McBratnie v. Mcdonough

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CAROL ANN McBRATNIE, Plaintiff, v. DENIS McDONOUGH, Defendant.

No. 2:20-cv-12952

United States District Court, E.D. Michigan, Southern Division

April 24, 2023

Bernard A. Friedman, District Judge

REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 45) ^[1]

KIMBERLY G. ALTMAN, MAGISTRATE JUDGE

I. Introduction

This is an employment discrimination case. Plaintiff Carol Ann McBratnie (McBratnie), proceeding pro se, is suing defendant Denis McDonough, the United States Secretary of Veterans Affairs (VA), for disability discrimination stemming from the VA's decision to terminate the credentialing process when McBratnie refused to sign a pre-employment Declaration of Health form (Declaration). See ECF No. 1. Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 10).

Before the Court is the VA's motion for summary judgment. (ECF No. 45). The motion is fully briefed. (ECF Nos. 53, 57, 60). For the reasons set forth below, it is RECOMMENDED that the motion be GRANTED and the case be DISMISSED.

II. Background

A. Overview

In or around February 2014, McBratnie sought employment as a nurse practitioner with CR Associates (CRA), a private company that had contracted to staff a VA outpatient clinic in Bridgeport, Texas. (ECF No. 1, PageID.29-31).^[2]Because the position involved treating VA patients, any candidate that CRA intended to hire needed to be referred to the VA for a medical credentialing process. (Id., PageID.31). To be credentialed by the VA, a candidate had to submit numerous documents, including the Declaration and a scope of practice form. (Id.). McBratnie submitted some of the requested materials but did not submit either the Declaration or the scope of practice form. (Id.). Because she declined to complete and submit these two forms, her credentialing process was terminated on March 26, 2014. (Id.). McBratnie then filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that the VA discriminated against her based on disability when it terminated the credentialing process. (Id., PageID.30).

After losing at the EEOC stage, McBratnie filed the instant lawsuit, alleging that the VA violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act by requiring completion of the Declaration as part of the credentialing process. (Id., PageID.1-13). McBratnie “asserts that [the Declaration] was a cleverly designed form to acquire and use prohibited information in the application process so as to exclude a class of individuals from being considered for open positions.” (Id., PageID.14).

B. Declaration of Health

McBratnie testified at her deposition that she believed an employer could not ask about an individual's disability status or require them to obtain a physical until after the employer had extended a job offer to the individual. (McBratnie Deposition, ECF No. 45-3, PageID.1599). Accordingly, McBratnie told her CRA contacts that she was unwilling to complete the Declaration before such an offer was made. (Id.). McBratnie was told that the VA required an applicant to submit the Declaration before it would make a “committed offer.” (Id.). McBratnie did not want to submit the Declaration before receiving an offer to ensure that she “wasn't excluded from the candidate pool because [she is] disabled.” (Id.).

She further testified that during the EEOC discovery process she learned that CRA submitted four candidates to the VA for credentialing even though there was only one nurse practitioner position available. (ECF No. 45-3, PageID.1596). The VA was then supposed to tell CRA who to hire. (Id., PageID.1596-1597).

The Declaration is reproduced in full below.

(Image Omiiteed)

III. Motion for Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004).

“The moving party has the initial burden of proving that no genuine issue of material fact exists....” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotation marks omitted); cf. Fed.R.Civ.P. 56(e)(2) (providing that if a party “fails to properly address another party's assertion of fact,” the court may “consider the fact undisputed for purposes of the motion”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.' ” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The fact that McBratnie is pro se does not reduce her obligations under Rule 56. Rather, “liberal treatment of pro se pleadings does not require lenient treatment of substantive law.” Durante v. Fairlane Town Ctr., 201 Fed.Appx. 338, 344 (6th Cir. 2006). Additionally, “once a case has progressed to the summary judgment stage, as is true here, the liberal pleading standards under the Federal Rules are inapplicable.” J.H. v. Williamson Cnty., 951 F.3d 709, 722 (6th Cir. 2020) (quoting Tucker v. Union of Needletrades, Indus., & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005)) (cleaned up).

IV. Discussion

A. Parties' Arguments

The question in this case is whether the VA violated either the ADA or the Rehabilitation Act when it terminated McBratnie's credentialing process after she refused to complete and submit the Declaration.

The VA argues that requiring an applicant like McBratnie to sign the Declaration is permissible under 42 U.S.C. § 12112 because § 12112(d)(2)(B) provides that an employer “may make preemployment inquiries into the ability of an applicant to perform job-related functions.” The VA further argues that requiring the Declaration to be countersigned by a physician “did not constitute a medical examination. And even if it did, the VA would have been permitted to require a job-specific medical examination because the VA was under the reasonable impression that CRA had extended McBratnie a conditional offer of employment.” (ECF No. 45, PageID.1579).

McBratnie argues that purpose of the Declaration was to disqualify applicants with disabilities from positions with the VA in violation of the ADA. She also argues that she was in the pre-offer stage of employment with the VA regardless of whether CRA had made her “a conditional offer.” (ECF No. 53, PageID.1674).

B. Overview

Under the ADA, employers are prohibited from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). However, when plaintiffs “bring a claim under § 12112(d), [they] are not required to allege that they suffer from a disability as defined by the ADA or that they were discriminated against because of a disability.” Garlitz v. Alpena Reg'l Med. Ctr., 834 F.Supp.2d 668, 677 (E.D. Mich. 2011); see also Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011) (“A plaintiff need not prove that he or she has a disability in order to contest an allegedly improper medical inquiry under 42 U.S.C. § 12112(d).”).

“[T]he ADA prohibits an employer from requiring an applicant to undergo a ‘preemployment' medical examination, unless it is focused on ‘the ability of the applicant to perform job-related functions.' ” Id. at 675 (quoting 42 U.S.C. § 12112(d)(2)). However, if certain conditions are met, an employer can require an applicant to undergo “a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant[.]” 42 U.S.C. § 12112(d)(3).

Similarly, “[t]he Rehabilitation Act, a parallel statute of the ADA, prohibits the United States Postal Service, federal agencies, and other programs receiving federal funding from discriminating against any qualified individual with a disability.” Bent-Crumbley v. Brennan, 799 Fed.Appx. 342, 344 (6th Cir. 2020) (citing 29 U.S.C. § 794(a)). The Rehabilitation Act “specifically incorporates the standards applied under the ADA to determine violations, 29 U.S.C. § 794(d), and courts look to guidance under the ADA to determine if a federal employee has been discriminated against because of a disability[.]” Id. at 344-345 (citing Mahon v. Crowell, 295 F.3d 585, 588-589 (6th Cir. 2002)).

The parties dispute whether McBratnie was in the pre- or post-offer stage, so the legality of the Declaration will be considered as to both stages.

C. Pre-Offer Stage

1. Requiring McBratnie to Sign the Declaration

The first issue is whether requiring McBratnie to sign the Declaration was permissible if it is assumed, as McBratnie contends, that she was in the pre-offer stage during the credentialing process.

“Although inquiry as to the ability of a pre-offer applicant or an employee to perform job-related functions is allowed under the ADA, such inquiry is not without limits.” Farmiloe v. Ford Motor Co., 277 F.Supp.2d 778, 782 (N.D. Ohio 2002). “[T]he ADA limits an employer's ability to request unfounded examination to prevent ‘the unwanted exposure of the employee's...