Summary
applying ADA and ADA regulations to psychological fitness for duty evaluation
Summary of this case from Conrad v. Board of Johnson County CommissionersOpinion
No: 98-0972-E(CGA)
February 22, 2000
Plaintiff Ruth M Fritsch Counselors: George John Ronis, Law Offices of George J Ronis, Chula Vista, CA. Suzy Moore, Law Offices of Suzy Moore San Diego, CA.
Defendant's City of Chula Vista, John Kaheny, Ann Moore and Candy Emerson Counselors: Phillip L. Kossy, Littler Mendelson San Diego, CA.
MEMORANDUM DECISION AND ORDER
This case involves an experienced attorney who had an emotional outburst in court and who challenges the employer's request that she submit to a psychological evaluation to determine her fitness to perform her job. The attorney contends that the employer's decision violated various employment discrimination laws, primarily the Americans with Disabilities Act (ADA) Based on the information available to the employer about the severity of the outburst and his personal observations of the attorney's demeanor when she reported the incident; the staff psychiatrist's recommendation that the employee immediately take a fitness-for-duty evaluation; and the high level of fortitude and professionalism required of litigation attorneys, the court concludes that the employer properly requested the attorney to submit to a psychological evaluation.
BACKGROUND
Plaintiff Ruth Fritsch began her legal career in 1979 at the City Attorney's Office in Los Angeles. Fritsch then worked for five years at the San Diego District Attorney's Office. In June 1988, her present employer, the City of Chula Vista, hired her. For a brief time, she was appointed the Acting City Attorney, but primarily held the position of Chief Litigator.
In 1994, Fritsch filed a suit against Bruce Boogard, who was then the City Attorney, for sexual harassment. That claim settled in August 1996. The terms of that settlement agreement require Fritsch to maintain the confidentiality of those events. As a term of the settlement, the City transferred Fritsch to the City Manager's office and fired Boogard.
In November 1996, John Kaheny replaced Boogard as City Attorney. An assistant City Attorney, Ann Moore, told Kaheny about Fritsch's sexual harassment suit against Boogard. Moore gave Kaheny a copy of the confidential settlement agreement. In March 1997, Kaheny transferred Fritsch back to the City Attorney's office.
The critical incident occurred on June 10, 1997. Fritsch represented the City in a police misconduct suit. Plaintiff's counsel, Charles Viviano, had been fired from the City Attorney's office for incompetence. Viviano had noticed the deposition of Fritsch in the lawsuit, and Fritsch had filed a motion to quash that subpoena. While the two attorneys were waiting in the courtroom to appear on that motion, Viviano leaned close to Fritsch and called her "a terrible lawyer" and stated that he "couldn't wait to get into her personnel file." Fritsch responded by calling Viviano a "pig that had a problem with women." Viviano said that Fritsch's problem was "she had a female chip on her shoulder." Fritsch responded that Viviano "wasn't working for the City anymore because he was incompetent." Viviano said "bullshit." Fritsch then apologized to Viviano. Viviano informed her that Kaheny was going to hear about it and that she was "losing it."
The two attorneys then proceeded into Superior Court Judge Peter Riddle's chambers for the motion hearing. Judge Riddle had not witnessed the verbal altercation, but admonished both attorneys to act professionally and move on. Judge Riddle noticed that Fritsch was crying or sobbing; "very, very distressed"; and "upset and agitated," so he offered her the privacy of his library to collect herself. During has deposition, Judge Riddle was then asked, "but she wasn't sobbing uncontrollably or anything of that nature," and he responded, "I'm not prepared to say that." Judge Riddle recalls that Fritsch was alone in the library for fifteen minutes. Fritsch denies that she "broke down and sobbed" in chambers. Fritsch apologized to the court and stated that the emotions were running high because Viviano was trying to depose her.
After the conference, Fritsch talked to her husband about the incident. In the meantime, a witness to the altercation left a voice message for Kaheny and stated that Viviano had been a "jerk" in court.
Fritsch returned to the office and told Kaheny about the confrontation. She informed Kaheny that Viviano had made a sexist remark, that she had responded that he was incompetent, and that the judge had admonished them both. Fritsch told Kaheny that his dealings with Viviano (Fritsch contends that Viviano routinely discussed the police misconduct suit with Kaheny, instead of Fritsch) had encouraged Viviano's behavior and that she was being "old bayed." Fritsch testified that she was "calm" during that conversation. Fritsch's secretary reported that Fritsch was not acting unusual, yelling, screaming, or crying during the conversation. Kaheny, however, perceived Fritsch as in "a state of frenzy," "visibly upset, visibly shaken, hyperventilating."
