### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-3111
T ODD K URTZHALS, Plaintiff-Appellant,

v.

C OUNTY OF D UNN, Defendant-Appellee.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 18 C 247 — James D. Peterson, Chief Judge

.

____________________
A RGUED M AY 28, 2020

— D ECIDED A UGUST 10, 2020

____________________

Before M ANION, K ANNE , and W OOD , Circuit Judges

. W OOD , Circuit Judge . Sergeant Todd Kur tz hals worked for the Sheri ff’s O ffi ce of Dunn County, Wisconsin. After he threatened physical violence against one of his fellow o ffi cers, Deputy Dennis Rhead, the O ffi ce put him on temporary paid administrative leave and ordered him to undergo a fi tnessfor-duty evaluation. Kur tz hals was convinced that his supervisors took this course of action because they knew that Kur tz hals has a history of Post-Traumatic Stress Disorder2 No. 19-3111

(PTSD), not because his conduct violated the County’s Workplace Violence Policy and implicated public safety. Acting on that conviction, Kur tz hals sued Dunn County for employment discrimination inviolation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112. The district court concluded that no reasonable jury could fi nd that Kur tz hals’s PTSD was the “but fo r” cause of the County’s action or that it was plai nly unreasonable for Kur tz hals’s superiors to believe that a fi tness-for-duty examination was warranted, and so it granted summary judgment to the County. We agree with that assessment and a ffi rm. I We assess the district court’s grant of summary judgment de novo

. Hacke ttv. 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 di spute as to any material fact and the movant is entitled to judgment as a ma tt er of law.” F ED

. R. C IV

. P. 56(a). “In reviewing a grant of summary judgment, we construe all facts, and draw all reasonable inferences from those facts, in favor of the nonmoving party,” in this case Kur tz hals. Hacke tt, 956 F.3d at 507 (internal quotation marks omi tt ed). We do not “make credibility determinations, weigh the evidence, or decide wh ich inferences to draw from the facts.” Id. We will “a ffi rm the district court only when no reasonable jury could have found for the plainti ff s.” Id. at 507– 08. The account of the facts that follows adopts that well-established perspective. On April 1, 2016, Kur tz hals was si tt ing at his desk when Rhead entered his o ffi ce, aggressively moved towards Kur tz hals, yelled at him, and called him a liar.No. 19-3111 3

Kur tz hals ordered Rhead to get out of his o ffi ce. When Rhead did not leave immediately, Kur tz hals said something to the

e ffect of, “if you call me a liar agai n, we are going to take it outside,” implying a possible physical altercation. Several witnesses in the workplace at the time corroborated Kur tz hals’s words. This implied threat violated the Dunn County Workplace Violence Policy. Following the incident, Sheri ff Dennis Smith decided to put Kur tz hals on paid administrative leave and ordered him to undergo a fi tness-for-duty evaluation. Smith made this decision after consulting with Chief Deputy Marshall Multhauf, the Corporation Counsel, the Human Resources Manager, the County Manager, and Dr. Thomas Campion, a psychologistwho specializes in law-enforcement psychological evaluations and has worked withthe Dunn County Sheri ff’s O ffi ce in the past. Sheri ffSmith also hired an outside employmentlaw a tt orney, Mindy Dale, to conduct an investigation and provide recommendations. Dale did so and concluded that Kur tz hals had violated the Workplace Violence Policy and should receive some sort of reprimand. She nonetheless offered the opinion that a fi tness-for-duty evaluation was premature 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 fi tness-forduty evaluation, or otherwise pu nish him for his role in the altercation with Kur tz hals.

Kur tz hals has a history of PTSD stemming from his service in the military. When Kur tz hals returned to the Sheri ff’s Offi ce in 2014 following a combat deployment, he informed twoof his supervisors, then-Chief Deputy Paul Gunness and thenCaptain Kevin Bygd, that he ha d been diagnosed with PTSD4 No. 19-3111

and received counseling. Gunness and Bygd told Kur tz hals that they would pass that information on to Sheri ff Smith. Therecord does not reveal whether they ever did so. After the incident with Rhead, when Smith and Multhauf told Kur tz hals that they were placing him onadministrative leave and ordering a fi tness-for-duty evaluation, Kur tz hals asked if their decision had anything to do with his PTSD. Smith and Multhauf said nothing in response. They both deny that they knew about Kur tz hals’s PTSD diagnosis prior to deciding how to address his misconduct. We return to this question below.
II

