Summary
denying summary judgment where a plaintiff alleged that an employer's pre-hire inquiry into her medical history violated Section 504
Summary of this case from Fleming v. State University of New YorkOpinion
Civil No. 02-1121 (DWF/SRN)
April 30, 2004
Tammy L. Pust, Esq., Jesson Pust, St. Paul Minnesota, for Plaintiff
Lucinda E. Jesson, Esq., Jesson Pust, St. Paul Minnesota, for Plaintiff
Friedrich Anson Paul Siekert, Esq., Minneapolis, Minnesota, for Defendants
Barbara F. Frazier, Esq., St. Louis, Missouri, for Defendants
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on February 27, 2004, pursuant to the parties' cross-motions for summary judgment. Specifically, the parties ask the Court to determine whether the United States Postal Service ("USPS") violated section 504 of the Rehabilitation Act of 1973. For the reasons set forth below, the Court denies both motions for summary judgment.
Background
In 1998, Plaintiff Mary Brady, an Education and Development Specialist for the Mental Health Association of Minnesota, saw a newspaper advertisement announcing the availability of temporary employment positions with the Northland Division of the USPS. Brady was in need of additional income at the time, so she decided to apply for one of the positions.
On October 26, 1998, Brady attended a meeting at the St. Paul Post Office. The meeting was held to allow interested applicants to apply for the temporary employment positions. At the meeting, Brady and a large group of applicants were provided application materials and were instructed regarding the proper method of completing the materials. Once Brady's materials were completed and checked for accuracy by a USPS employee, Brady was given a document informing her that she would need to return on October 29, 1998, for additional processing of her application. The document provided to Brady at the end of the October 26, 1998, meeting also stated: "THIS IS NOT AN OFFER OF EMPLOYMENT. DO NOT QUIT YOUR CURRENT JOB IN ANTICIPATION OF BEING HIRED BY THE USPS." (Affidavit of Mary Brady (hereinafter "Brady Dep.") ¶ 12, Ex. 6.)
On October 29, 1998, Brady returned to the St. Paul Post Office. At the meeting, Brady and approximately 50 other individuals were instructed to sign-in and were given several blank employment documents, including a copy of a document titled "Applicant Checklist." (See Deposition of Phyllis Halverson (hereinafter "Halverson Dep.") Ex. 26.) Once Brady was given the documents, she was directed to attend a "pre-hire" session. The session was conducted by either Karyla Omodth or Susan Zierott, both of whom are USPS Human Resources Specialists.
During the pre-hire session, the applicants were told that their Applicant Checklists would serve as an itinerary for the day's events. Applicants also were told that they would be required to fill-out all of the documents, have their fingerprints taken, undergo a criminal background check, take part in a personal interview, submit to a drug test, and complete a medical assessment over the course of the session. The applicants were given information about the physical and functional requirements of the job and other general information about the terms and conditions of employment. Omodth and Zierott both assert that at the pre-hire sessions, they would tell applicants that the USPS was making a conditional offer of employment to the applicants and that the applicants would be given specific job assignments once they successfully completed the conditions as set out in the Applicant Checklist. However, Brady contends that she did not receive either verbally, or in writing, any offer of employment at this pre-hire session.
After the pre-hire session, Brady completed the necessary paperwork. Brady then was fingerprinted and interviewed by a USPS representative, Phyllis Halverson. During the interview, Halverson reviewed the 16 documents that Brady had completed. The documents refer to the person filling them out as either an "applicant" or as an "employee." (Brady Dep., Exs. 7-17.) After reviewing the documents, Halverson signed off on the forms. Halverson then directed Brady to the station where the medical assessment was to take place.
At the medical station, Brady was given several additional documents to complete. The first document outlined the functional requirements of the position and the environmental factors present while the position was being performed. ( See Brady Dep., Ex. 18.) Brady signed the document which stated that she did not have any "medical disorder or physical impairment which could interfere in any way with the full performance of duties of the position" for which she was "applying." ( Id.) While the document used the term "applying" in the acknowledgment, the document also stated that Brady had been offered a position as a "casual clerk." ( Id.) Subsequent documents filled out by Brady also alternate between calling her an "applicant," someone "qualified for employment consideration," or a "new hire." (Brady Dep., Ex. 7 ("applicant"), Ex. 19 ("new hire"), and Ex. 20 ("qualified for employment consideration").)
