Tonya Coffman v. Indianapolis Fire Department ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1642
T ONYA C OFFMAN,
Plaintiff-Appellant,
v.
INDIANAPOLIS F IRE D EPARTMENT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:05-cv-199-RLY-JMS—Richard L. Young, Judge.
A RGUED O CTOBER 24, 2008—D ECIDED A UGUST 20, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Indianapolis firefighter Tonya
Coffman sued the Indianapolis Fire Department and
several of its employees alleging sex discrimination
under Title VII, 42 U.S.C. § 2000e et seq., violations of
the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and privacy intrusions amounting to
violations of her due process rights under the Fourteenth
2 No. 08-1642
Amendment, see 42 U.S.C. § 1983. She also brought
several state-law claims. Her claims arise from what she
alleges were a number of discriminatory driving evalua-
tions and fitness for duty evaluations. The district court
dismissed the state-law claims without prejudice and
granted the defendants’ motion for summary judgment
on all of Coffman’s remaining claims. She appeals, and
we affirm.
I.
Coffman, who is by her own description five feet tall
“with shoes on,” began working for the Indianapolis
Fire Department in April 2001. She worked as a “substi-
tute” firefighter until 2005, rotating shifts at various fire
stations throughout the Department. Her tenure was
apparently unremarkable until late 2003. In October
and November 2003, two fellow firefighters who had
ridden as passengers with Coffman in department
vehicles expressed concern about her driving ability. In
the first e-mail, Lieutenant Montgomery Hoyt wrote
Division Chief of Health and Safety, Howard Stahl, and
Assistant Chief Mickey Radez, observing that Coffman
needed to put the bench seat all the way forward in
order to reach the pedals and needed to “literally hold on
to the steering wheel for support.” 1 Within several days
1
Lieutenant Hoyt’s e-mail is dated October 18, 2003, but
Coffman denies driving with Hoyt before October 21st. She
does not, however, go so far as to suggest that Lieutenant
(continued...)
No. 08-1642 3
another firefighter e-mailed several chiefs stating that
he and Lieutenant Hoyt were concerned that Coffman
could not safely operate the vehicle because she had to
look through the steering wheel to see out the front
window and use her upper body to hold herself up in
her seat. Then in early November yet another firefighter
wrote an e-mail to Chief Charlie Miller expressing his
concern that Coffman could not reach the pedals in a
particular squad car without sitting on the edge of the seat.
These e-mails prompted a series of so-called “safety
evaluations” of Coffman’s driving. Chief Stahl conducted
the first evaluation in December 2003. Coffman sat in
the driver’s seat of three different squad cars while Chief
Stahl reviewed her positioning. He concluded that “the
only concern” was Coffman’s proximity to the steering
wheel and airbag, but he found “no safety concerns or
reasons for not allowing Private Coffman to drive these
squads.” Chief Stahl did not, however, evaluate Coffman
on squad 10, which she admitted was difficult to drive
because neither the steering wheel nor seat back were
adjustable. He recommended that Coffman work with
Captain Julie Baade “for a short term for further evalua-
tion.” Captain Baade drove with Coffman twice and
afterward e-mailed Chief Stahl with her opinion that
Coffman “did a good job.”
1
(...continued)
Hoyt fabricated the incident, nor does she dispute that Chiefs
Stahl and Radez received Lieutenant Hoyt’s e-mail and pre-
sumed his account to be true.
4 No. 08-1642
Despite Captain Baade’s largely favorable report, the
concern about Coffman’s driving persisted into 2004
and expanded into a critique of her paramedic skills as
well. In January of 2004, yet another fellow firefighter e-
mailed Chief Stahl with a “few safety concerns” about
Coffman’s driving. They included his belief that the
seat did not move forward enough for her to see properly
over the wheel and his belief that she had difficulty
maintaining proper contact with the pedals. The con-
tinuing concerns prompted another round of evaluations
by Captain Baade. This time Captain Baade’s report
alleged deficiencies in other areas, including her
perception that Coffman had difficulty socializing with
and asking for help from fellow firefighters. Captain
Baade gave Coffman a copy of the “review” for her to
sign, and also documented her belief that Coffman “acted
mad or upset” after going over the list.
