by a rcasonable belief about the plaintiff's capabilities and the examination relates to essential
functions of the job.”), Conrad, 237 F. Supp. 2d at 1230 (“An employer’s request that an
employce undergo a medical examination must be supported by evidence that would cause a
reasonable person to inquire as to whether an employee is still capable of performing his/her
job.”) (internal quotations omitted); Law v. Garden State Tanning, 159 F. Supp. 2d 787, 794
(E.D. Pa, 2001) (“There must be sufficient evidence for a reasonable person to doubt whether an
employee is capable of performing the job, and the examination must be limited to determining
an employee’s ability to perform essential job functions.”).!?

Lake County fears that a reasonable person or objective based standard otherwise restricts
the employer or requires it to assume the role of a doctor in deciding whether there is a legitimate
need for a medical examination. As the courts above noted, all that is required is that there “be
evidence sufficient for a reasonable person to doubt whether an employee is capable of
performing the job, and that any examination be limited to determining an employee’s ability to
perform essential job functions.” Sullivan, 197 F.3d at 813. A reasonable person in this context
is a reasonable employer, not a reasonable physician. Accordingly, the court applies this
standard here. For Lake County’s decision to be permissible under the ADA, there must be
sufficient evidence for a reasonable person to doubt whether Jackson was capable of performing
his job, and any examination must have becn limited to determining Jackson’s ability to perform

essential job functions.

This reasonable person approach is also consistent with the EEOC's view of the evidence necessary for an
employer to order a medical cxamination. Jn its Policy Guidance on Genelic Testing, the FEOC stated that
“[g]enerally, an employer only may seek information about an employce’s medical condition when it is job related
and consistent with business necessity. ‘This means that the employer must have a reasonable belief based on
objective evidence that... .”

19


employment but who has not yet started work, the employer may require a medical examination
and make an offer of employment conditional on the results of such examination so long as (1)
all employees are subject to such inquiry; (2) information obtained is maintained on separate
forms and in separate files and treated as confidential; and (3) the results of the examination are
“only used in accordance with this subchapter.” § 12112(d)(3); 29 C.F.R. § 1630.14(b). As for
the third requirement that the results are “only used in accordance with this subchapter,” phrased
another way, this means “as long as the employer does not discriminate on the basis of the
applicant’s disability.” O'Neal v. City of New Albany, 293 F.3d 998, 1010 n.2 (7th Cir, 2001).
Finally, under subsection (d)(4), which applies to employees and is applicable here, the employer
may not inquire into whether an employee suffers from a disability unless any such examination
is “job-related and consistent with business necessity.” § 12112(d)(4)(A); 29 C.F.R.

§ 1630.14(c). These rules under 12112(d) apply to psychiatric and mental evaluations as well as
medical examinations. Conrad v. Board of Johnson County Comm'rs, 237 F, Supp. 2d 1204,
1230 (D. Ks. 2002); Fritsch v. City of Chula Vista, No. 98-0972-E-CGA, 2000 WL 1740914, at
*3-6 (S.D. Cal. Feb. 22, 2000).

Jackson argues that because subscction (d)(4) applies to all “employees,” not just
qualified individuals with disabilities, it should be applicable here even ifhe is not disabled. He
rclics on Fredenburg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176, 1181-82
(9th Cir. 1999) and Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229
(10th Cir. 1997) for support. See also, Cossette v. Minnesota Power & Light, 188 F.3d 964, 969-
70 (8th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998); Karraker v.

Rent-a Center, 239 F. Supp. 2d 828, 834-35 (C.D. Ill. 2003). Lake County argues that only

13



Unable to perform a major life activity thal the average person in the general
population can perform; or significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity as
compared to the condition, manner or duration under which the average person in
the gencral population can perform that same major life activity.

29 CFR. § 1630.2G)(1)().

Jackson argues that I.ake County regarded him as having an impairment that
substantially limited major life activities. To be “regarded as having such an impairment” under
the ADA, Jackson must show that:

(1) a covered entity mistakenly believes that a person has a physical impairment

that substantially limits one or more major life activities, or

(2) a covered entity mistakenly believes that an actual, nonlimiting impairment

substantially limits one or more major life activities.

Sutton, 527 U.S. at 489; Mack vy, Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002). Even
under this “regarded as having such an impairment” section of the ADA, Jackson still must show
that Lake County believed the impairment “substantially limited” a “major life activity.” Sutton,
527 USS. at 489; Mack, 308 F.3d at 780. “The purpose of the ‘regarded as’ definition of a
‘disability’ is to cover individuals rejected from a job because of the ‘myths, fears and
stercotypes’ associated with disabilities.” Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th
Cir, 2001), quoting Sutton, 527 U.S. at 489-90.

In arguing that it did not perceive Jackson as suffering from an impairment, Lake County
claims that reports from Jackson’s supervisors that he was confused, forgetful and got lost while
driving, along with the 1998 accident, were at most concems about Jackson, and having doubts

about an employee is not the equivalent of percciving the employee as having an impairment.

See, e.g., Tice, 247 F.3d at 515 (“Doubts alone do not demonstrate that the employce was held in

23



his work. (Def. L.R. 56.1 11.) Jackson stated that this particular incident caused him to make
his complaint of hazing and harassment. (Def. L.R. 56.1 4 12.) When Grinnell heard Jackson
relate the details of this incident, however, he believed that Jackson was referring to an incident
that occurred the night before in which Grinnell, not Van Hoogan, was the person who stood
over Jackson as he worked in a trench. (Def. L.R. 56.1 { 13.)

Grinnell’s recollection was that rather than hazing or harassing Jackson, he mcrely
instructed him on how to properly. do his assigned job of flaring copper. (Def. L.R. 56.1 § 14.)
Grinnell stated that he had become irritated with Jackson because he was not doing the work
properly even through Grinnell had instructed him the night before on how to do the assigned
work. (Def. L.R. 56.1415.) Grinnell believed it was strange that Jackson would be confused
about an incident that happened the night before and that Jackson would confuse a co-worker,
Van Hoogan, with his supervisor. (Def. L.R. 56.1916.) Despite Grinnell’s belief that Jackson
had, in fact, confused him with Van Hoogen, neither Gulantha, Grinnell nor Brummond ever
asked Van Hoogen if he had any words or problems with Jackson on the day of the trench
incident? (Def. L.R. 56.1 | 42.) The February 21 mecting ended with Galantha telling Jackson
that the matters discussed would be looked into and investigated. (Galantha dep. at 41.)

Factual disputes make it unclear as to what happened next. The partics agree that
Galantha decided on March 1, 2001, to send Jackson for a psychological examination scheduled

for March 29, 2001. (PI. L.R. 56.1971.) Moreover, the parties agree that the examination was

Che parties dispute whether Van Hoogen could have made such statements to Jackson while Grinnell was
not around, Jackson maintains that Van [Joogen made the statements to him prior to Grinnell’s arrival at the job site.
(PI. LR. 56.1939.) Lake County relies on Grinnell’s testimony that on the night of the “trench incident” he stood
directly above the hole where Jackson was working for the entire shift and that he was the only one that was yelling
al Jackson that night. (Def, I..R. 56.1 Add. Facts {| 6, 7.)

