Equal Employment Opportunity Commission v. M.G.H. Family Health Center

BRIEF in support of MOTION for summary judgment and MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING LIABILITY 34

W.D. Mich.January 11, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. Case No. 1:15-cv-00952-PLM-PJG Hon. Paul L. Maloney Hon. Phillip J. Green M.G.H. FAMILY HEALTH CENTER d/b/a MUSKEGON FAMILY CARE, Defendant. __________________________________________________________________/ KENNETH BIRD GERALD L. MAATMAN, JR. MILES SHULTZ (P73555) CHRISTOPHER CASCINO EQUAL EMPLOYMENT SEYFARTH SHAW LLP OPPORTUNITY COMMISSION Attorneys for Defendant Attorneys for Plaintiff 131 South Dearborn Street, Suite 2400 500 W Madison St, Ste. 2000 Chicago, IL 60603 Chicago, IL 60661 (312) 460-5000 (312) 869-8053 GMaatman@Seyfarth.com Miles.Shultz@EEOC.gov CCascino@Seyfarth.com __________________________________________________________________/ PLAINTIFF’S SUPPLEMENTAL BRIEF REGARDING SUMMARY JUDGMENT Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1038 Page 1 of 14 ii TABLE OF CONTENTS Table of Authorities ........................................................................................ iii I. Lane performed employment duties before MGH’s decision-makers received or digested Workplace Health’s recommendations for an FCE and medical hold. ......................................................................................................... 1 II. Lane was an employee when MGH terminated her on October 15, 2013. ... 4 A. If Lane is considered an employee then MGH violated the ADA by terminating her for failing to take an FCE. ............................................. 5 B. Even if Lane were considered to be an applicant with a conditional offer, then MGH withdrew the offer without making an individualized determination as to whether she could perform the job. ......................... 7 III. The statutory language, implementing regulations, and case law make clear that MGH cannot escape liability by blaming Workplace Health for Lane’s termination. ................................................................................... 7 IV. Conclusion ............................................................................................... 9 Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1039 Page 2 of 14 iii TABLE OF AUTHORITIES Page(s) Cases EEOC v. BNSF Ry. Co., No. 14-1488, 2016 U.S. Dist. LEXIS 2557 (W.D. Wash. Jan. 8, 2016) ......................................................................................................... 8 Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (6th Cir. 2002) ........................................................................ 9 Holiday v. City of Chattanooga, 206 F.3d. 637 (6th Cir. 2000) ..................................................................... 9 Keith v. Cty. Of Oakland, 703 F.3d 918 (6th Cir. 2013) ...................................................................... 3 Kroll v. White Lake Ambulance Auth., No. 1:09-CV-626, 2010 U.S. Dist. LEXIS 85404 (W.D. Mich. Aug. 19, 2010) ............................................................................................ 7 Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 9 AD 1711 (6th Cir. 1999) .................................................... 7 Statutes 42 U.S.C. § 12102(3)(A) ............................................................................. 7, 10 42 U.S.C. § 12112(b)(2) ................................................................................... 3 42 U.S.C. § 12112(d)(4)(A) ............................................................................... 7 Regulations 29 C.F.R. Part 1630, App. § 1630.14(c) ........................................................... 