Wright v. Illinois Department of Children & Family Services

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13-1552 & 13-1553

MARGARET WRIGHT,

Plaintiff-Appellant, Cross-Appellee,

v.

ILLINOIS DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Defendant-Appellee, Cross-Appellant.

____________________

Appeals from the United States District Court for the

Central District of Illinois.

No. 1:09-cv-01085-MMM-JAG — Michael M. Mihm, Judge.

____________________

ARGUED JANUARY 20, 2015 — DECIDED AUGUST 14, 2015

____________________

Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY,

District Judge.

RIPPLE, Circuit Judge. Margaret Wright retired from her

position as a caseworker at the Peoria Field Office of the

The Honorable Matthew F. Kennelly of the United States District Court

for the Northern District of Illinois, sitting by designation.

2 Nos. 13-1552 & 13-1553

Illinois Department of Children and Family Services (“the

Department”) after the Department ordered her to undergo

a fitness-for-duty evaluation. Ms. Wright then filed this

action alleging, among other claims, that the Department

had violated the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12112(d)(4)(A), by ordering her to undergo the

evaluation and by causing her subsequent constructive

discharge. The case was tried before a jury (“Wright I”),

which found in favor of Ms. Wright on the ADA claim but

awarded no compensatory damages. The Department filed a

motion for judgment as a matter of law or, alternatively, for

a new trial, contending that Ms. Wright had failed to

establish an ADA violation and that the jury had been

instructed improperly. The district court granted the

Department’s motion for a new trial.

During the second trial (“Wright II”), after Ms. Wright

rested her case, the Department moved for judgment as a

matter of law on the ground that Ms. Wright had failed to

establish that she had been constructively discharged. The

court granted the motion and entered judgment for the

Department. Ms. Wright now appeals the district court’s

order granting a new trial in Wright I and its order granting

the Department’s motion for judgment as a matter of law in

Wright II. The Department appeals the court’s order denying

its motion for judgment as a matter of law on the ADA claim

in Wright I.

We hold that the district court did not err in denying the

Department’s motion for judgment as a matter of law in

Wright I. On the record before it, there was a genuine issue of

material fact as to whether the Department’s fitness-for-duty

evaluation order was consistent with business necessity. The

Nos. 13-1552 & 13-1553 3

district court did not err in granting a new trial in Wright I.

The initial constructive discharge jury instruction failed to

reference the Department’s conduct. Finally, the court did

not err in granting the Department’s motion for judgment as

a matter of law in Wright II. Ms. Wright did not establish that

the Department’s conduct communicated that her

termination was imminent. Accordingly, we affirm the

judgment of the district court.

I

BACKGROUND

A.

From 1982 to 2007, Ms. Wright worked for the Illinois

Department of Children and Family Services, primarily as a

caseworker.

In 2005, Ms. Wright became the caseworker for CPL, a

then-ten-year-old ward of the Department. CPL resided at

the Rice Child and Family Center (“Rice”). Having

experienced physical and sexual abuse, CPL suffered from

post-traumatic stress disorder and was highly medicated.

She had undergone several hospitalizations for psychiatric

problems and had been placed in multiple homes.

Following an incident at Rice on April 19, 2007,

Dr. Petronilo Costa interviewed CPL. According to Dr.

Costa, Ms. Wright threw CPL into a “manicking frenzy” by

telling her that there were four foster families available for

her, even though CPL was not yet on the Department’s

4 Nos. 13-1552 & 13-1553

1

foster-care list due to her emotional issues. In response to

Ms. Wright’s comments, CPL began saying that, because she

was leaving Rice, she no longer had to listen to anyone and

did not have to take her medication. CPL’s frenzy incited a

riot in her unit at Rice during which the children threw and

broke furniture and attempted to attack the staff. Dr. Costa,

who described Ms. Wright’s conduct as “unheard of,”

2

concluded that Ms. Wright posed a risk to CPL.

Following up on his conclusion, Dr. Costa issued a

medical order to the Department barring Ms. Wright from

having further contact with CPL. After receiving Dr. Costa’s

order, Mary Bullock, the Department’s assistant

administrator for the central region, contacted a Rice staff

member, Jill Foster (Ms. Wright’s supervisor), and Foster’s

supervisor. Bullock then directed that Ms. Wright have no

further contact with CPL. Ms. Wright made several inquiries

to Bullock and Foster about why she was ordered to have no

contact with CPL, but the Department did not provide her

with any additional information.

On May 2, 2007, Bullock removed Ms. Wright from CPL’s

case. Ms. Wright, who as a member of a union was covered

by a collective bargaining agreement (“CBA”), filed a

grievance in response to her removal. The next day, Bullock

and Foster met with Dr. Costa and others at Rice to discuss

the situation. Dr. Costa told Bullock and Foster that

Ms. Wright “runs her own shop” and “that she tries to

1 R.279 at 177–78.

2 Id. at 141.

Nos. 13-1552 & 13-1553 5

3

terrorize folks.” At that same meeting, either Bullock or

Foster told Dr. Costa that Ms. Wright was “unsupervisable,”

“[t]hat she would not get along with any supervisor,” and

that her failure to follow orders once resulted in a lasting

4

injury to a child. They also told him that she “did not get

along with anybody in the office, that she would not do

what she was assigned to,” “[a]nd that she had had plenty of

5

grievances and lawsuits against everyone.” They stated

“that they had been concerned about her for a long time and

that at this time they were going to ask her to go for an

6

assessment to see if she was fit to have that type of work.”

Dr. Costa “backed up” their decision to ask for an

7

assessment. At the end of the meeting, Dr. Costa agreed to

put this recommendation in writing. Thereafter, Dr. Costa

wrote a letter, dated May 15, 2007, which stated that he

“believe[d] that there [was] enough clinical data to wonder

about Ms. Maggie Wright’s ability to work with children”

8

and that “her mental health needs to be assessed.”

