Opinion
CASE NO. 1:98 CV 2903
March 10, 2004
MEMORANDUM OF OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On 19 November 1999, defendant Ford Motor Company ("Ford") filed a motion for summary judgment. This Court referred the case to United States Magistrate Judge Nancy Vecchiarelli for a report and recommendation ("RR") on the motion for summary judgment, On 23 March 2001, the Magistrate Judge in her RR recommended that the motion for summary judgment be denied. Ford timely filed objections to the RR. For the reasons stated below, the Magistrate Judge's RR will be adopted, and Ford's motion for summary judgment will be denied.
This matter involves whether Ford may request as a prerequisite to employment, the complete medical record of a former employee who was retired due to disability and who is seeking to return to work after his disability ceases.
I. Background
Mr. John A. Farmiloe brought this case under the Americans with Disabilities Act of 1990 (the "ADA").Mr. Farmiloe was an hourly production employee at the Walton Hills Stamping Plant of Ford from approximately 1964 to January 1988. (PI. Aff. ¶ 4.) During his employment with Ford, he took medical leaves due to "nerves" in 1974 (PI. Dep. 110) and medical leaves due to valium addiction, anxiety and depression in 1983 (Rollins 1st Aff. ¶ 6 7). In January 1988, Ford granted Mr. Farmiloe a disability retirement due to his back and neck conditions and ulcerative colitis. (Rollins 1st Aff. ¶ 9.)
Mr. Farmiloe was and is a member of the United Auto Workers Union (the "UAW") that represents the manufacturing employees working for Ford. (Pi. Aff. ¶ 6,) The collective bargaining agreement between the UAW and Ford includes provisions for a disabled employee who is no longer disabled to return to work. (PI. Aff. ¶ 6.) An interoffice memorandum from Ford on 26 July 1990 established certain procedures to govern the application process for a disabled retiree seeking to return to work ("Ford Interoffice Memorandum"). (PI. Resp. Def.'s Mot. Summ. J. Ex. 1.)
Mr. Farmiloe has made several attempts to go back to work since 1991. In October 1991, Mr. Farmiloe presented the Ford plant doctor, Dr. Arlen Rollins, with a return to work form from his physician, Dr. Papa. Dr. Papa stated in the release that Mr. Farmiloe had chronic injuries which could be aggravated by working. (Rollins 1st Aff. ¶ 10 11.) In November 1991, Mr. Farmiloe again met with Dr. Rollins regarding his return to work. At that meeting, Dr. Rollins learned that Mr. Farmiloe had been to some Alcoholics Anonymous meetings. (Rollins 1st Aff. ¶ 13.) Dr. Rollins requested Mr. Farmiloe fill out a medical form authorizing the release of his complete medical records, including psychiatric records from Kaiser Permanente, Mr. Farmiloe's medical provider. Mr. Farmiloe initially complied with the request, but eventually revoked his consent before Dr. Rollins obtained the medical records. (Rollins 1st Aff. ¶ 14-17.) In January 1992, Mr. Farmiloe presented another release to return to work from Dr. Saran, a psychiatrist with Kaiser Permanente. (Rollins 1st Aff. ¶ 18.)
In March 1997, Ms. Marie Stauffer-Rossi, a chiropractor, examined Mr. Farmiloe and diagnosed him with lumbar segmental dysfunction and treated him accordingly. She concluded that Mr. Farmiloe had responded favorably to treatment and could return to work without restrictions. (Del Mot. Summ. J. Ex. I.) In April 1997, Mr. Farmiloe's attorney, Mr. James Lyons wrote letters to the Walton Hills Labor Relations and the local union president on behalf of Mr. Farmiloe. In the letters, Mr. Lyons tried to establish that Mr. Farmiloe had followed the procedures laid out in the Ford Interoffice Memorandum. (Def. Mot. Summ. J. Ex. K L.)
In November 1997, Dr. Alan Kravitz, a physician associated with John Hancock, Ford's disability insurance administrator, examined Mr. Farmiloe. Dr. Kravitz opined that Mr. Farmiloe was no longer disabled and could return to work. (Def. Mot. Summ. J. Ex, M.) John Hancock notified Mr. Farmiloe that his disability benefits were terminated on 18 November 1997. (Def. Mot. Summ. J. Ex. N.)
