THOMAS M. DURKIN, District Judge.
Plaintiff John Luckett has brought suit against his employer, the Cook County Sheriff's Office ("CCSO").
Summary judgment is appropriate "if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than "a mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The following facts are supported by evidence in the record and are undisputed unless otherwise indicated. Luckett has been employed by the CCSO as a correctional officer in the jails at the Cook County Department of Corrections ("CCDOC") since February 7, 1994. The CCDOC is divided into specific areas and divisions. Those areas include Divisions 1 through 11, the Visitor Information Center, External Operations, Transportation, Sanitation, Emergency Response Team, and clothing. When Luckett first began working at the CCDOC, he was assigned to Division 8. This assignment was followed by an assignment to Division 11, then to External Operations, then to Transportation, then to Division 9, and finally to Division 11. The officer-to-inmate ratio varies depending on the area or division in question. Thus, for example, the officer-to-inmate ratio in External Operations was around 1:2 when Luckett worked there, whereas the ratio in Divisions 1 through 11 was approximately 1:42-48. R. 49 at 56-57 (¶¶ 6, 8).
Luckett suffers from Moyamoya disease (sometimes written as "Moya Moya"), which "is a rare, progressive cerebrovascular disorder caused by blocked arteries at the base of the brain." https://www.ninds.nih.gov/Disorders/All-Disorders/Moyamoya-Disease-Information-Page (last visited on 7/10/17).
Id. Luckett experienced some of these symptoms in 2010. He was diagnosed with Moyamoya disease after suffering a stroke and subsequently undergoing emergency brain surgery. This occurred in August 2011. The physicians with knowledge of Luckett's medical condition include his long-time primary care physician, Dr. Legrand, his treating neurologist, Dr. Schneck, and the neurosurgeon who performed his brain surgery, Dr. Anderson. See R. 36 at 22-24 (Luckett Dep. 80-86).
Luckett was off work after undergoing brain surgery for approximately three months. Afterwards, Dr. Legrand and Dr. Anderson both wrote letters releasing him to work with no restrictions including clearance to carry a firearm. Luckett returned to work in November 2011. Id. at 24 (Luckett Dep. 87-88). When he returned to work, Luckett was assigned to Division 9, which houses violent inmates. Less than a year later, in September 2012, Luckett was attacked and beaten by an inmate. Neither party gives any details regarding the attack, but a report in the record indicates that Luckett remembers a door hitting him in the face and an inmate on him, punching him on the left side of his head. See R. 31-1 at 148. Luckett reported that he lost consciousness and woke up later at the hospital. Id. at 150. As a result of the attack, Luckett was again off work, this time on what the parties refer to as "duty injury." R. 36 at 25 (Luckett Dep. 89). During this time, Luckett sought treatment from a neuropsychologist named Dr. Randolph, who specializes in concussions. R. 36 at 17 (Luckett Dep. 58-59). Luckett testified that Dr. Randolph, as well as Dr. Schneck, diagnosed him with post traumatic distress disorder ("PTSD") as a result of the September 2012 inmate attack. Id.; R. 49 at 65 (Luckett Aff., ¶ 3); R. 31-1 at 169-70.
Luckett's workers compensation claim for disability benefits was approved by the Department of Risk Management in November 2012. R. 36 at 25 (Luckett Dep. at 92). Thereafter, the Department of Risk Management directed Luckett to submit to an Independent Medical Examination ("IME"), the purpose of which was "to inform" the CCSO when Luckett was "released to return to work." R. 31-1 at 146 (Zalas Decl., ¶ 5). The IME was conducted on March 13, 2013 by Dr. Levin (see footnote 4). After examining Luckett and reviewing Dr. Randolph's neuropsychological evaluation, Dr. Levin concluded that Luckett had at most "a mild concussion with a headache" from the inmate attack, which Dr. Levin thought "[c]ertainly . . . should have resolved very quickly and definitely by six months after injury." R. 31-1 at 151. Dr. Levin stated that Luckett's "current symptomatology makes no sense with his alleged injury," and observed that, "as far as this possibly being a psychogenic problem [referring to Dr. Randolph's report], [Dr. Levin] would defer the possible etiologies to a psychologist . . . ." Id. Dr. Levin concluded that, "from a neurologic standpoint, [Luckett] is at maximum medical improvement and can work . . . full duty." Id.
After receiving Dr. Levin's report, the Department of Risk Management reported to the CCSO that Luckett's temporary disability benefits had been terminated as of June 11, 2013 and that Luckett was not entitled to remain on duty injury after that date. R. 49 at 83. As a result, Luckett received word from the CCSO that he was to return to full duty work. Luckett objected because his psychiatrist had said he should not return to work until he had received treatment for his PTSD, and Luckett claims that the CCSO denied his request for psychiatric treatment. R. 31-1 at 172; see also R. 9 at 3 (¶ 21).