Following the meeting, Bullock talked with Larry

Chasey, an associate deputy director of the Department and

Bullock’s supervisor, and David Hoover, a labor relations

3 Id. at 147.

4 Id. at 149.

5 Id. at 150.

6 Id.

7 Id.

8 R.126 at 31.

6 Nos. 13-1552 & 13-1553

specialist and supervisor. These discussions focused on

whether to discipline Ms. Wright or to order a fitness-for-

duty evaluation. Relying in part on Dr. Costa’s letter,

Bullock then ordered that Ms. Wright undergo an

evaluation. Ms. Wright was notified of the evaluation order

on June 4, 2007, and her evaluation was scheduled for June

20 in Chicago. The notice informed Ms. Wright that she had

“exhibited behavior that put[] into question [her] personal

9

safety and that of others in the workplace.” In the medical

examination recommendation, Bullock provided the

following description of Ms. Wright’s “behavior/illness”:

Ms. Wright has a history of defiance to all

levels of management, she does not trust

management and fails to provide any

information that she feels would not reflect

well on her. She has failed to see risk to

children in foster care and to report incidents

of unexplained injury. Many cases have had to

be removed from her caseload and she refused

to accept agency decisions or she was verbally

abusive and had an abrasive manner with

foster parents and they requested a change in

caseworker or they would ask for child’s

removal from their home. She has consistently

refused to follow her management chain of

supervision by contacting Deputy Directors.

Ms. Wright is demanding in her demeanor, she

has a demanding presence to her voice,

9 R.279 at 37.

Nos. 13-1552 & 13-1553 7

appears to physically be very stressed, her face

is flushed, she fans herself as if very flushed.

She has blatant disregard for any rules or

procedures both inside the agency and outside

the agency whether it is the residential

schedule or a school schedule. She demands

attention immediately. She makes derogatory

remarks about anyone who makes a clerical

mistake, clerical do not want to do work for

her a[s] they fear her rath [sic] and disdain.[10]

Ms. Wright filed a grievance protesting the evaluation order.

After a meeting with Ms. Wright and her union

representative on June 7, 2007, the Department cancelled the

order because it had cited the wrong CBA section and

11

because the doctor’s office was located too far away.

10 R.150-1 at 31.

11The CBA provided that the Department would serve written charges

on an employee when it had good cause to believe that the employee

had engaged in workplace misconduct. The employee, her union

representative, and a Department manager then would attend a

predisciplinary hearing where the employee could offer a rebuttal to the

charges. After the rebuttal, the Department had forty-five days to decide

whether to discipline the employee.

The CBA also authorized the Department to order an employee to

undergo a fitness-for-duty evaluation when there was good cause to

believe that she may be unable to perform the essential functions of her

position. The evaluation request had to be approved at all levels of the

Department’s management and by its labor relations office. If an

employee refused to be evaluated, the Department could charge her with

insubordination and impose discipline. The continued refusal to submit

to the evaluation could result in discharge.

(continued…)

8 Nos. 13-1552 & 13-1553

On July 9, 2007, Pete Wessel, another labor relations

specialist at the Department, sent Ms. Wright a

memorandum informing her that she was required to

undergo a fitness-for-duty evaluation on July 16, 2007, at the

office of Dr. R. Patil. Ms. Wright again refused to be

evaluated and filed a grievance. The Department then

charged Ms. Wright with insubordination for not attending

the evaluation. After a predisciplinary hearing, Ms. Wright

received a fifteen-day suspension.

On July 30, 2007, Ms. Wright was placed on desk duty.

While on desk duty, she could not oversee any cases. During

her time on desk duty, she was given no new work duties.

On August 2, 2007, Ms. Wright received a “second and

final” order to undergo an evaluation with Dr. Patil,

12

scheduled for August 22. Ms. Wright then served her

fifteen-day suspension from August 5 to August 20. On

August 22, Ms. Wright went to Dr. Patil’s office but did not

submit to an evaluation. Instead, she questioned Dr. Patil

(…continued)

The Illinois Department of Central Management Services (“CMS”),

which provides management services for over sixty Illinois agencies, was

responsible for overseeing the disciplinary actions brought against

Department employees. Within a twelve-month period, the Department,

acting on its own, could discipline an employee with a thirty-day

suspension. CMS had to approve any other or additional discipline. If

the Department determined that an employee should be discharged, it

would place her on a thirty-day suspension pending discharge, and CMS

would make the final discharge decision.

12 R.281 at 109.

Nos. 13-1552 & 13-1553 9

about why an evaluation was ordered and what he knew

about her work status.

Ms. Wright received her second insubordination charge

for refusing to be evaluated on September 4, 2007. Ms.

Wright did not attend the predisciplinary hearing on

September 5. Instead, her union representative gave a

rebuttal to the charges. Ms. Wright then used her vacation

time and was away from work between September 7 and

September 17.

On September 7, 2007, Ms. Wright received in the mail a

bill for health insurance premiums from CMS. Her health

insurance premiums ordinarily were deducted from her

paycheck, but because she was not paid during her fifteen-

day suspension, she had no paycheck from which to deduct

the premiums and owed that portion of her premiums. The

bill also stated that payment was due for the period between

September 1 and September 30. The second page of the bill

stated: “ENROLLMENT INFORMATION—Effective 09 06

13

2007”; “LEAVE OF ABSENCE DOCK/SUSP > 30 Days.”

Ms. Wright called CMS to ask about the bill and, as a follow-

up to that call, only paid the premiums that were owed on

account of her fifteen-day suspension. At no point during

this period did Ms. Wright receive any notice from the

Department informing her that she had received an

additional suspension, including a suspension pending

discharge.

On September 13, 2007, while she was on vacation,

Ms. Wright contacted the State Employees’ Retirement

13 R.150-2 at 17; accord R.275 at 89.

10 Nos. 13-1552 & 13-1553

System of Illinois to determine the impact that quitting or

being discharged would have on her pension. She learned

that she was eligible to retire with a reduced pension.

Although Ms. Wright and her husband, who also worked for

the Department, had planned on retiring in December of

2008 when they were eligible to receive full pensions, they

decided to retire early because Ms. Wright believed that she

eventually would be discharged. Ms. Wright returned to

work after her ten-day vacation period on September 17,

2007, and submitted her paperwork for retirement, effective

September 30, 2007.