On 4 December 1997, Ms. Barbara Eady, a psychiatric social worker employed by Kaiser Permanente, evaluated Mr. Farmiloe for a psychiatric intake assessment. Ms. Eady stated in her report that Mr. Farmiloe presented no behavior during her examination that would interfere with working. Ms. Eady advised Mr. Farmiloe not to release his psychiatric records. (PI. Resp. Def.'s Mot. Summ. J, Ex. 2, Eady Aff, ¶ 4.) Mr. Farmiloe informed Dr. Rollins that he believed that, under the ADA, he did not have to release his medical and psychiatric records as requested by Dr. Rollins, Mr. Farmiloe again refused to release his medical and psychiatric files. (Rollins 1st Aff. ¶ 30.)
On 17 March 1998, Mr. Farmiloe filed a complaint with the U.S. Equal Employment Opportunity Commission (the "EEOC"), claiming age discrimination (he was 55 years old in 1998) and violation of ADA by Ford. (PI. Resp. Def.'s Mot. Summ. J, Ex. 15.) The EEOC issued a right to sue letter to Mr. Farmiloe on 11 August 1998. (Compl. Ex. A.)
On 15 December 1998, Mr. Farmiloe brought the instant lawsuit, which he amended on 2 July 1999, claiming violation of ADA (count I), violation of the Age Discrimination in Employment Act of 1967 (count II), and breach of the agreement between Ford and the United Auto Workers Union (count III). (Docket no. 1, 11.) Mr. Farmiloe dismissed Count II and III on 13 January 2000, after Ford filed its Motion for Summary Judgment on 19 November 1999. (Docket no. 17, 32.) On the remaining Count, Mr. Farmiloe claims that Ford violated the ADA by refusing to rehire him, and, as a precondition to rehiring him or returning him to work, requiring that he give Ford all of his medical records.
II. The RR and Ford's Objections to It
Magistrate Judge Vecchiarelli, in her RR, finds that Mr. Farmiloe is not an employee of Ford because he is not on Ford's payroll, nor is he an employee under traditional agency principles. According to the Magistrate Judge, Mr. Farmiloe is a post-offer pre-employment applicant who has certain rights under the agreement between UAW and Ford that non-disability retirees do not enjoy, namely the right to return to work when his disability ceases and a position becomes available.
Treating Mr. Farmiloe as a post-offer pre-employment applicant, Magistrate Judge Vecchiarelli recommends Ford's motion for summary judgment be denied for the following reasons; that the evidence in the record is insufficient to support Mr. Farmiloe's alleged history of mental problems; that Ford's request for Mr. Farmiloe's medical and psychiatric records far exceeds the scope of Ford's legitimate concern over Mr. Farmiloe's problems; and that Ford fails to demonstrate that "all entering employees are subjected to such an examination regardless of disability
Ford filed an objection to Magistrate Judge Vecchiarelli's RR, arguing that Mr. Farmiloe is analogous to an employee returning to work from medical leave; that Ford's request for Mr. Farmiloe's entire mental health record is based upon Ford's review of Mr. Farmiloe's past medical file with Ford; that such a request is reasonable under the ADA; and that Ford reviews all of the returning disability retirees' medical files and regularly requests non-disability retirement related medical records.
Under Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), the Court reviews de novo the portion of the Magistrate Judge's RR to which specific objection was made. This Court agrees with Magistrate Judge Vecchiarelli that Mr. Farmiloe's status is analogous to a post-offer pre-employment applicant, and that the record does not support a summary judgment in favor of Ford.
III. Analysis
Summary judgment is proper if the court finds that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).In this case, Ford claims that its request for Farmiloe's complete medical records was job-related and consistent with business necessity, which is a defense on which Ford bears the burden of proof. Because Ford is the movant and Ford also has the burden of proof on this issue, Ford must establish that there are no genuine disputes on any material facts relating to this defense, and that Ford prevails as a matter of law. Ford does not contend that Mr. Farmiloe has not established his prima facie case of discrimination under the ADA, therefore the prima facie case is not an issue for the purpose of deciding this summary judgment motion.
To establish a prima facie case of discrimination under the ADA, a plaintiff must show that he or she is (1) a disabled person within the meaning of the Act, (2) that he/she is otherwise qualified to perform the essential functions of his/her job with or without reasonable accommodation, and (3) that he/she suffered an adverse employment decision due to his disability. McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997).
