Monroe v. Consumers Energy et al

Filing 37

MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 23)AND DENYING PLAINTIFFS MOTION FOR LEAVE TO AMEND (Doc. 29). Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EVANGELENE MONROE,
Plaintiff,
vs.

Case No. 16-10079

CONSUMERS ENERGY and
REBECCA KOSNIK,

HON. AVERN COHN

Defendants.
________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 23)
AND DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND (Doc. 29)1
I. Introduction
This is an employment case. Plaintiff Evangelene Monroe (Monroe), proceeding
pro se, is suing defendants Consumers Energy and Rebecca Kosnik2 claiming she was
discriminated against in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101–12213 stemming from a decision to have her undergo an independent
medical examination (IME) following instances of aberrant behavior and work
performance issues. Monroe claims that Consumers Energy improperly “regarded” her
as disabled in requiring the IME.
1

Upon review of the parties’ papers, the Court deems these matters appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
2

Monroe’s claim against Kosnik is DISMISSED because the ADA does not
impose liability upon individuals. See Lee v. Mich. Parole Bd., 104 F. App’x. 490, 493
(6th Cir. 2004) (citing 29 U.S.C. § 794(b); 42 U.S.C. § 12131(1)). See also Wathen v.
General Elec. Co., 115 F.3d 400 (6th Cir. 1997). Going forward, the sole defendant is
Consumers Energy.

Before the Court is Consumers Energy’s motion for summary judgment.3 For the
reasons that follow, the motion is GRANTED. This case is DISMISSED.
II. Background
The material facts as gleaned from the record follow.
Monroe began working at Consumers Energy in May of 2000. At the time of the
relevant actions, she was in the Gas Planning Department. Monroe’s job involved the
scheduling of gas related jobs. Beginning in 2010 and continuing through early 2016,
Camille Powers (Powers) was Monroe’s supervisor in the Gas Planning Department.
In 2013, Powers gave Monroe a high profile assignment. Monroe struggled with
the assignment despite having assistance from Powers. Eventually, Powers gave the
assignment to another employee. Monroe was upset when Powers reassigned the
assignment.
Later in 2013, Powers began to notice work issues involving Monroe. Specifically
Powers observed that Monroe was losing work focus and concentration which affected
her work performance. Powers also observed that Monroe had became increasingly
secretive towards her. Powers also noticed that Monroe was not interacting with her
co-workers during staff meetings as she had in the past. Powers also noted that
3

Also before the Court is Monroe’s motion to file a second amendment to her
complaint (Doc. 29) and a proposed amended complaint (Doc. 34). As best as can be
gleaned, Monroe seeks to assert a “conflict of interest” claim against Dr. Dutes. Monroe
cites no authority to indicate that such relief is available. As Consumers Energy states,
it appears that Monroe “has confused the idea of attacking the credibility of a witness
with having a legal claim that allows for compensation.” Under these circumstances,
Monroe’s motion to amend is DENIED. See Fed. R. Civ. P. 15, United States ex rel
Harper v Muskingum Watershed Conservancy Dist., 842 F.3d 430, 440 (6th Cir.
2016)(amendment not permitted when the amended complaint would not survive a
motion to dismiss).
2

