NONPRECEDENTIAL DISPOSITION

To cited accordance Fed. R. App. P. 32.1 United States Court of Appeals

For Seventh Chicago, Illinois 60604

Argued October 2017 Decided December By Court:

No. ‐

DEANNA S. PAINTER, Appeal

Plaintiff ‐ Appellant United States District Court Central District Illinois. v C

ILLINOIS DEPARTMENT OF

TRANSPORTATION, Richard Mills,

Defendant Appellee Judge

O R D E R

Deanna former employer, Illinois Department Transportation (“IDOT”), required unnecessary examinations violation Americans Disabilities Act, U.S.C. §§ 12101– 12213. entered judgment IDOT, reasoning fact finder undisputed challenged examinations were “job We affirm judgment. began working Office Administrator Division

Traffic Safety September After many complained behavior, put leave required submit fitness specialist, examined perform essential functions without posing threat herself others. note, however, “displayed some hypomania” “could bipolar,” so reevaluated days. At reevaluation deferred *2 ‐ fitness for ‐ duty recommendation until seen mental ‐ specialist. He referred her to Karen Lee, psychologist. met Lee, but psychologist did send report retained her for treatment.

Despite Fletcher’s inconclusive reevaluation, allowed to resume working response to grievance her filed. She returned October but transferred different division, still Office Administrator. Again she had difficulties coworkers. used work time keep detailed log her new coworkers’ conversations other actions. She insisted log necessary for learn why “was put on leave since one tell” sent numerous new supervisor, Stuart Hunt, often after workday ended. For example, emailed Hunt p.m. on October 30, 2011:

I didn’t talk about God . . . other than one Mike Fitzgerald asked me what I listening I said Christian radio station talking about blended families. . . . Isabel, for whatever one day told me mom works Marian Center downtown. I told I had just bought cross necklace there couple months back. It’s Catholic store. Also, told me little brothers sisters had gone Little Flower. I I gone Little Flower K–8 my kids for little while but couldn’t afford entire time.

Hunt reacted documenting his involvement handling behavior. For example, on October 2011, noted for his file “fearful Deanna other arrangements car pool pick up evening Deanna both leave work time.” Hunt gathered similar statements coworkers. He disciplined keeping log, file employee statements Ryan Amerson, labor relations specialist. Amerson place on leave, which, conferring supervisor, November 2011.

Five days Marie Robinson, fitness coordinator, retained psychiatrist Terry evaluate health. met December psychiatrically fit duty, supervisors *3 caused to suspect suffer from personality disorder. Even so, Killian cleared return to work.

She returned in January and the started anew. gathered more written her behavior forwarded them Amerson. March written reprimand for being argumentative. He also reprimanded her for speaking in unprofessional tone. Robinson contacted Killian late April requesting he examine Painter. The next day once more placed on leave.

A few days later emailed representative, Tim Lynch. She wrote: “For the record, the clock the small conference room being set 4:30 p.m. when it 4:00 p.m.—that tell tale sign for me. It told me everything I needed know. Thanks.” Lynch replied he not understand the reference the clock thought the battery the clock dead. responded, “Something’s dead alright—however, I prefer ‘a lady’ not say what I think dead. :).” Lynch interpreted death threat. longer represent demanded cease communicating him. The IDOT also interpreted email threatening contacted Illinois State Police. Whether state police took any action disclosed record. conducted May This fifth medical directed by IDOT: specialist; Lee, psychologist retained Painter; Killian, psychiatrist. This declared unfit “paranoid thinking highly disruptive results paranoia.” then filed action claiming violated ADA

forcing attend unnecessary examinations. ADA prohibits covered employers requiring workers exams “shown U.S.C. 12112(d)(4)(A). Damages may awarded violation, see id. §§ 1981a(a)(2), Illinois legislatively waived Eleventh Amendment immunity against claims damages ADA, I LL C OMP S TAT 5/1.5(d). asserted complaint, abandoned, discriminated against basis real perceived impairment retaliated against filing charge *4 16 3187 4 discrimination. As case progressed, further narrowed § 12112(d)(4)(A) claim exclude all examinations Killian. entering summary judgment, reasoned only conclusion a jury reasonably could draw is “actions were based legitimate concerns employees reasonably responded situation encountered.” Thus, jurors would find Killian’s medical examinations were “job related consistent business

As true judgment, appeal concerns medical exams Killian. principally jury could those examinations were job related or consistent business necessity. Employers bear “quite high” burden of establishing compelled medical examinations consistent business necessity. Wright v. Ill. Dep ʹ t Children & Family Servs. , 798 F.3d 513, 523 (7th Cir. 2015). Equal Employment Opportunity Commission has issued guidance 12112(d)(4)(A). According EEOC, medical job related business necessity if employer belief

objective condition will impair an employee ʹ s ability perform essential job functions or employee will pose threat due condition. EEOC Enforcement Guidance: Disability Related Inquiries Medical Examinations Employees Americans Disabilities Act ( ADA ) (July 27, 2000), https://www.eeoc.gov/policy/docs/guidance inquiries.html#6; see Wright , 798 F.3d 523 (discussing EEOC’s enforcement guidance); Coffman v. Indianapolis Fire Dep ʹ t , 578 F.3d 559, 565 (7th Cir. 2009) (same). “That an employee’s described ‘annoying inefficient [does not] justify examination; rather, must genuine doubt employee can perform functions.’” Wright , F.3d 524 (quoting Sullivan v. River Valley Sch. Dist. , 197 F.3d 804, 811 (6th Cir. 1999) (alteration Wright ).