6 Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1040 Page 3 of 14 1 The Equal Employment Opportunity Commission (“EEOC” or the “Commission”) submits the following supplemental brief pursuant to the Court’s January 4, 2017, Order for Supplemental Briefs. Dkt. 43. The Court instructed the parties to address the following three issues: 1. Whether Lane commenced employment duties before the decision- makers at MGH received and digested Workplace Health’s medical hold. Dkt. 43 at Pg ID 1012; 2. Lane’s “employment status both at the time she began her duties and the time she was terminated.” Dkt. 43 at Pg ID 1013; and 3. The application of “42 U.S.C. § 12112(b)(2), 29 C.F.R. § 1630.6, and other relevant case law, such as Keith v. Cty. Of Oakland, 703 F.3d 918 (6th Cir. 2013)” to this case. Dkt. 43 at Pg ID 1014. Lane commenced employment duties before MGH’s decision-makers received or digested the hold recommendation. Thus, Lane was an employee at the time of her termination. Alternatively, even if Lane were considered to be a job applicant working during a conditional offer of employment, MGH still violated the ADA “slavishly defer[ing] to a physician’s opinion,”1 rather than conducting an individualized assessment of Lane’s capabilities itself. The statutory language, implementing regulations, and case law do not allow MGH to avoid liability by blaming Lane’s termination on Workplace Health. I. Lane performed employment duties before MGH’s decision-makers received or digested Workplace Health’s recommendations for an FCE and medical hold. Lane began working at MGH before MGH’s decision-makers received or digested Workplace Health’s hold recommendation. Lane left her new-hire orientation on September 10, 2013, to go to Workplace Health for a pre- 1 Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 31–32 (6th Cir. 2002). Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1041 Page 4 of 14 2 employment physical. Ex. B, Russ Dep. 50:2-51:1 (Dkt. 34-3 at Pg ID 298). Lane returned to work on September 11, 2013. Ex. E, Lane Dep. 63:17-22 (Dkt. 34-6 at Pg ID 380). Following the first few days of orientation, Lane worked a regular schedule until MGH terminated her on October 15, 2013. Ex. E, Lane Dep. 78:10-23 (Dkt. 34-6 at Pg ID 384). Lane first learned there was a potential issue with her physical on September 24, 2013, when she was confronted by Bridges and Russ. Ex. E, Lane Dep. 93:13-94:10 (Dkt. 34-6 at Pg ID 387). However, after Lane provided the Wolter note clearing her to work on September 25, 2013, Lane thought she had laid the matter to rest. Id. Lane only learned that her physical was still an issue when MGH terminated her on October 15, 2013. Id.2 MGH admitted that Lane commenced employment duties before the decision-makers either received or digested the hold recommendation: “Through a glitch in the hiring processing, Ms. Lane began working before she had completed the post-offer employment physical process…For some reason, this situation [Lane beginning employment despite the FCE recommendation] slipped through the cracks, and Ms. Lane began working for MFC even though she was on a medical ‘hold.’” Ex. D, MGH Position Statement (Dkt. 34-5 at Pg 2 It is worth repeating that MGH’s argument that Lane refused to pay for the FCE is not supported by the record. Indeed no one ever communicated this was an option to Lane. And as the Court notes, even if this contention were supported by the record, it would likely violate the ADA as well. After providing the Wolter note, Lane assumed the hold issue was resolved. Ex. E, Lane Dep. 93:13-94:10 (Dkt. 34-6 at Pg ID 387). Therefore, despite MGH’s argument that Lane refused to pay for the FCE, Lane did not know that Workplace Health still recommended an FCE after September 25. It was only during the October 15 termination meeting that she learned to the contrary—and at that meeting it was clear Lane was terminated without any other options available to her. Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1042 Page 5 of 14 3 ID 370). The record is unclear as to precisely when Workplace Health communicated the September 10th hold recommendation to MGH. It is clear, however, that MGH faxed the first job description to Workplace Health on September 12. Ex. Q, Fax Confirmation (MGH_0000052) (Dkt. 34-18 at Pg ID 471); Ex. R, Initial Job Description (EEOC000066-69) (Dkt. 34-19 at Pg ID 473- 476). And Bridges clearly knew of the FCE recommendation by September 24 when she held the first meeting with Russ and Lane. By September 24, Lane had worked for nearly two weeks as the enrollment coordinator. The following timeline displays the events from Lane’s hiring to her termination: 9/6/2013 MGH offered Lane the outreach and enrollment coordinator position. Ex. L, Lane Offer Letter (MGH_000015) (Dkt. 34-13 at Pg ID 441). 