United States District Court, D. Minnesota
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Bryce M. Miller, Schaefer Law Firm, LLC, Counsel for Plaintiff.
Jana M. O'Leary Sullivan and Patricia Y. Beety, League of Minnesota Cities, Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
Michael J. Davis, Chief United States District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment. [Docket No. 11] The Court heard oral argument on May 24, 2013. For the reasons that follow, the Court grants Defendant's motion for summary judgment.
A. Factual Background
1. The Parties
Plaintiff Marie Johnson was hired as a patrol officer by the Defendant City of Blaine's (" City" ) Police Department in July of 1993. (Ex. 1, Johnson Dep. 31-32.) In 2004, Plaintiff was assigned the position of provisional detective and was later promoted to the position of permanent Detective. (Id. at 34-35.) Plaintiff earned a Bachelor of Science degree in Law Enforcement in 2001 and a Master's Degree in Police Leadership, Administration, and Education in 2003. (Ex. 157.) From 1993 to approximately 1999 the Plaintiff generally performed her job satisfactorily. (Def. Mem. in Supp. of Mot. for Summ. J. at 3.) During her employment with the City of Blaine, Plaintiff was represented by the Law Enforcement Labor Services union (" LELS" ). (Johnson Dep. 31.)
2. Plaintiff's Employment from 1999 to 2001
On February 5, 1999, Plaintiff was the primary responding officer on a fatal pedestrian accident in which a 14-year-old boy died. (Ex. 8.) A few days later, Plaintiff responded to a second fatal pedestrian accident on the same highway. (Id.) After responding to these fatalities, Johnson experienced symptoms of post-traumatic stress disorder (PTSD) and depression. (Exs. 10, 19.) She took a short leave of absence. (Exs. 8-9)
In April of 2000, Plaintiff responded to a homicide. (Johnson Dep. 89-99, 108-10, 114-16; Ex. 23.) Plaintiff, along with another patrol officer, administered first aid,
but the victim died at the scene. (Id.) After she was left alone with the body, her PTSD was triggered, she had a breakdown at the scene, was unable to perform her job duties, and had to be driven back to the police station by another officer. (Id.) This incident triggered symptoms of PTSD and depression, causing Plaintiff to take an extended leave of absence. (Exs. 23-37.) In June 2000, she was hospitalized for suicide ideation. (Johnson Dep. 98; Ex. 23.) Johnson transitioned back to a full-duty police officer in January of 2001. (Johnson Dep. 102-03, 118; Exs. 37-38.)
In June 2001, Plaintiff's supervisors observed signs that Plaintiff again experienced symptoms of PTSD and depression, such as Plaintiff's tearful statement on the firing range that she had recent feelings of self-harm. (Exs. 42-43, 44.) Pursuant to the " Reentry Agreement" completed at the end of Plaintiff's leave in January of 2001, the City of Blaine placed Plaintiff on " leave of absence" status on June 15, 2001. (Ex. 42.) Plaintiff returned from leave on June 26, 2001. (Ex. 43.)
On July 15, 2001, Johnson was issued a written reprimand for her conduct on June 1, 2001. (Ex. 45.) On that date, Plaintiff drove her patrol vehicle over a concrete curb and sidewalk, up a steep incline, and through a residential backyard while in pursuit of two juvenile suspects for misdemeanor theft. (Id.)
3. Plaintiff's Employment 2001 to 2006
From approximately July of 2001 to 2006, Plaintiff did not exhibit any significant symptoms of depression or PTSD. (Johnson Dep. 130; Ex. 65.) In 2004 the City assigned Plaintiff to the position of provisional detective, and, in April 2006, the City promoted Plaintiff to permanent detective. (Johnson Dep. 34-35, 138-39.)
4. Plaintiff's Employment from 2006 to 2009
a) 2007 Leave and Return to Work
In late 2006 and early 2007, Johnson was confronted with several deaths within a short period of time. (Ex. 65.) In August of 2006, Plaintiff's coworker committed suicide. (Id.; Johnson Dep. 135-36.) Plaintiff expressed that she had planned to shoot herself the way that he did and was angry that he had " stolen her thunder." (Ex. 65 at 3.) In early 2007, one of Plaintiff's friends died suddenly, and the mother of a different friend died. (Id.) Plaintiff's father died in April 2007. (Id. at 2-3; Johnson Dep. 136.) She was also experiencing problems in her marriage at this time. (Ex. 65 at 3-4.)
In August of 2007, Johnson was hospitalized with symptoms of depression and suicidal ideation. (Johnson Dep. 161; Exs. 5, 49.) On August 13, 2007, Plaintiff requested Family and Medical Leave Act (" FMLA" ) leave until September 15, 2007; however, Plaintiff did not know how long her mental health condition would last. (Ex. 49.) She was hospitalized intermittently between August 12, 2007, and October 13, 2007. (Ex. 5.)