Approximately four months later, in October 2013, the Department of Risk Management directed Luckett to submit to a second IME. See R. 31-1 at 147 (Zalas Decl., ¶ 8). This time Luckett was sent to a neuropsychologist rather than a neurologist. See R. 31-1 at 105 (Hartman Decl., ¶¶ 2-4). The neuropsychologist, Dr. David Hartman, agreed with Dr. Levin's conclusion from seven months earlier that Luckett's "workplace injury was consistent with, at most, a mild concussion that would normally be expected to resolve quickly." Id. at 135. He also agreed that there was "no objective neurological evidence of brain injury related to the workplace injury." Id. As to Luckett's psychological condition (on which Dr. Levin had not opined), Dr. Hartman concluded that Dr. Randolph's previous diagnosis of PTSD was "nondispositive and below standard of care in its failure to objectively assess for the possibility of symptom endorsement exaggeration." Id. at 136. Specifically, Dr. Hartman believed that Luckett's self-reported symptoms of depression and anxiety were likely "simulate[d]," id. at 135, because Luckett had "displayed implausibly poor effort in both Dr. Randolph's neuropsychological evaluation and in my own assessment," id. at 132. While Dr. Hartman acknowledged that Dr. Randolph considered Luckett's "failed validity testing" to "be of subconscious origin," id. at 133 (emphasis in original), Dr. Hartman disagreed, stating that Luckett's "below-chance findings" on Dr. Randolph's testing "represent evidence of deliberate under-performance, and when occurring within a secondary gain context, supports a conclusion of malingering," id. at 133 (internal quote marks omitted). According to Dr. Hartman, because Luckett "was engaged in litigation or planning to litigate workplace injury, this profile would be more consistent with malingering for potential secondary gains of compensation and/or work avoidance." Id. In other words, Dr. Hartman discounted Luckett's treating physicians' medical opinion of PTSD based on Luckett's workers compensation claim and the incentive that claim gave him to exaggerate the extent of his psychological injuries stemming from the inmate attack. Dr. Hartman concluded that Luckett was at "maximum medical improvement" from the September 2012 attack, not only physically but "from a neuropsychological and psychological perspective" as well. Id. at 137.
While Dr. Hartman concluded that the inmate attack no longer physically or psychologically affected Luckett's ability to work, he nonetheless expressed reservations as to whether Luckett's "history of stroke, Moyamoya and hypertension would allow him to continue employment as a prison guard." Id. at 136. Dr. Hartman also stated that he could not "rule out the possibility that some of [Luckett's] apparent difficulty understanding complex instructions may be related to left hemisphere cerebrovascular occlusion from Moyamoya," and also noted that Luckett's "hypertensive blood pressure readings . . . speak to inadequate blood pressure control and/or treatment non-compliance." Id. at 134. In a concluding paragraph, Dr. Hartman stated that Luckett "is not released to work," because "[h]is medical status unrelated to the injury in question requires evaluation vis a vis hypertension, functional capacity, driving and weapon-carrying status." Id. at 137 (emphasis added). "From the standpoint of neuropsychological and psychological accident-related issues," however, Dr. Hartman found that "there is no barrier to immediate work return." Id. (emphasis added).
After receiving Dr. Hartman's report, around the end of February 2014, Nolan called Luckett to inform him that he was to immediately return to work full duty. R. 35 at 5 (¶ 22). This happened despite Dr. Hartman's specific statement in his report that Luckett possibly had continuing psychological and/or physical limitations (albeit not stemming from the inmate attack), and that he was not released back to work. Luckett testified that he told Nolan he had not been treated for, and continued to suffer from, PTSD. He further testified that he requested a transitional work assignment to a low-or no-inmate contact position, and that Nolan directed him to apply for one and submit a doctor's note to support his request. Id. (¶ 23). Luckett's disability benefits were terminated on February 18, 2014. See R. 31-1 at 65 (Nolan Dep. 16-17). He received formal notification in the mail that his IME indicated an ability to return to full duty work and that he was to report to work "no later than Wednesday February 26, 2014." R. 35 at 5 (¶ 24); see also R. 49 at 84 (Sheriff's Personnel Office Memorandum indicating a "Release For Duty Date" of 02-25-2014). Luckett complied with this direction and returned to work at the end of February 2014.
Upon returning to work, Luckett was assigned to Division 11. While Division 11 houses medium security inmates, it is undisputed that included among them were violent offenders. See R. 49 at 57 (¶ 9); R. 58 at 3 (¶ 9). Luckett's job responsibilities in Division 11 were to supervise inmates, make sure they were following the rules and regulations, and make sure they were getting medical treatment and meals. R. 49 at 57 (¶ 10). Luckett was singly responsible for monitoring approximately 48 inmates during his 7 a.m. to 3 p.m. shift. Id. (¶ 15); see also id. (¶¶ 8-9). Luckett's work station was located in the day room in the inmates' common space, where the inmates are free to walk around unrestrained from approximately 7:30 a.m. to 1:00 p.m. each day. Id. at 58 (¶ 16).