4



Jackson claims that, viewing the evidence in a light most favorable to him, Galantha
decided on March 1 that Jackson should submit to a psychological examination based only on
Lake County’s view of the “trench incident” and the 1998 car accident. Jackson maintains that
this is not sufficient evidence from which a reasonable person could doubt that he is capable of
performing his job. Moreover, Jackson claims that becausc he was never informed as to what the
exams would consist of, the examinations were overbroad and not limited to determining
whether he had the ability to perform the essential functions of his job.

The issues are (a) whether the trench incident and the car accident would lead a
reasonable employer to believe Jackson might be unable to perform his job; if not, (b) whether
the added information derived from the supervisors (he was confused on the job, got lost on
routes, logged twice the mileage on sludge trucks and forgot basic instructions) was sufficient; if
so, (c) whether the dispute of fact as to when the that information came to Galantha makes a
difference; and (d) whether the examination was broader than permitted by law.

Unless the court can say no reasonable jury could resolve these issues in favor of Jackson,
summary judgment must be denied. Certainly, a reasonable jury could find that the accident and
the trench incident (of which the parties give divergent accounts) were insufficient to create a
rcasonable doubt as to whether Jackson could perform his job, And just as the question whether
the two incidents make a reasonable doubt, it follows that the additional information from the
supervisors also presents a jury question, that is, a reasonable jury, in light of this information as
well, could find that a reasonable employer would not doubt Jackson’s ability to perform the job,
particularly if the jury were to disbelieve Galantha as to when he came into the information and

to draw an inference that the additional information is merely post hoc justification.

20



[he] would be excluded because of [Lake County’s] perceived impairments.” /d. Jackson did
not do this, nor did he present any evidence at all on his claim that he was substantially limited in
the major life activity of working.

Jackson ciles no authority that “listening” is a major life activity. And although hearing is
expressly listed in the representative list of major life activitics contained in the ADA regulations
see 29 C.F.R, § 1630.2(i), there is no evidence that Lake County perceived Jackson as
substantially limited in his ability to hear, Further, Jackson’s claim that “performing simple
tasks” is a major life activity for which Lake County perceived him as being substantially limited
also fails. The Supreme Court has stated that to be substantially limited in performing manual
tasks “an individual must have an impairment that prevents or severely restricts the individual
from doing activities that are of central importance to most people’s daily lives.” Toyota Motors
Mjg., 534 U.S. at 198. The Court listed the following as examples of “manual tasks” with central
importance to people’s lives: household chores, bathing and brushing one’s teeth. fd. There is
no evidence that Lake County perceived Jackson as disabled in anything resembling these
examples. Nor does Jackson point to any task which is of central importance to people’s lives
that Lake County perceived as significantly restricted.

Moving to Jackson’s claim that hc was perceived as substantially limited in the major life
activity of “communicating,” Jackson again cites no authority to support this view. While the
ADA regulations identify “speaking” as a major life activity, there is no evidence here that Lake
County perceived Jackson as having limited ability to speak.

Since the court concluded above, however, that there are genuine issues of fact as to

whether Jackson was perccived as disabled in the major life activity of leaming, Jackson passes

26



Jackson here relies on indirect evidence, so the court applics the McDonnell Douglas burden
shifting method. Jd.

Under the McDonnell Douglas burden shifting method Jackson must first establish his
prima facie proof. To establish a prima facie casc of discrimination under the ADA, Jackson
must show that (1) he is disabled within the meaning of the ADA, (2) he is qualified to perform
the essential functions of his job either with or without reasonable accommodation, and (3) he
suffered an adverse employment decision because of the disability. Jd. If Jackson establishes his
prima facie case, the burden shifts to Lake County to articulate a legitimate, nondiscriminatory
reason for the adverse employment decision. /d. at 627. If Lake County meets its burden,
Jackson must prove, by a preponderance of the evidence, that Lake County’s reasons are a
pretext for discrimination. Jd.

Starting with the issue of disability, which is the threshold of J ackson’s prima facie case,
a disability under the ADA is defined as either:

(A) a physical or mental impairment that substantially limits one or more major

life activities of such individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2); Sutton v. United Air Lines, 527 U.S, 471, 478 (1999), A major life
activity is an activity of central importance to daily life. Toyota Motor Mfg. Kentucky, Inc. v.
Williams, 534 U.S. 184, 197 (2002). ADA regulations provide the following representative list
of major life activities: caring for oneself, performing manual tasks, walking, seeing, hearing,

breathing, learning and working. 29 C.F.R. § 1630.2(i). A substantial limitation is defmed under

the ADA regulations as

22



discrimination (and not illegal disclosure [in the context of (d)(3)]) that requires a showing of
disability.”), Accordingly, the court concludes that Jackson may maintain a claim under
§ 12112(d)(4) even though he is not disabled.

Lake County next argues that Jackson cannot bring suit because no mental examination
ever took place duc to Jackson’s refusal to attend the cxamination. Lake County advances dicta
in Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 812 (6th Cir. 1999), to support its view. In
that case, after the court had already concluded that the examinations ordered by the defendant
were consistent with business necessity, and apparently in addressing whether the examinations
could be challenged as being too broad to be job-related, the court noted that “[s]ince Sullivan
never submitted to the examinations, he precluded himself from being able to establish a genuine
issuc of material fact as to whether the exams were related to his job, or were too broad in
scope.” Id.; see also, Larsen v. Miller-Dwan Med. Cur., No. 00-2017, 2001 WL 1325963, at *5-
6(D. Minn. 2001). At best, this language only supports the view that Jackson could not
challenge whether the exam itself was too broad to be for job-related concerns, but it does not
preclude Jackson from proving that there was insufficient business necessity for any mental
health examination, what the Sulivan court referred to as “significant evidence that could cause a
reasonable person to inquire as to whether an employee is still capable of performing his job.”
id. at 811.

Because the court concludes that Jackson may maintain an action under § 12112(d)(4),
the next relevant inquiry becomes whether the examinations ordered by Lake County in this case
were “job-related and consistent with business necessity.” See § 12112(d)(4). Lake County

urges the court to adopt a subjective standard for cvaluating whether inquiries or examinations

17



still being paid for the time that he missed work to go to Dr. Miller’s office. (Def. L.R. 56.1
57.)

When Jackson arrived at Dr. Miller’s office, he cxplained to the receptionist that he did
not know what the exam was all about and asked if he could speak with Dr. Miller.? (PI. LR.
56.1 Add. Facts § 134.) Because Dr. Miller was unable to talk to him at that point, Jackson
claims that he sat in the waiting room for about 10 minutes, talked with the receptionist for
another 10 to 15 minutes, rescheduled his appointment and left at around 9:30. (PI. Resp. to Def.
L.R. 56.1 9.47.)

