Sixth Circuit: Moral Disapproval Is Not Sufficient Justification for Medical Exam Under ADA

This morning, a unanimous Sixth Circuit again reversed an employer’s summary judgment decision in an ADA case where an Emergency Medical Technician lost her job for refusing to obtain mental health counseling.  Kroll v. White Lake Ambulance Authority, No. 13-1774 (6^th Cir. 8-19-14).  In 2012, the same three judges of the Court had (on a divided basis) reversed the employer’s summary judgment on the grounds that requesting the plaintiff to submit to mental health counseling constituted a request for a medical examination – even if the employer did not seek to know the results or subject of the counseling.  On remand, the trial court again granted the employer summary judgment on the grounds that the employer had received a number complaints about the plaintiff’s erratic and/or dangerous behavior which compromised her ability to safely and competently perform her job duties and which reflected that she posed a direct threat to herself and others.  However, on appeal, the Court of Appeals focused only on the two incidents which the supervisor remembered in his deposition to knowing or believing at the time he required the plaintiff to submit to counseling.  Moreover, the Court found that a jury could believe that the counseling was requested largely because the supervisor morally disapproved of the plaintiff’s extracurricular activities with a married co-worker and men she met at a local bar. In addition, the  Court found that most of the co-worker’s concerns related to off-duty conduct and were not relevant to whether the plaintiff could safely or competently perform her job. 

According to the Court’s opinion, several of the plaintiff’s co-workers testified to her erratic behavior and that they had complained to management about it.  Among other things, she would cry, argue with her married boyfriend on her cell phone, send text messages while driving an ambulance in violation of the employer’s policy and refused to assist a co-worker (who she suspected of also having an affair with the plaintiff’s married boyfriend) administer oxygen to a patient. The plaintiff denied violating the employer’s policy on using cell phones or texting while driving.   After the last incident, the plaintiff’s supervisor conditioned her continued employment on attending counseling with the professional of her choice.  He admitted in his deposition that he did not really question her patient care.  He also admitted that he was compelling counseling because her life was a mess and he thought that he could help her. “[H]is primary concerns regarding Kroll related to her personal life and her sexual relationships.” In addition, the plaintiff

confirmed that Binns told her she would need to attend counseling because of her personal behavior. She testified that, during the meeting following her argument with Osborn, Binns “said I was picking up men from the bar and I was going to end up raped if I just picked up random men from the bar.”  . . . Kroll recalls that Binns explicitly told her that she “needed counseling because of [her] immoral personal behavior.” . . . Although Kroll agreed that she had some emotional problems and that she might have benefitted from some counseling, she refused treatment because she could not afford to pay for it.

The ADA prohibits requiring employees to submit to medical examinations or inquiries unless the employer can prove that they are job related and consistent with business necessity.  This burden can be met where: “(1) the employee requests an accommodation; (2) the employee’s ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others.”   The Court concluded that the employer could not prove that there were questions about the plaintiff’s ability to perform her essential job functions based on two isolated incidents.  Granted, “a genuine reason may arise when an employee’s “aberrant behavior” raises the concern that an employee’s mental or emotional instability could undermine her ability to complete her job functions effectively in the employer’s work environment.”   Nonetheless, most of the evidence of such behavior cited by the employer had been forgotten (if it had ever been known by her supervisor by the time of his deposition) and, more importantly, related to off-duty behavior:  

Kroll’s behavior is relevant to the assessment of whether she was capable of performing her job only to the extent that it interfered with her ability to administer basic medical care and safely transport patients to the hospital. A reasonable jury could find that Kroll’s emotional outbursts outside of work hours and not in the presence of patients did not impair her ability to perform essential job functions.

Therefore, a jury could reasonably conclude that there was no valid reason for questioning the plaintiff’s professional competence.

Safely transporting patients to the hospital and providing basic medical care were among the essential duties of Kroll’s position as an EMT. Binns knew that an EMT who becomes distracted while driving an ambulance, either because she is using her cell phone or because she is focused on personal concerns, is at a higher risk of causing a traffic accident.  . . . Therefore, had Binns been aware of a pattern of behavior that showed Kroll’s emotional or psychological problems were interfering with her ability to drive an ambulance safely, he might have been justified in ordering a medical examination. In the instant case, however, Binns knew only that Kroll had broken a safety rule once and provided suboptimal care to a patient once. Kroll’s isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with additional training, but they could not support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions.