Luckett states that after being ordered by Nolan to return to work he put in a written request for an accommodation and/or transitional work assignment, which was denied. On June 18, 2014, Luckett again requested a transitional move from his position in Division 11 due to his PTSD, this time contacting Sean Lynch, his Personnel Supervisor. See R. 31-1 at 48; R. 49 at 85 (Cook County Department of Corrections Memorandum "requesting an American with Disabilities Act (ADA) assignment or something low level inmate contact," based on PTSD, which was causing depression, anxiety and sleepless nights; "[a]ny kind of transitional assignment would be greatly appreciated"). Lynch put Luckett in contact with Sabrina Rivero-Canchola, who had taken over responsibility for processing accommodation requests from Nolan. R. 31-1 at 49. Rivero-Canchola directed Luckett to complete a Cook County Sheriff's Office ADA Request Form. Id. at 50. Luckett submitted the form on June 19, 2014, in which he requested as an accommodation "[a]ny assignment with low inmate contact to none" due to the PTSD he suffered as a result of the inmate attack that occurred in September 2012. Id. at 51.
On June 20, 2014, Rivero-Canchola sent Luckett an email stating that, "[i]n order to evaluate your eligibility for ADA accommodations we will need you to provide us with a letter from your doctor stating your diagnoses as well as your duty limitations." Id. at 54. Luckett responded to Rivero-Canchola's email by providing a letter from his long-time treating internist, Dr. Legrand, dated June 24, 2014, which states that Luckett has PTSD and that "he should have little to no contact with inmates." Id. at 55. After receiving this letter, on June 27, 2014, Rivero-Canchola sent an email to Mark Robinson, Chief Union Steward at the CCSO, asking to put into effect an accommodation for Luckett:
Id. at 100. Robinson responded, "No I do not and thank you." Id. Rivero-Canchola testified that to make the accommodation happen by "Monday morning," as stated in the email, she needed to obtain the approval of the Executive Director's office. Id. at 86-87 (Rivero-Canchola Dep. 37-38). Apparently in furtherance of that goal, Rivero-Canchola sent an email to an employee in that office, Mary McQuillan, which also stated that Rivero-Canchola was seeking to put an accommodation into effect for Luckett "effective Monday morning." Id. at 87 (Rivero-Canchola Dep. 41). Like Robinson, McQuillan's email response did not object to the accommodation, indicating only that Luckett might have to agree to a different shift time. Id. at 101.
Rivero-Canchola testified at her deposition that at some point after sending the emails to Robinson and McQuillan, she "learned of the IMEs and realized that they[ ] [contained] conflicting information." Id. at 86 (Rivero-Canchola Dep. 36-37). In her view, the conflicting information raised questions as to whether Luckett actually suffered from PTSD. R. 35 at 9 (¶ 47); R. 36 at 64 (Rivero-Canchola Dep. 75). On July 2, 2014, Rivero-Canchola emailed Luckett with instructions to obtain "a new letter from [his] doctor stating that he is releasing [Luckett] back to work, but with the restriction of limited to no inmate contact based on [Luckett's] diagnosis of PTSD." R. 31-1 at 102. Rivero-Canchola's email, however, did not inform Luckett about her concerns stemming from the previous IMEs or explain to him why he would need a doctor's release back to work when he had been back at work already for approximately the past three months per Nolan's order (and, according to Luckett, contrary to his own expressed wishes based on the advice of his treating physicians). Luckett therefore sought further clarification, writing back to Rivero-Canchola:
Id. Rivero-Canchola responded by explaining to Luckett that his October 2013 IME released him back to full duty "as to [his] duty injury in 2012," but that "it was unclear as to whether [his] pre-existing conditions created duty limitations." Id. Therefore, she explained, she would "need a letter from [his] doctor [ ] releasing [him] back to full duty, but with the restriction of limited to no inmate contact based on [the doctor's] diagnosis of PTSD," which note should also state "whether the restrictions are permanent or temporary" and "be more detailed as to the reasons [the doctor] [was] suggesting limited/no inmate contact." Id.
Luckett claims that, on July 7, 2014, he supplemented the letter from Dr. Legrand with a letter from Dr. Schneck, which stated that Luckett was being treated "for post traumatic stress disorder, post concussive syndrome and [ ] a history of Moya Moya syndrome and also status post stroke." R. 49 at 79. Dr. Schneck recommended that Luckett "have little to no contact with inmates, due to noted neurological problems as stated above," and that "[h]e should be in a transitional work assignment for an undetermined length of time." Id. The record also contains a hand-written note from Luckett's then-treating psychiatrist, Dr. Lilly Huang, stating that, due to Luckett's traumatic experience at work, Dr. Huang recommended that he "work at a different position (work transitional assignment)." R. 49 at 80. Rivero-Canchola testified that she never received any doctors letters other than the initial one from Dr. Legrand. Luckett, on the other hand, testified that he hand-delivered at least three doctor's letters to Rivero-Canchola, including the June 24, 2014 letter from Dr. Legrand, the July 1, 2014 note from Dr. Huang, and the July 7, 2014 letter from Dr. Schneck. See R. 49 at 66 (¶¶ 11, 13).