Just after 9:00 a.m. on March 29, Brammond received a phone call from Brandt Byrd in
the Lake County Human Resources Department. (Def. L.R. 56.1 4/48.) Byrd informed
Brummond that Jackson had rescheduled his appointment with Dr. Miller and had left the
doctor’s office. (fd.) Brummond relayed this information to Galantha and Grinnell. (/d.)
Jackson reported directly to Grinnell as soon as he returned to work. (Def. L.R. 56.1 50.)
Jackson later told Galantha that he retumed to work that moming ai 9:50 a.m, (Def. L.R. 56.1
449.) Grinnell, however, told Galantha that Jackson retumed “around 10:00 o’clock or
somewhere around 10:00 o’clock or after 10:00 o’clock.” (Def. L.R. 56.1 4 51.)

During the afternoon of March 29, Jackson was called into a meeting with Galantha,
Brummond and Grinnell. (Def. L.R. 56.1 952.) At the mecting Galantha apparently first asked
Jackson why he did not keep the appointment, to which Jackson responded “I made the

appointment.” (PI. L.R. 56.1 Add. Facts { 137.) Galantha became angry and responded by

SLake County disputes that Jackson did not know what the exam was about. (Def. Resp. to Pl. L.R. 56.1
Add. Facts 4) 134.)



Once again, disputed issues of material fact preclude summary judgment. Galantha
insists that he suspended Jackson without pay because, among other reasons, Jackson lied to him
and did not account for his time. To the contrary, Jackson maintains that he was truthful with
Galantha, that Galantha approved of what he was doing and that he did not violate rules with
respect to his time. The reasons are interrelated and best resolved by a jury after hearing all the
evidence, See of: Zaccagnini v. Chas. Levy Circulating Co,, 338 F.3d 672, 679 (7th Cir. 2003),
quoting Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir, 1995) (A plaintiff need not rebut all
the alleged legitimate and nondiscnminatory grounds in cases in which “the multiple grounds
offcred by the defendant for the adverse action . . . are so intertwined, or the pretextual character
of one of them so fish and suspicious, that the plaintiff [can] withstand summary judgment.”).
Lake County’s argument that Jackson’s testimony is unbelievable and self-serving may
ultimately be vindicated, but it is the jury’s responsibility to resolve the matter.

(on Retaliation (Count 11)

Under 42 U.S.C. § 12203(a) and (b), it is unlawful to discriminate against an individual
because such individual has opposed any act or practice the ADA prohibits or to “coerce,
intimidate, threaten, or interfere” with any individual in the exercise or enjoyment of any right
under the ADA. Jackson alleges that his suspension and subsequent termination were both
attempts to retaliate against him for seeking advice from an employment attomey conceming the
psychological examination that was scheduled.

Initially, similar to its argument in Count I, Lake County maintains that because Jackson
is not disabled (even though the court believes an issue of fact exisls concerning whether he was

perceived as such), he cannot assert retaliation claims under the ADA. This argument is rejected.

29



parties dispute what Fleece told Galantha. Lake County relies on Galantha’s testimony that
Fleece compared Jackson with his co-workers and stated that Jackson always scemed to take the
longest amount of time to do the snowplowing routes, completed the fewest number of loads
when hauling sludge, and that co-workers had difficulty working with Jackson because he would.
forget instruction within a half hour of being told what to do. Jackson relies on Fleece’s
testimony that at the meeting with Galantha he “really didn’t say anything” and did not tell
Galantha that Jackson would get lost while driving or forget instructions and directions. (PI.
Resp. to Def. L.R. 56.1 4] 214-220.)

Grinnell reported to Galantha that Jackson exhibited unusual behavior on the job,
frequently confused people, work sites and events, and was always the last driver to retum from
his snow plowing route, even though he always drove the same route, because he consistently
had trouble finding the locations he was supposed to plow. (Def. L.R. 56.1 1 19.) Moreover,
Grinnell also reported that Jackson took twice as long as the other drivers to drive the sludge
truck from the Diamond Lake plant to the Vernon Hills plant, put twice as many miles on the
truck, forgot his daily work assignments two to three times a week, regularly got lost or forgot
directions on routes that should have been known, seemed very nervous and excitable and would
get upset when he thought a co-worker had made comments about him.* (/d.) Grimell did not
have any other employees with these types of problems. (Def. L.R. 56.1 4 21.)

Galantha, who is the final decision-maker on employment decisions at Lake County’s

Department of Public Works, became concerned with the things Jackson’s supervisors related to

>Grinnell made a record of these concerns in a memorandum he prepared on March 23, 2001. (Def. L.R.
56.1 20.)



scheduled for 9:00 a.m. with a psychiatrist identified by the parties only as Dr. Miller. The
parties do not agree, however, on what information Galantha relied on in making the decision to
schedule the appointment.

Under Jackson’s version of the events, the only incidents Galantha took into account in
making the decision to schedule a psychological evaluation were the “trench incident” described
above and a car accident that occurred in 1998. In July 1998, Jackson was driving a large
“actor” truck? when it rear-ended several passenger cars stopped at an intersection. (/d.) The
accident, which took place during the day, in clear weather and with normal traffic conditions,
resulted in several vehicles being wrecked and several injuries. (Def. L.R. 56.1 4f| 23-24.) Lake
County’s Accident Review Board determined that the accident was preventable and that Jackson
contributed significantly to it* (Def L.R. 56.1 29.) Jackson maintains that only the “trench
incident” and this accident could have been considered by Galantha when he made the decision
to send Jackson for the psychological cxamination. Jackson claims that other information
supplied to Galantha by Jackson’s supervisors was not furnished until a March 21, 2001 meeting,
which took place nearly twenty days after Galantha decided to make Jackson submit to the
examination. (Pl. L.R. 56.1 ff 59-64.)

Under Lake County’s version of the events, after the February 21 meeting endcd but
before Galantha scheduled the examination for Jackson, Galantha spoke with all three of

Jackson’s supervisors, Grinnell, Tim Fleece (“Fleece”) and John Streicher (“Streicher”). The

3 Vactor truck is apparently a sewer cleaning truck that weighs 25-tons.

“after this accident, Grinnell was asked by Lake County’s safety committee to “test drive” Jackson. (PI.
LR. 56.19 14.) Grinnell tested Jackson's driving abilities and stated that Jackson had checked out fine on the trucks
he had to drive. (Pl. L.R, 56.1 ff] 15-16.) Thereafter, Jackson was returned to driving without restrictions. (PJ. L.R.
56.1 915.)



are job-related and consistent with business necessity. According to Lake County, the statutory
language does not require “reasonable evidence” to support an employer’s decision to require a
medical examination. From this, Lake County argues that an objective standard “is not
supported by the statutory language... .” (Def. Mot. for Summ. J. 10-11.) Lake County also
claims that an objective standard is inappropriate because it “‘starts with the presumption that the
employee has a medical condition and the employer is aware of that condition,” and that this
restricts the employer because it “will not know whether that behavior is being caused by a
medical condition until the employee is actually examined.” Thus, Lake County argucs that the
court should apply a “honest belief” rule used in other areas of employment law so as to prevent
the employer from assuming the role of a doctor in deciding whether there is a legitimate
business need for an examination.