Following Captain Baade’s review, a number of officers
broached concerns about Coffman’s well-being and
other issues. Specifically, the Emergency Medical Services
Duty Officer, Gregory Robinson, e-mailed Chief Charlie
Miller, stating that he had noticed that Coffman was
“often alone or withdrawn” and seemed to be “defensive”
for “no legitimate reason.” Lieutenant Robinson’s ob-
servations prompted a number of other individuals to
become involved, including Chief Stahl.
Ultimately Lieutenant Robinson met with Coffman
and another Lieutenant to discuss some of her “weak-
nesses” in EMS skills. Lieutenant Robinson later
reported that Coffman had been “defensive” and that
No. 08-1642 5
she had wanted to know whether there were any com-
plaints in writing.
Shortly thereafter, Chief Radez e-mailed all of the officers
and instructed them that if they believed a firefighter
was underperforming they should document their con-
cerns. He also told the officers to recommend a profes-
sional evaluation if any concerns regarding mental or
physical fitness for duty arose. The same day, Captain
Brian Black e-mailed several fire chiefs after Coffman
had been at his station only two days, noting that she
seemed “withdrawn” and suggesting that it might be
in “the best interest of everyone” to consult a professional.
Several days later, Chief Longerich recommended that
Coffman undergo a “fitness for duty psychological evalua-
tion” and a continued assessment of her EMS skills
and driving abilities. He also recommended that Coffman
be transferred immediately from firefighting and EMS
duties to “limited duty status.”
Coffman then met with Dr. Deanna L. Bartholomew for
an evaluation. Dr. Bartholomew concluded that
although Coffman was not suffering from any type of
psychological disorder (including depression), she was
obviously unhappy with “some aspect of her worklife.”
She recommended referring Coffman to six weeks of
individual therapy through a private therapist unaffiliated
with the Department and recommended a light-duty
assignment on account of Coffman’s “withdrawn de-
meanor and unwillingness to explain what is bothering
her.” After just three sessions, the private therapist docu-
mented that he had “not noted any intellectual or emo-
6 No. 08-1642
tional difficulties which would interfere with her ability
to perform her job.” He thus recommended that she be
returned for another fitness for duty evaluation. This
time Dr. Bartholomew concluded based on Coffman’s
defensive attitude about why she was there that she
was “overreacting . . . and acting out in an immature
and hostile manner.” Although she discerned “no
evidence of mental or physical problems that would
prevent her from effectively performing her job duties,”
Dr. Bartholomew nevertheless deemed her unfit for duty
on account of her choice to be “extremely resistant.”
A month passed before Coffman was again evalu-
ated—this time by Dr. Jeffrey Savitsky. He deemed
Coffman prepared to return to light-duty status for three
or four weeks. Five weeks later, Coffman returned for a
follow-up evaluation and Dr. Savitsky recommended
that she return to active duty, which she did.
Coffman sued the Indianapolis Fire Department, Assis-
tant Chief Radez, Chief Miller, and Chief Stovall, claiming
that the driving tests and fitness for duty evaluations
amounted to gender discrimination and sexual harass-
ment under Title VII. She also alleged that the Depart-
ment violated the ADA by requiring multiple medical
examinations that were neither job-related nor consistent
with business necessity. See 42 U.S.C. § 12112(d)(4)(A).
Finally, she advanced a claim under § 1983 that the indi-
vidual defendants had violated her procedural and sub-
stantive due process rights. The district court granted the
defendants’ motion for summary judgment on all of
Coffman’s federal claims.
No. 08-1642 7
II.
On appeal, Coffman contends that the district court
incorrectly granted summary judgment on her Title VII
claims, her ADA claim, and her due process claims. We
review the district court’s decision de novo, considering
all facts in the light most favorable to Coffman. See Teal
v. Potter, 559 F.3d 687, 691 (7th Cir. 2009).
Beginning with her Title VII claims, Coffman maintains
that she advanced sufficient evidence of discrimination
to withstand summary judgment under either the direct
or indirect method articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She makes much of the
district court’s decision to examine her discrimination
and harassment claims under the indirect burden-
shifting approach set out in McDonnell Douglas. She
claims that she would have fared better on summary
judgment had the district court analyzed her case
under the so-called direct method.
