7th Circuit Affirms Summary Judgment for Employer in ADA Lawsuit

On August 10, 2020, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a federal lawsuit under the Americans with Disabilities Act ("ADA"), in which the plaintiff alleged that the defendant violated the ADA by placing him on temporary paid administrative leave and ordering him to undergo a fitness-for-duty evaluation in connection with a disciplinary incident.  Kurtzhals v. County of Dunn, No. 19-3111 (7th Cir. Aug. 10, 2020).  The plaintiff was employed by the Sheriff's Office of Dunn County, Wisconsin.  After he allegedly threatened physical violence against one of his fellow officers, the County put him on temporary paid administrative leave and ordered him to undergo a fitness-for-duty evaluation.  The plaintiff alleged that his supervisors took this course of action because of his history of Post-Traumatic Stress Disorder ("PTSD"), and not because his alleged conduct violated the County's Workplace Violence Policy and implicated public safety.

He filed a lawsuit against the County for employment discrimination in violation of the ADA.  The district court concluded that no reasonable jury could find that the plaintiff's PTSD was the "but for" cause of the County's action, or that it was plainly unreasonable for his supervisors to believe that a fitness-for-duty evaluation was warranted.  The plaintiff alleged two claims under the ADA: (1) that the County discriminated against him on the basis of disability by placing him on paid administrative leave; and (2) that the County required him to take a fitness-for-duty evaluation that was not job-related and consistent with business necessity.

Section 12112(a) of the ADA prohibits employers from discriminating against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employment compensation, job training, and other terms, conditions, and privileges of employment.  These ADA prohibitions include limiting, segregating, or classifying an employee in a way that adversely affects the opportunities or status of such employee because of the disability of such employee, and by utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.  

To prove a violation of Section 12112(a), a plaintiff must show that: (1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; (3) she suffered an adverse employment action; and (4) the adverse employment action was caused by her disability.  A plaintiff must establish a causal connection between her disability and the adverse employment action.  The 7th Circuit applies the "but for" causation standard notwithstanding the ADA Amendment Act of 2008, that changed the language of the ADA from prohibiting discrimination "because of" a disability to prohibiting discrimination "on the basis of" a disability.  However, the 7th Circuit stated that "...it remains an open question in this circuit whether that change affects the "but for" causation standard we apply in these cases."  

PTSD is a disability within the meaning of the ADA; and there was no dispute that the plaintiff was qualified to perform the essential functions of his job as a police officer.  One issue was whether the evidence was sufficient to establish that the plaintiff suffered an adverse employment action when he was placed on paid administrative leave for approximately three months.  An ADA plaintiff must demonstrate that she suffered a materially adverse employment action, not a minor or trivial one.  While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action."  Materially adverse employment actions include cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished.  When overtime pay or premium pay is a significant and expected part of an employee's annual earnings, denial of such pay may constitute an adverse employment action.  In this case, the 7th Circuit concluded that the plaintiff's substantial loss of overtime pay that resulted from the administrative leave was sufficient to establish an actionable adverse employment action.

However, the plaintiff did not meet his burden to establish the required causation element--that his PTSD was the "but for" cause of the adverse employment action.  The analysis is whether a reasonable jury could conclude that the plaintiff would not have suffered the same adverse employment action without his disability, and everything else had remained the same.  The employer's stated reasons for placing the plaintiff on administrative leave and ordering a fitness-for-duty evaluation were that he allegedly violated the County's Workplace Violence Policy; that he had previously reacted angrily to being passed over for a promotion; and that he might pose a threat to his colleagues or members of the public.  The plaintiff contended that these reasons were pretext for discrimination on the basis of his PTSD.  When evaluating pretext, the question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason.  The 7th Circuit concluded that the plaintiff did not offer any evidence of pretext.  There was no competent evidence that the decision-makers knew about his PTSD.  He also did not identify a similarly situated co-worker who was treated more favorably under similar circumstances.  Thus, the plaintiff did not provide enough evidence to allow a reasonable jury to conclude that his PTSD was the "but for" cause of the decision to place him on administrative leave and order a fitness-for-duty evaluation.

Section 12112(d)(4)(A) of the ADA provides that an employer shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.  This provision applies to all employees, with or without an actual or perceived disability.  An examination is job-related and consistent with business necessity when an employer has a reasonable belief based on objective evidence that a medical condition will impair an employee's ability to perform essential job functions or that the employee will pose a threat due to a medical condition.  Inquiries into an employee's psychiatric health may be permissible when they reflect concern for the safety of employees and the public at large.  Because the plaintiff was a police officer and responsible for public safety, his well-being was essential not only to his safety but to the public at large.  Therefore, the County had a compelling interest in assuring that he was both physically and mentally fit to perform his duties.  This special work environment necessitates greater leeway for supervisors to order job-related fitness-for-duty evaluations.  

The 7th Circuit concluded that the plaintiff implicitly threatened physical violence against a colleague in violation of the County's Workplace Violence Policy; and that there was no evidence that his PTSD, rather than his inappropriate conduct, was the "but for" cause of the decision to place him on administrative leave and order a fitness-for-duty evaluation.  The decision was reasonable and consistent with business necessity.