Despite Lake County’s assertions to the contrary, the court believes an objective or
reasonable person standard is more appropriate. Most courts have applied such a standard in
cases involving employce medical examinations under the ADA. See, e.g., Tice v. Centre Area
Transp. Auth., 247 F.3d 506, 518 (3d Cir, 2001) (“The ADA’s requirement that (a medical
examination] be consistent with business necessity is an objective one.”); Sullivan, 197 F.3d at
813 (“An employee's protection from harmful intent on an employer's part comes from the dual
requirements that there be evidence sufficient for a reasonable person to doubt whether an
employce is capable of performing the job, and that any examination be limited to determining an
employee’s ability to perform essential job functions.”); Terry v. City of Greensboro, No. 1:02
CV 00221, 2003 WL 151851, at *4 (M.D.N.C. Jan, 17, 2003) (“Mental and physical

examinations have been upheld as preconditions to returning to work if the request is supported

18



and that Jackson should go to the doctor’s office and reschedule the exam. (/d.) The
conversation ended after normal business hours. Jackson claims that he did not call Galantha
thal evening because the work day was already over and he believed that Galantha would no
longer be at work.” (PI. L.R. 56.1 Add. Facts 130.)

The next morning, March 29, Jackson advised Galantha at 7:15 a.m. that he was going to
Dr. Miller’s office that morning. (Def. L.R. 56.1 | 40.) The parties do not agree on what exactly
Jackson told Galantha. Jackson claims that he informed Galantha that his attomey had referred
him to another attorney and also advised him to reschedulc the appointment for a later time so
that Jackson could obtain legal advice. (PI. L.R. 56.1 Add. Facts 131.) Jackson further claims
that Galantha’s response was “Okay just make sure you keep your appointment.” (/d.) Lake
County denies Jackson informed Galantha that his attorney recommended he reschedule the
appointment. Instead, Lake County states that Jackson did not inform Galantha that he intended
to reschedule his appointment with Dr. Miller. (Def. L.R. 56.1 9 45; Def, Resp. to Pl. L.R. 56.1
Add. Facts $131.) Both Galantha and Grinnell believed, based on their separate conversations
with Jackson that moming, that Jackson had agreed to go to the psychological examination.
(Def. L.R, 56.1 4 42.)

Grinnell allowed Jackson to leave work at 8:30 a.m. on March 29 to go to Dr. Miller’s
office, which is a 15-25 minute drive from the Lake County Public Works Department. (Def.
LR. 56,1 41.) Jackson left work at around 8:30 or 8:45 and arrived at Dr. Miller’s office at

around 9:00 a.m. (Def. L.R. 56.1 44.) Although released from work at 8:30 a.m., Jackson was

7 Lake County admits that Jackson so testified in his deposition but it, nonetheless, denies this allegation,
(Def. Resp. to Pl. LR. $6.1 Add, Facts ] 130.) Lake County does not support its denial with a citation to record.

8g



any particular regard.”). Moreover, Lake County claims that even if it did perceive Jackson as
suffering from an impairment, that conclusion would not amount to its perceiving Jackson as
substantially limited in a major life activity. For example, Lake County argues that any concern
it had over Jackson’s driving or operating heavy equipment would not establish that it perocived
Jackson as substantially limited in the life activity of working, which would require a substantial
limitation in working in a broad range of johs. See, e.g., Weiler v. Household Fin. Corp.,

101 F.3d 519, 525 (7th Cir. 1996) (“Rather, with respect to the major life activity of working,
‘substantially limits’ must mean significantly restricts the ability to perform a class of jobs or a
broad range of jobs in various classes.”). Also, Lake County argues that any concerns it may
have had about Jackson getting lost or seeming confused cannot be considered substantial
impairments on any other major life activities, In response, Jackson asserts that Lake County
perceived him as suffcring from a mental impairment which substantially limited what Jackson
characterizes as the major life activities of remembering, listening, comprehending basic
instructions, learning, performing simple tasks, working and communicating.

Genuine issues of fact exist as to whether Lake County perceived Jackson as suffering
from an impairment that affected the major life activity of learning. Viewing the facts in a light
most favorable to Jackson, a reasonable jury could so find based on numerous facts in evidence.
For example, after Jackson told Galantha about the behavior that Jackson believed was harassing,
Galantha told Jackson that he was “hypersensitive” and that he was the one with the problem.
(PL L.R. 56.1 Add. Facts § 177.) Galantha also indicated to Jackson that there was something
wrong with his head, and that there was medication for people like Jackson. (PI. L.R. 56.1 Add.

Facts 179.) Galantha also allegedly told Jackson that his desire to seek Icgal counsel in

24



Minute Order Form (46897)

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 6528 DATE 9/15/2003
CASE Jackson vs. Lake County
TITLE

fn the following bux (u) indicate the party Gling the motion, ¢.g., plaintiff, defendant, 3¢d party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:
, DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) c) Brief in support of motion duc
(3) oO Answer bricf to motion due . Reply to answer brief due
(4) a Ruling/learingon set for at
(3) Oo Status hearing[held/continucd to] [set for/re-sct for]on__—__sset for__— saat
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_—at__.
7) Oo Trial[sct for/re-set for] on at
(8) QO [Bengh/Jury trial] [Hearing] held/continued to___at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 O FRCP41(a)(1) ( FRCP41(a)(2),
ao [Other docket entry] Enter Memorandum Opinion and Order. Plaintiff's motion for partial

summary judgment (28-1] is denied. Defendant’s motion for summary judgment [31-1] is denied. Trial
date of 11/3/03 will stand. Date of 10/3/03 for submission for all final pretrial materials to chambers will
stand.

(1) - [For further detail sce order attached to the original minute order.]

Wi

No notices required, udvised in open court
2

No nolives required. number of notices

UY | Notices mailed by judye's stall | SEP 1 6 2008

Notified counsel by telephone.

te docketed
Docketing to mail notices. i
MAO Pa pery ies -
Mail AO 450 form. LENIS FONTLe'Sn dcketng dopuly inital
Copy to judge/magistrate judge.
mom gy . g/1812003
dinie mailed novice
courtroom
MD deputy’s L ried Mp
initials ee

Datehime redeivetHn
central Clerk's Office railing deputy ithats



examination, the nature of the inquiries or tests to be performed. (Pl. L.R. 56.1 104.) Jackson
refused to go to the April 20 examination. (Def. L.R. 56.1 59.) Afterward, Jackson received a
letter from Galantha, dated April 27, 2001, in which Galantha reiterated his safety concerns and
the reasons why he was requiring Jackson to attend a psychologica] examination with a
psychiatrist. (Def. L.R. 56.1 § 60.) Jackson further received a letter from Galantha, dated
May 16, 2001, in which Jackson was informed that a third psychological exam had been
scheduled with a Dr. Lammers, also a psychiatrist. (Def. L.R. 56.1 62.) The letter told Jackson
that Dr. Lammers planned only to perform a basic mental status exam. (Def. L.R. 56.1 4 63.) It
further ordered Jackson to attend the exam and stated that if he refused to go, a pre-termination
hearing would be held. (Def. L.R. 56.1 ] 64.)

