Sixth Circuit: Employer Has No ADA Liability for Choosing Between Dueling Physician Opinions in Fitness-For-Duty Evaluations as Long as Selected Opinion is Objectively Reasonable

Last month, a divided panel of the Sixth Circuit Court of Appeals affirmed summary judgement under the ADA for an employer which had relied on two medical opinions that found the plaintiff to be a potential direct threat and unfit for duty and rejected critical medical opinions by the disability insurance carrier’s physicians and the employee’s selected physician who found the plaintiff to be fit for duty and ineligible for disability insurance. Michael v. City of Troy Police Department, No. 14-2478 (6^th Cir. 12-14-15).  The dissent would have left it to the jury to decide whether the opinions of the employer’s physicians were “objectively reasonable.”  However, the Court’s majority concluded that the employer was not required to divine which physician was correct or to wait until disaster struck; it was absolved of ADA liability as long as the opinion it selected was objectively reasonable.

According to the Court’s opinion, the plaintiff had several surgeries for a brain tumor and returned to work.  After his second surgery, he began to act strangely (i.e., overreacting, secretly recording his boss and his wife, suing his boss and trying to press criminal charges against his now ex-wife, etc.), but did not threaten himself or others with physical harm.  Nonetheless, following his third surgery, he was referred for a fitness for duty, psychological examination where a neurologist found him unfit to return to work because he “may be a threat to himself and others.”  The plaintiff sought a second opinion from another neuropsychiatrist, who found him fit to return to work.  A third physician confirmed the first evaluation in subsequent, but briefer, evaluation.  (Similarly, a fourth evaluation which the plaintiff secretly initiated also found him unfit for duty).  However, when he applied for disability pay, the insurance company’s evaluating physicians were sharply critical of the prior medical opinions and denied him compensation on the grounds that he was fit for duty and able to return to work without restrictions.  Based in part on his erratic behavior, the City refused to reinstate him and relied on the evaluations of the two physicians which had found him a possible danger to himself and others. He filed a lawsuit for disability discrimination under the ADA and the court granted summary judgment for the employer.

The Court agreed that the plaintiff could not carry his burden of proving that he was qualified to perform the essential functions of his job because the employer had reasonable medical evidence that he posed a direct threat. 

An employer’s determination that a person cannot safely perform his job functions is objectively reasonable when the employer relies upon a medical opinion that is itself objectively reasonable.  . . . A medical opinion may conflict with other medical opinions and yet be objectively reasonable.

The Court found that the employer had both reasonable medical evidence and testimonial evidence about the plaintiff’s odd behavior to justify keeping him off work.  The first medical opinion was not a cursory report, but followed a seven-hour evaluation, nine hours writing an eleven page report.  The second opinion relied on a 90 minute evaluation and a review of the prior report and medical records.  In contrast, the disability insurance physicians only reviewed records and the reports instead of independently evaluating the plaintiff.

The Court’s majority rejected the relevance of the conflicting medical evidence: 

Only one of the doctors discussed the specific job functions of the City’s patrol officers, and none ventured specifically to say that Michael could safely engage in high-speed driving or make snap decisions regarding whether to use lethal force. Those omissions are conspicuous.

But there is a larger problem with Michael’s argument. Reasonable doctors of course can disagree—as they disagree here—as to whether a particular employee can safely perform the functions of his job. That is why the law requires only that the employer rely on an “objectively reasonable” opinion, rather than an opinion that is correct.  . . . Indeed, in many cases, the question whether one doctor is right that an employee can safely perform his job functions, or another doctor is right that the employee cannot, will be unknowable—unless the employer runs the very risk that the law seeks to prevent.  Here, the City was not required to invite a section 1983 claim later in order to an ADA claim now. Right or wrong, the opinions upon which the City relied were objectively reasonable; and that means the City is not liable.

Importantly, the City also had its own reason for believing that the plaintiff might be a direct threat based on his erratic behavior showing poor judgment.  These issues were not addressed by the medical opinions which found him to be fit for duty.

In another opinion rendered the same week, a different panel likewise affirmed summary judgment for an employer which had referred the plaintiff teacher to be evaluated for fitness for duty when she was routinely tardy, seemed to be falsifying grades, could not control the students in her classroom (which was constantly in disarray), failed to implement a mandatory reading program, and regularly required other employees to assist her assert control over unruly and delinquent students.  Belasco v. Warrensville Heights City School Distr.. No. 15- 3131 (6^th Cir. 12-11-15).   She testified that she was afraid that the students would knock her down because of her balance impairment.   The physicians found her also be short of breath.   When the plaintiff requested a second opinion and selected her own physician, the first opinion was confirmed.    Neither physician believed that she could appropriately respond to emergencies. She was ultimately terminated after a hearing. The Court found that she had failed to provide any medical support that her belatedly requested accommodation – a walker – would enable her to perform the essential functions of her job.  

