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Friday, July 8, 2016

DOT Employer Cleared for Firing At-Risk Employee



By: Thomas Eden

Eileen Felix was employed by the Wisconsin Department of Transportation (“WisDOT”) in the Division of Motor Vehicles customer service facility in Appleton, Wisconsin. She held the position of DMV Field Agent Examiner and her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and collecting the fees associated with these transactions, according to court filings.

On the morning of April 18, 2013, Felix’s supervisor heard muffled screaming coming from the public lobby of the office. He found Felix She lying on her side, clutching her cell phone, and crying out. He noticed that she had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly. He would later recall her saying that “[y]ou all hate me … they all hate you … every body hates you” and “[t]hey think you’re crazy … you all think I’m crazy … they want to get rid of you,” as she rolled onto her back and began kicking her legs. He then noticed that she also had scratches and cuts on her left wrist and heard her say “They’re too dull … the knives were too dull” and “God let me die … I just want to die.”

Felix suffered from a variety of mental health disabilities, including posttraumatic stress disorder, major depressive disorder, anxiety, obsessive compulsive disorder, and a medical phobia. She managed the symptoms of her disorders by taking prescribed medication and attending counseling and therapy sessions.

Felix was placed on medical leave and WisDOT ordered her to undergo a fitness for duty Independent Medical Examination (“IME”) in order to determine whether she could return to work. Her supervisor wanted the IME to consider both her own safety and the safety of others in the workplace, as he was concerned about the fact that Felix’s roadtest responsibilities regularly placed her alone in automobiles with 16yearold drivers seeking their first licenses. The IME stated, “Ms. Felix remains at increased risk for potentially violent behavior toward self and others within the workplace.” WisDOT determined that Felix was unfit for continued employment and, after seeking to reasonably accommodate her, terminated her employment on that basis.

Felix then sued under the Rehabilitation Act of 1973, contending that she was discharged solely because of an anxiety disorder and related disabilities. The federal district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others.

On Wednesday, the Seventh Circuit of Appeals ruled that the WisDOT demonstrated it legitimately fired Felix for being a safety risk to herself and other employees, shutting down Felix’s suit alleging she was wrongfully fired because of her anxiety and other disabilities.

Common Sense Counsel: as the saying goes, having a qualified medical professional render a correctly worded independent medical opinion, under the ADA or Rehab Act, before you take adverse employment action - “Priceless” !

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com