Apparently, no further contact between Luckett and Rivero-Canchola occurred until approximately two weeks later, when Luckett received a letter from Rivero-Canchola dated July 23, 2014 notifying him that his request for an accommodation had been denied. The reason stated in the letter for the denial was that Luckett "did not provide the requested medical documentation to make an informed determination." R. 31-1 at 103; see also R. 36 at 61 (Rivero-Canchola Dep. 62) (Luckett's accommodation request was denied because he failed to provide appropriate medical documentation, which should have included "everything I asked for in our previous correspondence," referring to Rivero-Canchola's July 2, 2014 email to Luckett). Luckett filed the present lawsuit on August 8, 2014, a little over two weeks after receiving the CCSO's letter denying his accommodation request.
Luckett alleges that he was subjected to disparate treatment because of his disability (PTSD
The Court thus turns to Luckett's claim of race discrimination in Count III. The law relating to discrimination is well known in this district. To succeed on a claim for discrimination under Title VII, a plaintiff must present evidence that (1) he is a member of a statutorily protected class; (2) he suffered an adverse employment action; and (3) discriminatory intent, shown by either direct or indirect evidence. See Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010).
The types of evidence a court considers in deciding whether there is a triable issue of fact on the question of the defendant's discriminatory intent include "(1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action." Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). The court is to consider all of the possibly relevant evidence "as a whole, rather than asking whether any particular piece of evidence proves the case by itself." Ortiz, 834 F.3d at 765. Here, the only evidence cited by Luckett is in the third category. Specifically, Luckett points to two correctional officers who allegedly were similarly situated to him but were not African-American, and who supposedly were treated better than he was when they requested a transitional work assignment. See R. 49 at 20-21; id. at 49 (¶ 59). But the only evidence Luckett cites in this regard is his own deposition testimony, and Luckett is not competent to testify regarding those officers' situation because it is clear from his testimony that he lacks personal knowledge of those facts.
Moreover, even if the Court were to consider Luckett's deposition testimony on this issue, that testimony does not contain enough information about the two officers to create a disputed issue of fact as to whether they were "similarly situated" to Luckett. See Walker v. Bd. of Regents of the Univ. of Wis. Sys., 410 F.3d 387, 397 (7th Cir. 2005) (to qualify as similarly situated, a fellow employee must be "directly comparable to the plaintiff in all material respects"); see also Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007) (the similarly situated inquiry requires evidence that the comparators are "similarly situated with respect to performance, qualifications, and conduct," and "engaged in similar conduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them"). Luckett testified that he has no idea what disability each of the two officers in question suffered from, or who, when or why they were approved for a transitional work assignment. The only information he appears to know (which is itself hearsay) is that they asked for and received some type of transitional work assignment. Without any further information about the disabilities suffered by the two officers, the circumstances of their request for a transitional work assignment, the decisions reached by the CCSO on those requests, and the reasons for those decisions, the Court cannot say that the two officers are sufficiently similar to Luckett to constitute adequate comparators from which discriminatory intent might be inferred. See, e.g., Bradford v. City of Chicago, 121 Fed. App'x 137, 139-40 (7th Cir. 2005) (information regarding other employees held insufficient to survive summary judgment on the question of whether similarly situated employees were treated more leniently than the plaintiff).
The CCSO makes a number of other arguments regarding why it is entitled to summary judgment on Luckett's Title VII claim. For instance, the CCSO argues (1) Luckett does not qualify for a transitional work assignment; (2) the Department of Risk Management, not the CCSO, denied Luckett treatment for his PTSD, and, in any event, Luckett had no legal entitlement to employer-provided psychiatric treatment; and (3) it ordered Luckett to return to work in February 2014 in good faith based on the results of the October 2013 IME. These arguments, for the most part, are based on either disputed facts or inadequate and/or faulty legal or factual analysis of the issue.
In addition to his disability disparate treatment claim in Count I, Luckett also alleges a failure to accommodate disability discrimination claim in Count II. See id. at 927 ("under the ADA, there are two distinct categories of disability discrimination claims: failure to accommodate and disparate treatment"). A failure to accommodate theory of disability discrimination looks at whether the employer made reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. See 42 U.S.C. § 12112(b)(5)(A); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). Luckett's failure to accommodate claim is that the CCSO violated the ADA when it refused to grant his request to be assigned to an area or division of the CCDOC in which he would have limited to no inmate contact.
