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No regarded-as disabled claim for employee required to undergo medical exam after unusual behavior

By Kathleen Kapusta, J.D.

Granting summary judgment against an employee’s ADA “perceived as” disabled claim, a federal court in Michigan found her job performance issues, coupled with her unusual behavior—which included accusing her coworkers of placing listening devices in her office—provided her employer with a reasonable basis for referring her for an independent medical evaluation. Further, explained the court, quoting from a Sixth Circuit opinion, an employer’s request that an employee undergo a medical exam is not evidence of discrimination because it “does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee’s major life activities” (Monroe v. Consumers Energy, October 19, 2017, Cohn, A.).

Hired in 2000, the employee began experiencing work-related problems 13 years later. According to her supervisor, she was losing work focus and concentration, and she was not interacting with her coworkers as she had in the past. In November 2013, the employee filed a Code of Conduct complaint in which she accused her coworkers of tracking and surveilling her by, among other things, placing listening devices in her office, intercepting her personal text messages, and placing a GPS tracking device on her car.

Placed on leave. Although HR investigated, it did not find any merit to her allegations. To determine if the employee was able to perform the essential functions of her job, the HR director arranged to have her scheduled for an IME. Shortly thereafter, the employee’s supervisor found her crying at her desk. He contacted the HR director, who advised the supervisor to place the employee on paid sick leave.

IME. About three months later, the employee underwent an independent neuropsychological evaluation, which, according to the doctor, revealed “indications of a high degree of interpersonal sensitivity, tendency toward paranoid thinking and difficulty in interpersonal relationships. This examinee is likely to appear guarded and suspicious of others . . .” The doctor recommended 12 sessions of counseling and a reevaluation before returning to work.

The employee, however, refused the counseling and instead remained on paid sick leave. In late 2014, she contacted the HR director about returning and was scheduled for a second medical evaluation, in which the doctor found her neurocognitive status had improved and there was a lessened chance of her underperforming in her work. He recommended that she could go back to work contingent upon undergoing the required counseling. Although the employee objected and filed an EEOC charge claiming an ADA violation, she ultimately enrolled in the counseling and was returned to full-time employment.

Regarded as? Moving for summary judgment on her ADA claim, her employer argued that the employee failed to establish a fact dispute as to whether she suffered an adverse action or whether it regarded her as disabled. Agreeing, the court noted her only evidence that her employer perceived her as disabled was that it referred her for an IME and placed her on paid leave after she exhibited unusual behavior and work performance issues. Even assuming she could establish that the employer’s actions were based on a belief that mental health problems were negatively impacting her ability to do her job, this was not enough for a prima facie case under the ADA.

Citing to the Sixth Circuit’s decision in Sullivan v. River Valley Sch. Dist., the court observed that “A defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.” Indeed, observed the court, Sullivan made clear that health or behavior problems that affect an employee’s performance of essential job functions justify an employer’s ordering of an IME “even if the examination might disclose whether the employee is disabled or the extent of any disability.” Moreover, an employee cannot dictate the terms of a medical examination and an employer can require compliance with the exam as a condition of returning to work.

Business necessity. Observing that the ADA permits medical and psychological exams consistent with business necessity, the court explained that if a mandatory medical exam can be shown to serve a legitimate business purpose, it is permissible. Here, the employee’s unusual behavior coupled with her performance issues would have caused any reasonable employer to inquire as to whether she was still capable of effectively doing her job. Because the employer had a reasonable basis for referring the employee for an IME, the court found she could not establish it was an adverse employment action or was discriminatory.