Todd Kurtzhals v. County of Dunn ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3111
TODD KURTZHALS,
Plaintiff-Appellant,
v.
COUNTY OF DUNN,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18 C 247 — James D. Peterson, Chief Judge.
____________________
ARGUED MAY 28, 2020 — DECIDED AUGUST 10, 2020
____________________
Before MANION, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Sergeant Todd Kurtzhals worked for
the Sheriff’s Office of Dunn County, Wisconsin. After he
threatened physical violence against one of his fellow officers,
Deputy Dennis Rhead, the Office put him on temporary paid
administrative leave and ordered him to undergo a fitness-
for-duty evaluation. Kurtzhals was convinced that his super-
visors took this course of action because they knew that
Kurtzhals has a history of Post-Traumatic Stress Disorder
2 No. 19-3111
(PTSD), not because his conduct violated the County’s Work-
place Violence Policy and implicated public safety.
Acting on that conviction, Kurtzhals sued Dunn County
for employment discrimination in violation of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12112. The district
court concluded that no reasonable jury could find that
Kurtzhals’s PTSD was the “but for” cause of the County’s ac-
tion or that it was plainly unreasonable for Kurtzhals’s supe-
riors to believe that a fitness-for-duty examination was war-
ranted, and so it granted summary judgment to the County.
We agree with that assessment and affirm.
I
We assess the district court’s grant of summary judgment
de novo. Hackett v. City of South Bend, 956 F.3d 504, 507 (7th Cir.
2020). Summary judgment is appropriate where “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). “In reviewing a grant of summary judg-
ment, we construe all facts, and draw all reasonable infer-
ences from those facts, in favor of the nonmoving party,” in
this case Kurtzhals. Hackett, 956 F.3d at 507 (internal quotation
marks omitted). We do not “make credibility determinations,
weigh the evidence, or decide which inferences to draw from
the facts.” Id. We will “affirm the district court only when no
reasonable jury could have found for the plaintiffs.” Id. at 507–
08.
The account of the facts that follows adopts that well-es-
tablished perspective. On April 1, 2016, Kurtzhals was sitting
at his desk when Rhead entered his office, aggressively
moved towards Kurtzhals, yelled at him, and called him a liar.
No. 19-3111 3
Kurtzhals ordered Rhead to get out of his office. When Rhead
did not leave immediately, Kurtzhals said something to the
effect of, “if you call me a liar again, we are going to take it
outside,” implying a possible physical altercation. Several
witnesses in the workplace at the time corroborated
Kurtzhals’s words. This implied threat violated the Dunn
County Workplace Violence Policy.
Following the incident, Sheriff Dennis Smith decided to
put Kurtzhals on paid administrative leave and ordered him
to undergo a fitness-for-duty evaluation. Smith made this de-
cision after consulting with Chief Deputy Marshall Multhauf,
the Corporation Counsel, the Human Resources Manager, the
County Manager, and Dr. Thomas Campion, a psychologist
who specializes in law-enforcement psychological evalua-
tions and has worked with the Dunn County Sheriff’s Office
in the past. Sheriff Smith also hired an outside employment-
law attorney, Mindy Dale, to conduct an investigation and
provide recommendations. Dale did so and concluded that
Kurtzhals had violated the Workplace Violence Policy and
should receive some sort of reprimand. She nonetheless of-
fered the opinion that a fitness-for-duty evaluation was pre-
mature and an overreaction to the single incident. Smith chose
to order the evaluation anyway. In contrast, Smith did not
place Rhead on leave, require him to submit to a fitness-for-
duty evaluation, or otherwise punish him for his role in the
altercation with Kurtzhals.
Kurtzhals has a history of PTSD stemming from his service
in the military. When Kurtzhals returned to the Sheriff’s Of-
fice in 2014 following a combat deployment, he informed two
of his supervisors, then-Chief Deputy Paul Gunness and then-
Captain Kevin Bygd, that he had been diagnosed with PTSD
4 No. 19-3111
and received counseling. Gunness and Bygd told Kurtzhals
that they would pass that information on to Sheriff Smith. The
record does not reveal whether they ever did so. After the in-
cident with Rhead, when Smith and Multhauf told Kurtzhals
that they were placing him on administrative leave and order-
ing a fitness-for-duty evaluation, Kurtzhals asked if their de-
cision had anything to do with his PTSD. Smith and Multhauf
said nothing in response. They both deny that they knew
about Kurtzhals’s PTSD diagnosis prior to deciding how to
address his misconduct. We return to this question below.