"In a reasonable accommodation case, like the present one, the plaintiff must first show that: 1) he was disabled; 2) his employer was aware of his disability; and 3) he was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position." Basith, 241 F.3d at 927. As an initial matter, it is not entirely clear whether the CCSO disputes whether Luckett has shown he has a disability. The CCSO correctly points out that a diagnosis of PTSD does not automatically mean that Luckett is disabled for purposes of the ADA. Instead, Luckett's PTSD must be such that it "substantially limits" one or more of his "major life activities
It is true that the CCSO argued in its opening summary judgment brief that Luckett's PTSD does not substantially limit the major life activity of working. But the CCSO made that argument only with regard to Luckett's disability disparate treatment claim in Count I, despite the fact that establishing the existence of a disability is a predicate to both Count I and Luckett's failure to accommodate claim in Count III. See, e.g., Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 624 (7th Cir. 2012). In his opposing brief, Luckett responded on the merits to the CCSO's argument that his PTSD did not substantially limit his ability to work, and in addition argued that his PTSD also substantially limited him in at least three other major life activities—his ability to eat, sleep and dress. Luckett specifically made that argument, however, only in the context of his failure to accommodate claim (Count II). See R. 49 at 2-8. The CCSO then failed to respond in its reply brief to Luckett's arguments on this issue, and ignored the disability question altogether.
To survive summary judgment, however, Luckett must show not only that he has a disability but that he is a "qualified" individual with a disability. Basith, 241 F.3d at 927 ("The ADA only protects a `qualified individual with a disability.'").
Id. (internal quotation marks and citations omitted).
The CCSO does not question that Luckett satisfies the prerequisites for his position as a correctional officer. The issue raised by the CCSO relates to Luckett's ability to perform the essential functions of his job. Although it would seem to be important to first discuss what the essential functions of the job of correctional officer are,
The CCSO argues that Brumfield applies here because of the following exchange that took place during Luckett's deposition:
R. 36 at 18-19 (Luckett Dep. 64-65). The Court disagrees that this deposition testimony precludes Luckett's failure to accommodate claim.
Brumfield holds that "an employer need not accommodate a disability that is irrelevant to an employee's ability to perform the essential functions of her job." 735 F.3d at 632 (emphasis added). Common sense would suggest that Luckett's PTSD is not irrelevant to his ability to perform his job as a correctional officer, and his affidavit submitted in opposition to the CCSO's summary judgment motion supports that conclusion. Luckett states in his affidavit that, after the September 2012 inmate attack, he became depressed and unable to sleep, and he experienced constant fear and anxiety while at work. R. 49 at 67 (¶ 23). He further explains that because of his constant state of fear and anxiety: (1) it is difficult for him to supervise the inmates in assignments with a low officer-to-inmate ratio; (2) he is delayed in responding to inmate inquiries and conflicts, affecting his ability to de-escalate inmate confrontations in the unit as well as his abilities in ensure the safety of everyone at the jail; (3) he is afraid to leave his desk area, impairing his ability to move around and monitor inmates to make sure they are following the rules and regulations of the facility; (4) he is withdrawn, and has trouble interacting and communicating with the inmates and others at work, which also interferes with his ability to monitor inmates; and (5) he has trouble eating and sleeping, causing him to be groggy and sluggish at work and to experience difficulties concentrating and mentally focusing on his job duties. He further states that when he sees multiple people (more than two) in a group, he fears an attack, and will focus on how to escape, instead of focusing on his job duties or monitoring the inmates to make sure they are following CCDOC rules and regulations. See R. 49 at 67-68 (¶¶ 24-28).
The CCSO argues that the Court should disregard Luckett's affidavit because it violates the rule that a party cannot avoid summary judgment by submitting "an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony." Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir. 1987). But Luckett's affidavit is not conclusory. Moreover, the "sham affidavit" rule only "applies when the change is incredible and unexplained. In contrast, when the change is plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory, a change in testimony affects only its credibility, not its admissibility." McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 750-51 (7th Cir. 2010) (internal quotation marks and citations omitted). The Court has reviewed Luckett's deposition testimony and concludes that his affidavit testimony falls into the latter, permissible category. In the first place, much of the deposition testimony on which the CCSO relies consists of Luckett responding to leading questions where the words were put into his mouth by counsel for the CCSO, including the word on which the CCSO focuses here—"uncomfortable." Luckett may not have understood the full context or import of what counsel intended when asking the questions she did. In any event, Luckett's deposition testimony overall is consistent with his affidavit. He testified that to cope with his PTSD he has to take psychotropic medication and see a psychiatrist. He takes Prozac, Wellbutrin, Lunesta, and Clomazepam. R. 36 at 17-18 (Luckett Dep 60-61). His PTSD made him not "want to be around the inmates, not a bunch of them by myself." Id. at 18 (Luckett Dep. 63-64). He can work around inmates, but only "[a]s long as other officers are right there with [him]." Id. (Luckett Dep. 64). He testified that he is only able "to perform [his] job duties and responsibilities that do not require inmate contact." Id. (emphasis added).