9/10/2013 Lane attended new hire orientation at MGH in the morning before going to Workplace Health for her pre-employment physical. Ex. B, Russ Dep. 50:2-51:1 (Dkt. 34-3 at Pg ID 348). 9/10/2013 Fries conducted Lane’s pre-employment physical, and requested that Lane sign a medical release based on his paper review. Ex. A, Fries Dep. 7:4-19 (Dkt. 34-2 at Pg ID 325). 9/10/2013 Fries obtained and reviewed Kapteyn’s records. The review of Kapteyn’s records prompted the medical hold.3 Ex. A, Fries Dep. 31:11-32:17 (Dkt. 34-2 at Pg ID 331). Fries perceived Lane’s impairments of migraines and TOS to limit her neurological system. Ex. A, Fries Dep. 47:4-7, 48:4-20 (Dkt. 34-2 at Pg ID 335); Ex. G, Feldt Dep. 29:25-30:12 (Dkt. 34-8 at Pg ID 404). 3 The Commission notes that footnote 5 of the Court’s order states, “it appears the Physician Assistant recommended that she needed an FCE after receiving the (apparently inaccurate) first job description on September 12, 2013, but that was after Lane was assigned duties. (See ECF No. 43-2 at Page ID. 334.) Dkt. 43 at Pg ID 1013. However, Fries initially recommended the medical hold after reviewing the Kapteyn records on September 10, 2013. Dkt. 34-2 at Pg ID 331, Ex. A, Fries Dep. 31:11-32:17. The deposition testimony the Court cites actually describes Fries’s continued, and not initial, hold recommendation after reviewing the first job description on September 12. Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1043 Page 6 of 14 4 9/11/2013 Lane reports to work on September 11, 2013. Ex. E, Lane Dep. 63:17-22 (Dkt. 34-6 at Pg ID 380). Lane worked a regular schedule until MGH terminated her on October 15, 2013. Ex. E, Lane Dep. 78:10-23 (Dkt. 34-6 at Pg ID 384). 9/12/2013 At Fries’s request, Russ faxed Lane’s job description to Fries. Ex. A, Fries Dep. 33:19-34:15 (Dkt. 34-2 at Pg ID 332). 9/24/2013 Cora, Lane, and Bridges met to discuss the FCE recommendation. Bridges explained that Workplace Health recommended an FCE. Bridges stated that the exam is expansive and Lane offered to pay for the exam. Lane asked if her primary care provider could render an opinion. Ex. B, Russ Dep. 53:14- 56:21 (Dkt. 34-3 at Pg ID 349); Ex. E, Lane Dep. 86:7-88:17 (Dkt. 34-6 at Pg ID 385). 9/25/2013 Lane provided Russ with Wolter’s note clearing Lane to work the coordinator position. Ex. O, Walter Dep. 13:23-14:3, 16:20- 17:23, 19:6-21:23 (Dkt. 34-16 at Pg ID 453-455); Ex. F, Wolter Notes (MGH_0000082) (Dt. 34-7 at Pg ID 397). 10/10/2013 MGH faxed the amended job description to Workplace Health. Ex. B, Russ Dep. 57:12-58:5 (Dkt. 34-3 at Pg ID 350); Ex. C, Davis Dep. 50:3-12 (Dkt. 34-4 at Pg ID 363); Ex. H, Bridges Dep. 49:9-51:3 (Dkt. 34-9 at Pg ID 413). 10/11/2013 Russ spoke with Fries about the 25-pound amendment in the second job description. Fries stated that even with the amended job description Lane would still need an FCE completed: “do you know the medications she is on daily?” Bridges and Davis determine that Lane is not qualified for the position due to her not meeting the physical requirement of the position. Ex. T, Russ Timeline (MGH_0000123) (Dkt. 34-21 at Pg ID 480). 10/15/2013 MGH terminates Lane. Ex. T, Russ Timeline (MGH_0000123) (Dkt. 34-21 at Pg ID 480). II. Lane was an employee when MGH terminated her on October 15, 2013. Lane worked as an enrollment coordinator for five weeks when she was terminated, and, therefore, was an employee and not an applicant when MGH terminated her. The statute makes clear that Lane became an employee when she commenced employment duties. As the Court notes, an employer can require a medical examination after an offer of employment but “prior to the Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1044 Page 7 of 14 5 commencement of the employment duties of such applicant.” Dkt. 43 at Pg ID 1012 (citing 42 U.S.C. § 12112(d)(3)). Thus Lane became an employee when she started performing her coordinator duties. Moreover, the facts do not excuse MGH from failing to complete the exam prior to her commencing employment duties. MGH (or its agent, Workplace Health) simply dropped the ball and failed to pick it up in a timely manner. But even if the Court were to analyze this case as one involving a post-offer, pre-employment examination, the Court should still grant the Commission’s motion because MGH failed to conduct an individualized assessment as to whether Lane could perform that job. MGH either violated the ADA by 1) terminating an employee by requiring an FCE after employment duties were assigned or 2) rescinding a conditional job offer (and ending her 5-week employment) because of the FCE recommendation. Under either formulation of the medical inquiry in this case, MGH ultimately subjected Lane to “an action prohibited under this chapter because of an actual or perceived [] impairment,” and, therefore, regarded Lane as disabled—and fired her because of that perceived disability. 