Prior to her retirement, the Department had not decided

what discipline to impose on Ms. Wright. Department

officials testified that they were contemplating issuing a

third evaluation order with the hope that Ms. Wright could

be convinced to comply. After Ms. Wright retired, the

Department abandoned its efforts to discipline her, and the

union withdrew Ms. Wright’s grievances.

B.

On March 10, 2009, Ms. Wright filed this action alleging

14

twelve counts against seven defendants. For the purposes

14 Specifically, Ms. Wright alleged that Bullock, Foster, Wessel, Dr. Costa,

and Cindy Petty invaded her Fourth and Fourteenth Amendment

privacy rights by ordering her to undergo a fitness-for-duty evaluation

(Counts I–V); that Dr. Costa, Petty, the Children’s Home and Aid

Society, and Foster interfered with her employment relationship with the

Department (Counts VI–IX); that Foster and Bullock intentionally

inflicted emotional distress on her (Counts X and XI); and that the

Department violated the ADA (Count XII).

Nos. 13-1552 & 13-1553 11

of this appeal, she contested only the disposition of the ADA

claim (Count XII), which alleged that the Department

violated 42 U.S.C. § 12112(d)(4)(A) by ordering her to

undergo a fitness-for-duty evaluation, resulting in her

constructive discharge. At the first trial (Wright I), the district

court instructed the jury that the Department had to prove

by a preponderance of the evidence that the order for Ms.

Wright to undergo a fitness-for-duty evaluation was job-

related and consistent with business necessity. If the jury

found for Ms. Wright on that issue, it then had to decide

whether her retirement “was voluntary or constituted a

15

constructive discharge.” The jury returned a verdict for

Ms. Wright. It concluded that Ms. Wright was constructively

discharged from her employment, but awarded her no

compensatory damages.

Following the jury’s verdict, the Department filed a

renewed motion for judgment as a matter of law or for a

new trial under Federal Rules of Civil Procedure 50 and 59.

The Department contended that, as a matter of law, it had

not constructively discharged Ms. Wright. In the alternative,

it maintained that a new trial was warranted because the

court incorrectly had instructed the jury on the elements of

constructive discharge.

The district court denied the Department’s motion for

judgment as a matter of law; it concluded that a reasonable

jury could find that ordering the evaluation was not

consistent with business necessity. The court granted,

however, the Department’s motion for a new trial; it

15 R.218 at 37.

12 Nos. 13-1552 & 13-1553

concluded that the jury instruction, as given, focused too

much on the employee’s subjective belief rather than on the

employer’s conduct.

The second trial (Wright II), focused solely on the

constructive discharge issue. Ms. Wright presented

essentially the same evidence as that presented in Wright I.

After the close of Ms. Wright’s case, the Department moved

for judgment as a matter of law, contending that Ms. Wright

did not establish that her discharge was involuntary or that

her termination would occur immediately. The district court

granted the Department’s motion, concluding that

Ms. Wright did not establish that her working conditions

were intolerable. In its memorandum opinion, the court

explained that, in order to prevail on a constructive

discharge claim under the theory relied upon by Ms. Wright,

a plaintiff must demonstrate that the Department had taken

actions that would communicate to a reasonable employee

that she would be terminated and also must show that her

working conditions had become intolerable. Although the

district court was willing to say that a jury could determine

that Ms. Wright reasonably could conclude that her

employment was about to be terminated, there was

insufficient evidence to permit the jury to conclude that the

conditions of her employment had become unbearable.

As this case comes to us, both parties ask us to review the

district court’s decisions. Ms. Wright challenges the district

court’s order granting a new trial in Wright I and, of course,

the court’s order in Wright II, granting the Department’s

motion for judgment as a matter of law because she had not

produced sufficient evidence of a constructive discharge. For

its part, the Department challenges the court’s order denying

Nos. 13-1552 & 13-1553 13

the Department’s motion for judgment as a matter of law in

16

Wright I concerning the fitness-for-duty evaluation.

II

DISCUSSION

A.

We first address the Department’s contention that it was

entitled to judgment as a matter of law in Wright I. The

district court decided “that the jury could have concluded

that the fitness-for-duty request was not based on business

17

necessity.” The court noted that the Department had

“presented the jury with evidence that showed that it was in

receipt of a letter from the ward’s psychiatrist indicating

18

Wright’s conduct interfered with the ward’s therapy.” It

also recognized, however, that “other evidence presented

could certainly lead a jury to the conclusion that this was not

an unsolicited letter, but rather one her supervisors sought

19

out.” The court further noted that “the evidence presented

showed that the normal practice of [the Department was] to

place an employee subject to a fitness for duty evaluation on

administrative leave or give the person restricted duties;

16 The district court had jurisdiction under 28 U.S.C. § 1331. We have

jurisdiction over this appeal under 28 U.S.C. § 1291.

17 R.235 at 12.

18 Id. at 11.

19 Id.

14 Nos. 13-1552 & 13-1553

however, Wright continued her day-to-day duties after the

20

decision to subject her to an [evaluation] was made.”

The Department contends that “no reasonable jury could

find that the Department did not perceive that Wright’s

ability to perform the duties of a caseworker was impaired,

and that ordering an evaluation to discover whether and to

what extent she was impaired in performing those duties

21

was not consistent with business necessity.” It submits that

Ms. Wright exhibited inappropriate behavior between 2004

and 2007, displayed boundary issues with CPL, undermined

CPL’s treatment team, and acted aggressively toward the

staff at Rice. The Department relies, in part, on two

communications from Dr. Costa to support its order that

Ms. Wright undergo a fitness-for-duty evaluation. First, on

April 20, 2007, Dr. Costa issued an order that barred

Ms. Wright from having further contact with CPL. Second,

on May 15, 2007, Dr. Costa wrote Bullock a letter suggesting

“that there is enough clinical data to wonder about

Ms. Maggie Wright’s ability to work with children and

22

families in the capacity with which she is working now.”