The CCSO argues that being "uncomfortable" is not grounds for an accommodation. See R. 57 at 5 ("The fact that [Luckett] did not want to be around inmates or that he is uncomfortable around inmates does not entitle him to an accommodation."). In support of that argument, the CCSO cites Sheahan v. Dart, 2015 WL 1915246 (N.D. Ill. Apr. 23, 2015). But the plaintiff in Sheahan sought an accommodation for physical disabilities (herniated disk and degenerative eye condition), not a psychological condition like PTSD. The court granted summary judgment to the defendant because the plaintiff did "not complain that his back injury prevented him from fulfilling the duties of a Deputy Sheriff II. Rather, he allege[d] only that his back injury made him more concerned about possible re-injury if he were again attacked by detainees." Id. at *5. There was no evidence in Sheahan that the plaintiff's psychological "discomfort" in performing his job duties due to his fear of reinjuring himself was itself a disability under the ADA. Further, unlike the plaintiff in Sheahan, who "failed to offer any countervailing evidence that his back injury or his eye problems meaningfully impaired his ability to perform" his job duties, id., Luckett has submitted evidence that his PTSD does meaningfully impair his ability to perform his duties in Division 11—his affidavit and letters written by his treating physicians.
The CCSO also cites Hooper v. Proctor Healthcare Inc., 804 F.3d 846 (7th Cir. 2015), in which the Seventh Circuit affirmed summary judgment against an employee seeking an accommodation for his bipolar disorder. Bipolar disorder, like PTSD, is a mental illness, but there was no obvious link in that case between the plaintiff's bipolar disorder and his job duties, whereas here there is an obvious link between Luckett's PTSD and his job duties as a correctional officer. More to the point, however, the reason the Seventh Circuit gave for affirming summary judgment against the plaintiff in Hooper was that the plaintiff had been cleared to return to work by a psychiatrist who had been retained by the defendant to look into the issue of his psychological fitness for work, and the psychiatrist had "specifically found that [the plaintiff] was qualified for his position without accommodations." Id. at 852 (emphasis in original).
The Court also disagrees with the CCSO that the fact that a plaintiff continues working despite his illness means he is not entitled to an accommodation. As the Fifth Circuit has stated,
E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 619 (5th Cir. 2009) (citing Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 24 (1st Cir. 2002) (declining to adopt rule that would impose "an unenviable `catch-22:' in order to demonstrate that she is disabled, the plaintiff would also have to demonstrate why she is unqualified to do the job to which she aspires")). A rule that "unless it [is] impossible for plaintiff to do h[is] job without the accommodations, [ ]he [is] not entitled to them . . . suggests a disturbing standard for determining whether an accommodation is reasonable. It may be that plaintiff could open the front door with great difficulty or make her way through the parking lot without falling each time, but should she have to? A paraplegic might be able to get out of her wheel chair and pull herself up a flight of stairs as well, but that does not mean an employer may refuse to install a ramp or an elevator on that ground." Sturz v. Wis. Dep't of Corr., 642 F.Supp.2d 881, 887-88 (W.D. Wis. 2009).
Moreover, even if before the passage in 2008 of the Americans With Disabilities Act Amendments Act ("ADAAA") it made sense to say that a plaintiff is not entitled to an accommodation because he testifies that he "is able to perform the job" or "the work gets done," it no longer makes sense under the new standard for disability found in the 2008 Amendments.
The CCSO argues that the inquiry under Brumfield is distinct from the inquiry that applies to determine whether a person has a qualifying "disability" under the ADA. See R. 57 at 4 ("While it is possible for a person to have a `disability' under the ADA through the application of the ADAAA and §12102(4)(E)(i), the person must still also be `otherwise qualified' to establish a failure-to-accommodate claim."). The Court agrees that the Seventh Circuit in Brumfield appeared to impose a distinct requirement for a plaintiff to state a valid failure to accommodate claim.
Applying the Brumfield rule here in a manner that is consistent with the standard for finding a disability under the ADAAA also makes sense in light of the rationale for Brumfield, which was intended to address the situation where an employee has a condition that meets the statute's definition of a disability but the major life activity affected by the disability has "no causal connection" with the accommodation sought. Brumfield, 735 F.3d at 633 (citing Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007) (citing Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005) (holding that an employer need not accommodate an employee's back injuries simply because they substantially limited the employee's ability to engage in sexual relations))). The CCSO does not argue (nor could it) that Luckett's PTSD lacks a causal connection with the accommodation he seeks. Luckett has testified (R. 49 at 69 (¶ 38)) that continuing to work in Division 11 where there is a low officer-to-inmate ratio has greatly exacerbated his PTSD. See Garcia-Hicks v. Vocational Rehab. Admin., 148 F.Supp.3d 157, 167 (D.P.R. 2015) (addressing plaintiff's contention that her pain was exacerbated by sitting); Sturz, 642 F. Supp. 2d at 888 ("plaintiff has adduced evidence that she needed the accommodations to reduce stress on her joints and that not having the accommodations exacerbated her conditions"). Moreover, the fact that Luckett's PTSD did not, at least initially, prevent him from performing his job "is not determinative, as a disability can be `episodic' if it `substantially limits a major life activity when active.'" Molina v. DSI Renal, Inc., 840 F.Supp.2d 984, 995 (W.D. Tex. 2012). The Court also notes that less than one year after Luckett filed the present lawsuit, on or about April 22, 2015, Luckett was alone, working in Division 11 and supervising 48 inmates when he suffered a second inmate attack. R. 58 at 5 (¶ 19).