Monroe’s work performance was significantly suffering but Powers did not know why.
On November 27, 2013, Monroe filed a Code of Conduct complaint (complaint)
with Consumers Energy’s Compliance Department. In the complaint, Monroe stated
that she was being tracked and surveilled by her co-workers. A sample of Monroe’s
allegations in the complaint follow:
• March 2013 - She believes employees began intercepting her personal text
messages from her personal phone.
• April/May 2013 - She thinks listening devices were placed in her office to get
information to use against her.
• June 2013 - She believes listening devices were placed at her desk by a
co-worker and her conversations were overhead by Company employees. While
at the Somerset Mall, she thought she saw her supervisor driving in the Mall
parking lot looking for her.
• July 2013 - She thought she was being recorded in her cubicle.
• September 2013 - She believed she was being recorded via her personal
phone and was being surveilled via cameras at work and at home.
• October 2013 - She thought her co-workers were taping her calls at work. She
goes to the Apple Store and is told that this was not possible.
• November 11, 2013 - She thought two co-workers were recording her and that
a listening device was installed in the office next to hers.
• November 13, 2013 - She goes to her home cable provider (Comcast) to
determine if a sensor (surveillance device) was on her home cable service.
Comcast tells her this has not occurred. She files a Police complaint against two
of her co-workers.
• November 15, 2013 – She believes a GPS tracking device is installed on her
car by her co-workers and her conversations were being listened to via the key
FOB for her vehicle.
See Consumer’s Energy Exhibit 2, Code of Conduct Complaint.
As a result of the allegations in the complaint, Kathleen Delaney (Delaney), a
Director in the Human Resources Department, conducted an investigation in early
January of 2014. Delaney did not find any merit to any of Monroe’s allegations against
her co-workers regarding surveillance, recording and intercepting of calls and texts. As
part of her investigation, Delaney also talked with Powers. Powers informed Delaney
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that Monroe had been losing work focus and concentration which negatively affected
her work performance. Powers also told Delaney that Monroe was no longer interacting
with her co-workers during staff meetings. Delaney then met with Monroe in late
January 2014. During the meeting, Monroe insisted that her co-workers were tracking
her as noted in her complaint.
Due to the nature of the allegations, the results of the investigation, and Monroe’s
performance issues, Delaney arranged to have Monroe scheduled for an IME to
determine if she was able to perform the essential functions of her job.
A few days after the meeting between Delaney and Monroe, Powers found
Monroe at her desk crying. Powers contacted Delaney who told Powers to place
Monroe on paid sick leave. When Powers went back to tell Monroe, Monroe had left
work. Powers ended up sending Monroe a letter telling her that she was on paid sick
leave. Powers was later informed that earlier the same week Monroe had been found
crying in a conference room.
In February of 2014, Monroe had an Independent Neuropsychological Evaluation
conducted by Dr. Jean-Claude Dutes, PhD, of MSU Rehabilitation. In his report issued
in March of 2014, Dr. Dutes found that Monroe was having concentration issues and
work efficiency issues. Dr. Dutes reported: “[t]here were indications of a high degree of
interpersonal sensitivity, tendency toward paranoid thinking and difficulty in
interpersonal relationships. This examinee is likely to appear guarded and suspicious of
others...” Dr. Dutes recommended that, prior to returning to work, Monroe should
complete 12 sessions of psychological counseling and then have a re-evaluation by her
therapist. Following are excerpts from the report and addendum:
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REASON FOR EVALUATION
Mr. Steven Bush of Consumers' Energy referred the examinee, a 43-year-old
African American woman, for this Independent Neuropsychological Evaluation
due to reports of declining work performance and interpersonal difficulties in the
work setting.
***
CLINICAL IMPRESSIONS
… there were indications of a high degree of interpersonal sensitivity, tendency
toward paranoid thinking and difficulty in interpersonal relationships. This
examinee is likely to appear guarded and suspicious of others and to be highly
anxious about the possibility of losing her job or being reassigned to a less
desirable position. Although she has sufficient neurocognitive resources to
perform adequately in her position, given the stressors she is facing, she is at
risk for having concentration difficulties that could contribute to lowering her
efficiency. Improved stress management and coping ability would decrease her
perceived stress level and contribute to improved work performance.
RECOMMENDATIONS
1. The examinee would benefit from engaging in short-term psychological
counseling using a solution or problem-solving approach. She is unlikely to be
successful with insightoriented psychotherapy approaches.
ADDENDUM
2. At least 12 sessions of psychological counseling to assist the examinee in:
a) Becoming more aware of her interpersonal style and its effects in the work
setting.
b) Learning more effective conflict resolution skills.
c) Improving her stress management and coping skills.
3. Return to work contingent upon her therapist's assessment of her work
readiness and a re-evaluation of her psychological status and sustained attention
functions.
See Consumers Energy;’s Exhibit 5, Dr. Dutes Initial Report and Addendum.
Monroe refused to attend the 12 counseling sessions as outlined by Dr. Dutes.
In the meantime, she remained on paid sick leave from late January 2014 until October
26, 2014. At that time, Monroe filed for and obtained unemployment benefits and also
obtained part-time employment.4
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During this time, Monroe also retained at least two different attorneys, each of
whom contacted Consumers Energy. Consumers Energy provided each attorney with a
copy of Monroe’s personnel file and told each attorney that Monroe’s failure to follow Dr.
Dutes’ recommendations was preventing her from returning to work. See Consumers
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In late 2014, Monroe contacted Delaney about returning to work in 2015.
Delaney told Monroe that she had to comply with Dr. Dutes’ recommendations prior to
returning to work. Monroe explained to Delaney that she was much better and did not
need any counseling. In response to Monroe’s statements, Delaney scheduled Monroe
for a follow up Neuropsychological Evaluation with Dr. Dutes. Dr. Dutes conducted a
second examination in April of 2015 and issued a second report in May of 2015. Dr.
Dutes found that Monroe’s neurocognitive status had improved and there was a
lessened chance of her underperforming in her work. However, Dr. Dutes still believed
that Monroe needed to participate in the psychological counseling and could go back to
work contingent upon undergoing the required treatment. Following are excerpts from
the second report:
RECOMMENDATIONS
The recommendations are the same as from the last evaluation, with the
exception that the company considers allowing her to return to her position while
she undergoes psychological treatment as opposed to afterwards. This is based
on the fact that her neurocognitive status appears to have significantly improved
and, as a result, psychological distress is unlikely to compromise her
neurocognitive functioning as much as it would have a year ago. In other words,
she is less likely to underperform in her job at this time than she was a year ago.
1. The examinee would benefit from engaging in short-term psychological
counseling using a solution or problem-solving approach. She is unlikely to be
successful with insight-oriented psychotherapy approaches.
2. 8-12 sessions of psychological counseling to assist the examinee in:
a) Becoming more aware of her interpersonal style and its effects in the work
setting.
b) Learning more effective conflict resolution skills.
c) Improving her stress management and coping skills.
3. Return to work contingent upon the employee agreeing to undergo treatment
as a condition of return to work.
4. The development and implementation of a correction plan that stipulates