In order to make out a case of sex discrimination with-
out resorting to McDonnell Douglas, a plaintiff must
provide either direct or circumstantial evidence that
supports an inference of intentional discrimination. E.g.,
Petts v. Rockledge Furniture, LLC, 534 F.3d 715, 720 (7th
Cir. 2008). Coffman lacks any sort of direct admission
of discriminatory intent, but she maintains that “a con-
vincing mosaic of circumstantial evidence,” Phelan v. Cook
County, 463 F.3d 773, 779 (7th Cir. 2006) (quoting Rhodes
v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)),
exists from which a juror could conclude that she was
discriminated against on account of her sex and height.
8 No. 08-1642
Ordinarily circumstantial evidence consists of certain
indicators that sex may be the real motivating force for
employment decisions. As relevant here, we have in
the past recognized two general categories of circum-
stantial evidence: (1) ambiguous statements or behavior
toward other employees in the protected group that
taken together allow an inference of discriminatory
intent and (2) evidence of systemically better treatment
of employees outside the protected class. E.g., Petts,
534 F.3d at 721. Coffman does not advance a single
instance where firefighters or members of the Depart-
ment engaged in behavior or made comments suggesting
a discriminatory attitude toward women. She does
aver generally that the Department employed several
short men who were never obligated to undergo
driving evaluations, but this fact alone does little to
show that men generally were treated differently by the
Department.
She also claims that the fire department discriminated
against her as a short female in particular. We have not
yet decided in this circuit whether we recognize a “sex-
plus” theory of discrimination, see Logan v. Kautex Textron
N. Am., 259 F.3d 635, 638 n.2 (7th Cir. 2001), which
hinges on disparate treatment based on sex in conjunc-
tion with another characteristic, see Phillips v. Martin
Marietta Corp., 400 U.S. 542 (1971) (per curiam) (recog-
nizing viability of female’s claim that hiring policy dis-
criminated against women with pre-school age children).
We need not decide today, however, because Coffman fails
to develop her “sex plus” argument. She also fails to
provide evidence—required under the “sex plus” formula-
No. 08-1642 9
tion—that the defendants took an adverse employment
action at least in part on account of sex. See Chadwick v.
WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009); Back v.
Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,
118 (2d Cir. 2004) (“The term ‘sex plus’ or ‘gender plus’
is simply a heuristic . . . developed in the context of
Title VII to affirm that plaintiffs can, under certain cir-
cumstances, survive summary judgment even when not
all members of a disfavored class are discriminated
against.”).
Whether or not we explicitly recognize “sex plus height”
as a vehicle for a Title VII discrimination suit, Coffman
must demonstrate that the driving evaluations, the
fitness for duty evaluations, and the subsequent suspen-
sions from duty and reassignment to light duty occurred
at least in part because she is female. On this front,
Coffman simply reiterates that she “is a woman and
therefore a member of a protected class under Title VII.”
The fact that she is a female, without more, goes nowhere
towards demonstrating mistreatment on account of her
sex. Certainly many females (and males) have endured
unpleasant behavior in a work force, but Title VII is not
a panacea for bad behavior in the workplace; it forbids
discrimination with respect to an individual’s “compensa-
tion, terms, conditions, or privileges of employment,
because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-
2(a)(1) (emphasis added). In short, Coffman has failed
to link her treatment—through either circumstantial or
direct evidence—with the fact that she is female. Summary
judgment was thus appropriate on Coffman’s Title VII
discrimination claim. See Stearns v. Consol. Mgmt., Inc., 747
10 No. 08-1642
F.2d 1105, 1109 (7th Cir. 1984) (noting plaintiff’s obligation
to “prove that her sex was a motivating factor” in her
supervisor’s actions).
Coffman also maintains that the job criticism, perfor-
mance evaluations and psychological evaluations
amounted to “gender harassment” that created a hostile
work environment. In order to sustain such a claim
under Title VII, Coffman must demonstrate workplace
harassment that is both objectively and subjectively
severe and pervasive. E.g., Lloyd v. Swifty Transp., Inc.,
552 F.3d 594, 603 (7th Cir. 2009). In addition to demon-
strating harassment so severe and pervasive that it
altered the terms and conditions of her employment and
created an abusive working environment, Coffman must
demonstrate a link between the adverse treatment and
her sex. Henry v. Milwaukee County, 539 F.3d 573, 586
(7th Cir. 2008).