Finally, the CCSO states that Luckett "is a correctional officer, which necessitates working with detainees." R. 57 at 5. This comment seems in apropos because the CCSO has eschewed the one argument it could have made that might have some merit. That is, the CCSO could have, but has not, argued that an essential function of the job of a correctional officer is to supervise inmates, and that supervising inmates frequently requires contact with unrestrained inmates. And it is well established law that if an employee seeks an accommodation that avoids an essential job function, then that employee is not a qualified individual entitled to an accommodation. See Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th Cir. 1996) (where the plaintiff was unable to perform the essential functions of her position, and no accommodation would allow her to do so, she is not a "qualified individual with a disability" entitled to the protections of the ADA); see also Stevens, 851 F.3d at 230 ("A reasonable accommodation can never involve the elimination of an essential function of a job.") (internal quotation marks and citation omitted).
This legal principle is explained in detail in Basith, where the Seventh Circuit found that Cook County had a valid reason for determining that delivery of medication to patients was an essential function of a Pharmacy Technician II. 241 F.3d at 929 (upholding the denial of an accommodation to the plaintiff whose physical limitations prevented him from performing the delivery function of his job, even if that function was only a limited part of his job, stating that "Cook County's valid reason for treating delivery as an essential function—the needs of the pharmacy's patients—renders the limited time devoted to delivery irrelevant").
Id. Significantly, the Basith court cited Miller v. Illinois Department of Corrections, 107 F.3d 483 (7th Cir. 1997), as an example of this principle, wherein the court held that a blind correctional officer who could not stand guard or count inmates was not qualified under the ADA, even though she could perform other essential functions. Id. at 485. The Miller court found that the duties of standing guard and counting inmates "were essential functions because the prison had a valid reason (the prevention of riots) for requiring all of its guards to be able to perform them." Basith, 241 F.3d at 929.
Miller, 107 F.3d at 485.
Instead of making this argument, the CCSO argues only that Luckett in fact can perform the essential job function of supervising unrestrained inmates. It would seem that the CCSO has made a conscious decision not to argue that Luckett is unqualified if, as he says, he cannot perform the job of supervising unrestrained inmates. For this reason, the Court will not make that legal argument for the CCSO. See Gross, 619 F.3d at 704. The Court also cannot say on the current record whether that argument would be successful here, for there would need to be evidence to support it. See, e.g., Price v. City of N.Y., 264 Fed. App'x 66, 68 (2d Cir. 2008) (where the plaintiff identified six permanently disabled employees who were allowed to remain employed); Russell v. City of N.Y., 2006 WL 2333728 (E.D.N.Y. 2006) ("If as a matter of practice the NYPD employs police officers in permanent non-patrol positions, this would refute defendants' assertion that patrol or firearm duty is an essential function of the job."). While the CCSO indicates that it has a policy and practice of placing employees in "transitional work assignments," which are of limited duration and for which Luckett purportedly did not qualify because of the indefinite nature of his request for reassignment, that does not necessarily mean that the only option was a "transitional work assignment," i.e., that the CCSO has never placed a correctional officer in a permanent position with limited-to-no inmate contact. Neither party has presented any argument or evidence on these issues, and therefore they must remain undecided, even though they appear to be the crux of the matter before the Court. Based on the matters on which the CCSO did present argument and evidence, the Court finds that a disputed issue of fact exists over whether Luckett can perform the essential functions of his current assignment in Division 11 of the CCDOC without a reasonable accommodation, and thus denies the CCSO's motion for summary judgment on that issue.
Having found that the CCSO is not entitled to summary judgment on the issue of whether Luckett is a qualified individual with a disability, the question then becomes whether the CCSO (1) was aware of Luckett's disability; and (2) failed to reasonably accommodate it. Brumfield, 735 F.3d at 631 (citing EEOC v. Sears Roebuck & Co., 417 F.3d 789 (7th Cir. 2005)). The CCSO does not dispute that it was aware of Luckett's medical diagnoses of PTSD from his treating physicians. The CCSO argues, however, that it did not fail to reasonably accommodate Luckett for several reasons.
The CCSO's primary argument is that it did not fail to reasonably accommodate Luckett because Luckett failed to provide adequate medical documentation of his disability. This issue turns to a large degree on whether the factfinder believes Luckett's testimony that he delivered the medical notes of his treating neurologist and psychiatrist to Rivero-Canchola or the latter's testimony that she only received the initial doctor's note from Luckett's treating internist, and thus summary judgment in favor of the CCSO would be inappropriate.