Preventing endangering necessity: “a safe workplace paradigmatic necessity operating business.” EEOC v. AIC Sec. Investigations, Ltd. , F.3d (7th Cir. 1995). Employers need retain workers who, disability, harm someone; such rule force employer risk negligence suit avoid violating ADA. Timmons v. Gen. Motors Corp. , (7th Cir. 2006); Palmer v. Court Cook Cty. F.3d

We start with Dr. Killian’s first Like court, we that undisputed compels finding that Dr. Killian’s initial exam of Painter was job related and consistent with business necessity. Dr. Killian conducted that after Painter had precipitated type of complaints from coworkers in new position as she had coworkers in Division of Traffic Safety. Dr. Killian reviewed complaints from Painter’s former coworkers, including allegations that she snapped and screamed at them, blank stares and intimidating looks, ranted, constantly mumbled herself, repeatedly banged drawers in office, and had mood swings. Her coworkers also feared would “go postal” “blow up at any time.” Similarly, Killian reviewed from new coworkers, including allegations glared and growled them; kept log; was rude, angry, abrasive, aggressive, threatening; and had mood swings. Her supervisor years manager had never dealt similar employee. Several alerted supervisors feared become physically violent. That paranoid evident from fact felt compelled write extensively about log, often least entry per hour. One time, according Hunt, burst into office, eyes darting back forth, pointed finger while growling incoherently about approaching coworker ask about God, Bible, Ten Commandments. After felt compelled document interactions. admitted having issues all new coworkers.

Likewise, this record jury also find Killian’s necessity. That exam occurred reprimanded unprofessionally interacting coworkers. Killian reviewed additional pages documentation Robinson, including supervisor notes, discipline directives, email communications, employees. This time, Killian saw *6 psychiatric sense, which is a risk factor violence. Inquiries—even multiple inquiries—concerning worker’s psychiatric may permissible if they reflect concern the safety the public large. See Coffman , F.3d Here, second was concern safety employees.

Painter’s remaining appellate are insubstantial. First, contends that Hunt twice contradicted his earlier deposition testimony affidavit he submitted judgment thus affidavit should been stricken. But never asked judge strike affidavit, so this appellate claim is waived. See Beverly v. Abbott Labs. , F.3d 335–36 (7th Cir. 2016). Regardless, supposed contradictions are illusory.

One “contradiction” is Hunt’s affidavit that Painter’s coworkers they feared potentially violent dangerous, leading him believe presented safety concern. In contrast, asserts, Hunt never mentioned safety concern during his deposition. But where is contradiction? Hunt never testified that Painter’s felt safe Indeed, lawyer never asked Hunt during his deposition shared concerns dangerous. Moreover, Hunt testified that he believed disruptive, insubordinate, unprofessional, uncooperative seen act harshly toward coworker later read series employee. Thus, Hunt’s allegation safety concern augmented, rather than contradicted, his deposition. Augmentations do not contradict admissible. Russell v. Acme Evans Co. , “contradiction” identifies is during deposition Hunt recall labor relations specialist examination. In contrast, swears affidavit specialist Ryan Amerson. True, difference between “I don’t recall” “Ryan Amerson.” But if difference “conflict,” later conflicting affidavit allowed if memory lapse plausibly explains discrepancy. Id. case, deposed four years examination, memory lapse corrected reviewing documents plausibly explains discrepancy. avoid trial without

identifying decision maker behind each challenged Although relies Kroll v. White Lake Ambulance Authority Sixth *7 opinion does decision maker must be identified. Rather, paragraph explaining standards governing 12112(d)(4)(A), Kroll employers cannot satisfy “business necessity” requirement general assertions compelling “convenient or expedient,” “[r]ather, individual who decides require must belief objective employee’s threatens vital function business.” Id. That cannot read defining rule law single decision maker must readily identifiable, especially when, case, multiple people participated deciding compel

Last, IDOT shopped doctor until it received opinion supporting decision fire But contention no support record. The IDOT received reports doctors, Fletcher Killian. The back those doctors reevaluations initially fit duty. It ‐ specialist expertise diagnosing treating mental health, who evaluated specialist. The initial selection Lee came him. And substituted Lee chose continue treatment Lee. characterization doctor shopping frivolous.

Accordingly, we AFFIRM court’s judgment. supervisory notes suggesting continued engaging argumentative, confrontational, insubordinate, disruptive behavior. One coworker wrote brash, condescending, intimidating, accusatory manner. analyzed emails exhibited paranoid accused others hostile body language. Additionally, sent directly strongly suggested suffered personality disorder. Moreover, representative email perceived threatening led police involvement. According Killian, incident contributed conclusion paranoid