We do not think Coffman endured objectively severe
and pervasive harassment. Undoubtedly the repeated
driving evaluations and the fitness for duty examinations
were subjectively unpleasant. Particularly given Coff-
man’s alleged lack of knowledge as to what prompted the
series of evaluations and exams, it could not have been
easy for Coffman to go through the repeated critiques of
her driving, her paramedic skills, and her mental stability.
Nonetheless, we do not think the evaluations amounted
to demeaning, degrading, or hostile behavior by the
defendants. See Hilt-Dyson v. City of Chicago, 282 F.3d 456,
463-64 (7th Cir. 2002) (plaintiff’s subjective belief that
workplace incidents were demeaning and degrading
No. 08-1642 11
insufficient to create actionable harassment under
Title VII). Assuming Coffman is correct that the examina-
tions were not motivated primarily out of concern for
her well-being and the safety of others, we still do not
believe having to undergo a number of skills and even
mental examinations can be construed as hostile and
discriminatory. See Hildebrandt v. Ill. Dep’t of Natural Res.,
347 F.3d 1014, 1035 (7th Cir. 2003). The record reveals
that most of the critiques Coffman endured were accompa-
nied by offers of support and guidance presumably
intended for her own assistance. Moreover, Coffman
has again failed to adduce evidence that she was
targeted for scrutiny on account of her sex. Id. at 1034
(reiterating necessity of demonstrating that harassment
occurred on account of sex).
Coffman next claims that the fire department violated
the ADA by referring her for unnecessary psycho-
logical evaluations. Section 12112(d)(4)(A) of the ADA
prohibits covered entities from requiring a medical exami-
nation or inquiring whether an “employee is an indi-
vidual 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.” 42 U.S.C. § 2112(d)(4)(A). The ADA also
allows inquiries “into the ability of an employee to
perform job-related functions.” Id. at § 12112(d)(4)(B).
Coffman maintains that no objective evidence sup-
ported the defendants’ decision to refer her for the
fitness for duty evaluations. The EEOC enforcement
guidelines state that a medical examination is job-related
12 No. 08-1642
and consistent with business necessity when an em-
ployer has a reasonable belief based on objective
evidence that a medical condition will impair an em-
ployee’s ability to perform essential job functions or
that the employee will pose a threat due to a medical
condition. We have acknowledged that inquiries into
an employee’s psychiatric health may be permissible
when they reflect concern for the safety of employees
and the “public at large.” See Krocka v. City of Chicago, 203
F.3d 507, 515 (7th Cir. 2000); see also Conroy v. N.Y. State
Dep’t of Corr. Servs., 333 F.3d 88, 99 (2d Cir. 2003) (noting
that “what constitutes a business necessity will undoubt-
edly vary in different workplaces”).
Here, the Department’s decision to refer Coffman for
the fitness for duty evaluations took place against the
backdrop of two firefighter suicides in the preceding
months. Coffman’s well-being was essential not only to
her safety but to the public at large; thus, the Depart-
ment had a particularly compelling interest in assuring
that she was both physically and mentally fit to perform
her duties. Here, multiple firefighters had expressed
concern that Coffman did not seem like herself. When
Chief Radez referred Coffman for an evaluation, he
reported that although Coffman had initially been out-
going, she had become guarded to the extent that he
believed there was a possibility that she was suffering
from paranoia. Brian Black also reported to Chief Radez
that Coffman seemed withdrawn and uncommunicative
with other firefighters. In an April 2004 e-mail to Chief
Miller, Gregory Robinson stated that he was “concerned
about Tonya’s mental well-being” and that he believed
No. 08-1642 13
that she “showed signs of depression, more than just
having a bad day.” Robinson based his assessment on
his observation that Coffman seemed unable “to make
decisions or even perform routine tasks on the scene of
an incident without being told or prompted.” Robinson
also noted that at the firehouse Coffman was often “alone
or withdrawn” and became “defensive” for “no legitimate
reason.” Robinson acknowledged that he was not a
“trained psychologist,” but pointed out that in light of
the tragic incidents with two other firefighters he
thought himself obligated not to “ignore these ap-
parent symptoms of depression.” That same day Brian
Black e-mailed several chiefs with his observation that
Coffman seemed different than other substitutes he
had seen at the station in that she was withdrawn
and not very communicative. He admitted the possi-
bility that knowledge of Coffman’s history could be
coloring his judgment, but thought that particularly in
light of the recent suicides “it may be in the best interest
of everyone concerned that a professional be consulted”
to correct any problems “so all parties can get [on] with
their jobs.”