Jackson refused to go to the June 7, 2001 cxam. (Def. L.R. 56.1 167.) On June 18,
2001, Galantha sent Jackson a letter notifying him that a pre-termination hearing was being
scheduled for June 25, 2001. (Def. L.R. 56.1 ] 68.) This letter stated that at the hearing, Jackson
would be given the opportunity to respond to charges that he (1) failed to follow orders to attend
a fitness for duty cvaluation on three separate occasions; (2) was dishonest on March 29, 2001
with regards to whether he was going to go to the fitness for duty examination; and (3) failed to
return to work immediately after leaving the doctor’s office and refused to explain his extended
absence, (/d.) At the June 25 pre-termination hearing Galantha terminated Jackson’s
employment with Lake County. (Def. L.R. 56.1] 71.) Both parties agree that Jackson does not

suffer from any mental or physical impairment. (Def. L.R. 56.1 4/72.)

ll



stating his belief that Jackson was lying and was otherwise playing word games. (/d.) Galantha
also asked Jackson why he had taken so long to return to work from Dr. Miller’s office. (Def.
LR. 56.1 53.) Jackson responded by telling Galantha that he left Dr, Miller’s office at
approximately 9:30 a.m. and had retumed directly to work. (Jd.) Jackson did not tell his
supervisors that on the way back from Dr. Miller’s office he stopped at a McDonald’s to the use
the washroom and to get a breakfast sandwich. (Def. L.R. 56.1955.) After getting the
sandwich, Jackson sat in his vehicle in the McDonald’s parking lot for 10 to 15 minutes cating,
all of which Jackson believed was part of his morning break. (/d.; Pl. L.R. 56.1 Add. Facts
4] 145.) Galantha was angry at Jackson because he believed that Jackson had licd to him by
telling him that was going to the exam and then rescheduling it and had lied about the extended
time Jackson had taken to retum to work. (Def. L.R. 56.1 9.57.) Galantha was also angry at
Jackson for wasting a hour and a half while he was on Lake County’s payroll. (/d.) Jackson
claims that Galantha raised his voice, swore and cussed at him. (P1. L-R. $6.1 Add. Facts { 136.)
Jackson further claims that Galantha was enraged at him to the point where “his veins were
popping out of his neck.” (/d.) Lake County admits that Galantha raised his voice but denies any
swearing, cussing or that veins were popping out of Galantha’s neck. (Def. Resp. to PI. L.R. 56.1
Add. Facts 136.) At the end of the meeting, Jackson was suspended without pay until he
appeared for the psychological examination with Dr. Miller. (Def. L.R. 56.1 956.)

On April 5, 2001, Lakc County’s Human Resources Department rescheduled Jackson’s
second psychological examination for April 20 and sent Jackson notice of the exam on April 16.
(Def. L.R. 56.1 958.) In that notice, Jackson was told that he was required to attend the second

appointment. (/d.) This notice did not contain information regarding the scope of the

10



discussed above, Lake County claims that Jackson was suspended for (1) lying to Galantha; (2)
insubordination; and (3) failing to adequately account for his whereabouts after he rescheduled
the psychological cxamination. Lake County maintains that Jackson was terminated for his
failure to attend the psychological examinations on three separate occasions, Neither of the
parties present grounds for summary judgment on the Count III claim with respect to Jackson’s
termination and suspension that are different from those in Count II. The court, therefore, simply
adopts the Count JI analysis here. Lake County may not on this motion rely on Jackson’s alleged
insubordination as a legitimate and nondiscriminatory reason for Jackson’s termination or
suspension. Morcover, with respect to his suspension, genuine issues of fact exist as to whether
Lake County’s grounds were pretextual. Thus, summary judgment must be denied on the Count
III retaliation claim.
CONCLUSION

For the reasons stated above, both Jackson’s motion for partial summary judgment [#28]
and Lake County’s motion for summary judgment [#31] are denied. This case is set for trial on
November 3, 2003. Final pretrial materials shall be submitted to chambers not later than
October 3, 2002. In the meantime, the parties will be referred to the designated magistrate judge

for a settlement conference.

Enter: Coane (EP of Krr~
(7 JOAN HUMPHREY LEFKOW
United States District Judge

Date: September 15, 2003

31



Subsection (a) and (b) of § 12203 both refer to an “individual” and not to a “qualified individual
with a disability.” See, e.g., Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)
(noting that plaintiff may assert a retaliation claim “even if the underlying claim of disability
fails.”); Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) (“Unlike a plaintiff
in an ADA discrimination case, a plaintiff in an ADA retaliation case need not establish that he
is a ‘qualified individual with a disability.’ By its own terms, the ADA retaliation provision
protects “any individual’ who has opposed any act or practice made unlawful by the ADA or who
has made a charge under the ADA.”) (emphasis in original).

Similar to a discrimination claim, a retaliation claim may be established through either
dircct or indirect evidence, Jackson attempts to prove his claim through indirect evidence. To
satisfy his prima facie case of retaliation, Jackson must demonstrate that (1) he engaged in a
statutorily protected activity; (2) he performed his job according to Lake County’s legitimate
expectations; (3) despite meeting Lake County’s legitimate expectations, he suffered a materially
adverse employment action; and (4) he was treated less favorably than similarly situated
employees who did not engage in statutorily protected activity. Hilt-Dyson v. City of Chicago,
282 F.3d 456, 465 (7th Cir. 2002); Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640,
644 (7th Cir, 2002). If Jackson succeeds in proving his prima facie casc, Lake County must offer
a legitimate, noninvidious reason for the adverse employment action. Hilt-Dyson, 282 F.3d at
465. Assuming that Lake County presents such a noninvidious reason, the burden of production
then shifts back to Jackson to demonstrate that the proffered reason is pretextual. Jd,

On this motion Lake County does not challenge Jackson’s prima facie case but instead

argues that it had legitimate and lawful reasons for terminating and suspending Jackson. As

30



him. (Def. L.R. 56.1 | 23.) Moreover, Galantha became particularly concerned because Jackson
had previously been involved in the 1998 major accident. (Jd.) Lake County claims that
Galantha took the 1998 accident into consideration, along with the “trench incident” and the
concems by Jackson’s supervisors, in concluding that there were serious doubts as to whether
Jackson could safely operate heavy equipment and trucks. (Def. L.R. 56.1 33.)

