The U.S. Court of Appeals for the 6th Circuit—which covers Kentucky, Michigan, Ohio, and Tennessee—recently affirmed a grant of summary judgment (dismissal without a trial) in favor of a city that fired an employee for refusing to undergo a medical examination as a condition of returning to work after medical leave.
“Sam” began working for the city of Flushing, Michigan in 2004. In 2007 and 2008, he alleged that a coworker made disparaging comments about his national origin (Mexican) and complained to his union chairman and supervisor.
Sam’s performance began to suffer about the same time. He was reprimanded twice in early 2008 for failing to carry out his job duties. He subsequently sought psychological treatment for the harassing conduct he experienced at work, which he claimed led to distractions and interfered with his performance.
The city placed Sam on a paid leave of absence because of his performance problems. The city later sought certification from his therapist that he was “capable of performing his duties, as required, so that he and his fellow employees’ safety is not compromised.” Also, the city required all employees to attend training on respect and responsibility in the workplace. Sam was cleared by his doctors and returned to work on March 25, 2008.
Shortly after returning to work, Sam filed a formal harassment complaint. His coworkers learned of the complaint, and at least one of them told him that he was “gonna make a lot of people angry, you know, if we have to take classes on harassment.” The continued harassment caused Sam to take medical leave from April 17 to May 12.
However, by May 20, Sam reported to his psychologist that things at work were better. Management held a meeting between Sam and his alleged harassers on August 29, and they “agreed things were going much better between them now.” There were no other issues regarding Sam’s employment until mid-2012, when he experienced respiratory problems that required him to take medical leave from June 14 to August 31.
Sam took medical leave again in July 2013, claiming he was experiencing stress caused by discrimination and retaliation at work. He met with management in August 2013 to deliver his doctor’s note and explain his need for sick leave. Sam’s manager recalled that he was unable to finish sentences or put paragraphs together during the meeting. At one point after being unable to talk for a while, Sam giggled and said he had not taken his medication. Until that point, the city had been unaware that he was taking medication. His manager became concerned about his well-being.
On October 24, Sam texted his supervisor that he would return to work on October 28. The following day, the city informed Sam that he would need medical clearance and that he was to report to Dr. Linda Forsberg for a psychological evaluation. Sam reported to Forsberg on October 31, but an examination did not occur because he wanted time to consult with his attorney. On December 9, he was directed to schedule another appointment with Forsberg. Sam scheduled an appointment for January 13, 2014, but later canceled it.
At Sam’s request, his physicians submitted a letter to the city on January 14, 2014, clearing him to return to work. He also requested that the city permit him to return to work immediately. The city responded by stating that he would not be permitted to return to work until he had been examined by Forsberg and reiterated the need for him to submit to an examination. Sam made no effort to schedule an appointment with Forsberg, and he was terminated for insubordination via a March 14 letter.
After filing unsuccessful claims with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission (EEOC), Sam filed a complaint in federal district court. The complaint alleged the city violated the Americans with Disabilities Act (ADA) by (1) requiring Sam to undergo a physical examination that was not job-related and consistent with business necessity and discharging him for failing to attend the exam, (2) failing to allow him to return to work and firing him because of the perception that he was disabled, and (3) failing to allow him to return to work and discharging him in retaliation for exercising his rights under the ADA.
Sam also alleged the city discriminated against him on the basis of his national origin and race and retaliated against him for reporting discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964.
The city filed a motion for summary judgment on all claims, which the district court granted. Sam appealed to the 6th Circuit.
The court of appeals affirmed the award of summary judgment in favor of the city on all of Sam’s claims. Perhaps most interesting to employers is the portion of the court’s decision pertaining to Sam’s ADA claim. Sam asserted that he was covered by the ADA because, in his view, the city “regarded him as disabled.”
He argued that the city’s insistence that he submit to a mental examination by a doctor of its choosing prior to returning to work, coupled with its general knowledge that he was having medical problems, was sufficient to establish that the city “regarded him” as disabled and thus invoked the protections of the ADA.
The court of appeals rejected that argument. The court acknowledged that the 2008 amendments to the ADA liberalized the standard for determining whether an employer regarded an individual as disabled. However, the court noted that even after the 2008 amendments, the ADA still expressly authorizes employers to request fitness-for-duty examinations as long as they are “job-related and consistent with business necessity.”
The court stated: “The ADA is a shield against discrimination on the basis of disability; it is not a sword enabling employees who are not, in fact, substantially limited in any major life activity to refuse reasonable requests by their employers and then use that statutorily-grounded request to plead a ‘regarded as’ claim.”
Mere knowledge that an employee’s health problems may be causing performance problems is not enough to establish that the employer regards the employee as disabled. The ADA permits employers to request independent medical examinations if they are job-related and consistent with business necessity. However, employers should be judicious in evaluating whether they have a sufficient basis for requesting an independent examination.