by Joseph Miller III and Chloe Cummings (Winter 2018)

It is common for local government entities to encounter struggles in terminating employees who are unfit for duty. A recent case from the Seventh Circuit, Milliman v. County of McHenry, 893 F.3d 422 (7th Cir. 2018), reviewed a Sheriff’s Deputy’s claim that he was terminated in retaliation for his protected speech rather than his fitness for duty issues. The case provides a reminder of the proper steps for addressing retaliation claims and fitness for duty evaluations.

Milliman was hired as a McHenry County Sheriff’s Deputy in March of 1998. In late 2001, Milliman was diagnosed with brain cancer and underwent extensive treatment for his illness including brain surgery, radiation, and chemotherapy. Milliman ultimately recovered after extended medical leave and returned to work after a fitness-for-duty examination in 2003.

In November of 2010, another deputy brought suit against the McHenry County Sheriff’s Department, and Milliman served as a witness. During his testimony, Milliman accused the Sheriff of “corruption, bribery, securing fraudulent loans, trafficking illegal aliens, and soliciting the murder of two individuals.” Based on the allegations, the Sheriff referred Milliman to a psychologist. After Milliman objected to the first psychologist selected to perform the examination, the Sheriff sent Milliman to Dr. Grote to determine his fitness for duty.

In February of 2011, Dr. Grote found Milliman was unfit for duty. In his findings, Dr. Grote concluded that Milliman suffered from cognitive and psychological impairments resulting from his previous brain surgery, chemotherapy, and radiation, thereby rendering Milliman unfit for duty. After receiving this report, the Sheriff encouraged Milliman to retire with disability benefits. Milliman did not submit the required paperwork and was subsequently terminated for making false allegations against the Sheriff in his prior deposition, violating multiple Department General Orders, and being unfit to perform his duties as a deputy.

On December 9, 2011, Milliman filed suit against the Sheriff and the County claiming they violated his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. In 2017, the district court granted summary judgment in favor of Defendants because the fitness-for-duty examination was independent, non-retaliatory, and non-pretextual.

Milliman appealed to the Seventh Circuit. In deciding in favor of the Sheriff and County, the Seventh Circuit outlined both the factors and various burdens needed to prove a retaliation claim.

First, to prevail on a retaliation claim, a public employee must show that (1) he engaged in constitutionally protected speech; (2) he suffered a deprivation because of his employer’s action; and (3) his speech was a but – for cause of the employer’s action. Specifically, a plaintiff must show that the violation of First Amendment rights was a motivating factor of the alleged harm.

However, in retaliation cases, after the plaintiff meets the first three elements, the burden of proof shifts to the defendant to show that the harm would have occurred regardless of the presence of protected speech. If such a showing can be made by the employer, the burden shifts back to the plaintiff to prove that the employer’s reason for terminating the employee is “pretextual and the real reason was retaliatory animus.”

In applying this burden-shifting analysis to Milliman, the question became whether Milliman produced sufficient evidence to show that his employer’s reason for termination was pretextual. To meet this burden, Milliman argued that the Sheriff and his subordinates intentionally misled Dr. Grote in an attempt to influence Dr. Grote’s evaluation in favor of termination. However, the court found that the statements to Dr. Grote did not undermine the finding that Milliman was unfit for duty. In fact, Dr. Grote cited additional reasons to prove Milliman was not fit for work including disorganized and derailed conversation, impairment on cognitive tests, conflicting self-reports of memory loss, and abnormal testing. According to Dr. Grote, these impairments were consistent with frontal lobe dysfunction relating to Milliman’s previous brain tumor, chemotherapy, and radiation.

Milliman presented an expert witness, Dr. Dawkins, to argue that the conclusions were pretextual based on a criticism of Dr. Grote’s psychiatric evaluation. However, the court held that although Dr. Dawkins’s criticisms may have shown a different opinion than that of Dr. Grote’s, the criticisms did not change the fact that the Sheriff’s Department honestly believed Dr. Grote’s report and relied on that when making the termination decision.

Pretext requires more than foolish reasoning; pretext requires some level of intention on the part of the employer to further a desired unlawful action. What began as a seemingly routine fitness-for-duty examination evolved into an almost decade-long dispute over First Amendment rights. Many public entities require periodic employee psychological evaluations in order to assess the mental health risks associated with working in public service fields; thus, public entities may encounter similar issues when fitness for duty issues arise. When questions about employee fitness occur, ensure that the evaluation and termination processes are conducted in the proper manner.