On March 28, 2001, at approximately 1:30 p.m., Galantha met with Jackson to inform
him that a psychological evaluation was set for the next day, March 29, at 9:30 a.m. (PI, L.R.
56.1 {| 98; Pl. Resp. to Def. L.R, 56.1 § 37.) Galantha instructed Jackson to attend the March 29
psychological evaluation with Dr. Miller. (Def. L.R. 56,1 937.) Other than the fact that this was
a psychological examination, neither Galantha nor Jackson were aware of what type of testing
would be involved. (PI. L.R. 56.1 {| 94-95.) Jackson responded to Galantha by stating that he
wanted to mect with his attorney prior to going to the examination and that he felt as if his “rights
were being violated.” (Def. L.R. 56.1 4 38; Pl. L.R. 56.1 Add. Facts 124.) Galantha gave
Jackson permission to leave work early that afternoon so that he could consult with his attorney.
(/d.) Galantha informed Jackson, however, that he needed to know by that evening whether
Jackson was going to attend the examination the next day. (Def. LR. 56.1] 39.) Jackson did
not speak to Galantha thal evening. (/d.)

After leaving work early on March 28th, Jackson spoke with attomey G. John Manet
(“Marmet”), who specializes in tax matters. (PI. L.R. 56.1 Add. Facts | 129.) Marmet advised

Jackson that he should consult with a labor/employment attomey prior to submitting to the exam

SGalantha waited until 1:30 p.m on the day before the examination was to take place because he did not
want to worry Jackson too far in advance of the appointment. (PI, L.R. 56.192.)

7


On the other hand, as implied above, Jackson’s desire to challenge the breadth of an
examination he never took is foreclosed. He has not presented evidence as to what the exam
would have entailed. Lake County’s cvidence is that it was a “basic mental status exam.” There
being no dispute of fact as to the content of the examination, it must be concluded that ifan cxam
is justified under the above analysis, a basic mental status exam was not overbroad. In other
wards, no reasonable jury could find to the contrary.

Finally, with respect to Jackson’s motion for summary judgment, the same questions of
fact expressed above foreclose summary judgment on his Count I claim. A reasonable jury could
find that the accident and the trench incident (of which the parties give divergent accounts) were
sufficient to create a reasonable doubt as to whether Jackson could perform his job, and a
reasonable jury, in light of the supervisors’ information, could find that a reasonable employer
would doubt Jackson’s ability to perform the job, particularly if the jury were to believe Galantha
that he talked to the supervisors beforc he made the appointment.

For these reasons, Jackson’s motion for summary judgment on this claim is also denied.
B. Perception of Disability (Count IT)

As mentioned above, the ADA prohibits discrimination “against a qualified individual
with a disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees ... and other terms, conditions,
and privileges of employment.” 42 U.S.C. 1 12112(a); Basith v. Cook County, 241 F.3d 919, 927
(7th Cir. 2001). An employee may prevail under the ADA by presenting either direct or indirect

evidence of discrimination. E.g., Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001).

21



the threshold portion of his prima facie case. In addition, since neither of the parties present
argument on the other two prongs of Jackson’s prima facie case, the court shall assume for
purposes of this motion that those are also established. See Pugh, 259 F.3d at 626-27 (“Like the
district court, we shall assume that Mr. Pugh has established the remaining two prongs of the
prima facie case.”).

The burden then shifts to Lake County to articulate a legitimate, nondiscriminatory reason
for suspending and terminating Jackson. Jd. at 626. Lake County maintains that Jackson was
suspended without pay for (1) lying to Galantha; (2) insubordination; and (3) failing to
adequately account for his whereabouts after he rescheduled the psychological examination.

Lake County also argues that Jackson’s termination was for refusing to attend on three separate
occasions the fitness for duty examination scheduled for him.'* According to Lake County, all of
these rcasons for both the suspension and the termination were legitimate and nondiscriminatory.

With respect to Lake County’s claim that both the suspension and termination werc as a
result of Jackson’s insubordination, the court notes that an issue of fact exists concerning
whether this insubordination for not submitting to the proposed examinations is in fact a
legitimate and nondiscriminatory reason. As stated in Count I, a reasonable jury could find that

the mental evaluations Lake County required of Jackson were not consistent with business

Lake County’s argument that Jackson cannot challenge his termination because he failed to amend his
EEOC charge of discrimination to include his termination is without merit, The court may hear claims not brought in
Jackson’s EEOC charge that were included in his complaint so long as “(1) the claim is like or reasonably related to
the EEOC charges, and (2) the claim in the complaint could reasonably develop from the EEOC investigation into
the original charges.” Harper v. Godfrey Co., 45 ¥.3d 143, 148 (7th Cir. 1995); see also Witherspoon y. Roadway
Express, Inc., 782 F, Supp. 567 (D. Kan. 1992) (discriminatory termination claim which arose during pendency of
administrative investigation of discriminatory promotion claim was not barred by failure to exhaust administrative
remedies). Jackson's claims regarding his termination meet this standard. The EEOC charge concerned the unlawful
examination and suspension based on perccived disability. Jackson’s termination rcasonable developed out of this
suspension and was bascd on more or less the same conduct concerning Jackson's refusal to attend the psychological
evaluation,

27



(1) Assist(ing] Principal Utility Worker in repair and maintenance of pumps,
motors, and other mechanical equipment. Occasionally, mak[ing] some
repairs alone.

(2) Repair[ing] water mains and appurtenance[s], replacing piping excavating
by hand or machine and repairing damaged property by leveling earth and

replanting grass, bushes and trees.
A

(3) Driv[ing] Class “C” trucks and operat[ing] backhoes, construction
equipment such as backhoes, uniloaders, and tractors.
(4) Operat[ing] sewer rodder and clean(ing} manholes; repair[ing] sanitary
sewers.
(5) Serv[ing] as a lead worker when needed.
(PI. Resp. to Def. L.R. 56.1 §{ 6; Pl. Ex. 19.)
On or about February 19, 2001, Jackson filed a written complaint with his department.
(Def. LR. 56.1 47.) He complained of “hazing and harassment on the job” and threatened to
resign “(iJf there is nothing done to resolve the matter.” (/d.) Thereafter, Martin Galantha
(“Galantha”), Superintendent of Lake County’s Public Works, set up a meeting for February 21,
2001, to discuss the complaint. (Def. L.R. 56.1 8.) In addition to Jackson and Galantha, also
present at the meeting were Robert Brummond (“Brummond”), Lake County’s Operations
Manager, and Mike Grinnell (“Grinnell”), Lake County’s Maintenance Supervisor and Jackson’s
immediate supervisor. (/d.) At the meeting Jackson stated that co-workers Don Van Hoogen
(“Van Hoogen”), Ron Sparks (“Sparks”) and Peter Falotico (“Falotico”), verbally hazed him,
embarrassed him, screamed profanities at him and went out of their way to humiliate him. (PI.
Resp. to Def. L.R. 56.1 9.) Jackson also complained that he was being “micro-managed” while

onthe job, (Def. LR. 56.149.)

