors diminished the plaintiff’s expectation of privacy in not being
subjected to a medical examination: (1) she, like any employee, had “a somewhat reduced
expectation of privacy in the workplace;” (2) there was a California statute that authorized
medical examinations of civil service employees like the plaintiff; (3) her union contract
provided for independent medical examinations; and (4) the plaintiff’s “own experiences at
the work-site,” i.e., her large number of absences and “repeated episodes of on-the-job
illness” converted the status of her health “into an issue of legitimate concern for her
supervisors, because it bears closely on her ability to perform her job.” Id. at 871-72. After
concluding that the state had an “interest in assuring a productive and stable work force,”
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the Ninth Circuit then balanced the plaintiff’s “diminished expectations of privacy against
the state’s interest, and concluded that “the state’s interest that Yin submit to an
independent medical examination is reasonable and therefore constitutional.” Id. at 973.
Defendants rely on two decisions from the Seventh Circuit to support their argument
that a psychological examination is not a search for Fourth Amendment purposes because
it does not involve physical touching, like in drug or alcohol testing. See Brewer v.
Wisconsin Bd. of Bar Examiners, 270 F. App’x 418 (7th Cir. 2008) (per curiam); Greenawalt
v. Indiana Dep’t of Corr., 397 F.3d 587, 589 (7th Cir. 2005).
In Brewer, an applicant to the Wisconsin State Bar filed an action against the state
bar, the state board of bar examiners, the state supreme court, and various state officials,
asserting § 1983 and other claims and alleging that the state board of bar examiners’
request that she undergo a psychological evaluation as a precondition to evaluating her bar
application violated her Fourth Amendment rights. Brewer, 270 F. App’x at 420. Plaintiff
“ha[d] a mental disability” and “[was] a graduate of the University of Wisconsin’s Law
School and “disclosed in her application for admission to the Wisconsin Bar that the Social
Security Administration had certified her as disabled” based in part on her “chronic
depression and fatigue, for which she currently receive[d] no treatment or medication.” Id.
at 419-420. “The district judge dismissed all of [the plaintiff’s] claims except for those
seeking injunctive relief under the ADA.” Id. at 420. On appeal, the Seventh Circuit quickly
disposed of the plaintiff’s § 1983 claims under the Fourth and Fourteenth Amendment. As
to the plaintiff’s Fourth Amendment claim, the court held that “a psychological evaluation
is not a ‘search’ for Fourth Amendment purposes.” Id. (citing Greenawalt, 397 F.3d at 58921
90).
In Greenawalt, the plaintiff, a research analyst at the Indiana Department of
Corrections, “was told that to keep her job she would have to submit to a psychological
examination.” Greenawalt, 397 F.3d at 588. The plaintiff complied and subsequently filed
suit under § 1983 alleging “that the test, which lasted two hours and inquired into details
of her personal life, constituted an unreasonable search in violation of her Fourth
Amendment right to be free from unreasonable searches and seizures.” Id. The district
court dismissed the plaintiff’s action on the pleadings. Id. She appealed.
The Seventh Circuit first concluded that, although the district “judge was mistaken
about the defendants’ immunity from the injunctive relief sought, because the defense of
official immunity is applicable only to liability for damages,” “the error was of no
consequence because section 1983 does not permit injunctive relief against state officials
sued in their individual as distinct from their official capacity.” Id. at 589. The Greenawalt
court then considered the plaintiff’s damage claims against the two individual defendants.
It considered “whether subjecting a public employee to a probing psychological
examination is a search.” Id. And, “[i]f it is, then it may well have been an unreasonable
one in this case, and thus have violated the Fourth Amendment, because Greenawalt is
merely a researcher” who “has no contact with prisoners, is not armed or privy to state
secrets, and has no other powers or opportunities so far as we can tell, that would warrant
imposing such a condition of employment, unlike cases such as . . . Daury v. Smith, 842
F.2d 9, 14 (1st Cir. 1988) (school administrator). . . .” Id. The Seventh Circuit never
reached the second question because it determined that a psychological test was not a
search for Fourth Amendment purposes. Id. at 589.