The Court rejected the direct threat defense on a similar basis:

As an EMT employed by an ambulance service, Kroll was undoubtedly employed in a position of public safety. A reasonable jury could find that the emotional behavior observed by Kroll’s coworkers, particularly any distractions while Kroll was driving, could endanger not only herself and her coworkers but also the members of the public she was called upon to aid. Thus, if Binns had been aware of a pattern of conduct in which Kroll succumbed to emotional outbursts while she was driving or providing direct medical care, he might have been justified in concluding that she posed a direct threat to safety. However, as discussed above, Binns knew of only two isolated incidents when Kroll ever behaved in a way that could endanger another person. A reasonable jury could find that Binns could not reasonably have concluded from these missteps that Kroll presented “a significant risk to the health or safety of others.”

Moreover, the employer did not consult any medical information or professional in mandating mental health counseling. The EEOC regulations require an employer to make an individualized assessment of the employee’s threat based on the” employee’s abilities and job functions and “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r).  While the Court was unwilling to precisely define what steps an employer must take, “an employer must do more than follow its own lay intuition regarding the threat posed by an employee’s potential medical condition.”  In this case, there was no evidence that the supervisor “made any kind of medical judgment at all.” 

Therefore, while there is evidence in the record to support a jury verdict in the employer’s favor, there was also enough evidence for a jury to rule in favor of the plaintiff.  Accordingly, summary judgment was inappropriate.

 

For those of you wondering about why there was no Title VII claim, there was evidence that the supervisor had requested male employees exhibiting similar behavior to also submit to mental health counseling.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Affirms Summary Judgment Dismissal of ADA Claims Based on Direct Threat

On Friday, the federal Sixth Circuit Court of Appeals affirmed a summary judgment in favor of a manufacturing employer based on its defense that the forklift operator’s disability constituted a direct threat to himself and others. Wurzel v. Whirlpool Corp. No. 10-3629 (6th Cir. 4-27-12). “ In particular, the record establishes that [the employer]’s determination that [the operator] posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of [his] abilities.” In short, the Court determined that the plaintiff was not qualified for his position because he posed a direct threat. This conclusion was based almost entirely on the extensive and individualized assessment conducted by the company physician. However, the Court refused to decide which party bore the burden of proving the direct threat/qualification standard in this case because it decided that the evidence was so clear that it need not do so.

Background

According to the Court’s opinion, numerous vehicles are used in the plaintiff’s workplace, including tow motors (i.e., forklifts driven by the plaintiff) weighing 10,000 pounds. Tow motors and pedestrians share space; tow motor lanes and pedestrian lanes are separated by painted lines only. The plaintiff was diagnosed in November 2007 with Prinzmetal angina, which causes unpredictable spasms in the coronary arteries. He was directed to take nitroglycerin pills when he experienced a spasm. Both the spasm and the pills could cause dizziness, lightheadedness and fatigue. After he began to experience these symptoms in March 2008 that repeatedly required him to be relieved from work, he was placed by the company doctor on restricted duty and prevented from driving a forklift. He continued to experience severe symptoms, would become incapacitated and sometimes had to be taken home. Without being told about these incidents or his dangerous work environment, his treating physicians continued to release him to work without restrictions and contended that he was not at any greater risk of incapacitation than anyone else with angina. The company doctor spoke with the treating physician and returned him to restricted duty with the caveat that he could return to his forklift duties if he remained spasm free for six months.

The plaintiff then bid on and obtained a position in the tooling department that did not involve driving a forklift. It required him to rotate among three positions every 30 minutes. After he experienced another spasm that incapacitated him and required him to be taken home (a few days after he had to be taken to the emergency room from work because of another spasm), the company doctor ordered an independent medical exam. After the plaintiff denied having any unusual incidents or spasms, the IME doctor returned him to work without restrictions in December 2008. In late January and early February 2009, the plaintiff had to be relieved from work on three separate occasions in a two week period. Nonetheless, he continued to tell his treating physician that he had no unusual incidents and that his symptoms were under control. When he was released to return to work without restrictions, the company doctor again spoke with the treating physician about the plaintiff’s work history and the treating physician continued to insist that he should be returned to work without restrictions.