He stated that Ms. Wright’s “mental health needs to be

assessed to help to determine what type of work she will be

23

able to effectively do for [the Department].”

20 Id.

21Appellee’s Br. 35–36. Citations to the Appellant’s or Appellee’s Briefs,

unless otherwise indicated, are to their initial brief on appeal.

22 R.126 at 31.

23 Id.

Nos. 13-1552 & 13-1553 15

We review a district court’s decision denying judgment

as a matter of law de novo and will “reverse the verdict only

if no rational jury could have found for the prevailing

party.” EEOC v. AutoZone, Inc., 707 F.3d 824, 834–35 (7th Cir.

2013). The ADA provides, in relevant part:

A covered entity shall not require a medical

examination and shall not make inquiries of an

employee as to whether such employee is an

individual 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. § 12112(d)(4)(A). All employees, regardless of

whether they have a qualifying disability under the ADA,

24

are protected under this subsection.

According to the enforcement guidance provided by the

EEOC, an “examination is job-related and consistent with

business necessity when an employer has a reasonable belief

based on objective evidence that a medical condition will

24 See Murdock v. Washington, 193 F.3d 510, 512 (7th Cir. 1999) (per curi-

am); see also Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 573 (6th Cir. 2014);

Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1310–11 (11th Cir. 2013);

U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance: Disability-

Related Inquiries and Medical Examinations of Employees Under the Ameri-

cans with Disabilities Act (ADA) (July 27, 2000),

http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter

“EEOC Guidance”] (noting that “the use of the term ‘employee’ in this

provision reflects Congress’s intent to cover a broader class of individu-

als and to prevent employers from asking questions and conducting

medical examinations that serve no legitimate purpose”).

16 Nos. 13-1552 & 13-1553

impair an employee’s ability to perform essential job

functions or that the employee will pose a threat due to a

25

medical condition.” Coffman v. Indianapolis Fire Dep’t, 578

F.3d 559, 565 (7th Cir. 2009). The employer’s reasonable

belief “must be based on objective evidence obtained, or

reasonably available to the employer, prior to making a

disability-related inquiry or requiring a medical

examination. Such a belief requires an assessment of the

employee and his/her position and cannot be based on

general assumptions.” EEOC Guidance (emphasis in

original); accord Tice v. Centre Area Transp. Auth., 247 F.3d

506, 518 (3d Cir. 2001) (noting that “[t]he ADA’s requirement

that [a fitness-for-duty examination] be consistent with

business necessity is an objective one”).

An employer bears the burden of establishing that an

examination is consistent with business necessity, see Thomas

v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007), and that burden

is “quite high,” Conroy v. New York State Dep’t of Corr. Servs.,

333 F.3d 88, 97 (2d Cir. 2003) (internal quotation marks

omitted). An employer must “show that the asserted

‘business necessity’ is vital to the business,” as opposed to a

“mere expediency.” Id.; accord Kroll v. White Lake Ambulance

Auth., 763 F.3d 619, 623 (6th Cir. 2014) (noting that an

25 We previously have recognized that, “[a]lthough not binding on this

court, such administrative interpretations do constitute a body of

experience and informed judgment to which courts and litigants may

properly resort for guidance.” O’Neal v. City of New Albany, 293 F.3d 998,

1009 (7th Cir. 2002) (internal quotation marks omitted); see also Coffman v.

Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009) (relying on the

EEOC enforcement guidance).

Nos. 13-1552 & 13-1553 17

employer cannot rely on a “bare assertion that a medical

examination was merely convenient or expedient”). In

addition, the examination must “genuinely serve[] the

asserted business necessity and … must be a reasonably

effective method of achieving the employer’s goal.” Conroy,

333 F.3d at 98. An employer “cannot merely rely on reasons

that have been found valid in other cases but must actually

show that the … requirement contributes to the achievement

26

of those business necessities.” Id. at 101.

Courts consequently require that an employer provide

“significant evidence that could cause a reasonable person to

inquire as to whether an employee is still capable of

performing his job.” Sullivan v. River Valley Sch. Dist., 197

F.3d 804, 811 (6th Cir. 1999); see also Conroy, 333 F.3d at 98

26 The statute expresses Congress’s desire to prohibit an employer from

harassing, or otherwise discriminating against, employees who are able

to perform efficiently the essential functions of their jobs. See S. Rep. No.

101-116, at 39 (1989) (noting that “[a]n inquiry or medical examination

that is not job-related serves no legitimate employer purpose, but simply

serves to stigmatize the person with a disability,” and that “the actual

performance on the job is, of course, the best measure of ability to do the

job”); EEOC Guidance (“The ADA’s provisions concerning disability-

related inquiries and medical examinations reflect Congress’s intent to

protect the rights of applicants and employees to be assessed on merit

alone, while protecting the rights of employers to ensure that individuals

in the workplace can efficiently perform the essential functions of their

jobs.”); see also Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir.

2010) (noting that the statute “prohibits employers from using medical

exams as a pretext to harass employees or to fish for nonwork-related

medical issues and the attendant unwanted exposure of the employee’s

disability and the stigma it may carry” (internal quotation marks

omitted)).

18 Nos. 13-1552 & 13-1553

(noting “that courts will readily find a business

necessity … when the employer can identify legitimate, non-

discriminatory reasons to doubt the employee’s capacity to

perform his or her duties”). That an employee’s behavior

could be described as “annoying or inefficient [does not]

justify an examination; rather, there must be genuine reason

to doubt whether that employee can perform job-related

functions.” Sullivan, 197 F.3d at 811 (internal quotation

marks omitted). In contrast, “[w]e 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.’” Coffman, 578 F.3d at 565

(quoting Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir.

2000)). In undertaking this analysis, “an employer’s standard

practice with regard to medical examinations is certainly

relevant evidence of what is ‘necessary,’” as is “an

employer’s differential application of a medical examination

requirement.” Tice, 247 F.3d at 518.