On October 16, 2007, the Human Resources Director for the City of Blaine wrote to Plaintiff notifying her that her FMLA leave would expire on October 22, 2007. (Ex. 50.) Plaintiff responded by sending a memorandum to Robert Therres, the Blaine City Manager, stating that she was unable to return to work on October 23, 2007. (Ex. 52.) Further, Plaintiff stated that she hoped to return to work by January 2008. (Id.) Plaintiff's memorandum was based on the recommendation of her psychologist, Dr. Kristin Kunzman, who opined that Plaintiff would be able to return to work in January 2008. (Ex. 51.)
In response to Johnson's request for a leave of absence until January 2008, Therres stated, in an October 26, 2007 letter:
I have discussed [your leave of absence request] with Chief Johnson, his command officers, and Human Resources Director Terry Dussault. Under the current staffing and personnel conditions present in the Police Department, approving a leave of absence of this length of time and for an undetermined period of time is not possible or appropriate. I am willing to approve a leave of absence up to and no later than Monday, December 3, 2007. . . .
Finally, prior to your return from " Leave of Absence" status you are required to provide the employer a letter from your doctor that clearly states you are able to return to work and assume the full responsibilities and duties of the position of Police Detective and Police Officer for the City of Blaine with no restrictions or conditions. Additionally, you will be required to submit to a " Readiness for Duty" examination. . . .
In response to Therres' letter, Plaintiff requested that Defendant schedule the " Readiness for Duty" examination and requested a return date of December 10, 2007 rather than December 3, 2007. (Ex. 54.) Plaintiff made this request, for extended unpaid leave, because she had registered and paid for a retreat from December 2 to December 7. The retreat was intended to help public service workers overcome issues with PTSD, depression, and anxiety. (Id.)
On November 3, 2007, Kunzman wrote a letter to Therres laying out an incremental plan for Johnson's gradual transition back to full time employment. (Ex. 56.) In that letter, Kunzman also requested that Plaintiff be allowed to return the week of December 10, 2007, so that Plaintiff could attend the retreat during the first week in December. (Id.) Finally, Kunzman stated that " [f[ull time active duty before Christmas just does not seem feasible. . . . I think this holiday will be very difficult because of [Plaintiff's father's] death and her recent separation." (Id.)
In response to Plaintiff's and Kunzman's requests, Therres responded with a November 16, 2007 letter stating, " The requirements for your return to Police Detective for the Blaine Police Department were detailed in my letter to you dated October 26, 2007 and they remain unchanged." (Ex. 57.) Therres went on to repeat the requirements set forth in his previous letter. (Id.) Specifically, a " leave of absence" had been approved until December 3, 2007; Plaintiff was required to submit a letter from her doctor stating that Plaintiff was clear to return to work with no restrictions or conditions; and Plaintiff was required to submit to a " Readiness for Duty" examination that would be scheduled once Defendant received the letter from Plaintiff's doctor. (Id.)
On November 27, Kunzman issued a return-to-work authorization allowing Johnson to return to work as a detective without limitations on December 3, 2007, although that recommendation appeared to be based on Kunzman's assumption that Johnson did " not currently work as a first responder at this time," and although she stated that two additional weeks of leave would be beneficial. (Ex. 58.) On the same day, Johnson's union attorney wrote to Therres requesting that the City extend Johnson's leave of absence to allow her to attend the retreat. (Ex. 136.)
In response to Kunzman's November 27, 2007, letter issuing a return to work authorization, Chief of Police David Johnson requested that Kunzman provide a clarifying
statement that acknowledged that Plaintiff was able to assume and fulfill the roles of both a Blaine patrol officer and a police detective, both of which included " first responder" duties. (Ex. 59.) Kunzman provided Defendant with this authorization on December 1, 2007, stating that Plaintiff could assume full responsibilities as a police detective and police officer with the City of Blaine, with no restrictions or conditions. (Ex. 61.)
b) Fitness for Duty Exam
Plaintiff was instructed to choose one of three doctors to complete the " Readiness for Duty" exam. (Ex. 64.) However, Plaintiff's first choice was not available until late January. (Id.) Although Plaintiff told Defendant that she did find any of the doctors on the list to be acceptable, Plaintiff consented and was examined by her second choice, Judy Pendergrass, on December 14, 2007. (Exs. 64-65; Ex. 137.)
In her January 2008 report, Pendergrass concluded that Plaintiff was prepared to return to duty as a police officer with the Blaine Police Department. (Ex. 65 at 5.) Pendergrass further concluded, however, that Plaintiff's return to work as a police officer would likely be difficult:
[I]t will continue to be very difficult for [Plaintiff] to handle stress and sadness in her work. Though we view her as presently able to handle the scope of the accountabilities associated with the position, we believe that it is probable that she will continue to respond strongly to stress-producing circumstances. . . .
Overall, the demands placed on a police officer are substantial. Consequently, officers find it necessary to respond to a wide range of circumstances in a prevailing rational and objective fashion. The readiness with which [Plaintiff] reacts at an emotional level to troublesome circumstances suggests that handling the full scope of accountabilities of the position in a consistently objective, rational, and calm fashion is likely to prove very challenging to her on an ongoing basis during her tenure in the position. She may well find it advantageous to consider other types of careers that entail less exposure to tension or sadness-producing circumstances on a frequent basis.