With respect to being micro-managed while working, Jackson specifically pointed to a

recent incident in which Van Hoogan had stood over him as he worked in a trench and criticized



disabled individuals can sue for violations under § 12112, and cites to a serics of district court
cases that so hold. Adler v. J & M Rail Link, L.L.C., 12 F, Supp. 2d 912, 935-37 (NLD. Ia. 1998);
Armstrong v. Turner Indus. Lid., 950 F. Supp. 162, 166-68 (M.D. La. 1996) aff'd on other
grounds, 131 F.3d 554 (5th Cir. 1998); Varnagis v. City of Chicago, No. 96 C 6304, 1997 WL
361150, at “6-7 (N.D. Ill. June 20, 1997). See also Krocka v. Bransfield, 969 F. Supp. 1073,
1094-95 (N.D. Ill. 1997). The Seventh Circuit has yet to decide this issuc. See O'Neal, 293 F.3d
at 1007 (“We have not yet addressed the question of whether a non-disabled plaintiff can suc for
violations of [the § 12112(d)] provisions.”);'' but see, Murdock v. Washington, 193 F.3d 510,
512 (7th Cir. 1999) (in dicta, noting that “[a]lthough Title I of the ADA, prohibiting disability
discrimination in employment, has a scction limiting medical testing for disabilities, see

42 U.S.C. § 12112(d)(2)-(4), and does not require that an individual be disabled to state a claim,
it does not apply to Murdock’s case because Murdock is an inmate in prison, not an employee or
job applicant.”).

Starting first with the cases that allow a non-disabled employee to sue under certain
subsections of § 12112(d), the court in Cossette concluded that subsection (d)(4), and certain
non-disclosure portions of (d)(3), would apply to an employee/job applicant regardless of any
showing of disability. 188 F.3d at 969, The court noted that both subsections referred to
“employees” and “applicants,” which is “in stark contrast” to the ADA’s general prohibition of

discrimination against a qualified individual with a disability. 4d. at 969. Moreover, the court

"Phe court did state in a footnote, after citing the Tenth Circuit's opinion in Griffin v. Steeltek, Inc., 160
F.3d 391, 593-95 (10th Cir. 1998) (concluding that non-disabled applicant may sue under subsection (d)(2)), that
subsection (d)(3) was “unambiguous” and that “an employer may reject an applicant based on the results of a post-
offer medical examination as long as the employer does not discriminate on the basis of the applicant’s disability. If
the applicant is not disabled, or makes no showing that the employer regarded her as disabled, then the applicant
cannot recover under § 12112(d)(3)(C).”

14



The more persuasive view is that a non-disabled employee may bring suit under
subsection (d)(4). To hold otherwise, as the Tenth Circuit aptly noted above, would afford
Jackson, or any other employce, protections from prohibited examinations only if they prove that
they are disabled. See Roe, 124 F.3d at 1229, Such a result would create the following quandary
the Ninth Circuit explained in relation to subsection (d)(2),

[A]n employer could not require job applicants to take an HIV test unless the

inquiry were shown to be job-related. This restriction prevents employers from

using HTV tests to deter HIV-positive applicants from applying; requiring

applicants challenging the test first to prove that they are in fact disabled-thereby

revealing their HIV status-would render the section nugatory.

Fredenburg, 172 F.3d at 1182. Or by analogy here, requiring Jackson to prove that he is in fact
disabled in order to invoke the protection of (d)(4) would undermine the policy that an employer
may not ascertain whether an employce is disabled unless the disability relates to his or her job.
As noted in the cases Jackson cites, the language in subscction (d)(4) speaks of an “employee,”
specifically prohibiting “inquirics of an employce as to whether the employee is an individual
with a disability ....” Moreover, the subsection does not contain the much narrower language
applying only to a “qualified individual with a disability” contained in subsection (a). Nor does
the court find persuasive Lake County’s view that subsection (d)(4) must relate back to the
general rule contained in (d)(1). First, the language is clearly broader in subsection (d)(4) and in
no way references subsection (d)(1), Also, subsection (d)(1) provides only that the prohibition
against discrimination contained in subsection (a) applies to medical examinations and inquiries.
Subsection (d)(4), however, deals not neccssarily with discrimination but rather the prohibition in

general of forcing an employee to take such a test. See, e.g., Cossette, 188 F.3d at 969 (noting

that (d)(1) “is only one of several protections afforded by subsection (d), and it is only

16



SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issuc of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be
outcome determinative under the governing law. Jnsolia, 216 F.3d at 598-99, Although a bare
contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construc all facts in a light most
favorable to the nonmoving party as well as view all reasonable inferences in thal party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

FACTS'

Jackson was employed by Lake County as a senior utility worker from September 23,

1996 until his termination on June 25, 2001. (Def. L.R. 56.1 95.) Jackson’s duties as a senior

utility worker, as set out in Lake County’s position description, included, among other tasks,

“Phe facts as set forth herein, taken from the parties’ statements of material facts and supporting materials,
are undisputed unless otherwise indicated.



connection with the psychological examination was another example of his erratic behavior. (PI.
LR. 56.1 Add. Facts 4] 180.)"

Other than as they relate to learning'*, the court rejects Jackson’s position that Lake
County’s other perceptions of him related to an impairment of a major life activity. Jackson
claims that he was substantially limited in the major life activity of working. As noted above, a
substantial limitation on working means “significantly restricted in the ability to perform cither a
class of jobs or a broad range of jobs in various classes as compared to the average person having
comparable training, skills and abilities.” EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1017
(7th Cir. 2001), quoting 29 C.F.R. § 1630.2(j)(3)(i). Jackson’s argument that Lake County
perceived him as forgetting work instructions and “confusing people, work sites and events on a
regular basis” “is not one of the rare cases in which the claimants’ impairments are so severe that
their substantial foreclosure from the job market is obvious.” /d. Thus, at minimum, Jackson

“had to come up with some evidence of the number and types of other jobs . .. from which. .

"3 Th addition, Grinnell considered Jackson an outcast and thought he was paranoid because he was “always
hesitant in whatever he did, always second guessed himself, very nervous around everything hc’s trying to do, [and
he] had a hard time grasping what everybody else was a trying to do.” (PI. L.R. 56.1 Add, Facts J 147-48.)
Grinnell also admitted that he refrained from disciplining Jackson “because it was Don” and that often he gave him a
break because of Jackson’s “ways and his antics.” (PI. L.R. 56.1 Add. Facts 155.) Grinnell also stated that “[w]e
just learned to work with Don, around Don, do things with Don . . . [aJround Don, have him do things that Don can
do.” (PI. L.R. 56.1 Add, Facts 4] 164.) Grinnell testified that he could not give Jackson a list of things to do because
he would forget them, and that he had to give Jackson instructions one at a time. (PL. L.R. 56.1 Add. Facts 150.)
Alsa, Grinnell testified that Jackson would forget his daily work assignment within minutes of the moming staff
meeting two to three times per week. (Pl. L.R. 56.1 Add, Facts ¥ 149.) Lake County's response to this evidence is
to suggest that it never perceived Jackson as being substantially limited in learning. The court, however, believes
that a reasonable jury could find otherwise.