 

While the plaintiff questioned whether the evaluations were “reasonably calculated to measure the essential functions of her job,” she failed   

to offer any evidence that the validity of the fitness-for-duty test depends on whether each element qualitatively and quantitatively corresponds exactly to narrowly defined aspects of the job in question. One might wonder, for example, how a teacher’s ability to respond in emergencies could be tested if not by using other tasks as proxies for an emergency. Moreover, by arguing that “many of the tasks required by the tests” were unrelated to essential functions, Belasco implicitly concedes that at least some aspects of the fitness-for-duty tests were related to essential functions. See R. at 17, Appellant Br. 13–14. Belasco does not explain why her failure to pass the relevant aspects of the fitness-for-duty tests cannot independently support the examiners’ conclusions that she was unable to perform essential functions of her job— namely, supervising students, ensuring their safety, and responding in emergencies. Her critique of the exams does not rebut these critical pieces of information.

In addition, the Court found that in light of abundance of evidence that she was unqualified, she needed to do more than poke a few holes in the evaluation.  Instead, she was required to prove that she was qualified for her teaching job.   

Further, the Court found that she also failed to identify a reasonable accommodation that would have enabled her to perform her job duties.  The request for a walker was not supported by medical evidence.  Her request for a teaching aide was inappropriate because the law does not require an employer to hire a second employee to perform the essential job functions for another employee.  In any event, the union refused to consent to the hiring of a part-time aide, even as an accommodation to a teacher with decades of experience.   The Court distinguished the situation when the employer replaced her with two substitute teachers because the extra teacher was required to help the students to catch up after spending a semester with the plaintiff’s inadequate performance and had not been hired – as plaintiff suggested – to help control the unruly students.

 

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 be changed or 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: FMLA Does Not Cover Care For Adult Child With Temporary Impairment and Does Not Require Employers to Obtain Second Medical Opinion

On September 28, 2007, the federal Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer and dismissal of the FMLA claims of a former employee. Novak v. MetroHealth Medical Center, No. 06-3036 (6th Cir. 9/28/07). First, the Court noted that the employee could not prove that she suffered from a “serious health condition” covered by the FMLA because the medical certifications she had submitted to her employer were insufficient. Among other things, the physician who purportedly provided the incomplete certifications of the chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The court also held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. While the FMLA permits employers to obtain second medical opinions, it does not require them to do so.

The Court also rejected the plaintiff’s argument that she was entitled to FMLA leave to care for her 18-year daughter while she suffered from temporary post-partum depression. First, the court noted that the plaintiff had failed to provide any medical certification that her daughter was even temporarily disabled from taking care of herself:

“The FMLA authorizes leave to care for a child 18 years of age or older only if the child is suffering from a serious health condition and “incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12)(B). Notably, [Plaintiff] did not provide any evidence or medical certification that [her daughter] was in fact unable to care for herself; rather, the certification and [her daughter’s] testimony all related to [her daughter’s] difficulty in caring for her newborn child (i.e., [Plaintiff’s] grandchild). But the FMLA does not entitle an employee to leave in order to care for a grandchild.”

Second, the Court found that the FMLA only permitted leave when the adult child was “disabled” as governed by the ADA. However, the evidence showed that the daughter’s post-partum depression was neither severe nor long term, as required by the ADA to qualify as a covered disability:

“We conclude, based on our evaluation of all the relevant factors, that [Plaintiff’s] daughter, . . . was not substantially limited in any major life activities — such as the activity of caring for oneself — and therefore was not disabled for purposes of the FMLA. First, [Plaintiff] has not presented sufficient evidence for a jury to conclude that [her daughter’s] impairment was severe. . . . Second, the undisputed facts clearly show that [her daughter’s] condition lasted only a week or two. . . . Such a short-term restriction on a major life activity generally does not constitute a disability. See Hein, 232 F.3d at 487. Third, [Plaintiff] has not produced any evidence indicating that [her daughter’s] postpartum depression inflicted any permanent or long-term impact on her health. In fact, the record evidence is to the contrary, demonstrating that [her daughter] recovered in a short period of time, and giving no indication that she endured any long-term adverse effects. Because [Plaintiff] has not established that her adult daughter suffered from a disability, the FMLA does not authorize [Plaintiff’s] leave to care for her.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomiacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/07a0398p-06.pdf.