Accordingly, we must determine here whether, based on

the evidence presented, a reasonable jury could find (1) that

the Department did not have a reasonable belief based on

objective evidence that Ms. Wright was unable to perform

the essential functions of her job or that she posed a threat to

herself or to others based on a medical condition; or (2) that

Ms. Wright’s examination did not genuinely serve the

Department’s asserted business necessity.

In our view, the district court correctly determined that

the evidence submitted at trial was insufficient to establish,

as a matter of law, that requiring Ms. Wright to undergo a

fitness-for-duty evaluation was consistent with business

necessity. Several Department employees testified that it was

Nos. 13-1552 & 13-1553 19

the Department’s common practice to place a caseworker on

desk duty when she was ordered to undergo an evaluation.

Specifically, Wessel, a labor relations specialist at the

Department, testified that “for employees who are field

workers that go out into the field, … I don’t recall any where

they were not placed on desk duty” following a request for

27

an evaluation. He also testified that, during his time with

the Department, all employees who worked in the field and

who were asked to undergo a fitness-for-duty evaluation

28

were placed on desk duty. Chasey, an associate deputy

director of the Department, testified that “typically when

someone is sitting for an [evaluation] or going for an

[evaluation], we put them on some sort of administrative

restriction—desk duty, something like that—and we should

29

have done that in this situation.” He was not aware of any

caseworker who ever had been ordered to undergo a

psychiatric evaluation without also having been placed on

desk duty or administrative leave.

In contrast to the Department’s customary practice,

Ms. Wright was not placed on desk duty when she was

ordered to undergo a fitness-for-duty evaluation on June 4.

Instead, for almost two months, she continued to oversee her

normal case load, which included approximately twenty-

two cases. The Department’s inconsistent application of its

evaluation procedures provided objective evidence that the

27 R.278 at 59.

28 See id. at 81; R.282 at 71.

29 R.279 at 88.

20 Nos. 13-1552 & 13-1553

evaluation order was not consistent with business necessity,

30

creating a genuine issue of material fact for the jury. Cf.

30 The cases on which the Department relies underscore the peculiarity

of the Department’s decision to order that Ms. Wright undergo an

evaluation without placing her on desk duty. In none of those cases did

an employee who was thought to be unable to perform her job remain

active in her position. Instead, the employees were placed on some form

of administrative leave at the time the evaluation was ordered. See

Owusu-Ansah, 715 F.3d at 1309 (noting that Owusu-Ansah was “placed

on paid leave to allow for further evaluation”); Brownfield, 612 F.3d at

1143 (noting that Brownfield’s supervisor placed him on administrative

leave when he ordered him to undergo a fitness-for-duty examination);

Coffman, 578 F.3d at 562 (noting that a supervisor “recommended that

Coffman be transferred immediately from firefighting and EMS duties to

‘limited duty status’” when he recommended that she undergo an

examination); Thomas v. Corwin, 483 F.3d 516, 523 (8th Cir. 2007) (noting

that Thomas was placed in a “sick leave pool” pending her fitness-for-

duty evaluation); Lanman v. Johnson Cty., 393 F.3d 1151, 1154 (10th Cir.

2004) (noting that “Lanman was placed on administrative leave on May

9, pending the results of a psychological fitness for duty exam”); Sullivan

v. River Valley Sch. Dist., 197 F.3d 804, 809 (6th Cir. 1999) (noting that the

school district suspended Sullivan with pay pending its decision

concerning whether to require that he undergo a fitness-for-duty

examination); Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595, 597

(8th Cir. 1998) (noting that the employer “offer[ed] Cody a paid leave of

absence with her return contingent upon undergoing a psychiatric

evaluation”); cf. Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th

Cir. 2006) (noting that after the examination revealed that he was unfit to

work, “Timmons was put on disability leave that day”); Tice v. Centre

Area Transp. Auth., 247 F.3d 506, 510 (3d Cir. 2001) (noting that the

employer required that Tice submit to an examination before he would

be allowed to return to work). Although an employer’s decision to place,

or not to place, an employee on administrative leave is not

determinative, it is evidence that the jury can consider in determining

whether the evaluation truly served a business necessity.

Nos. 13-1552 & 13-1553 21

Tice, 247 F.3d at 518 (noting that Tice did not “produce[]

evidence sufficient to create a genuine issue of fact as to the

necessity of the” examination because he did not establish

that other similarly situated employees were treated

differently).

In addition, in early July, Ms. Wright was assigned a new

case. Indeed, Bullock recognized that it was a “sensitive

case” and testified that, although she had requested that Ms.

Wright undergo the evaluation, she never considered taking

31

the case away from her. Significantly, Bullock admitted at

trial that she had thought it “somewhat contradictory to

send a caseworker in to a fitness-for-duty evaluation because

she may be a risk to children and at the same time continue

32

to assign cases to her.” She further testified that if she

“sincerely believed that [Ms.] Wright was a risk to children,”

she would have removed her from those cases and “would

not have assigned her a new case where she might go to the

33

state of Mississippi and pick up a child.”

Further undermining the Department’s position are

emails between Foster and Hoover that indicate that the

examination was unrelated to the Department’s concerns

about Ms. Wright’s ability to perform her job. Cf. Coffman,

578 F.3d at 566 (noting that the employer’s “e-mails paint a

consistent picture of genuine concern that Coffman’s

behavior was uncharacteristic and was adversely impacting

31 R.279 at 48.

32 Id. at 50.

33 Id. at 51.

22 Nos. 13-1552 & 13-1553

her ability to perform her job” (emphasis added)). Foster

emailed Hoover stating that placing Ms. Wright on desk

34

duty would “serve no purpose.” The email continued:

Putting her on desk duty would mean what?

She can’t go and see her clients in-person?

She’s a placement worker and has to travel to

see folks. She’s done most of that for the month

already. For those that haven’t been seen, that

then puts the responsibility on other team

members or myself.[35]

Hoover replied:

The point is that if we believe that she is so

incapable of doing her work that we’re sending

her to be checked out....why in the world

would we continue to send her out to see kids

and put them in danger.......It’s not meant to

get anything done....but to protect kids and our

position.