42 U.S.C. § 12102(3)(A). A. If Lane is considered an employee then MGH violated the ADA by terminating her for failing to take an FCE. If Lane is considered an employee then MGH can only subject her to a medical examination or inquiry if it is shown to be job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). An inquiry is “job-related and consistent with business necessity” only when an employer has “a reasonable belief, based on objective evidence that (1) an employee’s ability to Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1045 Page 8 of 14 6 perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat.” Kroll v. White Lake Ambulance Auth., No. 1:09-CV-626, 2010 U.S. Dist. LEXIS 85404, *9-10 (W.D. Mich. Aug. 19, 2010) citing EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, 915.002, at p. 14-15 (July 27, 2000); see also Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999) (to be “job related and consistent with business necessity” there must be “significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job”). MGH cannot demonstrate the request “need to determine” whether Lane could perform the job because MGH had no evidence that Lane could not perform the job. See 29 C.F.R. Part 1630, App. § 1630.14(c). Therefore, subjecting her to an FCE was an impermissible medical inquiry.4 Many of the cases MGH cites involve medical inquiries of existing employees that were triggered by the employee’s behavior or job performance providing evidence they were unable to perform their position. As the Commission discussed in distinguishing these cases (Dkt. 38 at Pg ID 922- 925), no similar evidence existed here. Lane performed the coordinator duties, without incident, for five weeks. Therefore, MGH had no evidence, let alone the “significant evidence” required to justify a medical inquiry of an employee. 4 As the Court notes, the ADA likely also prohibited forcing Lane to pay for the FCE even if would not be unlawful to “requir[e] an FCE after employment duties were assigned.” Dkt. 43 at Pg ID 1013; see also Dkt. 34 at Pg ID 316- 317 (discussing EEOC v. BNSF Ry. Co., No. 14-1488, 2016 U.S. Dist. LEXIS 2557, at *20 (W.D. Wash. Jan. 8, 2016)). Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1046 Page 9 of 14 7 B. Even if Lane were considered to be an applicant5 with a conditional offer, then MGH withdrew the offer without making an individualized determination as to whether she could perform the job. MGH can require post-offer physicals under certain conditions. However, it can only withdraw an offer of employment where an individualized determination reveals that an impairment will preclude the putative employee from performing the essential functions of the position. See, e.g., Holiday v. City of Chattanooga, 206 F.3d. 637, 643-44 (6th Cir. 2000). Because MGH did not conduct any individualized determination—despite knowing that Ms. Lane could perform the position—and merely relied upon a document review of Lane’s file conducted by its agent, MGH violated the ADA. III. The statutory language, implementing regulations, and case law make clear that MGH cannot escape liability by blaming Workplace Health for Lane’s termination. As the Commission discussed these citations in its previous briefs,6 the Commission would like to only reiterate that MGH’s admission that Workplace Health is the final—and indeed sole—arbiter in deciding who is qualified to work at MGH illuminates the precise reason why MGH violated the ADA. Ex. C, 5 As the Court notes, an employer can require a medical examination after an offer of employment but “prior to the commencement of the employment duties of such applicant.” Dkt. 43 at Pg ID 1012, citing 42 U.S.C. § 12112(d)(3). Because the FCE recommendation is related to a seemingly proper post-offer physical (i.e. Fries conducted the physical on September 10 during Lane’s orientation period and prior to her commencing duties as the outreach enrollment coordinator) there is an argument that the FCE would involve a continuation of the post-offer medical exam rather than a new medical inquiry. In order to address this argument, the Commission’s brief discussed why MGH violated the ADA under the more permissive standards regarding post-offer exams. Dkt. 34 at Pg ID 310-311. 