Labor & Employment Law Daily No constructive discharge based on revoked requirement that doctor undergo psychiatric exam
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Wednesday, February 26, 2020

No constructive discharge based on revoked requirement that doctor undergo psychiatric exam

By Marjorie Johnson, J.D.

The university hospital’s three-year-old request for psychiatric exams and treatment, which was soon withdrawn without any change in the doctor’s present terms of employment, did not create a job environment that a reasonable person would find sufficiently intolerable.

A doctor failed to convince the Tenth Circuit to revive his Rehab Act claim asserting that a university hospital unlawfully required him to submit to psychiatric exams as a condition of increasing his work hours since the district court properly found his claim was time-barred. The appeals court held that the statute of limitations began to run when he undisputedly knew about the exam requirement and not when he later gained access to his personnel records and “understood” that there was no business-necessity justification. Additionally, because his decision to resign came three years after the hospital revoked the medical exam requirement, and thus he was not subjected to objectively intolerable working conditions, summary judgment was also affirmed against him on his constructive discharge claim (Rivero v. Board of Regents of the University of New Mexico dba University of New Mexico Health Sciences Center, February 24, 2020, Hartz, H.).

Counseling as condition of increased hours. The doctor worked full-time at the hospital from 1992 until early 2007, when he voluntarily decreased his workload to one day per month while he worked full-time elsewhere. Several months later, he sought to return to full-time or three-quarter-time employment, but it wasn’t until December 2010 that the parties agreed he could gradually increase his workload if he met certain conditions, which included counseling sessions.

Requirements revoked. In February 2011, the employer sent the doctor an addendum to his employment contract, which required him to attend a “four-part psychiatric evaluation” and to submit progress reports from the psychiatrist. It also mandated his resignation if he failed to comply with the psychiatrist’s treatment recommendations. The doctor was “shocked” and sought access to his personnel files to glean any support for these requirements. The employer refused to turn over his files and withdrew the addendum about two weeks later.

Litigates access to personnel file. He continued to work one day a month and petitioned for a writ of mandamus in state court to gain access to his files. In August 2013, the court ordered production of the files, which he received by January 2014. He resigned from his position at the hospital that May, explaining that “Now that I know with certainty that there is nothing which could have warranted a psychiatric evaluation. I can no longer work at an institution that has treated me in this manner.”

Untimely medical-inquiry claim. The doctor failed to revive his Rehab Act claim asserting that the employer unlawfully conditioned his future full-time employment on his being subjected to psychiatric exams and treatment. The district court properly dismissed his claim as untimely under the applicable three-year statute of limitations, which began to run in March 2011 when he undisputedly knew of the terms of the addendum and sent an email requesting additional time to decide whether to agree to the terms. The limitations period thus expired in March 2014—long before he filed suit in April 2016.

Need not anticipate business-necessity defense. The doctor did not dispute that he was aware of the psychiatric-exam requirement in March 2011, at which time he had sufficient evidence to establish a prima facie case of an unlawful-medical-inquiry claim. Instead, he argued that his claim did not accrue until early 2014, when he received access to his personnel files and “understood” that there was no business-necessity justification. But Tenth Circuit precedent foreclosed his argument since business necessity is an affirmative defense on which the employer has the burden of persuasion, and therefore he was able to assert a legal claim without investigating possible affirmative defenses.

No constructive discharge. Regardless of whether his employer acted with discriminatory intent, the doctor’s constructive-discharge claim under the Rehab Act still failed on the merits. Significantly, the offensive treatment at issue occurred more than three years before he resigned—the addendum was presented to him in February 2011 and withdrawn two months later in April. Though it was not until January 2014 that he was able to confirm that his personnel files contained nothing that would support the requirement of a psychiatric exam, he believed from the outset that there was no support for it and never indicated that he was surprised by the contents of his files. “We do not think that a reasonable person could find a job intolerable because of something that happened to him three years earlier,” held the Tenth Circuit.

Actions surrounding personnel files not intolerable. The doctor also complained about the employer’s failure to turn over his personnel files until the court ordered it to do so. But there was no evidence that withholding the files affected his work routine or environment in any respect other than his displeasure with the employer’s litigation position. He was also fully aware of that position years before he resigned, and he made no reference to any hostile remarks or actions by his supervisors or coworkers after he filed the mandamus action. Accordingly, the litigation and withholding of files did not support his claim of intolerable working conditions.

Recusal denial affirmed. Finally, the Tenth Circuit refused to overturn the district court’s denial of the doctor’s motion seeking recusal based on two letters in which the judge disclosed several ties to the university. The doctor did not object after either letter and only moved to recuse after the judge indicated that he would likely grant the employer’s motion for summary judgment. Rather than address the merits, the Tenth Circuit affirmed on the ground that on appeal, the doctor failed to challenge the district court’s denial of his motion based on its untimeliness.

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