A. Employee or Applicant
The ADA treats persons at different stages of the job application process differently:
(1) Before an employer makes a job offer, he or she may not conduct a medical examination or make inquiries as to the job applicant's disability status. The employer is allowed, though, to inquire into the applicant's ability to perform job-related functions. 42 U.S.C. § 12112(d)(2). (2) After a job offer has been made, and before the applicant starts working, the employer may require a medical examination and condition the employment offer on the results of the medical examination, if all entering employees are subjected to such an examination regardless of disability, and the employers keep the medical information confidential. 42 U.S.C. § 12112(d)(3). (An applicant in this situation may be referred to as a "post-offer pre-employment applicant.") (3) An employer may require medical examinations or make inquiries of employees as long as the employer can show that such examinations or inquiries are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4).
For the purpose of deciding this summary judgment motion, whether Mr. Farmiloe's status is a pre-offer applicant, a post-offer pre-employment applicant, or an employee is not critical because under any of these categories, Ford has failed to establish that it is entitled to a summary judgment in its favor. However, because the issue of Mr. Farmiloe's status has been raised in the summary judgment motion and the objections to the RR, the Court will briefly discuss the issue.
Ford argues that Mr. Farmiloe's situation is analogous to an employee returning to work from medical leave. However, as Magistrate Judge Vecchiarelli points out, Mr. Farmiloe is neither on Ford's payroll nor an employee under the traditional principles of agency law. Mr. Farmiloe is a disability retiree, as referred to by Ford, who has not worked for Ford for more than ten years. "Unlike a person on medical leave, Farmiloe cannot return to his job as soon as his medical condition improves." (RR p. 12). Mr. Farmiloe has to go through the job application process in order to obtain a position at Ford, which is inconsistent with the status of an employee. Therefore, he is not an employee of Ford.
In Mr. Farmiloe's situation, the line between an applicant and a post-offer pre-employment applicant is not clear. Magistrate Judge Vecchiarelli finds that Mr. Farmiloe is more like a post-offer applicant than an applicant without an offer, because the bargaining agreement between the UAW and Ford gives Mr. Farmiloe the right to return to work when his disability ceases and a position becomes available. This Court is persuaded by the Magistrate Judge's reasoning and agrees that Mr. Farmiloe is a post-offer pre-employment applicant.
B. Job-related Inquiry (Pre-Offer Applicant and Employee)
Ford argues that its request for Mr. Farmiloe's complete medical records is job-related and consistent with business necessity. Although inquiry as to the ability of a pre-offer applicant or an employee to perform job-related functions is allowed under the ADA, such inquiry is not without limits. "[T]he ADA limits an employer's ability to request unfounded examination to prevent `the unwanted exposure of the employee's disability and the stigma it may carry.'" Sullivan v. River Valley School District, 197 F.3d 804, 812 (6th Cir. 1999). The employer may not request "wide-ranging assessments of mental or physical debilitation that could conceivably affect the quality of an employee's job performance." Id.
The EEOC's stated position on the scope of medical inquiry is that an employer may not request an employee's complete medical records under the disguise of job-relatedness and business necessity. In addressing the scope of medical information that an employer may obtain about an employee, the EEOC states:
An employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat. This means that, in most situations, an employer cannot request an employee's complete medical records because they are likely to contain information unrelated to whether the employee can perform his/her essential functions or work without posing a direct threat.
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, Question 13 (July 27, 2000) (emphasis added).
Retrievable at http://www.eeoc.gov/docs/guidance-inquiries.html.
The EEOC further states:
Employers that require physical agility or physical fitness tests may ask an employee to have a physician certify whether s/he can safely perform the test. In this situation, however, the employer is entitled to obtain only a note simply stating that the employee can safely perform the test or, alternatively, an explanation of the reason(s) why the employee cannot perform the test. An employer may not obtain the employee's complete medical records or information about any conditions that do not affect the employee's ability to perform the physical agility or physical fitness test safely.Id. Question 14 (emphasis added).
In another guidance, the EEOC gives the following example:
An employee with depression seeks to return to work after a leave of absence during which she was hospitalized and her medication was adjusted. Her employer may request a fitness-for-duty examination because it has a reasonable belief, based on the employee's hospitalization and medication adjustment, that her ability to perform essential job functions may continue to be impaired by a medical condition. This examination, however, must be limited to the effect of her depression on her ability, with or without reasonable accommodation, to perform essential job functions. Inquiries about her entire psychiatric history or about the details of her therapy sessions would, for example, exceed this limited scope.
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, Question 14, example D (March 25, 1997) (emphasis added).
Retrievable at http://www.eeoc.gov/docs/psych.html.
Though the EEOC guidance is not binding law, it aids the interpretation of the ADA by providing a detailed analysis of the relevant ADA provisions. Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 673 (1st Cir. 1995).