II
Kurtzhals asserts two claims under the ADA: first, he al-
leges that the County discriminated against him on the basis
of a disability, in violation of 42 U.S.C. § 12112(a), when it
placed him on paid administrative leave; and second, he con-
tends that the County required him to take a fitness-for-duty
examination that was not “job-related and consistent with
business necessity,” in violation of 42 U.S.C. § 12112(d)(4)(A).
A
Section 12112(a) of the ADA prohibits employers from dis-
criminating “against a qualified individual on the basis of dis-
ability in regard to job application procedures, the hiring, ad-
vancement, or discharge of employees, employee compensa-
tion, job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). Subsection (b) outlines
various ways in which an employer might discriminate
against an employee, including by “limiting, segregating, or
classifying … [an] employee in a way that adversely affects
the opportunities or status of such … employee because of the
disability of such … employee,” and by “utilizing standards,
No. 19-3111 5
criteria, or methods of administration … that have the effect
of discrimination on the basis of disability.” Id. §§ 12112(b)(1),
(3)(A).
To prove a violation of section 12112(a), a plaintiff must
show that: 1) he is disabled; 2) he is otherwise qualified to per-
form the essential functions of the job with or without reason-
able accommodation; 3) he suffered an adverse employment
action; and 4) the adverse action was caused by his disability.
Roberts v. City of Chicago, 817 F.3d 561, 565 (7th Cir. 2016). It is
essential for the plaintiff to link the adverse action with his
disability. In order to do so, we have held that “a plaintiff
must show a genuine issue of material fact exists regarding
whether his disability was the but for’ reason for the adverse
action.” Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 504 (7th
Cir. 2017). We note for completeness that the ADA Amend-
ments Act of 2008 changed the language of the statute from
prohibiting discrimination “because of” a disability to prohib-
iting discrimination “on the basis of” a disability. See Pub. L.
No. 110-325, § 5(a)(1) (Sept. 25, 2008). Nearly 12 years later, it
remains an open question in this circuit whether that change
affects the “but for” causation standard we apply in these
cases. Monroe, 871 F.3d at 504 (citing Serwatka v. Rockwell Au-
tomation, Inc., 591 F.3d 957, 961 n.1 (7th Cir. 2010); Roberts, 817
F.3d at 565 n.1; Hooper v. Proctor Health Care, Inc., 804 F.3d 846,
853 n.2 (7th Cir. 2015)). Kurtzhals has not complained about
the use of the “but for” standard, however, and so we will ap-
ply it here.
Our de novo review of the record satisfies us that a trier of
fact could find that Kurtzhals has a history of PTSD, and that
his symptoms, when they flare up, include insomnia, flash-
backs, and loss of appetite. He does not need to establish that
6 No. 19-3111
his symptoms interfered with his ability to work; it is enough
that they substantially interfered with any major life activity,
and we can accept that they did. Second, there is little dispute
that Kurtzhals is qualified to perform the essential functions
of his job as a police officer. He fulfilled his duties seemingly
without incident from the time he returned from active mili-
tary duty in 2014 through March 2016 and was given the po-
sition of investigation sergeant in 2015. Although his behavior
on April 1, 2016, did not meet his employer’s legitimate ex-
pectations for employee conduct, that does not render him
unqualified for his job. There is no suggestion that his PTSD
made him unable to control his behavior or caused him to lash
out at Rhead.
That brings us to the question whether Kurtzhals’s evi-
dence, if believed by the trier of fact, suffices to show that he
suffered an adverse employment action. Kurtzhals was placed
on paid administrative leave for approximately three months.
During that time, he received his base salary plus pay for 27
hours of overtime. The County calculated the overtime figure
by counting the number of extra shifts he might have been
able to take during his leave period. Kurtzhals returned to
work in the same position he had before, and he faced no fur-
ther consequence other than an oral reprimand. This was not
enough, however, in his view: he asserts that he was harmed
by not being able to earn even more overtime pay for which
he would have been eligible by coming in early or leaving late
on his regular shifts.