The e-mails paint a consistent picture of genuine
concern that Coffman’s behavior was uncharacteristic
and was adversely impacting her ability to perform her
job. Although a psychological evaluation in response to
“withdrawn” and “defensive” behavior might not be job-
related in many vocations, we do not second-guess the
propriety of such an evaluation for a firefighter. The
Department has an obligation to the public to ensure
that its workforce is both mentally and physically capable
14 No. 08-1642
of performing what is doubtless mentally and physically
demanding work. This special work environment con-
vinces us that the Department’s decision to refer
Coffman for the fitness for duty evaluations was job-
related and consistent with business necessity. See Krocka,
203 F.3d at 515; see also Conroy, 333 F.3d at 99; Watson
v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999) (“In
any case where a police department reasonably perceives
an officer to be even mildly paranoid, hostile, or
oppositional, a fitness for duty examination is job
related and consistent with business necessity.”).
Finally, Coffman argues that the Department violated
both her substantive and procedural due process rights by
disclosing her medical records and failing to hold a hearing
before suspending her from her regular firefighting duties.
She maintains that because there was no legitimate reason
to refer her for a psychological evaluation, that decision
was arbitrary and violated her substantive due process
rights.
The due process clause of the Fourteenth Amendment
protects an individual’s “interest in avoiding disclosure
of personal matters.” Whalen v. Roe, 429 U.S. 589, 599
(1977); see also Denius v. Dunlap, 209 F.3d 944, 955 (7th Cir.
2000). In our circuit, this interest includes a “qualified”
constitutional right to the confidentiality of medical
records and communications. Anderson v. Romero, 72
F.3d 518, 522 (7th Cir. 1995); see also Denius, 209 F.3d at
956. Although Coffman maintains that we must apply
strict scrutiny to any disclosure of her medical records,
we have never articulated the precise test for an alleged
No. 08-1642 15
violation of the right of confidentiality. Denius, 209 F.3d
at 956 (“[W]hile it is apparent that some form of
balancing test would be used to determine when this
right of confidentiality has been violated, that test
has not yet been defined in this Circuit.”). We reject
Coffman’s invitation to adopt a strict scrutiny test for
the disclosure of medical records. It is unnecessary to
articulate the level of scrutiny necessary to support such
a disclosure, because under any formulation, the Depart-
ment’s decision passes muster. As explained above, the
Department has a compelling interest in ensuring both
the physical and mental well-being of its force. And for
the reasons discussed above, the Department’s decision
to refer Coffman for the fitness for duty evaluations
was not arbitrary—it was based on observations from
multiple sources questioning Coffman’s fitness for duty.
Coffman next argues that the Department’s failure to
provide her with notice and a hearing prior to her sus-
pension from regular firefighting duties violated her
procedural due process rights. In the district court,
Coffman maintained that she had a protected property
interest in her employment—an argument the district
court rejected because she failed to identify any
statutory provision granting her a property interest in
her employment as a firefighter. Coffman now argues,
relying on City of Mishawaka v. Stewart, 310 N.E.2d 65 (Ind.
1974), that she possessed a legally protected property
interest in her employment as a firefighter. Mishawaka
recognizes that “the tenure rights of policemen and
firemen are legally protected rights that the courts will
safeguard as carefully as if they were legally protected
16 No. 08-1642
contract or property rights.” Mishawaka, 310 N.E.2d at 676.
Leaving aside the fact that Coffman is developing her claim
for the first time on appeal, Mishawaka does little for
Coffman since—unlike the plaintiff in Mishawaka—she
was never deprived of her job as a firefighter. And she
cites no precedent for the proposition that she was
entitled to a hearing before her temporary suspension
from regular duties. Cf. Chicago United Industries, Ltd. v.
City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006) (“The
amount and timing of the process due when a depri-
vation of liberty or property . . . is alleged varies with the
circumstances.”). We thus reject her procedural due
process claim.
III.
For the foregoing reasons we A FFIRM the judgment of
the district court.
8-20-09