Because the company physician did not believe that the treating physicians were accurately aware of the dangers in the work environment, he restricted the plaintiff from working around machinery, working at heights, and driving company vehicles. This essentially put the plaintiff on mandatory sick leave. The Company physician also sought another opinion from the IME physician, explaining his difference of opinion with the treating physician. The IME physician agreed that the plaintiff required close observation while working and another treating physician, and, barring that, should be kept off work for his own safety. The plaintiff then filed suit in federal court.

Subsequently, the IME physician reviewed the records of the treating physician, which confirmed that he was unaware of the frequency or severity of the plaintiff’s spasms. The IME physician recommended that the plaintiff be kept off work until he accurately conveyed this information to his treating physician. In June 2009, the IME physician again confirmed that in his opinion, the plaintiff “should not work alone near areas with an assembly line or moving machinery” and “should avoid working close to moving objects or moving machinery.” The plaintiff was informed that he would need to obtain a new position that met his medical restrictions unless he could show that he had been spasm free for six months. Because he had exhausted his paid medical leave, he was required to take unpaid medical leave. In March 2010, he returned to work without restrictions after he claimed to have been spasm free for six months.

Legal Analysis

The Court refused to decide whether the plaintiff was disabled or regarded as disabled under the ADA or ADAA. The Court did note, however, that the plaintiff could not prevail on a failure-to-accommodate claim because he would not be entitled to any reasonable accommodation in a “regarded as” disabled discrimination claim and because he never sought any reasonable accommodation of his actual disability. “Even assuming in [his] favor that he was disabled or regarded as disabled, [the plaintiff] cannot prevail under either version of the statute where the record establishes as a matter of law that [the employer]’s determination that [he] posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of [his] abilities.”

According to the Court, there are four factors to be considered in a direct-threat analysis:

(i) the duration of the risk,

(ii) the nature and severity of the potential harm,

(iii) the likelihood that the potential harm will occur, and

(iv) the imminence of the potential harm.

29 C.F.R. § 1620.2(r).

“With regard to the risk presented, “[a]n employer . . . is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e. high probability, of substantial harm; a speculative or remote risk is insufficient. . . . In addition, the risk assessment must be based on “medical or other objective evidence.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998).

In this case, the Court found that the duration of the risk was life-long and that until the plaintiff was spasm free for six months, the employer could proceed with that assumption. With regard to the nature and severity of the potential harm, the plaintiff could suffer “a spasm while driving a tow motor or working alone in proximity to moving machinery or at a height from which a fall could cause injury,” and “the consequences for his own well-being and others can hardly be disputed.”

As described below, the Court concluded that the employer was reasonable under the circumstances in deferring to the opinions of its physician and the IME physician even though they differed from the opinions of the plaintiff’s treating physicians. This is particularly true when it was evident that the plaintiff had not been supplying them with complete or accurate information about the frequency or severity of his symptoms. The treating physicians did not know how often the plaintiff had visited employee health or been taken home because the plaintiff never told them.

As for the third and fourth factors, the Court rejected the argument that the likelihood and imminence were remote (and had never taken place in this case because the plaintiff could always feel a spasm coming on in time to stop working). The Court found the plaintiff’s testimony to be contradictory and confusing about his ability to sense an oncoming attack, and thus, insufficient to defeat summary judgment (assuming that he bore the burden of proof).

[I]t is true that some courts have noted the fact that an employee has an injury-free record, or a safe driving history, in concluding that the employee has established a genuine issue of material fact on the direct-threat question. . . . However, courts evaluating individuals whose conditions might cause them to be incapacitated tend to focus on the risk related to the workplace. . . . As someone who worked close to dangerous automatic machinery and, at times, out of the sight of other employees who might be able to assist in an emergency, Wurzel’s job environment certainly falls in the potentially dangerous category. When one also considers the facts that Wurzel had once previously been found on the worksite doubled over and close to passing out, and that numerous times he had required the assistance of a fellow employee to get him to the EHC in a medical emergency, the factors concerning likelihood and imminence of harm are unmistakably met.

