The sheriff’s decision to order a fitness-for-duty evaluation was also reasonable and consistent with business necessity.
A sergeant for the county sheriff’s office, who was placed on administrative leave and ordered to undergo a fitness-for-duty evaluation after he threatened a fellow deputy with physical violence, could not show that his PTSD was the “but-for” cause of the county’s actions, the Seventh Circuit ruled. Affirming summary judgment in favor of his employer against his ADA claims, the court also found that in ordering the fitness-for-duty exam, the department had a particularly compelling reason for assuring that the officer was both physically and mentally fit to perform his duties (Kurtzhals v. County of Dunn, August 10, 2020, Wood, D.).
Implied threat. While sitting at his desk, the sergeant was aggressively approached by the deputy, who yelled at him and called him a liar. When the deputy refused to leave, the sergeant said something like “if you call me a liar again, we are going to take it outside.” Because this implied threat violated the county’s workplace violence policy, the sheriff placed the sergeant on paid administrative leave and ordered him to undergo a fitness-for-duty evaluation, a decision he made only after consulting with HR, corporate counsel, a psychologist, and an outside employment-law attorney who had been hired to investigate the incident.
Although the outside attorney thought the fitness-for-duty evaluation was an overreaction to a single incident, the sheriff ordered it anyway. He did not, however, place the deputy on leave or require him to submit to an evaluation.
History of PTSD. The sergeant, who had served in the military, had a history of PTSD. When he returned to the sheriff’s office in 2014 following a combat deployment, he informed his then-supervisors of his diagnosis and that he had received counseling. In return, they told the sergeant they would pass that information on to the sheriff. When the sergeant asked the sheriff and chief deputy if the decision to place him on leave and order the exam had anything to do with this PTSD, they both remained silent.
Lower court decision. Suing under the ADA, the sergeant claimed that the county discriminated against him when it placed him on paid administrative leave and that the fitness-for-duty exam was not “job-related and consistent with business necessity.” Because no reasonable factfinder could conclude that his PTSD was the “but for” cause of the county’s action or that it was plainly unreasonable for his superiors to believe that a fitness-for-duty examination was warranted, the lower court granted summary judgment against his claims.
Adverse employment action. At issue on appeal was whether the sergeant established that he suffered an adverse employment action. During the approximately three months that he was placed on paid administrative leave, he received his base salary plus pay for 27 hours of overtime. Further, he returned to work in the same position and faced no further consequences other than an oral reprimand. He argued, however, that he should have received even more overtime pay for which he would have been eligible.
Noting that his ability to earn overtime was not speculative or conditional, the court pointed to evidence that during 2015 and 2016 (when he was not on administrative leave) he averaged between 4.7 and 6.3 hours per week of overtime. Applying that average to the 11.5 weeks he was on administrative leave, he could have expected to work between 54 and 72 hours of overtime, which was more than twice as much than the 27 hours for which he was paid. This was enough to find he suffered an adverse action.
Unprofessional conduct, not PTSD. Turning to whether unlawful discrimination based on his PTSD was the but-cause of the adverse action, the court noted that the sheriff claimed he placed the sergeant on leave and ordered the evaluation because he violated the county’s workplace violence policy when he threatened the deputy with physical violence; the sergeant had previously reacted angrily to being passed over for a promotion; and he might pose a threat to his colleagues or members of the public. “None of these reasons explicitly mentions PTSD,” said the court, finding instead that the focus was on the sergeant’s unprofessional conduct.
No pretext. Contending that these reasons were pretextual, the sergeant argued that the sheriff and chief deputy were lying when they denied they knew about his PTSD when they placed him on leave; it was “telling” that they were silent when he asked if his PTSD was a motivating factor; and their decision not to discipline the deputy showed they did not truly think a mild violation of the workplace violence policy necessitated a fitness-for-duty evaluation. However, the court observed, the only evidence the sheriff and chief deputy knew of his PTSD was the sergeant’s statement that his previous supervisors told him they would tell the sheriff about his diagnosis, which was simply too remote.
No but-for causation. Further, the sheriff’s and chief deputy’s purported silence when asked if their decision to place the sergeant on leave was based on his PTSD fell “well short of an affirmative ‘yes.’” And even if it were to infer from their silence that they both knew about his PTSD and took it into account, this still did not meet the “but for” causation standard, said the court. Although the sergeant argued that he and the deputy acted in a comparable fashion and should have been treated similarly, only the sergeant threatened physical violence, the court pointed out, and while the deputy may have behaved in an intimidating manner, “their behavior was not identical.” Summary judgment was properly granted on this claim.
Fitness-for-duty evaluation. As to his claim based on the fitness-for-duty evaluation, the court, citing Seventh Circuit precedent, observed that under the ADA, 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.” Because the sergeant, as a police officer, was responsible for public safety, his “well-being was essential not only to [his] safety but to the public at large; thus, the Department had a particularly compelling interest in assuring that [he] was both physically and mentally fit to perform [his] duties.” This “special work environment,” the court explained, necessitates greater leeway for a supervisor to order job-related fitness-for-duty evaluations.
No one right answer. The sergeant, however, contended that the evaluation was not consistent with business necessity because “heated exchanges with voices raised and the use of swear words were not unusual in the department;” other employees had committed worse misconduct in the past and not been ordered to get an evaluation; the office did not have a normal practice of ordering these evaluations; his conduct was not egregious enough to warrant one; and the deputy was not required to submit to one. Finding “there was no one right answer in this situation,” the court found the sergeant simply could not show the sheriff did not genuinely believe his conduct was more problematic than the deputy’s.
And while the outside attorney recommended not administering the evaluation, her “recommendations were just that—advice that the Sheriff was not obliged to accept.” Nor did the office’s past practice of not asking for psychological evaluations, when they might have been warranted, prevent the sheriff from ordering an evaluation here where the sergeant threatened the deputy and in so doing, violated the workplace violence policy. “A reasonable person,” said the court, “could see this as evidence that Kurtzhals had a short fuse and might lash out again at a colleague or a member of the public,” and it affirmed summary judgment.
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