Energy’s Exhibit 9, selected email correspondence.
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desired behaviors, performance expectations and expected time frame within
which they should be met.
See Consumers Energy’s Exhibit 6: Dr. Dutes second report.
In July of 2015, Monroe filed an EEOC complaint claiming an ADA violation. As
explained by Monroe at her deposition, she was not satisfied with the EEOC
investigation because the investigator apparently told her that she needed to undergo
the required counseling in order to return to work.
In November of 2015, after several months and numerous emails between
Monroe and Delaney, Monroe finally enrolled in the required counseling. After
completing the counseling and a required drug screening due to length of time away
from work, Monroe was returned to full time employment starting December 9, 2015.
On January 6, 2016, Monroe filed the instant complaint.
III. Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A moving party may meet that burden "by
'showing'-that is, pointing out to the district court-that there is an absence of evidence to
support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Rule 56 provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits, or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
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a genuine dispute, or that an adverse party cannot produce admissible evidence
to support a fact.
Fed. R. Civ. P. 56(c)(1).
The Court must decide “whether the evidence presents a sufficient disagreement
to require submission to a [trier of fact] or whether it is so one-sided that one party must
prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the Court
“must view the evidence in the light most favorable to the non-moving party.” Employers
Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).

IV. Analysis
A. The ADA
The ADA provides that a covered employer “shall [not] discriminate against a
qualified individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Where, as here, there is no direct evidence to support a plaintiff’s claim, courts apply
the McDonnell Douglas burden-shifting test framework. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–06 (1973). Under this framework, if the plaintiff can
establish a prima facie case of discrimination, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its actions. Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 813 (6th Cir.1999). If the defendant does so, the burden shifts
back to the plaintiff to show that the defendant’s proffered reason is a pretext for
unlawful discrimination. Id. The alleged discrimination must have been a “but-for”