Kur tz hals asserts two claims under the ADA: fi rst, he alleges that the County discriminated against him on the basis of a disability, in violation of 42 U.S.C. § 12112(a), when itplaced him on paid administrative leave; and second, he contends that the County required him to take a fi tness-for-duty examination that was not “job-r elated and consistent with business necessity,” in violation of 42 U.S.C. § 12112(d)(4)(A).
ASection 12112(a) of the ADA prohibits employers from discriminating “against a quali fi ed individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other term s, 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 a ffects 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 admini stration ... that have the e ffect of discrimination on the basis of disability.” Id. §§ 12112(b)(1), (3)(A). To prove a violation of section 12112(a), a plainti ff must show that: 1) he is disabled; 2) he is otherwise quali fi ed to perform the essential functions of the job with or without reasonable accommodation; 3) he su ffered 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 plainti ff to link the adverse action with his disability. In order to do so, we have held that “a plainti ff must show a genuine issue of ma terial 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 (7thCir. 2017). We note for completeness that the ADA Amendments Act of 2008 changed the la nguage of the statute fromprohibiting discrimination “because of” a disability to prohibiting 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 th is circuit whether that change

a ffects the “but for” causation standard we apply in these

cases. Monroe, 871 F.3d at 504 (citing Serwatka v. Rockwell Automation, 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)). Kur tz hals has not complained aboutthe use of the “but for” standard, however, and so we will apply it here.
Our de novo review of the record satis fi es us that a trier of fact could fi nd that Kur tz hals has a history of PTSD, and that his symptoms, when they fl are up, include insomnia, fl ashbacks, and loss of appetite. He does not need to establish that6 No. 19-3111

his symptoms interfered with hi s 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 li tt le dispute that Kur tz hals is quali fi ed to perform the essential functions of his job as a police o ffi cer. He ful fi lled his duties seemingly without incident from the time he returned from active military duty in 2014 through M arch 2016 and was given the position of investigation sergeantin 2015. Although his behavioron April 1, 2016, did not meet his employer’s legitimate expectations for employee conduct, that does not render him unquali fi ed 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 Kur tz hals’s evidence, if believed by the trier of fact, su ffi ces to show that he

su ffered an adverse employment action. Kur tz hals was placed on paid administrative leave for approximately three months. During that time, he received hi s base salary plus pay for 27 hours of overtime. The County calculated the overtime fi gure by counting the number of extra shifts he might have been able to take during his leave period. Kur tz hals returned towork in the same position he had before, and he faced no further 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 plainti ff must show that he su ffered a “materially adverse 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 readilyNo. 19-3111 7

quanti fi able 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)). Materially adverse employment acti ons include “cases in which the employee’s compensation, fringe bene fi ts, or other fi nancial terms of employment are diminished.” Id. “When overtime pay or premium pay is a signi fi cant and expected part ofan employee’s annual earnings, denial of such pay may constitute an adverse employment action.” Formella v. Brennan , 817 F.3d 503, 511 (7th Cir. 2016).

Because Kur tz hals received his full base pay and someovertime pay, the question here is whether the loss of potential additional overtime pay for which he was eligible was materially adverse. The policy on his eligibility for overtime remained consistent, i.e. if he worked the overtime, he would be paid for it. His ability to earn overtime was not speculative or conditional. Kur tz hals provided evidence that during 2015and 2016 (when he was not on administrative leave) he averaged between 4.7 and 6.3 hours per week of overtime. Applying that average to the 11.5 weeks he was on administrative leave, Kur tz hals 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 summary judgment stage to show that he su ffered from an adverse employment action. That leaves causation, often the most di ffi cult element. And here Kur tz hals has not met his burden to raise a genuine dispute over the question wh ether 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 su ffered the same adverse8 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)).
Sheri ff Smith’s stated reasons for placing Kur tz hals on administrative leave and ordering a fi tness-for-duty evaluation were that Kur tz hals violated the County’s Workplace Violence Policy when he threatened Rhead with physical violence; that Kur tz hals previously had reacted angrily to being passed over for a promotion; and that Kur tz hals might pose a threat to his colleagues or members of the public. None of these reasons explicitly mentions PTSD. Instead, the focus is on Kur tz hals’s unprofessional conduct.