Brady was also given a document titled "Medical History Questionnaire" ("MHQ"). (Brady Dep., Ex. 21.) The MHQ is a lengthy document containing eighty questions about an individual's health. Brady completed the MHQ and returned it along with the other documents to Lisa Heinrich, a USPS representative staffing the medical unit. Brady's MHQ was scored by a computer. The computer flagged four of Brady's responses. As a result, Brady was interviewed by Lori Boucher (now known as Lori Lowery), a nurse retained by the USPS to assist in the hiring process, about the flagged responses. The flagged responses corresponded to the following questions that Brady had answered in the affirmative.
Question 33: "Have you been treated for a mental or psychiatric problem in the past ten years?"
Question 34: "Are you taking any medicine for, or are you currently in counseling or therapy for a mental or psychiatric problem?"
Question 37: "Within the past year, have you been in a physical therapy program?"
Question 68: "Are you currently being treated for an illness or injury?"
(Brady Dep., Ex. 21.)
Based on Brady's answers to these questions, Boucher asked Brady whether she had a current diagnosis for an illness or injury. Brady told Boucher that she had been diagnosed with depression in 1995. In response, Boucher asked Brady to identify the type of depression with which she had been diagnosed. Brady asserts that at that time she objected to the questions that were being asked of her about her mental health. However, Brady did tell Boucher that she was under the care of a psychiatrist and that she was taking medication and receiving counseling for her depression.
Based on Brady's responses, Boucher determined that she would need to receive information from Brady's psychiatrist to complete Brady's medical assessment and to confirm that Brady would be able to do the job. Specifically, Boucher told Brady that she would need to provide a statement from her treating physician documenting the diagnosis, the date of onset, the date of Brady's last office visit, an evaluation including copies of the lab reports, Brady's treatment plan, an assessment of the prognosis of the condition, and an identification of any restrictions or accommodations that would be required. Brady was unable to immediately obtain the information and documentation requested. Therefore, Boucher told Brady that she had 14 days to submit the requested information during which Brady's employment application would be placed on a medical hold.
Instead of submitting the requested information, Brady filed a claim with the Equal Employment Opportunity Commission ("EEOC") based on the USPS's alleged violation of Section 501 of the Rehabilitation Act. On August 3, 2000, an EEOC administrative law judge ("ALJ") held that no discrimination had occurred in the hiring process. ( See Affidavit of Friedrich Siekert, ¶ 3, Ex. B.) Brady appealed the decision to the Office of Federal Operations ("OFO"). On March 19, 2002, the OFO determined that genuine issues of material fact existed as to whether Brady received an offer of employment. ( See id., ¶ 5, Ex. D.) Accordingly, the OFO vacated the decision of the ALJ and remanded the matter. Before a hearing on the claim could take place, Brady filed this action.
Discussion
I. Standard of ReviewSummary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. See Enter. Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Enter. Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. See Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986);Krenik, 47 F.3d at 957.
A. Offer of Employment
Section 504 of the Rehabilitation Act of 1973 provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely, by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a).
To state a prima facie claim under the Rehabilitation Act, a plaintiff must show: 1) she is a person with a disability as defined by the statute; 2) she is otherwise qualified for the benefit in question; 3) she was excluded from the benefit due to discrimination based upon the disability; and 4) the program or activity from which she is excluded receives federal financial assistance. See Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (citing Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)). However, in cases involving the allegedly unauthorized gathering or disclosure of confidential medical information, a plaintiff need not be disabled. See Cossette v. Minnesota Power Light, 188 F.3d 964, 969-70 (8th Cir. 1999). A plaintiff must also be able to establish "some sort of tangible injury" caused by the discriminatory act. Cossette, 188 F.3d at 970.
Both the Rehabilitation Act and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, set out guidelines that employers must follow in conducting medical examinations or inquiries of job applicants. Specifically, § 12112(d) defines the type and extent of medical inquiry an employer is permitted to make based on whether the inquiry is made at the pre-offer stage, the post-offer but pre-employment stage, or during the course of employment.
In the pre-offer stage, an employer cannot "conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability," but an employer "may make preemployment inquiries into the ability of an applicant to perform job-related functions." 42 U.S.C. § 12112(d)(2)(A)-(B). In the post-offer but pre-employment stage, the employer may require a medical examination and may condition an offer of employment on the results of the examination if all entering employees are subject to the examination, the results are stored confidentially, and the results of the examination are used only in accordance with the Act. See 42 U.S.C. § 12112(d)(3)(A)-(C). In the employment stage, the employer may require a medical examination or make a disability-related inquiry when the examination or inquiry is "job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A).