6 Dkt. 34 at Pg ID 310-314; Dkt. 38 at Pg ID 918-922; and Dkt. 41 at Pg ID 1000-1004. Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1047 Page 10 of 14 8 Davis Dep. 20:9-23, 50:7-53:3 (Dkt. 34-4 at Pg ID 357, and 363-364); Ex. H, Bridges Dep. 59:15-22 (Dkt. 34-9 at Pg ID 415) (“Q: So it’s Workplace Health’s final call on who can or can’t work [at Muskegon Family Care]? A: Absolutely.”), 84:24-85:11 (“Q: And I believed you testified that [MGH] did not do any such independent analysis; is that right? A: Right. Q: Why? A: Because Workplace Health does them). The ADA required MGH to conduct individualized assessments itself and not “slavishly defer to a physician’s opinion.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 31–32 (6th Cir. 2002). As the Court notes: “the self-evident purpose of a ‘pre-employment,’ or ‘post-offer,’ screening is to prevent candidates from beginning employment who would not be able to meet the physical requirement of the position, not to punitively terminate someone because a Physician Assistant doing a documents review found, for example, ‘a suspector of a cognitive problem at work.’” Dkt. 43 at Pg ID 1011. Indeed, all of the evidence before MGH demonstrated that Lane could perform the physical requirements of the position: 1) Wolter’s note; 2) Lane’s five-week tenure; 3) MGH’s attempts to convince Workplace Health to “allow” MGH to keep her on staff; 4) MGH’s allowing Lane to continue reporting to work for 3 weeks after learning of Workplace Health’s recommendation; 5) Lane’s testimony she could perform the essential functions of the job without a reasonable accommodation; 6) Lane’s never requesting a reasonable accommodation; and 7) MGH offering Lane the position “with no further conditions twice” (Dkt. 43 at Pg ID 1011). Despite all of this evidence MGH—in violation of its responsibilities under the Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1048 Page 11 of 14 9 ADA to determine itself whether Lane could perform the job—stubbornly relied on Workplace Health’s FCE recommendation based on a document review. IV. CONCLUSION MGH subjected Lane to actions prohibited by the ADA because of a perceived neurological impairment: 1) it terminated her; and 2) it either required an impermissible medical inquiry of an existing employee or revoked a job offer because of a pre-employment exam without conducting an individualized assessment whether Lane could perform the coordinator position. Therefore, MGH regarded Lane as disabled. 42 U.S.C. § 12102(3)(A). As the Court notes, MGH cannot “mechanically rely on the medical opinions and advice of third parties” and cannot pass the buck to Workplace Health. Since there are no material facts relating to liability, the Commission respectfully requests that the Court grant its motion for summary judgment on liability. Respectfully submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dated: January 11, 2017 s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Miles.Shultz@EEOC.GOV Tel. No. (313) 226-6217 Fax No. (313) 226-6584 Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1049 Page 12 of 14 Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1050 Page 13 of 14 CERTIFICATE OF SERVICE I hereby certify that on January 11, 2017, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to counsel of record to their electronic mail address on file with the Clerk of the Court. Respectfully submitted, s/ Miles Shultz MILES SHULTZ (P73555) Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DETROIT FIELD OFFICE Patrick V. McNamara 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Miles.Shultz@EEOC.GOV Tel. No. (313) 226-6217 Fax No. (313) 226-6584 Case 1:15-cv-00952-PLM-PJG ECF No. 45 filed 01/11/17 PageID.1051 Page 14 of 14