A plaintiff must show that he suffered a “materially ad-
verse employment action,” not merely a minor or even trivial
one. O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004).
“While adverse employment actions extend beyond readily
No. 19-3111 7
quantifiable losses, not everything that makes an employee
unhappy is an actionable adverse action.” Id. (quoting Conley
v. Vill. of Bedford Park, 215 F.3d 703, 712 (7th Cir. 2000)). Mate-
rially adverse employment actions include “cases in which
the employee’s compensation, fringe benefits, or other finan-
cial terms of employment are diminished.” Id. “When over-
time pay or premium pay is a significant and expected part of
an employee’s annual earnings, denial of such pay may con-
stitute an adverse employment action.” Formella v. Brennan,
817 F.3d 503, 511 (7th Cir. 2016).
Because Kurtzhals received his full base pay and some
overtime pay, the question here is whether the loss of poten-
tial additional overtime pay for which he was eligible was ma-
terially adverse. The policy on his eligibility for overtime re-
mained consistent, i.e. if he worked the overtime, he would be
paid for it. His ability to earn overtime was not speculative or
conditional. Kurtzhals provided evidence that during 2015
and 2016 (when he was not on administrative leave) he aver-
aged between 4.7 and 6.3 hours per week of overtime. Apply-
ing that average to the 11.5 weeks he was on administrative
leave, Kurtzhals could have expected to work between 54 and
72 hours of overtime—twice as much or more as the 27 hours
for which the County paid him. This is enough at the sum-
mary judgment stage to show that he suffered from an ad-
verse employment action.
That leaves causation, often the most difficult element.
And here Kurtzhals has not met his burden to raise a genuine
dispute over the question whether unlawful discrimination
on the basis of his PTSD was the “but for” cause of the adverse
employment action. In other words, could a reasonable juror
conclude that he would not have suffered the same adverse
8 No. 19-3111
employment action if he were not disabled and everything
else had remained the same? Graham v. Arctic Zone Iceplex,
LLC, 930 F.3d 926, 929 (7th Cir. 2019) (quoting Ortiz v. Werner
Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016)).
Sheriff Smith’s stated reasons for placing Kurtzhals on ad-
ministrative leave and ordering a fitness-for-duty evaluation
were that Kurtzhals violated the County’s Workplace Vio-
lence Policy when he threatened Rhead with physical vio-
lence; that Kurtzhals previously had reacted angrily to being
passed over for a promotion; and that Kurtzhals might pose a
threat to his colleagues or members of the public. None of
these reasons explicitly mentions PTSD. Instead, the focus is
on Kurtzhals’s unprofessional conduct.
Kurtzhals asserts that these reasons are all pretextual and
are intended to hide Smith’s true motivation for ordering the
fitness-for-duty evaluation: Kurtzhals’s PTSD. “In evaluating
pretext, the question is not whether the employer’s stated rea-
son was inaccurate or unfair, but whether the employer hon-
estly believed the reason it has offered to explain the [action].”
Graham, 930 F.3d at 929 (internal quotation marks omitted).
Kurtzhals says that Smith and Multhauf are lying when they
deny that they knew about Kurtzhals’s PTSD when they de-
cided to put him on administrative leave. Further, he finds it
telling that they were silent when he asked if his PTSD was a
motivating factor (they dispute that he asked this). He also ar-
gues that their decision not to discipline Rhead shows that
they did not truly think a mild violation of the Workplace Vi-
olence Policy necessitated a fitness-for-duty evaluation.
The problem for Kurtzhals is that he did not offer any evi-
dence to support his claim of pretext. There is no competent
evidence that Smith and Multhauf knew about Kurtzhals’s
No. 19-3111 9
PTSD; we have only Kurtzhals’s statement that two other of-
ficers, Gunness and Bygd, told him that they would tell Smith
about his condition. This is too remote. In addition, assuming
for summary judgment purposes that Kurtzhals did ask Smith
and Multhauf if their decision was based in part on his PTSD,
their silence falls well short of an affirmative “yes.” And even
if we infer from their silence that they both knew about
Kurtzhals’s PTSD and took it into account, Kurtzhals still does
not meet the “but for” causation standard. Contrary to
Kurtzhals’s argument that he and Rhead acted in a compara-
ble fashion and should have been treated similarly, the record
reflects that only Kurtzhals explicitly threatened physical vio-
lence. Rhead may have behaved in an intimidating fashion to-
wards Kurtzhals, but their behavior was not identical. There
is no evidence to suggest that Smith did not genuinely and
reasonably see a difference between the two.
