A jury will decide whether a university’s decision to require a tenured professor to undergo a psychological fitness for duty evaluation was consistent with business necessity and job related according to an August 11, 2016 order out of the Northern District of California. Ellis v. San Francisco State University, Case No. 15-cv-02273, ECF No. 63.
The plaintiff in this case was a professor in the Museum Studies Program at San Francisco State University (a program consisting of only 3 employees – 2 tenured professors and a staff member). After refusing to undergo a psychological fitness for duty evaluation, SFSU suspended the plaintiff and conditioned her return to work on her attending the evaluation. The plaintiff still refused to undergo the evaluation and was ultimately terminated after a 7 month suspension.
The complaint alleged, among other claims, that the psychological examination was unlawful under both the ADA and the FEHA. In cross-motions for summary judgment, the parties argued:
Plaintiff’s Summary Judgment Arguments
The Plaintiff argued that the psychological evaluation was not “consistent with business necessity” focusing primarily on the fact that SFSU appeared to have made the decision regarding the evaluation based solely on one meeting with the Plaintiff’s co-worker and other SFSU staff. During the meeting, the other tenured professor in the program expressed concern that the plaintiff: (1) was unprofessional in her communications with others, (2) was intimidating towards other staff, and (3) on a single occasion told another professor to “shut up” and “you will get yours.” The Plaintiff’s co-worker also stated that he had received complaints from students about the timeliness of the Plaintiff’s review of theses. The Plaintiff argued that this meeting alone did not provide her supervisor with enough objective evidence to form a reasonable belief that her alleged behavior threatened a vital function of the business. Of particular concern to the Plaintiff was that SFSU had refused to consider the Plaintiff’s rebuttals and refused to meet with her after they sent her a letter requiring a fitness for duty evaluation.
Interestingly, in support of this argument, the Plaintiff compared SFSU’s actions in the instant case to the actions of the University of San Francisco in Kao v. University of San Francisco, 229 Cal. App. 4th 437 (2014). In that case, the university received multiple complaints from faculty members over the course of a semester regarding a professor’s hostile and frightening behavior. The university opened an investigation and interviewed each of the faculty members that had experiences with the professor at issue. The university consulted with a forensic psychologist to obtain some input on markers for violence and ultimately held a meeting with the professor and his attorney before requiring a psychological fitness for duty evaluation.
Finally, the Plaintiff claimed that SFSU did not do anything to ensure that the psychological examination was narrowly tailored to assess the Plaintiff’s ability to carry out her essential job functions.
Defendant’s Summary Judgment Arguments
In its cross motion for summary judgment, SFSU detailed the existence of evidence from various sources, which it said was considered when the Plaintiff’s supervisor made the decision to require a psychological evaluation. SFSU claimed that there were numerous emails substantiating the Plaintiff’s co-workers concerns, that the Plaintiff had revealed to multiple co-workers that she had been diagnosed with Asperger’s Syndrome and that’s why she could not control her temper, and that there were many other accounts of the Plaintiff’s unprofessional behavior.
SFSU also contended that fitness for duty examinations are used by employers as “investigative tools” to determine “whether a problematic employee is capable of performing [their] job.” In this case, it argued, SFSU used the fitness for duty process to determine whether workplace accommodation, as opposed to discipline or informal counseling, was the appropriate approach in dealing with the Plaintiff’s problematic behavior.
Finally, SFSU maintained that there was no way that the Plaintiff could argue that the evaluation was not job-related because it never happened. She could not point to any proposed questions or documents that would have been used during the evaluation and so any argument regarding job-relatedness was mere speculation.
The Court’s Order Denying Both Parties’ Motions for Summary Judgment
The Court stated that the first hurdle SFSU had to overcome was to demonstrate that there was “business necessity” for the psychological examination, meaning that it would serve a goal that is “vital to the business.”
Directing attention to the Plaintiff’s comparison of the instant case with the facts in Kao v. University of San Francisco, the Court agreed that the University of San Francisco’s approach to fitness for duty evaluations in Kao was the best practice as far as affording the employee the most opportunity to interact with the process, but acknowledged that there was no authority requiring that type of process by law. Additionally, the Court emphasized that the law does not require complaints forming the basis for a fitness for duty evaluation to be corroborated by a formal investigation or that a doctor must recommend the evaluation instead of a university administrator. “All that is required by the law is ‘significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.’” Ellis v. San Francisco State University, Case No. 3:15-cv-02273-TEH (ECF No. 63).
The Court rejected SFSU’s argument that the proper function of a fitness for duty evaluation is as an investigative tool:
“Ordering a fitness for duty evaluation is not merely an ‘investigative tool’ in the University’s toolbox, to be wielded any time the University could use additional information about an employee. Rather, to protect employees from stigmatization and discrimination, the University must first have the requisite evidence that a business necessity warrants a properly tailored fitness for duty evaluation.” Ellis v. San Francisco State University, Case No. 3:15-cv-02273-TEH (ECF No. 63).
The Court agreed with the Plaintiff that it was crucial to resolve the questions of what the Plaintiff’s supervisor knew and when he knew it to determine whether business necessity was met. However, the Court concluded that there were material facts in dispute regarding these inquiries.
With respect to the job-relatedness argument, SFSU argued that because the examination did not happen, the Plaintiff could only speculate that it was not job-related and the Plaintiff offered no authority that the tailoring of the evaluation had to occur prior the evaluation itself. The evidence did suggest that the doctor who was supposed to conduct the psychological evaluation often received information prior to the evaluation but it was unclear at what point, if any, had information actually been transmitted to him in this case. The Court determined that material facts were in dispute as to the job relatedness requirement and denied both parties’ motions for summary judgment.