Judge Riddle was concerned about Fritsch "as a human being, perhaps less than a judge," and called Kaheny to advise him that a. confrontation had occurred between Fritsch and Viviano. He expressed his concern that Fritsch had been "very upset." Judge Riddle was concerned with Fritsch's condition because she "appeared to be in considerable distress."
Viviano also called Kaheny to say that something had to be done about Fritsch's comment, and he would not let it drop. Viviano told Kaheny that Fritsch had "lost it" and was "just out of control." Viviano described her as "agitated, upset, loud, emotional."
Later that day, Fritsch's husband, on his own initiative, called Viviano and said, "I am the husband of the woman you insulted this morning in South Bay Court. Anybody can talk and anybody can say nasty things to a woman as long as they are sure that they won't be accountable for what they say. Don't be too sure of this in this case." Fritsch's husband is an agent for the Drug Enforcement Agency (DEA). Viviano then called Kaheny to report the "threat" and expressed his intent to seek a temporary restraining order and to contact the supervisor at the DEA. Later, her husband told Fritsch not to worry because nothing could happen to his job.
The next day, Kaheny confronted Fritsch with Viviano's report of the threat. Fritsch responded that "it's not a big thing. There's nothing to worry about." Kaheny felt that Fritsch was "overly calm" and appeared "disassociated." Kaheny believed a normal attorney would be concerned with the potential lawsuit for a threat, but that "I wasn't getting the response that I would have assumed from someone who could have understood the seriousness of what had occurred."
Kaheny felt "there's a problem here," and called the City's consulting psychiatrist. Kaheny relayed the events as he knew them to Dr. Ettari. Dr. Ettari said that they could "set her up for a fitness for duty evaluation" and to "get her in here right away." Kaheny believed Dr. Ettari conveyed a "sense of urgency." Kaheny testified that "[a]fter my conversation with Dr. Ettari, I was convinced that for own benefit and the protection of the office in which I hold, that she needed to be seen by a professional so I could get a proper evaluation of exactly what kind of duties she could perform."
Kaheny requested Fritsch submit to a psychiatric evaluation. Senior Assistant City Attorney Moore, and the Director of Human Resources (Candy Emerson) were present. Fritsch refused. Kaheny fired her for insubordination.
Fritsch filed this lawsuit, containing ADA and related employment discrimination claims, against the City of Chula Vista and Kaheny. Defendants move for summary judgment on all counts.
DISCUSSION
A party is entitled to summary judgment if the pleadings and other documents show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The opposing party must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986).
I. ADA Claims
In her Second Amended Complaint (SAC), Fritsch alleges that defendants engaged in a variety of discriminatory practices that are illegal under the ADA. Specifically, she alleges that defendants made unlawful medical inquiries; unlawfully required employees to submit to psychiatric evaluations; terminated her for refusing to submit to the unlawful examination; and unlawfully disseminated confidential medical information to persons with no legitimate reason for having access to that information. SAC ¶ 16.
To establish a prima facie case of disability discrimination under the ADA, Fritsch must first establish that she suffers from a disability as defined by the ADA. Bradley v. Harcourt Brace and Co, 104 F.3d 267, 271 (9th Cir. 1996); Fredenburg v. Contra Costs County Dept. of Health Services, 172 F.3d 1176, 1178 (9th Cir. 1999) (plaintiff must first show that she is a "qualified individual with a disability"). Here, because Fritsch denies that she has an actual disability, she must demonstrate that the City regarded her as being disabled. 29 C.F.R. § 1630.2(g)(3), (1)(3). Second, she must establish that she was able to perform the essential functions of the job, either with or without reasonable accommodations. Bradley, 104 F.3d at 271. The third element of the prima facie case demands that Fritsch show that the City fired her in whole or part because of her protected disability. Id.
A. Business Necessity to Request a Medical Examination
Fritsch's central complaint is that defendants illegally ordered her to submit to a psychiatric evaluation. The ADA permits an employer to require a current employee to submit to a medical examination only if the employer can prove that it is inquiring into the employee's ability to perform job-related functions. 42 U.S.C. § 12112(d)(4)(A), (B); 29 C.F.R. § 1630.14(c). Specifically, the employer must demonstrate that the request for a medical examination is "job-related and consistent with business necessity." § 12112(d)(4)(A). This protection is available to every "employee," regardless of whether she is a "qualified individual with a disability." Fredenburg, 172 F.3d at 1181. The EEOC manual provides that "[t]he need for the examination may be triggered by some evidence of problems related to job performance or safety." EEOC Technical Assistance Manual § 6.6.
