By: Claudia D. Orr
Recently the Eastern District of Michigan granted an employer’s motion for dismissal of an Americans with Disabilities Act (“ADA”) claim where the employer had insisted that the employee submit to a psychiatric examination before returning to work from an extended psychiatric leave of absence. Because medical tests can give rise to claims under the ADA, it is worth seeing how this employer escaped liability in Pena v. City of Flushing, 2015 WL 5697680 (E.D. Mich. 2015).
Noe Pena began working for the City of Flushing, Michigan in September 2004 as a wastewater treatment plan operator. By 2008, a coworker allegedly started making harassing comments about Pena’s Mexican heritage such as “I smell Mexican sh–” and comments about tacos when referring to Pena. After the comments began, Pena began having performance issues and received disciplinary action. Pena also started treating with Dr. Pope, a psychologist, and was given medications for his anxiety and stress.
Given the performance issues, the City Manager placed Pena on a medical leave until he was able to obtain a letter from Dr. Pope stating that Pena was “capable of performing his duties, as required, so that his and his fellow employees’ safety is not compromised.” A little over a month later, Pena received clearance to return to work. During his absence, all City employees were required to attend an educational program about respect in the workplace.
When he returned, Pena filed a harassment complaint. Pena took another two week medical leave, but told his psychologist that things were better at work. When he returned, there was a meeting held with Pena and his coworkers and all agreed things were better, but not totally resolved.
In 2012, Pena took time off related to breathing problems and, in 2013, Pena took another medical leave, this time for stress allegedly caused by discrimination and retaliation at work. Pena was off work for nearly 3 months and was prescribed several medications to control his depression and anxiety, but the medications caused him to hallucinate and affected his breathing.
Eventually, Pena informed the City that he would be returning to work on October 28, 2013. However, before he returned, Pena received a letter from the City Manager stating:
Due to the nature of your extensive leave from work, the city will require a medical clearance before your return to work.
Upon clearance from your doctor, you are hereby directed to contact Dr. Linda Forsberg at PSYBUS PC…for an evaluation. … The city reserves the right to require a physical examination upon the conclusion and possible clearance for return to work from Dr. Forsberg. …
The City also wrote Dr. Forsberg, stating:
Mr. Pena has been sent to your office for concerns involving his mental and physical health while being employed with the City of Flushing.
During the last two years, he has taken over four months off from work, mostly in the summer. Initially, Noe complained of pulmonary symptoms that were affecting his breathing. …
This year, Mr. Pena has taken off of duty due to a psychological reason that is unknown to the city. We are now asking for a psychological evaluation before returning him to another position. …
Mr. Pena and I had a discussion in August of 2013, where he identified a number of small issues that were bothering him. He seemed overly sensitive to these issues that were unrelated to the breathing problems that he experienced. Due to those discussions, I am concerned that his psychological conditions may be more extensive than we thought. ….
While Pena reported for the examination on October 31, 2013, he was never examined because he requested additional time to consult with his attorney. Pena was suspicious of the exam and found on-line reviews for Dr. Forsberg that stated such things as “do not trust this lady” and “they lost my records.” Pena filed a grievance requesting the City stop harassing him and was told (twice more) that he must report for an examination with Dr. Forsberg.
Pena sent a letter to the City from his treating psychologist indicating that he had been in treatment for depression, was compliant with treatment, taking medications as prescribed and symptoms had been reduced. The letter concluded that Pena “appears capable of performing the duties required of him at the wastewater treatment plant without accommodation.” Pena demanded reinstatement or, if the City perceived him as unable to perform his duties, that it indicate what “aspect of that condition [the City] believe[s] renders [him] unable to perform the skills and physical requirements of [his] job.”
In response, the City Manager wrote: “The basis for your extended leave from mid-August until late October is still unknown to the City, therefore the City is unable to identify any potential limitations or concerns about your ability to return to work as you have requested. Nor have you demonstrated that your physician is apprised of your job requirements such that he may make an informed decision regarding your ability to perform the essential functions of your position.”
Pena was again instructed to report for an examination by Dr. Forsberg and told that, after the City received her report, they would meet to discuss any reasonable accommodations that may be required. The City Manager concluded: “I truly believe it is in the best interest of all involved to have a third party evaluate you and provide an unbiased report regarding your ability to perform the essential functions of your job with or without an accommodation.”
When Pena still refused to submit to the examination, he was discharged for insubordination. Charges were filed with the Equal Employment Opportunity Commission and, following the right to sue letter, the civil lawsuit was initiated.
The Court concluded that the City Manager’s “knowledge that Pena suffered from depression, had taken medical leave in the past and was obtaining psychological treatment, is insufficient on its own to establish that [the City Manager] perceived Pena as suffering from an impairment. Nor does [the City Manager’s] directive that Pena undergo an IME establish that [he] perceived Pena as suffering from an impairment. [The City Manager] was concerned that Pena was out on medical leave for over two months based on a psychologist’s simple note stating, ‘Above pt was seen today. He needs to be on sick leave.’ Moreover, when [the City Manager] talked to Pena when he initially began his sick leave, [he] was concerned with Pena’s demeanor and response to questions.” The Court concluded that this was insufficient to regard Pena as disabled.
The Court also found that conditioning Pena’s return to work on obtaining an IME from Dr. Forsberg was permissible under the ADA since it was “job-related” and “consistent with business necessity”. The Court found that the City had a legitimate concern whether Pena’s ability to perform the essential functions of his job was impaired. “Such a genuine reason may arise when an employee’s ‘aberrant behavior’ raises the concern that an employee’s mental or emotional instability could undermine [his] ability to complete [his] job functions effectively in the employer’s work environment.” The Court focused on the letter from Pena’s own treating psychologist who stated “it appeared” Pena was able to perform his job, noting that the opinion was not unequivocal and did not relieve Pena of his obligation to attend the IME. While the case was dismissed by the federal district court, Pena has filed his appeal with the Sixth Circuit Court of Appeals.
It is clear that both Pena and the City were being guided by legal counsel. It is not unusual for the “chess game” to continue for an extensive period before the issue is resolved. Here, the game finally ended when the employee was discharged for insubordination.
When playing these “chess games”, it is important to consult with an experienced employment attorney, such as the author. Just a small change in the facts can radically alter the legal advice given. You not only want to avoid violating any laws, you also want to be in as good a position as possible to defend the lawsuit that may eventually be brought. If you have any questions concerning the ADA or any other employment issues, please feel free to contact the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of the law firm Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. October 2015.