The Circuit rejected the arguments raised by the plaintiff and the EEOC seeking to discredit the conclusions of the employer’s physician:

As an initial matter, Dr. Marshall – the individual who gave Whirlpool its information about the risks Wurzel’s condition posed – engaged in a sufficient process. He was familiar with Wurzel’s job duties and knew that they included (initially) operating a tow motor, and (later) working in a position where he had to be in close proximity to moving machinery and an automatic conveyor belt, and where one essential rotation entailed working out of the sight of others. Dr. Marshall obtained much individualized information about Wurzel’s medical condition. He saw Wurzel himself, reviewed the medical records from the plant’s EHC, obtained the medical opinions of Wurzel’s treating cardiologists, Dr. Issa and Dr. Stockton, and, in light of the differences of opinion between medical professionals, sought out the opinion of an independent medical examiner. As Dr. Marshall was the plant physician, he had access to updated information as Wurzel’s condition changed, meaning his medical knowledge of Wurzel’s condition was current. In addition, he followed up with Wurzel’s other physicians in order to make them aware of his better understanding of Wurzel’s job environment and changes in Wurzel’s condition. Cf. Hutton, 273 F.3d at 891-94 (“individualized assessment of each factor” had occurred in case where company had the input of several physicians who had examined plaintiff and information about the plant atmosphere and plaintiff’s job duties). Further, the result was reasonably reached. Dr. Marshall adopted the ultimate recommendation of independent medical examiner Dr. Biswas that Wurzel should “not work alone near areas with an assembly line or moving machinery” and should avoid working close to moving objects or moving machinery. Biswas Letter of 6/17/2009 (R. 43-1 at 15-16). These restrictions were reasonably supported by Wurzel’s extensive history of spasms in the workplace, which entails at least eleven instances, at least five of which required visiting the plant emergency room, and the majority of which required Wurzel to leave work and go home. Wurzel’s spasm history also includes at least one incident where he was found by another employee doubled over on a bench, “ready to pass out,” another incident where he required an in-house ambulance and stretcher to bring him to the plant’s EHC, and several others where he needed an escort to get to the EHC. In addition, Wurzel’s own admission that he was at times dizzy and fatigued in connection with these spasms, and that he could not predict when one would occur or how severe it would be lends support to the reasonability of the restrictions. These restrictions were then evaluated in relation to Wurzel’s specific job duties in the paint department. See Restriction Review (R. 41-1 at 19). Whirlpool determined that Wurzel could not do the job because one of the rotations required him to work alone and outside the presence of other employees and all of the positions involved working close to a “moving overhead conveyor.” Id. Cf. Hutton, 273 F.3d at 891-94 (company closely examined plaintiff’s medical restrictions and specific job duties before concluding that he could not fill any position).

Therefore, the Court found

• Assuming the employer had the burden of proof, no reasonable juror could find that Whirlpool’s determination that Wurzel posed a direct threat to his own safety and that of others in the plant was not based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of Wurzel’s abilities.

• Assuming the plaintiff bore the burden of poof, no reasonable jury could find that there was evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a direct threat.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces that Wal-Mart Will Pay $300K to Applicant with Cerebral Palsy

The EEOC announced last week that “Wal-Mart Stores, Inc. will pay $300,000 to a Hardin, Mo., man to settle a disability discrimination lawsuit.” The EEOC alleged in its lawsuit (EEOC v. Wal-Mart Stores, Inc., No. 04-cv-0076 (W.D. Mo)) “that Wal-Mart refused to hire Steve Bradley, who has cerebral palsy and uses crutches or a wheelchair for mobility, when he applied for employment at its Richmond, Mo., store in 2001. At the time, the retail giant was preparing to open a new 24-hour Supercenter and was conducting mass hiring. Bradley applied for any available job, but during his interview he was questioned about his ability to work using his wheelchair and was told he was “best suited” for a greeter position. Ultimately, the company refused to hire him,” which the EEOC alleged violated the ADA.

In the proposed consent decree, which still requires court approval, the EEOC explained that “Wal-Mart agreed to pay $300,000 to Bradley, provide ADA training to managers at its Richmond store, notify job applicants about the decree and inform several Kansas City-area job service agencies that that the company seeks to employ qualified individuals with disabilities.”

“The settlement followed a February 2007 decision by the U.S. Court of Appeals for the Eighth Circuit (EEOC v. Wal-Mart Stores, Inc., No.06-1583 [8th Cir.]) that reversed a district court ruling dismissing the case. Wal-Mart had claimed that Bradley would pose a safety risk to himself or customers if he worked at the store using a wheelchair or crutches. In addition to finding that the EEOC presented sufficient evidence for the case to go to trial, the appeals court also held, . . . that an employer bears the burden of proof if it claims that a disabled employee or applicant poses a “direct threat” to the health or safety of himself or others.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/4-17-08.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.