Ford claims that Dr. Rollins had a reasonable belief, based on Mr. Farmiloe's medical file at Ford and Dr. Rollins' conversations with Mr. Farmiloe, that Mr. Farmiloe might have difficulty performing his job functions. This belief, however, does not give Ford the right to obtain Mr. Farmiloe's complete medical and psychiatric records. The inquiry must be limited to the suspected impairments, namely what Ford alleges are Mr. Farmiloe's valium addiction and drug abuse problems. Ford made no demonstration that Mr. Farmiloe's entire medical and psychiatric records are solely about his valium addiction, drug abuse problems, or his physical conditions related to his disability retirement.
Ford claims that it was alerted to Mr. Farmiloe's psychiatric problems because he took medical leaves due to his "nerves" in 1974 and medical leaves due to valium addiction, anxiety and depression in 1983. However, both leaves were short in duration, and Mr. Farmiloe continued to work at Ford until 1988.
In its objections to the RR, Ford relies on a report from Dr. Collins, a physician from the Cleveland Clinic Foundation Alcohol and Drug Recovery Center. Dr. Collins interviewed Mr. Farmiloe on 16 October 2000, after this lawsuit had been commenced. The interview was for the purpose of the lawsuit. At the time Dr. Rollins requested Mr. Farmiloe's complete medical record, he did not have the benefit of Dr. Collins' report.
Ford's reliance on the following two cases is misplaced. InGrenier, 70 F.3d at 674, the First Circuit affirmed summary judgment in favor of the employer, holding that the employer's pre-offer request of a medical certification from a physician did not violate the ADA. In Harris v. Harris Hart, Inc., 206 F.3d 838, 840 (9th Cir. 2000), the Ninth Circuit affirmed summary judgment in favor of the employer, holding that the employer's request that Mr. Harris, a former employee with a known disability, provide a medical release from a physician was appropriate. In both cases, the medical inquiries were limited in scope. The employers in these cases only required a letter from a physician stating that the job applicant had the ability to perform the essential job functions. In this case, Ford's inquiry is not limited to a medical certification from a physician, or medical records related to the alleged impairments. Instead, Ford's inquiry is unlimited in scope.
Because Ford failed to show that its request for Mr. Farmiloe's complete medical and psychiatric records is job-related, summary judgment in favor of Ford is unwarranted whether Mr. Farmiloe is treated as a pre-offer applicant or an employee.
C. Ford's Claim of Making Unlimited Medical Inquiry to All Disability Retirees (Post-Offer Pre-Employment Applicant)
Under the ADA, a post-offer pre-employment applicant may be subjected to a medical examination if all entering employees are subjected to such an examination regardless of disability. 42 U.S.C. § 12112(d)(3). The EEOC regulations state that a medical examination or inquiry is allowed as to a post-offer pre-employment applicant "if all entering employeesin the same job category are subjected to such an examination (and/or inquiry) regardless of disability." Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.14(b) (2002) (emphasis added). Ford argues that "[i]f Farmiloe is a post-offer pre-employment applicant, Ford may make unlimited medical inquiries so long as all disability retirees are subject to the same inquiry." (Ford's Objections to RR, p. 1). However, disability retiree is not a job category. Ford has not demonstrated that employees in the same job category that Mr. Farmiloe was applying to are subjected to the unlimited medical inquiry to which Mr. Farmiloe was subjected.
Furthermore, even as to disability retirees, Ford fails to show that all disability retirees are subjected to unlimited medical inquiries. In Dr. Rollins' affidavit, he states that he "usually request[s] the disability retiree's personal medical records that relate to the condition that prompted the disability retirement to ensure that the condition has in fact been alleviated." (Dr. Rollins 2nd Aff. ¶ 25). He further states that he "also check[s] to be sure that there are no other health conditions that will prevent the disability retiree from safely returning to work or that will need accommodation upon a return to work." (Dr. Rollins 2nd Aff. ¶ 27). It is not at all clear from these statements that the medical inquiries Dr. Rollins made as to other disability retirees were unlimited in scope or that a retiree's complete medical records were requested.
Thus, if Mr. Farmiloe is a post-offer pre-employment applicant under the ADA, Ford's summary judgment motion cannot be granted as it has failed to show that all entering employees in "the same job category" are subjected to a request for their complete medical records.
IV. Conclusion
For the reasons stated above, the Magistrate Judge's RR is adopted, and Ford's motion for summary judgment is denied.
IT IS SO ORDERED.