In sum, Kurtzhals has not provided enough evidence to
allow a reasonable juror to conclude that his PTSD was the
“but for” cause of Smith’s decision to put him on administra-
tive leave and order a fitness-for-duty evaluation. The district
court thus correctly granted summary judgment to the
County on this count.
B
Section 12112(d)(4)(A) of the ADA says that an employer
“shall not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to
be job-related and consistent with business necessity.”
42 U.S.C. § 12112(d)(4)(A). This provision applies to all em-
ployees, with or without an actual or perceived disability.
10 No. 19-3111
An “examination is job-related and consistent with busi-
ness necessity when an employer has a reasonable belief
based on objective evidence that a medical condition will im-
pair an employee’s ability to perform essential job functions
or that the employee will pose a threat due to a medical con-
dition.” Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 565
(7th Cir. 2009). “[I]nquiries into an employee’s psychiatric
health may be permissible when they reflect concern for the
safety of employees and the public at large.” Id. (internal quo-
tation marks omitted).
Because Kurtzhals was a police officer and responsible for
public safety, his “well-being was essential not only to [his]
safety but to the public at large; thus, the Department had a
particularly compelling interest in assuring that [he] was both
physically and mentally fit to perform [his] duties.” Id. This
“special work environment” necessitates greater leeway for
supervisors to order job-related fitness-for-duty evaluations.
Id.; see also Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir.
2000) (“It was entirely reasonable, and even responsible, for
[the police department] to evaluate [the officer’s] fitness for
duty once it learned that he was experiencing difficulties with
his mental health.”); Watson v. City of Miami Beach, 177 F.3d
932, 935 (11th Cir. 1999) (“In any case where a police depart-
ment reasonably perceives an officer to be even mildly para-
noid, hostile, or oppositional, a fitness for duty examination
is job related and consistent with business necessity.”).
Kurtzhals argues that a fitness-for-duty evaluation was
not consistent with business necessity in his case because
“heated exchanges with voices raised and the use of swear
words were not unusual in the department,” and other em-
ployees had committed worse misconduct in the past and not
No. 19-3111 11
been ordered to get an evaluation. The Office did not have a
normal practice of ordering fitness-for-duty evaluations for
current employees and, in Kurtzhals’s view, his conduct was
far from egregious enough to warrant one. He also empha-
sizes that Smith did not order Rhead to get an evaluation and
that Dale, the outside attorney, thought a fitness-for-duty
evaluation for Kurtzhals was an overreaction. But there was
no one right answer in this situation. Kurtzhals has no way of
showing that Sheriff Smith did not genuinely believe that
Kurtzhals’s conduct was more problematic than Rhead’s. And
Dale’s recommendations were just that—advice that the Sher-
iff was not obliged to accept. Further, the Office’s past practice
of not asking for psychological evaluations when they might
have been warranted did not preclude Smith from ordering
an evaluation in Kurtzhals’s case. There is no dispute that
Kurtzhals threatened Rhead and in so doing violated the
Workplace Violence Policy. A reasonable person could see
this as evidence that Kurtzhals had a short fuse and might lash
out again at a colleague or a member of the public.
Sheriff Smith was responsible for addressing the fallout
from the altercation between Kurtzhals and Rhead. He might
have chosen to let well enough alone, and that too might have
been a reasonable response. But he chose to draw a line be-
tween physical threats and verbal abuse and to call for a fit-
ness examination only for the former. Nothing in the ADA
forbids this line, and so summary judgment was proper on
this count as well.
III
Kurtzhals implicitly threatened physical violence against
a colleague in violation of Dunn County’s Workplace Vio-
lence Policy. There is no evidence that his PTSD, rather than
12 No. 19-3111
his inappropriate conduct, was the “but for” cause of Sheriff
Smith’s decision to place him on administrative leave and or-
der a fitness-for-duty evaluation. This decision was reasona-
ble and consistent with business necessity. We therefore
AFFIRM the district court’s grant of summary judgment to the
County.