If on the other hand, you’re saying she doesn’t

have any problems, then why am I wasting the

agencies [sic] time, resources, and money?[36]

Foster responded that she “underst[ood] the complexity of it

all,” and stated that it was her opinion that Ms. Wright

“shouldn’t have been allowed to work for a number of years

34 R.150-2 at 4.

35 Id.

36 Id. (ellipses in original).

Nos. 13-1552 & 13-1553 23

37

now.” Foster, however, did not recommend that Ms.

Wright be placed on desk duty. It was not until Chasey, who

had not been involved in the decision to order Ms. Wright to

undergo an evaluation, discovered that Ms. Wright had not

been placed on desk duty that Ms. Wright finally was

relieved of her case work.

The evidence presented at trial supports a finding that

the Department did not believe that Ms. Wright posed a

safety risk to the children with whom she worked and,

instead, that it considered her competent to continue

working with approximately two-dozen children. Given this

evidence, a reasonable jury could determine that Ms.

Wright’s fitness-for-duty examination was not, in fact,

consistent with business necessity. The district court

therefore did not err in denying the Department’s motion for

judgment as a matter of law.

B.

We turn next to Ms. Wright’s claim that the district court

erred in granting a new trial after Wright I. During Wright I,

the district court provided the jury with the following

constructive discharge instruction:

A constructive discharge occurs when an

employee resigns or retires from employment,

but the resignation or retirement was not truly

voluntary.

37 Id.

24 Nos. 13-1552 & 13-1553

A constructive discharge can occur in either

of two ways.

The first is when an employer makes the

working condition sufficiently intolerable so

that a reasonable person standing in the

position of the employee would have resigned

or retired.

The second is when, at the time the

employee resigns or retires, the employee

reasonably believes that, had he not resigned

or retired, he would have been immediately

fired.[38]

The district court concluded that this instruction did not

sufficiently explain the second type of constructive

discharge, the one upon which Ms. Wright had premised her

case. More precisely, the court believed that the instruction

had unduly focused on the employee’s subjective perception

of the employer’s actions that allegedly communicated to the

employee that dismissal was inevitable. The focus, the court

concluded, should be on the nature of the employer’s actions

and whether those actions were so intolerable as to

communicate to a reasonable employee that her discharge

was inevitable. In the district court’s view, giving the

instruction resulted in prejudicial error because it did not

focus on an objective assessment of the employer’s acts, an

assessment reached through an evaluation of the totality of

the circumstances surrounding the employer’s treatment of

the employee.

38 R.218 at 38.

Nos. 13-1552 & 13-1553 25

As a general proposition, we review a district court’s

39

decision to grant a new trial for an abuse of discretion.

However, when the motion for a new trial presents a purely

legal issue, our review is de novo. See United States v. Cotton,

101 F.3d 52, 54 (7th Cir. 1996); see also Cotts v. Osafo, 692 F.3d

564, 567 (7th Cir. 2012) (noting that whether a jury

instruction provided a fair and accurate statement of the

governing law is a legal question reviewed de novo). Here,

the district court determined that a new trial was warranted

after concluding that “[t]he jury instruction [did] not

40

accurately reflect the law.” Accordingly, our review is de

novo. Cf. Cotton, 101 F.3d at 57 (holding that the district

court’s decision granting a new trial based on a faulty jury

instruction was an incorrect determination of law). To

determine whether a jury instruction accurately stated the

law, we “examin[e] the instructions as a whole, in a common

sense manner, avoiding nitpicking.” Lewis v. City of Chicago

Police Dep’t, 590 F.3d 427, 433 (7th Cir. 2009).

The principles governing our review are well settled. An

employee is constructively discharged when, from the

standpoint of a reasonable employee, the working

conditions become unbearable. See Chapin v. Fort-Rohr

Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). An employee’s

constructive discharge can come in two forms. See id.

39 See Vojdani v. Pharmsan Labs, Inc., 741 F.3d 777, 781 (7th Cir. 2013); Lati-

no v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995) (noting that, “[b]ecause the

trial judge is uniquely situated to rule on such a motion, the district court

has great discretion in determining whether to grant a new trial”).

40 R.235 at 7.

26 Nos. 13-1552 & 13-1553

In the first form, an employee resigns due

to alleged discriminatory harassment. Such

cases require a plaintiff to show working

conditions even more egregious than that

required for a hostile work environment claim

because employees are generally expected to

remain employed while seeking redress,

thereby allowing an employer to address a

situation before it causes the employee to quit.

Id. (citation omitted). The second form of constructive

discharge “occurs ‘[w]hen an employer acts in a manner so

as to have communicated to a reasonable employee that she

will be terminated.’” Id. (alteration in original) (quoting

EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir.

2002)).

The district court was on solid ground in deciding that its

jury instruction incorrectly emphasized the employee’s

subjective belief. See id. at 679–80 (focusing on whether the

employer acted in a manner that would have communicated

to a reasonable employee that she will be terminated).

Ms. Wright asserts that the initial instruction accurately

conveyed the governing law because it used the phrase

“reasonably believes.” She submits that “a reasonable belief

could only come from the actions of the Department in

41

communicating to Wright that she was about to be fired.”

But, contrary to Ms. Wright’s assertion, the use of the term

“reasonable” is insufficient to cure the deficiency in the

initial jury instruction. A finding that Ms. Wright reasonably

41 Appellant’s Br. 43.

Nos. 13-1552 & 13-1553 27

believed that she would be fired is not the same as a finding

that a reasonable employee in Ms. Wright’s position would

believe, based on the Department’s actions, that she imminently

and inevitably would be terminated. Under the instruction

originally provided, a jury could have premised liability on a

determination that Ms. Wright had been constructively

discharged because, after having performed her job poorly

or otherwise acted improperly, she “reasonably believe[d]

that” she “would have been immediately fired” “had [s]he

42

not resigned or retired.” More specifically, the jury could

have found that it was reasonable for Ms. Wright to believe

that she would be fired solely because she failed to attend

the second evaluation, which often results in an employee’s

termination. Our case law requires, however, that the jury

consider whether a reasonable person would believe that her

employer had acted in a manner that communicated that the

employee would be terminated imminently, not simply

whether the employee reasonably thought she would be

terminated. The absence of any reference to the conduct of

the employer was, as the district court concluded, reversible

error.

