DENMAN V. DAVEY TREE EXPERT CO.
No. 06-2588, 2007 WL 4561504
SIXTH CIRCUIT COURT OF APPEALS, DECEMBER 27, 2007

FACTS OF THE CASE: Mr. David L. Denman began working for Davey Tree Expert Co. (Davey) in August 2000 and in October 2001 he was terminated for failing to show up to work for two-weeks. However, in April 2002 Davey rehired Mr. Denman as a B-Foreman, and in August 2004 promoted Mr.  . As an A-foreman, Mr. Denman is responsible for removing trees along power lines, driving a skidder, climbing trees, using chainsaws, sharpening chains, and maintaining other equipment necessary to remove unwanted trees. 

Mr. Denman did not report to work from August 2 to 18, 2004. On August 19 he returned to work and provided his supervisor, Mr. Currie, with information on bipolar disorder, the ADA, and the Family and Medical Leave Act (FMLA) without further explanation. Mr. Currie believed Mr. Denman was requesting an accommodation by providing this information; therefore, he forwarded the information to Davey’s North Central Regional Manager, Mr. Bloomfield. Mr. Bloomfield in turn requested a meeting with Mr. Denman and Mr. Currie to discuss the information. By the end of this meeting Mr. Bloomfield placed Mr. Denman on unpaid leave until he could provide a physician’s statement regarding his bipolar disorder and his ability to safely perform his duties as a foreman.

Mr. Denman did not provide Davey with a medical statement and he did not submit to an Independent Medical Examination. Instead he contacted a lawyer who began, “a letter writing campaign” with Davey over their request for a physician’s statement. On October 12, 2004, Davey terminated Mr. Denman considering him to have abandoned his job. 

ISSUES OF THE CASE: When can an employer request a medical inquiry to seek information about an employees’ disability? 

ARGUMENTS & ANALYSIS: 

The ADA protects individuals with disabilities from medical inquiries that are unrelated to the job and inconsistent with business necessity. A medical inquiry is not discriminatory when the employee either: 1) requests an accommodation, 2) is unable to perform essential job functions, or 3) poses a direct threat to himself or others. Additionally, in Sullivan v. River Valley School District, the Sixth Circuit held “there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job,” and “any examination ordered by the employer must be restricted to discovering whether the employee can continue to fulfill the essential functions of the job.” 

Mr. Denman argued his termination violated the ADA because his termination was in “retaliation” for asserting his rights to Medical Leave. Mr. Denman also noted that Mr. Currie made a previous “statement that his job performance was ‘excellent.’” 

Davey argued it had a reasonable belief that Mr. Denman’s medical condition would cause him to be unable to perform the essential functions of his job—namely showing up to work. 

RULING: The Court found no need to address Mr. Denman’s claims of retaliation and discrimination, but instead found Davey’s request was necessary to determine if Mr. Denman had the ability to perform the essential functions of the job. The Court found attendance to be an essential function of Mr. Denman’s job, noting Davey’s leave of absence policy makes this clear. Mr. Denman missed work not only from August 2–18, but previously was fired for the same reason. The Court concluded it reasonable for Davey to believe Mr. Denman’s bipolar disorder could effect his essential job function of showing up to work. 

POLICY & PRACTICE:

Essential Functions. In this case, the Sixth Circuit held showing up to work was an essential function of the Foreman position, and when an employee asserts a disability as the reason for absences, the employer is justified in requesting a medical examination.

EEOC Enforcement. Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious may be job-related and consistent with business necessity.

LINKS:

Sixth Circuit opinion: http://altlaw.org/v1/cases/685068 

EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html 

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Prepared by the legal research staff of the Burton Blatt Institute (BBI): Centers of Innovation on Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center (Southeast DBTAC) (http://www.sedbtac.org/). This document does not provide legal advice. If you have further questions about the issues of this case that relate to you, please consult an attorney licensed in your state.
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