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The Greenawalt court acknowledged that “[a]lmost any quest for information that
involves a physical touching, which a test does not, is nowadays deemed a ‘search’ within
the meaning of the Fourth Amendment, which the Fourteenth Amendment has been
interpreted as making fully applicable to state action.”
Id. (citing decisions holding
breathalyzer, blood and urine testing to constitute a search for Fourth Amendment
purposes). It further acknowledged that “[t]he invasion of privacy caused by submitting to
the kind of psychological test given to the plaintiff in this case may well have been more
profound than the invasion caused by a blood test, breathalyzer test, or a urine test. . . .”
Id. at 590. Moreover, even though the plaintiff had consented to take the test, the court
observed that “had she not done so she would have lost her job, which, if she had a
constitutional right not to take the test, would place a heavy burden on the exercise of her
constitutional right.” Id.
Despite numerous decisions observing that the “Fourth Amendment is intended to
protect privacy, the Seventh Circuit found that conclusion “historically inaccurate” and
explained that “it is not uncommon for constitutional provisions to be supplied with
rationales that the framers and ratifiers of the provisions would not have recognized.” Id.
The Greenawalt court did “not think that the Fourth Amendment should be interpreted to
reach the putting of questions to a person, even when the questions are skillfully designed
to elicit what most people would regard as highly personal private information.” Id.
Similarly, the Seventh Circuit observed, it has held “that asking a question of a person
already in custody is not a ‘seizure’ of the person within the meaning of the Fourth
Amendment.” Id. at 591.
The Greenawalt court concluded that “[t]he Fourth Amendment was not drafted, and
23
has not been interpreted, with interrogation in mind.” Id. It then observed that this did not
leave the plaintiff without a remedy, just not a constitutional remedy. “Our conclusion that
the plaintiff has not stated a Fourth Amendment claim does not leave people in her position
remediless – or indeed leave her remediless. States are free to protect privacy more
comprehensively than the Fourth Amendment commands; and Greenawalt is free to
continue to press her state-law claims in state court, where they belong.” Id.
Similar to here, the plaintiff in Greenawalt did not raise any due process claims. The
court thus had only her Fourth Amendment claim before it. Id. at 592. As to that claim, it
observed that “the Fourth Amendment does not expand accordion-like to fill what may be
a gap in the privacy law of a particular state.”
Id. at 591.
Moreover, “the Fourth
Amendment does not provide a remedy for the unpleasantness of being subjected to a
psychological test, and that if we are wrong still there is no doubt that the existence of such
a remedy was not clearly established when this suit was filed.” Id. at 592.
As stated above, this Court predicts that the Sixth Circuit will find that a compelled
psychological examination is a search for Fourth Amendment purposes. Moreover, as
discussed above, balancing Plaintiff’s privacy interests against Defendants’ interests results
in the conclusions that Defendants’ request that Plaintiff submit to a psychological
examination is reasonable, and Plaintiff’s Fourth Amendment rights were not violated.
C. Irreparable Harm and Public Interest
Contrary to Plaintiff’s arguments here, an Independent Medical Examination by a
psychologist under the facts presented here is not an unreasonable search. In light of this
Court’s conclusion that Plaintiff’s Fourth Amendment rights were not violated, Plaintiff
cannot establish irreparable harm. Granting an injunction blocking the School District from
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requiring Plaintiff to submit to a psychological exam, however, would harm the public’s
interest in ensuring that public school teachers are fit for duty in their safety-sensitive
positions so as to provide public school students with a safe, positive, and productive
educational environment.
IV.
Conclusion
For the foregoing reasons, Plaintiff’s motion for preliminary injunction is DENIED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: July 7, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 7, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager
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