Defendants argue that the request meets this standard because Kaheny had good cause to require Fritsch to submit to a fitness-for-duty examination. Sullivan v. River Valley School Dist., 20 F. Supp.2d 1120, 1126 (W.D. Mich. 1998) (prior to requesting the teacher take a psychological examination, the school board sought outside input from a psychologist). Those facts include: (1) Kaheny's observations of Fritsch when she described the confrontation in that she was visibly upset, visibly shaken, hyperventilating, and in a state of frenzy; as well as the content of the confrontation in that Fritsch had publicly maligned the competence of an opposing attorney; (2) Viviano's report that Fritsch had lost it, was out of control, agitated, and unsettled; (3) Judge Riddle's unprecedented phone call expressing concern for Fritsch's distressed condition because "he'd never seen anything like that happen before"; (4) Kaheny's observations of Fritsch's blasé attitude and disassociated state when he informed her that Viviano was going to pursue legal action against her husband; and (5) Dr. Ettari's opinion that the case was appropriate for an immediate fitness-for-duty evaluation, which Kaheny interpreted as conveying a sense of urgency.
The court agrees with defendants' position. The medical examination was job-related because Kaheny needed to determine whether Fritsch could perform the essential functions of her job. See Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996), cert. denied, 117 S.Ct. 955 (1997). Her job as a senior litigator required her to meet with opposing counsel and appear in court. An attorney should be able to perform those functions in a professional and calm manner, so that she can focus on the best interests of the client's needs instead of her own personal feelings or sensitivities. Fritsch's behavior at the court proceeding was severe enough to prompt the judge presiding over the litigation to contact her supervisor. This is a most unusual circumstance, and it carries great weight in the court's assessment of the nature of Fritsch's behavior after the verbal altercation. Importantly, Fritsch's emotional outburst prevented the judge from holding the motion hearing that had been scheduled. Her conduct therefore directly affected her ability to perform the immediate task of arguing the motion to quash the subpoena. Moreover, the comments made by Viviano were rude, but they did not rise to such a level that one would expect an experienced attorney to become visibly upset and unable to proceed with an in-chambers conference. Because the medical examination was job-related and consistent with business necessity, the court agrees with defendants that the demand for the examination was not motivated by illegal discrimination or simple curiosity into whether Fritsch suffered from a mental impairment. Miller v. Champaign Comm. Unif. School Dist., 983 F. Supp. 1201, 1206 (C.D. Ill. 1997) (the job-related or business necessity language of the ADA exonerates the employer for liability)
Fritsch argues that factual issues remain as to whether the request was job-related and a business necessity. She emphasizes that defendants based the decision on the single incident, yet Fritsch had been a model employee for nine years. Defendants believed the incident "came out of the blue." Fritsch notes that by contrast, the Sullivan case involved a teacher who had engaged in disruptive, abusive behavior for three years and the Yin case involved an employee with a five-year history of absences, fainting spells, and low productivity.
The court is not persuaded by these arguments. In rejecting the plaintiff's view, the court assesses the totality of the circumstances and the context in which Fritsch degenerated. An individual employed as a litigation attorney is expected to be able to handle conflict. The very essence of the litigator's business is confrontation and dispute, including the use of strategies to shake the confidence of the opponent and the use of techniques to challenge and undermine the credibility of those who oppose your client's interests. This was not an incident involving a novice teacher who is publicly berated and humiliated by an angry parent. It is reasonable for an employer to expect a litigation attorney to withstand the pressures inherent in a legal dispute, including an opponent's occasional boorish behavior.
Moreover, the City had a legitimate business necessity for inquiring into Fritsch's stability as she was representing the public entity. It is reasonable for the City to expect the individuals who represent it to conduct themselves in a calm, professional demeanor. The attorney, as champion of the City's position, is expected to proceed with confidence and strength. The City entrusts the litigator with important matters — matters than can affect the financial health of the City. The City reasonably expects its attorneys to have a clear vision of its goal in the litigation and to form rational, coherent, and logical strategies in defending the emotionally-charged claims of police misconduct.
