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Crites v. City of Haysville

United States District Court, D. Kansas

May 16, 2018

ROBERT L. CRITES, Plaintiff,



         This case comes before the court on Defendant's Motion for Summary Judgment. (Doc. 60.) The motion has been fully briefed and is ripe for decision. (Docs. 60, 61, 68, 70, 74, 78.) Plaintiff Robert Crites, formerly a lieutenant with the City of Haysville Police Department, claims the City violated his rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 et. seq., and the federal Rehabilitation Act of 1972, 29 U.S.C. § 701 et seq., when it terminated his employment. Defendant's motion is GRANTED IN PART, and DENIED IN PART, for the reasons set forth herein.

         I. Uncontroverted Facts

         The court finds the following facts to be uncontroverted for purposes of the motion for summary judgment.

         Plaintiff Robert L. Crites is a resident of Sumner County, Kansas. He was hired as a patrol recruit for the City of Haysville's police department on December 29, 1996. For more than 17 years, he performed well as a police officer, and was promoted to the rank of lieutenant in 2007. (Doc. 68 at 2.)

         The job description for a lieutenant in the City's handbook provides that the essential functions of the position include supervising major investigations, investigating crime scenes and citizen complaints, and responding to major or sensitive incidents. The essential functions also include preparing work schedules, answering phone calls, dealing with the public, and conducting background investigations on police applicants. On May 21, 2014, Plaintiff participated in an annual review and his performance was rated as satisfactory overall and outstanding in several areas. (Doc. 61 at 2; Doc. 68 at 2-3.)

         Between August 19, 2014, and May 29, 2015, Plaintiff was an “eligible employee” and Haysville was an “employer” as defined by both the FMLA and ADA, 29 U.S.C. § 2601 et seq. and 42 U.S.C. § 12101 et seq. Haysville is a local government entity that receives federal funds for the purposes of the Rehabilitation Act.[1] (Doc. 68 at 3-4.)

         As part of Plaintiff's duties as a lieutenant, he had to occasionally respond to calls. Disturbance calls required a sergeant or a lieutenant to be present. Situations involving weapons are considered disturbance calls. (Doc. 61 at 2.)

         On August 19, 2014, Plaintiff and two other Haysville officers responded to a domestic disturbance call. Upon arriving at the scene, they discovered a suspect holding a knife to his girlfriend's throat. To prevent harm to the female victim, Plaintiff shot and killed the suspect. (Doc. 61 at 2.)

         After the shooting, Plaintiff was placed on administrative leave beginning August 19, 2014. Plaintiff was examined by a psychologist, Dr. Kerin Schell, on August 20, 2014. Dr. Schell notified Haysville's Chief of Police, Jeffrey Whitfield, of his conclusion that Plaintiff “can return to duty immediately.” Schell found Plaintiff was not having difficulty dealing with the incident emotionally, but indicated he could do a follow-up evaluation if problems subsequently developed. (Doc. 61 at 2-3.)

         Plaintiff did not believe he was fit to return to duty at that time. He felt he was having problems that should have prevented him from immediately returning to duty. He was experiencing a lot of anxiety, visions, and obtrusive thoughts. On August 21, 2014, Plaintiff sent a text message to Chief Whitfield expressing concerns about the quality of Dr. Schell's assessment. Whitfield texted in response that “we will have to look at that to see about using someone else.” (Doc. 61 at 3.)

         In response to Plaintiff's concerns, Whitfield contacted the Sedgwick County Sheriff's Office and the Wichita Police Department to find out what doctors they used. Bruce Nystrom, Ph.D. was recommended to him. Haysville referred Plaintiff to see Dr. Nystrom, but Nystrom was not available so Plaintiff saw his associate, Molly Allen, Psy.D. (Doc. 61 at 3.)

         On September 4, 2014, Dr. Allen sent a letter to Chief Whitfield indicating that Plaintiff “shows some mild signs of some preoccupation and sleep disturbance” but that he “is fit to return to regular duty as of Monday September 8, 2014.” Plaintiff returned to regular duty on September 8, 2014. (Doc. 61 at 3.)

         During Plaintiff's first week back at work, the department received a disturbance call from the same apartment complex where the August 19th shooting had taken place. Plaintiff responded to the call. This made him feel “very apprehensive.” At some point after the call, Plaintiff reported to Chief Whitfield that he was not able to perform his regular duties and that he needed additional time off. (Doc. 61 at 4.)

         Plaintiff was seen by Jerry Niernberger, D.O., his primary care physician, on September 16, 2014. Niernberger prescribed Ambien to help Plaintiff sleep. Sometime thereafter, he prescribed Lexapro, an anti-depressant. Plaintiff continues to take these medications. (Doc. 61 at 4.)

         Plaintiff last worked on September 24, 2014. He began using his accumulated paid sick leave on September 29, 2014.

         On or about October 1, 2014, Dr. Niernberger notified Haysville that Plaintiff was not to work for two weeks because he was suffering from Post-Traumatic Stress Disorder (PTSD). On October 15, 2014, Niernberger informed Plaintiff that he should not work until further notice. (Doc. 61 at 4.)