Because the district court correctly concluded that the

constructive discharge jury instruction did not fairly and

accurately state the law, it did not err in granting a new trial.

42 R.218 at 38.

28 Nos. 13-1552 & 13-1553

C.

Finally, we address whether the district court erred in

granting the Department’s motion for judgment as a matter

of law in Wright II. We review de novo a district court’s

decision granting judgment as a matter of law. Estate of

Escobedo v. Martin, 702 F.3d 388, 403 (7th Cir. 2012).

“Judgment as a matter of law is appropriate when there is

‘no legally sufficient evidentiary basis for a reasonable jury’

to find for the nonmoving party.” Id. (quoting Zimmermann

v. Chicago Bd. of Trade, 360 F.3d 612, 623 (7th Cir. 2004)).

In granting the Department’s motion, the district court

concluded that, while “the prospect of discharge[] was

certainly lurking,” Ms. Wright’s conditions of employment

at the time she chose to retire voluntarily could not be

43

characterized as intolerable or unbearable. Therefore her

departure could not be characterized as a constructive

discharge. In the court’s view, Ms. Wright simply “decided

to unilaterally end the [disciplinary] process by retiring

44

instead of allowing it to play out to its end.”

The district court was correct in its understanding that,

under the second form of constructive discharge, an

employee must prove that her working conditions had

become intolerable. See Chapin, 621 F.3d at 679. In our prior

cases, we have centered our inquiry on whether the

employee’s working conditions had become intolerable

because the employer had conducted itself in a manner that

43 R.260 at 4.

44 Id.

Nos. 13-1552 & 13-1553 29

made it objectively clear that the employee’s discharge was

imminent and inevitable. See, e.g., id. at 679 (noting that “a

working condition does not become intolerable or

unbearable merely because a ‘prospect of discharge lurks in

the background’” (quoting Cigan v. Chippewa Falls Sch. Dist.,

388 F.3d 331, 333 (7th Cir. 2004))). An employee’s work

environment thus becomes intolerable under the second

form of constructive discharge when the employer’s actions

communicate to the employee that she immediately and

unavoidably will be terminated. Requiring that an employee

demonstrate that she immediately will be discharged

comports with the rationale underlying the constructive-

discharge doctrine. We require that an employee’s working

conditions become intolerable before finding a constructive

discharge “because employees are generally expected to

remain employed while seeking redress.” See id.

The parties really do not dispute the appropriate

45

inquiry. Their dispute is over whether Ms. Wright

presented sufficient evidence to permit a jury to find that her

discharge from the Department was certain and imminent

when she announced her retirement. On this question, the

45 Ms. Wright submits that “[t]he thread common to all of [our] cases is

that the focus, in determining whether a plaintiff’s working conditions

were intolerable in a Type II constructive discharge situation, turns upon

whether the employer’s conduct would convey to a reasonable employee

that he is about to be terminated.” Appellant’s Br. 37. The Department

provides a similar formulation, stating that “intolerable” under the

second form of constructive discharge “means the employee’s working

conditions are such that his opportunities with his employer are at an

end.” Appellee’s Br. 48; see also Appellant’s Second Br. 47 (noting that

“[t]he Department apparently agrees with Wright’s contention”).

30 Nos. 13-1552 & 13-1553

decision of the district court rests comfortably within our

case law.

In University of Chicago Hospitals, we held that the EEOC

had “demonstrated that a reasonable employee standing in

[the employee’s] shoes would have believed that had she not

resigned, she would have been terminated.” 276 F.3d at 332.

In that case, the employee arrived at work to find that “her

belongings were packed and her office was being used for

storage.” Id. The employee also knew of her supervisor’s

“intent, plan, and attempt to terminate her.” Id. We

concluded that “[t]his environment, in which her employer

made reasonably clear to her that she had reached the end of

the line … [,] could have indeed been to a reasonable

employee unbearable.” Id. Similarly, in Kodish v. Oakbrook

Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 2010), we

held that an employee had been constructively discharged

because it was clear that “had [the employee] not resigned

he would have been terminated immediately.” Id. at 502. We

relied on the evidence that the employee’s supervisor had

“handed [him] a letter of resignation and informed him that

he could resign or be terminated immediately.” Id. at 494.

In contrast to those cases, we have held that an employee

did not demonstrate that she was discharged constructively

when she received notice of her employer’s intent to

commence a process that could lead to her discharge and

“the employer [did] not undermine the employee’s position,

perquisites, or dignity in the interim.” Cigan, 388 F.3d at 333.

We noted that to hold otherwise “would take us a long

distance indeed from ‘unendurable working conditions’ and

require courts to engage in speculation.” Id. We questioned

how “a judge or jury [could] be confident that the

Nos. 13-1552 & 13-1553 31

superintendent would not have changed his mind” and

noted that “arrangements and assurances satisfactory to

46

both sides may have been possible.” Id. “The only way to

know how matters will turn out,” we explained, “is to let the

process run its course.” Id. “Litigation to determine what

would have happened, had the employee contested the

recommendation, is a poor substitute for the actual results of

real deliberation within the employer’s hierarchy.” Id. at

333–34 (emphasis in original). Simply put, “the prospect of

being fired at the conclusion of an extended process is not

itself a constructive discharge.” Id. at 334; see also Levenstein

v. Salafsky, 414 F.3d 767, 774–75 (7th Cir. 2005) (holding that

the employee was not constructively discharged by being

“put in a state of enforced idleness for almost a year” in part

because the employer’s investigation was still pending).