Fritsch further argues that factual questions remain because the defense witnesses use strong language to describe Fritsch's demeanor after the confrontation with Viviano, but her secretary reported that Fritsch was not acting unusual and was not crying. Moreover, Fritsch contends that Kaheny based his assessment of Fritsch's behavior at court on Viviano's biased and incorrect account. Kaheny testified in deposition that he learned later that Viviano had misstated the facts to him. He also testified that he knew Viviano was an aggressive litigator with a reputation for exaggeration and as a "professional agitator." And, while an independent witness had left a message on Kaheny's phone that Viviano was the one who initiated the confrontation and had behaved like a jerk, Kaheny did not investigate. Instead, Kaheny accepted Viviano's description of Fritsch as "out of control" at face value. Also, Judge Riddle had informed Kaheny that both lawyers were upset and agitated. Fritsch further argues that the fact that Kaheny consulted with a doctor is entitled to little weight because Kaheny based his description of Fritsch's conduct on Viviano's exaggerated report. For example, Kaheny did not tell the doctor that Viviano had instigated the verbal altercation; and he relayed Viviano's incorrect report that Fritsch had yelled in court and had instructed her husband to threaten him. Finally, from Fritsch's perspective, her blas6 response to the news that Viviano would seek a TRO was appropriate because her husband had assured her that his job was not in jeopardy. Fritsch did not encourage or participate in her husband's decision to call Viviano.
The court concludes that Fritsch's arguments do not defeat the defendants' summary judgment motion. Here, the supervisor who was entrusted with the management of the City's legal team made a decision based on information from a variety of sources. That facts were later clarified and adjusted does not alter the solid foundation of evidence in Kaheny's possession at the time he telephoned the doctor. Importantly, as defendants note, Kaheny used the information available to him to consult with a medical professional. Kaheny did not attempt to apply his lay perspective to the determination of whether Fritsch was suffering from a mental disorder. Instead, he relayed the available information underlying his concerns of whether Fritsch could perform her job to a medical professional. He then relied on the doctor's advice to refer the employee for further evaluation. Importantly, it was the doctor, not the supervisor, who suggested that Fritsch submit to a psychological examination. It was reasonable and appropriate for the employer to seek the guidance of a mental health worker, and to follow that advice. This procedure allowed the employer to gather the necessary information to allay its reasonable fears that an employee was unfit to perform her job responsibilities. In today's climate of workplace violence, an employer need not wait for the sound of gunfire to institute a preliminary investigation into the mental stability of an employee. Given the totality of the circumstances, the court concludes as a matter of law, that the City acted within the confines of the law in asking Fritsch to undergo a psychological examination.
B. Pattern and Practice
In her ADA claim, Fritsch alleges that the City has engaged in an unlawful pattern and practice of discrimination. SAC ¶ 16, 17. Fritsch is not permitted to pursue this theory as a matter of law because the ADA authorizes the Attorney General, not private citizens, to bring such claims. 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-6); e.g., United States v. Ellerbe Becket. Inc., 976 F. Supp. 1262 (D. Minn. 1997)
Even if Fritsch had a private right of action, she has not presented evidence of class-wide discrimination. Babrocky v. Jewel Food Co. Retail Mfg., 773 F.2d 857, 866-67 n. 6 (7th Cir. 1985). Her case involves an isolated incident rather than repeated conduct necessary to establish a pattern claim. Teamsters v. United States, 431 U.S. 324, 336 n. 16 (1977). She has not presented facts that show "systemic disparate treatment."
C. Confidential Medical Information
Fritsch alleges that defendants violated the ADA by disseminating her confidential medical information to persons who had no legitimate need for the information. SAC ¶ 16(f). Defendants argue that the statutory provisions do not apply to Fritsch because they refer to the dissemination of medical information obtained through the process of the medical examination. 42 U.S.C. § 1211(3)(B)(i); 29 C.F.R. § 1630(c)(1) (referring to information "obtained under" a medical examination of a current employee that meets the job-related and consistent with business necessity standard) The court agrees with this reading of the statute because the ADA dictates that medical information obtained in the course of a permitted medical examination must be treated as confidential. Because Fritsch was never examined by Dr. Ettari, the defendants did not disseminate confidential material within the meaning of the ADA.
