Koessel v Sublette County
Sheriff’s Dept., 717 F.3d 736 (10th DCA 2013)
Sheriff’s Deputy Koessel suffered
a stroke. After returning to work, he had a number of emotional/behavioral
problems. He was sent to a neurologist for an FFD. Neurologist recommended a
neuropsych eval. A psychologist found him unfit for regular duty, and recommended
low-stress work, w/o regular contact with the public. He was subsequently
terminated, as the Dept did not have any such positions. He sued the Dept,
alleging ADA, contract, and section 1983 violations. Trial court found that his
claim that he was able to perform the essential functions of his job (even with
reasonable accommodation) failed, because he put forth no evidence
contradicting the psychologist’s report. Summary judgment was granted for all 3
claims. He appealed; however, his claim failed because he had not presented evidence.
The Dept stated that his impairments interfered with at least 3 essential job
functions (1), preserving the peace at public gatherings, neighborhood disputes
and family quarrels; (2) conferring with prosecutors and testifying in court;
and (3), apprehending suspects. He did submit evidence that his performance on
standard psychological tests was unchanged from his performance before his
stroke, this evidence was insufficient to support his claim. The Court said, “even
accepting this evidence in the light most favorable to Koessel, it only shows
he was physically fit for his job, not that he could cope with high stress
situations. Koessel introduced no evidence disputing Dr. Enright’s findings
that he suffered lingering psychological deficits that would interfere with his
ability to perform his job. … A psychologist’s report reaching the opposite
conclusion to that of Dr. Enright might have created a sufficiently debatable
question to send to a jury. But Koessel produced nothing to contradict Dr.
Enright’s report." Further, the court found that he did “not explain or
introduce evidence showing that the problems Dr. Enright focused on – fatigue,
lightheadedness, and emotional disinhibition – would have been revealed by the
psychological test. Thus, there is no support for his argument that the test
results conflict with Dr. Enright conclusion.” Finally, the court opined that
although he had been able to perform non-stressful duties, he had introduced no
evidence that he had performed in emergencies or other tenants, stressful
situations.
The court noted that an
agency is required to make a reasonable effort to accommodate the disabled
employee. The ADA requires at least two forms of accommodation 1-a modification
of the particular job performed by the employee or 2- reassignment to another
job that can be performed with or without the first type of accommodation. In
addition, employees have the burden to request accommodation, unless the
employer has foreclosed the interactive process through its policies or
explicit actions. In this case, Koessel did not request the first type of
accommodation. Although he argued that he was able to perform his duties
without modification, “it is not the employer’s responsibility to anticipate
the employees needs and affirmatively offer accommodation if the employer is
otherwise open to such requests” in regard to reassignment, the court noted
that “employers have a duty to reassign, but only when it is reasonable under
the circumstances. Typically this means employers are only required to reassign
employees to existing vacant positions. A position is vacant when a similarly
situated, nondisabled employee would be able to apply for it." The
employee bears the burden of identifying a specific vacant position to which he
or she could reasonably be assigned. In this case, Koessel did not identify any
positions to which he could have been reassigned.
Koessel also argued that the
department did not specify exactly how he was unfit for duty or from what
disability he suffered, depriving him of a meaningful opportunity to challenge
his termination. Under Wyoming state law the employee must be given specific
notice and give the employee a real and meaningful opportunity to respond to
every charge or allegation that is being brought against them and which will be
used as a cause for his termination. The Wyoming Supreme Court has equated this
type of notice and hearing with due process. The court opined that the
department’s notice that he was “not physically fit”, and was “being terminated
for safety reasons and to prevent injury both to himself and to members of the
public” was adequate. Further Castle had had an opportunity to receive the
report, review it, and discuss it with his Sheriff. The psychological report describe
his symptoms in detail and how they could interfere with his duties.
What this means for
psychologists, employers, and/or attorneys
---If you
are hired as the Plaintiff’s expert, you should address the specific limitations
alleged in the original report.
---If you
are the defense attorney, you should attempt to foreclose the plaintiff’s
opportunity to present evidence addressing your expert’s findings
---In order
for officers to understand and possibly dispute the reasons for their
termination, a copy of the psychologist’s report may be required (in contrast
to common practice – FFD reports are not provided to the employee). Employers
would need to provide the report prior to litigation. Since it is likely that
the employee has an independent right to a copy of his/her records, outside of
litigation, both employer and employee should be informed of this right prior
to initiating the evaluation.
--- In
order to protect itself from litigation, the employer may wish to explain the
result of the unfavorable report to the employee. The employer and psychologist
should reach an agreement regarding this process and who will conduct it (if
needed), prior to initiating the evaluation.
---It
seems as though there might have been a lack of foundation for a finding of
emotional disinhibition, when the test results were similar to his
pre-employment testing. It also appears that the results were accepted without
controversy. Did the plaintiff’s attorney fail to present evidence that would
have impeached the psychologists findings? At the very least, that would seem
to be a prudent course of action.
No comments:
Post a Comment