         Thereafter, Plaintiff sought treatment from Jeremy Crosby, Psy.D. Crosby is a psychologist who specializes in the treatment of trauma and PTSD. He has provided treatment to military and civilian police officers in a clinical setting. He has treated many patients with severe PTSD who returned to military service or law enforcement careers, as well as some who had to retire or seek disability because they were not going to be able to function in the job. Crosby first evaluated Plaintiff on October 31, 2014, and diagnosed “PTSD, Moderate.” On November 7, 2014, Crosby changed his diagnosis to “PTSD, Chronic, Severe.” This remained Crosby's diagnosis for the remainder of the time he treated Plaintiff. Dr. Crosby sent a letter to Haysville on November 12, 2014, stating in part:

Robert has been diagnosed with Post-Traumatic Stress Disorder that was caused by the officer-involved shooting that occurred in mid-August 2014.
Due to the severity of Robert's current symptoms, he is unable to work for the next 12 weeks.

         Five days later, on November 17, 2014, Plaintiff came in to the Police Department to speak with Chief Whitfield about the possibility of returning to work on a limited basis. Whitfield informed Plaintiff that before he could come back, he would have to obtain a full release from his doctor clearing him to do so. Plaintiff never had any further discussions with Whitfield about a partial return to work. (Doc. 61 at 5.)

         Dr. Crosby never recommended to Plaintiff that he return to work on a limited basis. In fact, Crosby counseled against it. Crosby believed returning to work on a limited basis would be counter-therapeutic and detrimental to Crites. Crosby did not release Plaintiff to return to work on a limited or part-time basis at any point. Crites never provided a release from any health care provider allowing him to return to work on a part-time or limited basis. Dr. Crosby continued to treat Plaintiff. (Doc. 61 at 6.)

         As of November 24, 2014, Plaintiff did not feel safe to be on calls, and he informed Chief Whitfield of this feeling.

         On February 5, 2015, Dr. Crosby sent a letter to the Haysville Police Department stating in part:

Robert has been diagnosed with Post-Traumatic Stress Disorder that was caused by the officer-involved shooting that occurred in mid August, 2014.
Due to the severity of Robert's current symptoms, he continues to be unable to work for the next 10 weeks.

         Dr. Crosby reported he was treating Plaintiff in outpatient treatment and Plaintiff was “complying fully with the treatment process and is making steady progress.” (Doc. 61 at 6-7.)

         The next week (February 12, 2015), as a result of Plaintiff's situation, Chief Whitfield emailed KS-CPOST asking whether an officer diagnosed with PTSD is disqualified from being a law enforcement officer. KS-CPOST is the state agency that oversees the granting of licenses to all Kansas law enforcement officers. KS-CPOST responded: “The fact that an officer is diagnosed with PTSD alone is not a disqualifier for certification” and a mental condition is an issue “only when it is found to adversely affect the [officer's] ability to perform the essential functions of a … law enforcement officer with reasonable skill, safety and judgment.” (Doc. 68 at 14-15.)

         Chief Whitfield consulted with Haysville's Chief Administrative Officer (Will Black), City Attorney (Alison McKenney Brown), and City Clerk (Janie Cox) about Plaintiff's leave of absence. On March 30, 2015, Whitfield emailed the City Clerk with a new return-to-work release form that all departments of the City would be using. He stated “the reason I am sending it over to you now is that Bob Crites will be notified that he will need this release completed before any decision can be made on his return to work, ” and Plaintiff had told him “he anticipates the Doctor will release him soon.” The City Attorney and all department heads had been involved in revising the form beginning in September 2014. On March 31, 2015, Whitfield emailed Black and Cox with a “Crites update” saying Plaintiff expected to be released for work within the next three weeks and “I think we should probably meet with [City Attorney Brown] on the issue, and probably with the Mayor as well to discuss his continued employment after this ordeal.” (Doc. 68 at 15.)

         On April 1, 2015, Whitfield received an email from Captain Bruce Powers of the Haysville Police Department reporting that he had looked at his notes and found five instances in 2014 when Plaintiff had, in Powers's opinion, failed to perform assigned duties. Whitfield had asked for this information, which had not been included in Plaintiff's 2014 performance evaluation. At some point during Plaintiff's leave, Whitfield partially filled out a disciplinary action form listing the foregoing incidents in which Plaintiff allegedly failed to complete assignments, but the form was never given to Plaintiff or placed in his personnel file. (Doc. 68 at 15-16.)

         On April 1, 2015, Chief Whitfield sent a letter to Crites stating as follows:

As of April 1, 2015, you have exhausted all of your available sick leave. Since you told me you will be off work for at least a few more weeks, we will need a written request from you to use your vacation time for the remaining period of time you are off. We will need this request before April 9, 2015. If you need to take more time after that, you will need to get the appropriate FMLA paperwork filled out. Please keep us posted on your return to work status.

(Doc. 61 at 7.) Aside from its FMLA policy, this was the only written communication from Haysville to Crites concerning the FMLA.

         As of April 1, 2015, Plaintiff knew he had exhausted all of his available sick leave. By letter of April 6, 2015, he wrote ...

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