Moreover, even if Rivero-Canchola did not receive the additional medical documentation in question, as Luckett points out, the law requires the CCSO to engage in a dialogue with Luckett regarding Luckett's request for an accommodation for his PTSD. See Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014); Sears, Roebuck & Co., 417 F.3d at 806; Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). In determining the appropriate reasonable accommodation, an employer has the burden to "initiate an informal, interactive process with the qualified individual with a disability in need of accommodation." Lenkiewicz v. Castro, 146 F.Supp.3d 46, 51 (D.D.C. 2015) (internal quotation marks and citation omitted). "Relatedly, [a]n employer is not required to provide an accommodation prior to receiving medical documentation that substantiates the employee's need for accommodation." Id. (internal quotation marks and citations omitted). Indeed, "when the duty to reasonably accommodate arises, both employee and employer must exchange essential information and neither side can delay or obstruct the process." Id. (citations and internal quotation marks omitted).
Rivero-Canchola initially engaged in the interactive process by exchanging emails with Luckett over what was required for the CCSO to consider Luckett's accommodation request. But the interactive process appears to have broken down at some point, which can be fairly pin-pointed as the point when Rivero-Canchola, by her own testimony, "discovered" the "conflicting IMEs" in Luckett's record. A reasonable juror could conclude based on the evidence that Rivero-Canchola decided either by herself or in conjunction with other decision-makers within the CCSO, that Luckett's PTSD was not real. Rather than discuss their concerns with Luckett and/or his treating physicians who had diagnosed him with PTSD as well as psychological issues related to his Moyamoya disease, they chose to remain silent. A reasonable jury could decide that the CCSO then used the excuse of lack of medical documentation as a basis to deny Luckett's accommodation request to avoid engaging with Luckett on the real basis for its decision, which was not the lack of medical documentation but the CCSO's disbelief of that medical documentation.
Luckett uses the term "pretext" in arguing that the CCSO's reason for denying his accommodation request was disingenuous. The Seventh Circuit, however, has said that the issue of pretext, which is pertinent to claims of disparate treatment, is "unnecessary and inappropriate" in reasonable accommodation claims. Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000). Nevertheless, what Luckett calls "pretext" is evidence of a break-down in the interactive process that a reasonable fact-finder might attribute to the CCSO. The CCSO may very well have a valid reason for denying an accommodation request based on conflicting medical evidence, but that question is not before the Court for decision. Assuming without deciding that such a denial might be reasonable under certain circumstances, it is not acceptable for the employer to make such a decision behind closed doors and without giving the employee the opportunity to address the employer's concerns about the employee's supported medical diagnoses.
In short, the Court does not need to decide what standards would apply to a situation where there is medical evidence in the record to support both sides' position leading to a good faith dispute over whether the employee is in need of an accommodation. Here, it is enough that the evidence supports Luckett's argument that the CCSO never gave him the opportunity to have a dialogue with it on that issue. As a result, a reasonable jury could conclude that there was a failure by the CCSO to participate in good faith in the interactive process. Evidence of this failure includes (1) Rivero-Canchola's admission that the conflicting IME may have been the reason for her decision to deny Luckett's accommodation request when the IME was never mentioned to Luckett, who was told instead that the reason for the denial was a "lack of medical documentation"; (2) the CCSO's changing explanations for why it required Luckett to provide a doctor's note "releasing" him back to work;
The Seventh Circuit has noted that "[n]o hard and fast rule will suffice" for attributing blame for the breakdown of the interactive process. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996). "Rather, courts should look for signs of failure to participate in good faith." Dunderdale v. United Airlines, Inc., 807 F.3d 849, 862 (7th Cir. 2015). The Court concludes that disputed issues of fact exist on whether the CCSO failed to participate in the interactive process in good faith, and therefore the Court cannot rule as a matter of law that the CCSO's denial of Luckett's accommodation request was reasonable.
In addition to its medical documentation argument, the CCSO also makes three other arguments for why it did not fail to reasonably accommodate Luckett's accommodation request. First, the CCSO repeats its previously mentioned argument that the law does not require an employer to provide medical treatment for an employee's disability. While this is a valid argument to make in opposing a failure to accommodate claim, Luckett does not base his failure to accommodate claim on the denial of psychiatric treatment. Luckett's argument is that the CCSO failed to accommodate his disability by rejecting his request for a work assignment with little to no inmate contact. While the CCSO may be correct that requiring an employer to provide medical treatment is never a reasonable accommodation request (an issue the Court need not decide), it is undeniable that a reassignment, under the right circumstances, may be a reasonable accommodation request to make. See 42 U.S.C. § 12111(9)(B) ("The term `reasonable accommodation' may include . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . .") (emphasis added).
Second, the CCSO argues that Luckett was not qualified for a transitional work assignment because a transitional assignment cannot exceed six months and Luckett sought an assignment for an undetermined length of time. See R. 34 at 6-7. Whether Luckett qualified for a transitional work assignment, however, involves disputed issues of fact. But more importantly, the CCSO is trying to force Luckett into the "transitional work assignment" box when Luckett simply sought an accommodation, whether that be a transitional work assignment or something else.
Finally, the CCSO argues that there is no evidence that a vacancy for a position with little to no inmate contact existed at the time Luckett made his request for an accommodation.
For the forgoing reasons, the CCSO's motion for summary judgment, R. 33, is granted as to Counts I and III and denied as to Count II.
IT IS SO ORDERED.