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cause of the adverse employment action by the employer. Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 321 (6th Cir.2012)(en banc).
To make out a prima facie case under the ADA, a plaintiff must show that she is
(1) a disabled person within the meaning of the ADA, (2) that she is otherwise qualified
to perform the essential functions of her job with or without reasonable accommodation,
and (3) that she suffered an adverse employment decision due to her disability.
Sullivan, supra, at 810. The ADA defines a disabled person as one who (1) has a
physical or mental impairment that substantially limits one or more of the person’s major
life activities, (2) has a record of having such an impairment, or (3) does not have an
impairment, but is regarded as having one. See 42 U.S.C. § 12102(1)(C) and
(3)(A)(2009); Gecewicz v Henry Ford Macomb Hosp. Corp., 760 F. Supp. 2d 732, 738
(E.D. Mich. 2010) (“The term ‘disability’ means, with respect to an individual, being
regarded as having such an impairment ....”).
Here, Monroe does not allege that she has a qualifying physical or mental
impairment under the ADA. Rather, she brings a claim under the “regarded as”
provision, 42 U.S.C. § 12102(3)(A). A person is “regarded as” being disabled under the
ADA “if the individual establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life
activity.” Id. The Supreme Court explained how courts should analyze and apply the
“regarded as” provision of the ADA:
There are two apparent ways in which individuals may fall within this statutory
definition: (1) a covered entity mistakenly believes that a person has a physical
impairment . . . or (2) a covered entity mistakenly believes that an actual,
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nonlimiting impairment substantially limits one or more major life activities. In
both cases, it is necessary that a covered entity entertain misperceptions about
the individual-it must believe either that one has a substantially limiting
impairment that one does not have or that one has a substantially limiting
impairment when, in fact, the impairment is not so limiting.
Sutton v. United Air Lines, 527 U.S. 471, 489 (1999).
B. Application
Consumers Energy says that there is no genuine issue of material fact as to
whether Monroe suffered an adverse employment action or whether Consumers Energy
regarded her as disabled under the ADA. The Court agrees.
Viewing all of Monroe’s factual allegations in the most favorable light, her only
evidence that Consumers Energy perceived or regarded her as disabled is that it
referred her for an IME and placed her on paid sick leave of absence after Monroe
exhibited unusual behavior and her work performance was suffering. Monroe does not
allege that Consumers Energy made up or exaggerated the events, circumstances and
statements that Delaney relied upon in referring her for an IME or for placing her on a
paid sick leave in late January 2014. Indeed, Delaney relied in large part on Monroe’s
complaints in determining to send Monroe for an IME.
Even assuming Monroe could establish that Consumers Energy’s actions were
based on a belief that mental health problems were negatively impacting her ability to
do her job, this does not make out a prima facie case under the ADA. “A defendant
employer's perception that health problems are adversely affecting an employee's job
performance is not tantamount to regarding that employee as disabled.” Sullivan, 197
F.3d at 810. In fact, an employer's request that an employee undergo a medical exam
is not evidence of discrimination because it “does not prove that the employer perceives
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the employee to have an impairment that substantially limits one or more of the
employee's major life activities.” Id. at 811. Indeed, in Sullivan, the Sixth Circuit
explicitly said that an employer has the right to determine the cause of an employee’s
aberrant behavior:
Sullivan's evidence that his employer treated him as impaired is that his employer
asked him to undergo mental and physical examinations to determine his fitness
as a teacher following his allegedly exhibiting some unusual behavior. Given that
an employer needs to be able to determine the cause of an employee's aberrant
behavior, this is not enough to suggest that the employee is regarded as mentally
disabled.
Id. at 810-11. The Sixth Circuit went on to explain:
In addition, employer-requested medical and psychological evaluations are in full
compliance with “the interpretation in [EEOC] regulations” and are permissible if
“restricted to discovering whether the employee can continue to fulfill the
essential functions of the job.”
Id. at 811-812 (citing EEOC regulations at 29 C.F.R. Part 1630.14(c)). The Sixth Circuit
also made clear that health or behavior problems which affect an employee's
performance of essential job functions justify an employer's ordering of an IME “even if
the examination might disclose whether the employee is disabled or the extent of any
disability.” Id. at 812. Sullivan and cases following it have clearly established that an
employee “may not dictate the terms of [her] medical examination” and an employer can
require compliance with the examination as a condition of returning to work. See Pena
v. City of Flushing, 651 Fed Appx 415, 422 (6th Cir. 2016)(citing Sullivan at 809 n. 2,
812).
Indeed, the ADA permits medical and psychological examinations consistent with
business necessity. Section 12112(d)(4)(A), prohibits employers from “requir[ing] a
medical examination” or “mak[ing] inquiries of an employee as to whether such
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employee is an individual with a disability ... unless such examination or inquiry is
shown to be job-related and consistent with business necessity.” If a mandatory
medical examination can be shown to serve a legitimate business purpose, it is
permissible. See Kroll v White Lake Ambulance Auth, 691 F3d 809, 815 (6th Cir. 2012).
“[T]he ADA permits an employer to require a medical examination to determine
qualifications for the job and for the health and safety of employees.” Marotta v. Ford
Motor Company, 119 F. Supp. 3d 676, 697 (E.D. Mich. 2015)(quoting Coulson v. The
Goodyear Tire & Rubber Co., 31 F. App’x 851, 855 (6th Cir. 2002).
Here, Monroe’s unusual behavior, including the nature of allegations against her
co-workers in her internal complaint, coupled with performance issues would have
caused any reasonable employer to inquire as to whether she was still capable of
effectively doing her job. No reasonable juror could conclude otherwise. Rather, the
undisputed facts show that Consumers Energy had a reasonable basis for referring
Monroe for an IME to evaluate whether her actions could have been undermining her
ability to effectively do her job. Because Monroe cannot show that her IME referral was
done for invalid reasons, she cannot establish that it was an adverse employment action
or was discriminatory. As such, she cannot make out a prima facie case under the
ADA.
Even assuming Monroe established that she suffered an adverse employment
action by having to undergo an IME, summary judgment is still appropriate. While
Monroe says that Consumers Energy delayed in returning her to work, it is clear that
Monroe refused to undergo counseling for several months which prevented her return to
work. To the extent there was any miscommunication as to Monroe’s return to work, it
12