As a preliminary matter, the Court must determine whether USPS extended a conditional offer of employment to Brady. The USPS contends it made a conditional offer of employment to Brady at the pre-hire session. Specifically, the USPS asserts that either Omodth or Zierott told the applicants that they would be hired if they successfully completed all of the tasks set out at the meeting. The USPS points out that the first page of the MHQ stated that Brady had been offered the position of clerk and that other documents Brady completed also referred to her as a "new hire." The USPS also asserts that the medical inquiry was appropriate, given that Brady signed a medical authorization and release.
Brady, on the other hand, asserts that no legally valid offer of employment was made to her by the USPS. Brady asserts that she was never told by USPS representatives that she had an offer of employment. Brady points out that in Omdoth's testimony Omdoth stated that she "usually" tells members of the pre-hire sessions that they will be offered employment opportunities at the end of the day, but Omdoth could not say for certain that she told Brady's pre-hire session that they would be offered employment positions. ( See Deposition of Karyla Omodth, 14:2-4 and 11:19-21.) Brady further points out that neither Omodth or Zierott can conclusively state that they conducted Brady's pre-hire session. Finally, Brady asserts that the documents she was given at the pre-hire session are inconsistent in referencing the person completing them as everything from an "applicant" to an "employee."
The Court finds that a genuine issue of material fact exists as to whether Brady was made an offer of employment by the USPS on October 29, 1998. While the Court recognizes that the manner in which the USPS or any business hires a large number of persons for seasonal work differs considerably from a more traditional one-on-one hiring situation, the Court finds that the deposition testimony and the documents disbursed to persons at and before the pre-hire session contain inconsistencies that create a genuine issue of material fact as to whether Brady was made an offer of employment by USPS. Specifically, Brady's and Omdoth's deposition testimony differ regarding what was said at and during the pre-hire session and the documents that Brady completed during the session referred to her as everything from an "applicant," to someone "qualified for employment consideration," to a "new hire." Because the Court finds that a genuine issue of material fact exists, the motions for summary judgment brought by both parties are denied.
B. Tangible Injury
The USPS also moves for summary judgment on the ground that Brady has not suffered a tangible injury. The USPS asserts that it did not refuse to hire Brady upon learning of her diagnosis of depression. Instead, the USPS points out that Brady's application was placed on a medical hold until she could provide the USPS with the requested medical documents. The USPS contends that it likely would have hired Brady had she provided the USPS with those documents.
Brady contends that she did suffer a tangible injury because the USPS refused to hire her for the requested job. Brady asserts that the request for information by the USPS was wrongful and that her refusal to comply with the request resulted in her not being offered the job at the USPS. Brady asserts that the law does not require her to comply with an illegal request for information in order to suffer damages as a result of the request.
The Court finds that Brady has alleged a tangible, cognizable injury as a result of the USPS medical inquiry. Brady alleges that the medical inquiry in and of itself was unlawful and that the failure to hire her was a direct consequence of the inquiry. The Court finds that Brady need not have complied with the allegedly unlawful request for information in order to establish damages. However, the Court also finds that the limited duration and rate of pay for the position Brady sought necessarily limits the recoverable damages in this suit.
Conclusion
As previously discussed, the Court finds that the alleged damages in this suit are limited. The position Brady applied for was temporary and would not have lead to a permanent position with the USPS. The USPS has also represented to the Court that the USPS no longer conducts medical assessments in the same manner in hiring temporary employees. Based on these facts, the Court believes it is in the best interests of the parties to negotiate a resolution of this dispute among themselves. As the parties may already be aware, Magistrate Judge Susan Richard Nelson is available to assist in the negotiation of a settlement should the parties find such services helpful. If the Court may be of assistance in this matter, the parties should contact Lowell Lindquist, Calendar Clerk for Judge Donovan Frank at 651-848-1296, or Beverly Riches, Calendar Clerk for Magistrate Judge Susan Richard Nelson at 651-848-1200.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff Mary Brady's Motion for Summary Judgment (Doc. No. 17) is DENIED.
2. Defendant John E. Potter's Motion for Summary Judgment (Doc. No. 11) is DENIED.