'4Jackson maintains that “temembcring” and “comprehending basic instructions” are major life activities
that Lake County perceived as substantially limited in him. He cites no authority for that position. The court treats
these skills as simply part of the major life activities of learning and working. See Emerson v. Northern States
Power Co., 256, F.3d 506, 511 (7th Cir. 2001) (without deciding whether memory, conccntration and interacting
with others were major life activities, noting that “we will adopt the district court's approach and treat memory,
concentration, and interacting with others as activities that feed into the major life activities of learning and
working.”),

25



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
DON A. JACKSON, )
)
Plaintiff, )
)
vs. ) No. 01 C 6528
) Judge Joan H, Lefkow
LAKE COUNTY, an Llinois municipal )
corporation, ) 7 .
) pee hewilee .
Defendant. ) SEP 1 2093
)

MEMORANDUM OPINION AND ORDER

Plaintiff, Don A. Jackson (“Jackson”), filed a three-count complaint against defendant,
Lake County, an Illinois municipal corporation (“Lake County”), alleging violations of the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. $§ 12101 et seg. (“ADA”). In
Count I, Jackson alleges that Lake County violated 42 U.S.C. § 12112(d)(4)(A) by demanding
that he submit to a blanket mental examination. In Count Il, Jackson alleges Lake County
violated 42 U.S.C. § 12112(a) by suspending and subsequently terminating him because of its
perception that he was disabled, In Count III, Jackson alleges Lake County violated 42 U.S.C.
§ 12202(a) and (b) by retaliating against him for exercising his rights. Pending before the court
is Jackson’s motion for summary judgment on his Count I claim and Lake County’s motion for
summary judgment on all of Jackson’s claims. For the reasons stated below, both motions are

denied.



necessity. If the trier of fact so decides, Lake County cannot advance as a legitimate and
nondiscriminatory reason for Jackson’s termination his refusal to submit to an examination
forbidden under the ADA. Although at least one casc has upheld a finding of insubordination for
refusing to submit to a medical examination, see Sullivan, 197 F.3d at 812, citing Moore v.
Board of Educ. of the Johnson City Schs., 134 F.3d 781, 783 (6th Cir, 1998), there the medical
test at issuc had already been declared consistent with business necessity as a matter of law.
Sullivan, 197 F.3d at 812. That is not the case here. Thus, whether the insubordination is a
legitimate and nondiscriminatory reason is not properly resolved on this motion.

Lake County offers no other legitimate and nondiscriminatory reason for Jackson’s
termination, therefore, that claim survives summary judgment. With respect to Jackson’s
suspension, however, Lake County claims that, in addition to insubordination, Jackson was also
suspended because he lied to Galantha and did not account for his whereabouts. These are
legitimate and nondiscriminatory reasons; thus, the issue of pretext must be addressed, Jackson
has the burden to show by a preponderance of the evidence that “the reason[s] proffered by [Lake
County are] a pretext for intentional discrimination.” /d. (internal citations omitted). To survive
a motion for summary judgment, Jackson must produce evidence that “create[s] an issue of fact
as to whether the rcasons offered by [Lake County] were sincere—in [ADA] lingo, not
pretextual.” fd., quoting Green v. National Steel Corp., Midwest Div., 197 F.3d 894, 898-99 (7th
Cir. 1999) (“ADA” alteration in original) (citation omitted); see also, Perdomo v. Browner,

67 F.3d 140, 145 (7th Cir. 1995) (“Because a fact-finder may infer intentional discrimination
from an employer’s untruthfulness, evidence that calls truthfulness into question precludes a

summary judgment.”),

28



DISCUSSION
A. Mental Examination (Count 1)

Under 42 U.S.C. § 12112(d)(4)(A), a covered entity’ “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,” The
threshold issue the parties dispute is whether, in fact, this scction applies to Jackson, who admits
that he suffers from no mental or physical impairment.” To fully address this issue, the court
provides some background as to the other sections of 42 U.S.C. § 12112(d).

The ADA generally prohibits discrimination against “a qualificd individual with a
disability... .” 42 U.S.C, § 12112(a). With respect to medical examinations and inquiries,
§ 12112(d) provides separate rules depending on whether the individual is a job applicant, an
applicant with an offer who has not yct begun working or an employcc.

Subsection (d)(1) first states that “in general” “the prohibition against discrimination as
referred to in subsection (a) of this section shall include medical examinations and inquiries.”
Subsection (d)(2) then provides that, with respect to job applicants who have not received an
offer, an employer may only make preemployment inquirics of an applicant’s ability “to perform
job-related functions” but not into whether the applicant is disabled. See § 12112(d)(2)(A) and

(B). Under subsection (d)(3), which applies to an applicant who has received an offer of

°Lake County admits that it is a covered entity, (Def, Resp. to Pl. L.R. 56.1 4[5.)

‘5 is discussed in part B of this opinion below, an issuc of fact exists as to whether Lake County regarded
Jackson as disabled. The court still addresses the issue of mental examinations of non-disabled employees, however,
so that this Count I claim is not dependent on the resolution of any of the factual disputes addressed below with
respect to Jackson’s other claims,

12



concluded that a contrary reading of subsection (d)(4) would “obliterate much of [its]
uscfulness.” Cossette, 188 F.3d at 969. Quoting from Roe, the court noted that “[i]t makes little
sense to require an employee to demonstrate that he has a disability to prevent his employer from
inquiring whether or not he has a disability.” Jd., quoting Roe, 124 F.3d at 1230. The court in
Fredenburg analyzed subsections (d)(2), (3) and (4) in a similar fashion, 172 F.3d at 1182, as did
the court in Roe when dealing only with subsection (d)(4). 124 F.3d at 1229.

The cases cited by Lake County hold that an employee must be disabled to invoke any of
the protections under § 12112(d). The Eighth Circuit expressly rejected Ad/er, cited by Lake
County, in Cossette, 188 F.3d at 970 n.4 (“We are not persuaded by the reasoning in Ad/er.”).
The other cases on which Lake County relies reasoned that because § 12112(d)(1) states that
“(t]he prohibition against discrimination as referred to in subsection (a) of this section shall
include medical examinations and inquiries” and subsection (a) of § 12112 prohibits
discrimination against only “a qualified individual with a disability,” subsections (d)(2), (3) and
(4) should also refer back to the general prohibition of discrimination against only qualified
individuals with disabilities. See Varnagis, 1997 WL 361150, at *7; Armstrong, 950 F. Supp. at
167. Lake County relies on this reading of the statute, arguing that subsections (d)(2), (3) and (4)
are specific aspects of the general rule listed in subsection (d)(1), which in tum refers back to
subsection (a) prohibiting discrimination only against a qualified individual with a disability. In
addition, the cases Lake County relies on also conclude that the legislative history of the ADA
supports the view that the restrictions in § 12112(d) were meant only to apply to qualified

individuals with disabilities. /d., Armstrong, 950 F. Supp. at 167.

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