Pendergrass recommended that Plaintiff (1) continue her therapeutic relationships with her psychiatrist and her psychologist; (2) continue the medication that has been prescribed to her; (3) gain skills to use in controlling her temper and reducing her hostility; (4) develop greater personal fortitude and resilience; (5) learn to function with a higher degree of tact in dealing with others; and (6) work with her supervisors to learn more about how to reason her way through issues that are ambiguous in nature. (Id. at 7-9.) Pendergrass concluded that " it will be difficult for [Johnson] to undertake and complete successfully the full scope of assignments typically given to a Police Officer if she is unable to reduce considerably her tendency to react at an emotional level." (Id. at 9.)
c) The Reentry Agreement
On January 25, 2008, Interim Safety Services Manager/Police Chief Kerry Fenner sent a letter to Plaintiff entitled " Return from Leave of Absence Status - Reentry Agreement." (Ex. 66.) The letter indicated that Plaintiff would " return to full and unrestricted patrol duty status, upon [Plaintiff] signing this agreement by the date noted below." (Id.) The reentry agreement set forth numerous requirements: 1) Plaintiff was to be assigned to the patrol officer function in order to allow a more structured setting and more interaction with supervisors; 2) Plaintiff was not permitted to engage in any outside
employment; 3) Plaintiff was to follow all of the recommendations detailed in Pendergrass's Psychological Evaluation; 4) Plaintiff had to continue psychiatric therapy and agree to take all prescribed medications; 5) Plaintiff was required to develop and submit a plan to gain skills and tactics to use in controlling her temper and reducing hostility; 6) Plaintiff could not be the subject of any substantial instances of losing her temper, expressing hostility, or displaying poor tact or abrasiveness to fellow City employees, supervisors or the public; 7) Plaintiff could not express criticism of others' actions and decisions to the affected individual or other employees but rather must address them with only her designated supervisor; 8) Plaintiff was required to maintain independence in her work and not solicit or utilize on duty coworkers to assist her with emotional support in a manner that limited or restricted the coworker from performing his or her duties and responsibilities, and, in particular, she was not to contact employees or supervisors after 10:00 p.m.; 9) Plaintiff was required to address issues through objective analysis, problem solving, and reasoning approaches rather than through emotional or personal responses; 10) Plaintiff was required to complete a reentry orientation and training program prior to starting her patrol duties on the " A shift" ; 11) Plaintiff had to meet collectively with two supervisors assigned by the Police Chief a minimum of one time per month throughout 2008; 12) Plaintiff could not have any episodes where she is unable, limited, or hesitant in performing specific duties assigned to her or required as a police officer because of an emotional reaction such as crying or because of stress, grief, sadness, or depression; and 13) Plaintiff had to agree to provide the necessary authorizations and releases for her psychological treatment records as may be required by the City or Police Department to determine her continuing psychological health. (Id.) The reentry agreement concluded by stating that a " failure or inability to comply with any of the stated conditions will result in [Plaintiff's] termination as a Police Officer with the City." (Id.) On January 31, 2008, Plaintiff signed the reentry agreement and wrote " subject to the grievance filed today by LELS" directly below her signature. (Id.) She then returned to work as a patrol officer, rather than as a permanent detective. (Exs. 67, 69.)
d) Events During the Duration of the Reentry Agreement
The reentry agreement was in effect from February 6, 2008--the date Plaintiff returned to work--until March 5, 2009--the date that an arbitrator decided that the reentry agreement constituted demotion without just cause. (Exs. 67, 103.) During the period that the reentry agreement was in effect, Defendant asserts that Plaintiff violated the agreement on several occasions. Specifically, on March 2, 2008 Plaintiff left a message on Sergeant Olson's voicemail explaining the issues she had with Sergeant Sloneker:
Part of [the reentry agreement] is I have two supervisors that are assigned to me, one is Sloneker, and one is you [Sergeant Olson]. And I will be needing to, let's see, how is it worded, but anyway, I got to check in with one of the two, and I choose you, seeing as the only problems I'm having at work, believe it or not, are with [Sloneker]. . . . You know, I don't have any problems with co-workers, it's all with [Sloneker], you know, do as I say, not as I do and he has issues with me because I was talking with Spike about my dog past 6:45 in the morning, excuse me? Yea, whatever, but you know Lieutenants aren't going to do anything about him, so yea. . . .
(Ex. 73.) On March 19, 2008, during a monthly meeting with Sloneker, Plaintiff " had an outburst that lasted approximately ten minutes. [Plaintiff] berated and degraded  (Sergeant Sloneker) during this time . . . was insubordinate and very unprofessional." (Ex. 100.) On September 26, 2008, Plaintiff had a verbal exchange and outburst in the police department's mailbox area in which she stated that the Human Resource Director Terry Dussault was a " mother f*cking piece of sh*t." (Exs. 97, 98; Johnson Dep. 233.)
On February 17, 2008, Plaintiff wrote an email to Fenner requesting that she be removed from the overtime list. In the email Plaintiff stated:
Can my name be removed from the overtime list? I don't want any circumstances or problems where I am forced to work and then miss parts of my continuing psychiatric treatments/groups. I have group/treatment on Tuesdays at 5pm, Wednesdays at ...