II. California Claims A. Invasion of Privacy
Fritsch included a two-part invasion of privacy claim in her complaint. SAC ¶ 28-31. First, she alleges a violation when defendants demanded that she take the psychological evaluation. Second, she alleges defendants disseminated the confidential information to other City employees. To establish a state constitutional violation, plaintiff must show (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) a serious invasion of that interest. Hill v. NCAA, 7 Cal.4th 1, 39-40 (1994)
Relying on their ADA arguments as to business necessity, defendants argue that the first part of the claim fails because the request for the mental examination was authorized by law. The court agrees with this analysis.
As to the second aspect, defendants argue that Kaheny properly involved other City employees in his decision making process. Emerson and Moore were present at the time Kaheny requested Fritsch to take the examination, but their mere presence does not constitute a serious invasion of Fritsch's privacy interests. Kaheny properly consulted with Emerson, in her capacity as the Director of Human Resources, about the incident. Moore was Kaheny's second-in-command. Kaheny told both of them to keep the matter confidential and "in house." Kaheny also had to tell his secretary because she typed the letter terminating Fritsch. Kaheny's disclosure to the attorney who was taking over Fritsch's caseload does not amount to a serious violation.
B. FEHA and Wrongful Termination Claims
Fritsch has also pleaded state law claims for violations of the Fair Employment and Housing Act and the common law tort of wrongful termination in violation of public policy. SAC ¶ 19-20, 32-36.
California's FEHA parallels the ADA. Bradley, 104 F.3d at 271. The court has held that defendants acted properly when requesting the medical examination; consequently, her FEHA claim fails. Sullivan, 20 F. Supp.2d at 1126 (because request for a mental examination furthered the school's legitimate business purpose, the employee's refusal constituted insubordination)
Similarly, Fritsch cannot establish that the employer's decision to request the examination and to then fire her for refusing that request violated public policy. Because the court has also rejected her claims concerning the invasion of privacy and dissemination of confidential medical records under the ADA, these allegations do not support the tort claim. Accordingly, her state common law wrongful termination claim fails.
C. Retaliation
Fritsch alleges a FEHA claim based on her allegation that the defendants' conduct was motivated by a desire to punish her for having brought the sexual harassment claims against the former City Attorney Boogard. To establish a case of retaliation, plaintiff must show that she engaged in protected activity, that she was subjected to adverse employment action, and a causal link between the two. Soldinger v. NW Airlines, 51 Cal.App.4th 345 (1996). The burden shifts to the employer to come forward with a non-retaliatory explanation. The burden then shifts back to the plaintiff to establish that the employer's reason was pretextual.
Defendants seek summary judgment on this claim on that ground that Fritsch cannot demonstrate a casual connection between the Boogard sexual harassment claim and the request for the mental examination. Importantly, Kaheny was not employed at the City during the unlawful sexual harassment activity nor during the litigation of Fritsch's claim against Boogard. Kaheny was not involved in the prior misconduct, and thus, the assumption that he had a motive to retaliate is unsupported.
The court also agrees that the temporal proximity is strained. Fritsch filed the claim against Boogard in 1994, though Kaheny learned of it when he took office in November 1996. The alleged retaliation took place eight months later in June 1997. E.g., Harrison v. Metro Gov't of Nashville, 80 F.3d 1107 (6th Cir. 1995) (time span of 14 to 15 months to satisfy the temporal proximity element), cert. denied, 519 U.S. 863 (1996); cf. Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir.) (four month gap satisfied temporal proximity of events),cert. denied, 522 U.S. 950 (1997)
In addition, as discussed in connection with the ADA claims, the court agrees with defendants that Fritsch's retaliation claims fails because the City had a legitimate, non-discriminatory reason for its actions. For these reasons, the court grants summary judgment on the retaliation claim.
III. Declaratory Relief
Fritsch included a Declaratory Relief claim in the complaint. She asks the court to declare that it is her right to present evidence of the City's practice and pattern of discrimination by presenting similar claims by other City employees. To do so, Fritsch must be relieved from the confidentiality clause in the settlement agreement of the sexual harassment lawsuit. That agreement also contained an arbitration clause.
The court agrees with defendants that the claim is moot because the entry of summary judgment eliminates the need for Fritsch to assert the prior claims of discrimination. Consequently, she has no need to breach or challenge the prior confidentiality agreement. Nor does the City need to enforce its right to send such claims to arbitration.
CONCLUSION
Upon due consideration of the parties' memoranda and exhibits, the arguments advanced at hearing, and for the reasons set forth above, the court hereby grants defendants' motion for summary judgment on all counts [# 89-1, 89-2, 96-1, 96-2] This action is dismissed in its entirety.