was not discriminatory. See Johnson v Univ Hosps. Physician Services, 617 Fed Appx
487, 491–93 (6th Cir. 2015) (holding that miscommunication between the parties about
when employee would return to work did not support regarded as ADA claim).
C. Monroe’s Response
In her response, Monroe says that her work performance was not suffering. She
relies on a 2013 PEFD (performance review) which was completed prior to the time in
which her performance declined. The episodes of her crying at work and then
disappearing from work did not occur until the end of January 2014. The 2013 PEFD
was last updated (and reviewed with Monroe) in October 2013. No review of the last
two months of 2013 ever occurred because by that time Monroe was already gone on
paid sick leave. And neither Monroe nor Powers signed the 2013 PEFD. Thus, the
2013 PEFD does not support her ADA claim.
Monroe also says that the investigation into her complaint was insufficient,
implying that the investigation should have revealed that her allegations of surveillance
and other actions by her co-workers were true. However, Monroe herself testified at
deposition that she had no evidence to support her allegations. That Consumers
Energy also did not find any evidence to support her claims does not mean that
Consumers Energy violated the ADA.
Monroe also argues that she received FMLA time she did not request. She also
says she suffers from a sinus condition and high blood pressure. Putting aside whether
a complaint of receiving too much FMLA is viable, Monroe did not assert an FMLA or
other claim about her health in her EEOC complaint nor would the EEOC reasonably be
expected to investigate these claims nor was Consumers Energy on notice of these
13

claims based on her charge. As such, Monroe cannot pursue them in this case. See
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).
In the end, as Consumers Energy aptly states:
While Plaintiff may believe that she has been wronged in many ways, the
complaint she filed alleging violations of the ADA is not legally supported. The
facts Plaintiff believes or thinks to be true, are not relevant to the legal issues
before this Court.
(Doc. 26 at p. 3).
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 10/19/2017
Detroit, Michigan

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