Most recently, in Chapin, we held that, “even construing

all the evidence in Chapin’s favor, no reasonable employee

standing in Chapin’s shoes would believe that had he not

resigned, he would have been immediately fired.” 621 F.3d

at 680. We explained that “Chapin may have had ample

reason to believe his termination to be imminent” when his

employer had “threatened to fire him and very clearly tied

that threat to his EEOC complaint”; however, after the

employer retracted the threat, he “had no reason to continue

to believe that.” Id. Thus, “[u]nlike in University of Chicago

Hospitals, there [was] nothing to indicate that a firing … was

46We also noted that the employee was not “given tasks demeaning to

her education and accomplishments” and that “she held the same post

and duties that she had found satisfactory for three decades.” Cigan v.

Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004).

32 Nos. 13-1552 & 13-1553

an imminent and inevitable event.” Id. It was “not a situation

where the ‘handwriting was on the wall’ and the plaintiff

quit ‘just ahead of [the] fall of the axe.’” Id. (quoting Lindale

v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998)). We noted

that, had Chapin “returned to work, without having

withdrawn the EEOC charge, perhaps [his employer] would

have fired him,” or “his supervisors or coworkers may have

constantly harassed him to the point where his safety was at

risk.” Id. We repeated, however, “that it is not a court’s

position to speculate on ‘what ifs.’” Id. “This is particularly

true,” we explained, “in the constructive discharge context,

where we recognize that the burden remains on the

employee to show why he would have had to ‘quit

immediately, before he found the other job; why, in other

words, his duty to mitigate damages did not require him to

remain.’” Id. at 680–81 (quoting Lindale, 145 F.3d at 956).

This case law makes clear that the district court correctly

concluded that Ms. Wright had failed to demonstrate that

she was constructively discharged. There is no evidence that

the Department had decided to terminate Ms. Wright. It

certainly had not told Ms. Wright that she would be fired,

nor did her supervisors’ conduct suggest such a result was a

certainty. Cf. Kodish, 604 F.3d at 502; Univ. of Chicago Hosps.,

276 F.3d at 332. Given the possibility of harm to the children

with whom she inevitably would come in contact had she

performed her regular duties, the Department quite

reasonably assigned her to desk duty until the result of her

fitness-for-duty examination could be evaluated. Moreover,

while on desk duty, Ms. Wright had ample time to work on

her grievance and, as far as the record discloses, to assist, if

Nos. 13-1552 & 13-1553 33

47

she chose, other case workers. Once she refused to submit

to the examination, the Department initiated disciplinary

proceedings against her. While those proceedings were

pending, Ms. Wright chose to use her vacation time and

remove herself from the office. Upon her return, she elected

to submit her retirement paperwork.

Ms. Wright attempts to show that her termination was

imminent by suggesting that employees who fail to undergo

multiple fitness-for-duty evaluations typically are

discharged. But, as we have noted, “[l]itigation to determine

what would have happened … is a poor substitute for the

actual results of real deliberation within the employer’s

47 During her testimony, Ms. Wright stated:

Well, the workers who—on my team who got my

cases already had full caseloads of their own, and I

could have helped them. I could have—I could have

staffed with them and told them what I knew and knew

to be the status of their work or lack of work they would

have. Oriented them to my cases.

I could have helped them with those cases and other

cases by pulling documents out of the file as needed for

court reports, for administrative case reviews, staffings

on children in residential care. There are a number of

things that we do that require piles of documents pulled

from the file in chronological order, and those are done

by the caseworkers. I could have done that for them.

R.275 at 58–59. She then acknowledged that this type of work normally

was done by caseworkers and that those were tasks that she “could have

done and done within the restrictions” of her desk duty. Id. at 59. There

is no evidence in the record that she was precluded from engaging in this

type of work.

34 Nos. 13-1552 & 13-1553

hierarchy.” Cigan, 388 F.3d at 333–34 (emphasis in original);

accord Chapin, 621 F.3d at 680 (refusing to speculate about

what would have happened had the employee not given up

his position). Like the employee in Cigan, Ms. Wright

refused to wait for her employer’s discharge process to run

its course. That Ms. Wright may have been discharged at the

conclusion of the disciplinary proceeding does not amount

to a constructive discharge. See Cigan, 388 F.3d at 333–34.

Ms. Wright also relies on the insurance bill that she

received from CMS, which contained a bureaucratic notation

that she was suspended pending discharge. She admitted,

however, that, had she actually been suspended pending

discharge, she would have received a “notice in writing”

from the Department and that the Department would have

48

had “to hand-deliver it.”

The record is clear that Ms. Wright simply made the

personal assessment that it was time to retire. She had

contacted the State Employees’ Retirement System, which

told her that she and her husband “had enough credits and

accumulated vacation and all to take an early retirement

49

with a reduced pension.” When Ms. Wright “found out

that [they] could take an early retirement, [she] called [her

husband] at work, and it took seconds to make that

48Id. at 96. She further stated that she “didn’t assume [that she had] been

suspended” because the insurance bill was “not a formal notice from the

Department.” Id. at 98.

49 Id. at 91. Specifically, she was told that they “had enough credits to

retire under a different rule because [they] were 55 or older and [they]

had 25 years of service.” Id.

Nos. 13-1552 & 13-1553 35

50

decision.” Her testimony makes clear that she had not

contemplated leaving the Department until she learned that

she could retire immediately and collect a reduced pension.

Thus, it was not the Department’s conduct or her belief that

she immediately would be terminated that led to her

retirement, but her realization that she could retire earlier

than she initially had believed.

In sum, the evidence presented at trial demonstrates that

the Department did not act in a manner that would

communicate to a reasonable employee in Ms. Wright’s

position that the termination of her employment was

imminent. Instead, the Department initiated a disciplinary

proceeding against Ms. Wright and, while the Department’s

decision was pending, Ms. Wright elected to retire. The

district court’s decision falls within the heartland of our case

law; the district court correctly granted the Department’s

motion for judgment as a matter of law.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED

50 Id. at 91–92. Ms. Wright testified that it was “absolutely true” that,

prior to her speaking with the State Employees’ Retirement System, she

did not “plan on retiring when [she] did.” Id. at 107. Instead, she had

planned “to stick it out until this was over”; she was going to let the

disciplinary process “run its course.” Id. at 101–02.