Kur tz hals asserts that these reasons are all pretextual and are intended to hide Smith’s true motivation for ordering the fi tness-for-duty evaluation: Kur tz hals’s PTSD. “In evaluatingpretext, the question is not whether the employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has o ff ered to explain the [action].” Graham , 930 F.3d at 929 (internal quotation marks omi tt ed). Kur tz hals says that Smith and Multhauf are lying when they deny that they knew about Kur tz hals’s PTSD when they decided to put him on administrative leave. Further, he fi nds it telling that they were silent wh en he asked if his PTSD was amotivating factor (they dispute that he asked this). He also argues that their decision not to discipline Rhead shows that they did not truly think a mild violation of the Workplace Violence Policy necessitated a fi tness-for-duty evaluation. The problem for Kur tz hals is that he did not o ffer any evidence to support his claim of pr etext. There is no competent evidence that Smith and Multhauf knew about Kur tz hals’sNo. 19-3111 9

PTSD; we have only Kur tz hals’s statement that two other offi cers, 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 Kur tz hals did ask Smith and Multhauf if their decision wa s based in part on his PTSD, their silence falls well short of an a ffi rmative “yes.” And even if we infer from their silenc e that they both knew about Kur tz hals’s PTSD and took it into account, Kur tz hals still does not meet the “but for” causat ion standard. Contrary to Kur tz hals’s argument that he and Rhead acted in a comparable fashion and should have beentreated similarly, the record

re fl ects that only Kur tz hals explicitly threatened physical violence. Rhead may have behaved in an intimidating fashion towards Kur tz hals, but their behavior was not identical. There is no evidence to suggest that Smith did not genuinely and reasonably see a di fference between the two. In sum, Kur tz hals has not provided enough evidence to allow a reasonable juror to conclude that his PTSD was the “but for” cause of Smith’s deci sion to put him on administrative leave and order a fi tness-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 employees, with or without an actual or perceived disability.10 No. 19-3111

An “examination is job-related and consistent with business necessity when an employer has a reasonable beliefbased on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.” Co ff

man 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 re fl ect concern for the safety of employees and the public at large.” Id. (internal quotation marks omi tt ed).

Because Kur tz hals was a police o ffi cer and responsible for public safety, his “well-being wa s essential not only to [his] safety but to the public at large; thus, the Department had a particularly compelling interest inassuring that [he] was both physically and mentally fi t to perform [his] duties.” Id. This “special work environment” necessitates greater leeway for supervisors to order job-related fi tness-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 o ffi cer’s] fi tness for duty once it learned that he was experiencing di ffi culties with his mental health.”); Watson v. City of Miami Beach , 177 F.3d932, 935 (11th Cir. 1999) (“In any case where a police department reasonably perceives an o ffi cer to be even mildly paranoid, hostile, or oppositional, a fi tness for duty examination is job related and consistent with business necessity.”).

Kur tz hals argues that a fi tness-for-duty evaluation was not consistent with business necessity in his case because “heated exchanges with voices raised and the use of swearwords were not unusual in the department,” and other employees had commi tt ed worse misconduct in the past and notNo. 19-3111 11

been ordered to get an evaluation. The O ffi ce did not have a normal practice of ordering fi tness-for-duty evaluations for current employees and, in Kur tz hals’s view, his conduct was far from egregious enough to warrant one. He also emphasizes that Smith did not order Rhead to get an evaluation and that Dale, the outside a tt orney, thought a fi tness-for-duty evaluation for Kur tz hals was an overreaction. But there was no one right answer in this situation. Kur tz hals has no way of showing that Sheri ffSmith did not genuinely believe that Kur tz hals’s conduct was more problematic than Rhead’s. AndDale’s recommendations were just that—advice that the Sheri ff was not obliged to accept. Further, the O ffi ce’s past practice of not asking for psychologica l evaluations wh en they might have been warranted did not pr eclude Smith from ordering an evaluation in Kur tz hals’s case. There is no dispute that Kur tz hals threatened Rhead and in so doing violated the Workplace Violence Policy. A reasonable person could see this as evidence that Kur tz hals had a short fuse and might lash out again at a colleague or a member of the public.
Sheri ff Smith was responsible for addressing the fallout from the altercation between Kur tz hals and Rhead. He might have chosen to let well enough alone, and that too might havebeen a reasonable response. But he chose to draw a line between physical threats and verbal abuse and to call for a fi tness examination only for the former. Nothing in the ADA forbids this line, and so summary judgment was proper on this count as well.
III

Kur tz hals implicitly threatened physical violence againsta colleague in violation of Dunn County’s Workplace Violence Policy. There is no evidence that his PTSD, rather than12 No. 19-3111

his inappropriate conduct, was the “but for” cause of Sheri ffSmith’s decision to place him on administrative leave and order a fi tness-for-duty evaluation. This decision was reasonable and consistent with business necessity. We therefore A FFIRM the district court’s grant of summary judgment to the County.