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Kurtzhals v. County of Dunn

United States District Court, W.D. Wisconsin

September 25, 2019

TODD KURTZHALS, Plaintiff,
v.
COUNTY OF DUNN, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff Todd Kurtzhals was a sergeant with the Dunn County sheriff’s department. In 2016, Kurtzhals had an argument with a subordinate deputy in which Kurtzhals threatened to settle the matter with violence. The sheriff, Dennis Smith, placed Kurtzhals on paid administrative leave while the matter was investigated, and he required Kurtzhals to undergo a fitness-for-duty exam before he returned to work. Kurtzhals passed the exam and returned to work after about three months. Kurtzhals voluntarily left employment with the sheriff’s department in 2019.

         Kurtzhals now alleges that Dunn County (his employer and the defendant here) violated his rights under the Americans with Disabilities Act (ADA). Kurtzhals contends that the County discriminated against him because of his post-traumatic stress disorder (PTSD) and that the fitness-for-duty exam was unnecessary, and thus a violation of the ADA. The County moves for summary judgment. Dkt. 15. Kurtzhals’ PTSD does not shield him from the consequences of his workplace conduct. No. reasonable jury could find that the County placed Kurtzhals on leave because of his PTSD rather than because of his conduct. Likewise, Sheriff Smith reasonably believed, based on objective evidence, that the fitness-for-duty examination was warranted. The court will grant the County’s motion and dismiss the case.

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         A. Kurtzhals’s employment and military service

         Kurtzhals worked for the Dunn County Sheriff’s Department from 1993 until his voluntary departure in January 2019. He was hired as a patrol deputy and was promoted to patrol sergeant in 1996. He worked as a patrol sergeant until 2002, when he was mobilized by the United States Army. He remained mobilized until 2014 and was deployed overseas twice, once to Kuwait and Iraq, and once to Afghanistan. But he spent most of his twelve-year mobilization in the United States, so he was able to continue working for the Department some of that time.

         Around 2012, Kurtzhals was diagnosed with PTSD. He received two weeks of inpatient counseling in 2013 with Marcelo Angel Rodriguez-Chevres, M.D. This counseling focused on Kurtzhals’s marital difficulties, but Kurtzhals and his doctor often discussed his PTSD as well. He reported nightmares and flashbacks related to a near-death experience on an airplane in Iraq and to an on-the-job fatal shooting in Dunn County in 1998.

         Kurtzhals was honorably discharged in June 2014 and returned to the Department as a full-time patrol sergeant shortly thereafter. At the time, the Department was led by Sheriff Dennis Smith, whose second-in-command was Chief Deputy Paul Gunness. Captain Kevin Bygd was Kurtzhals’s direct supervisor.

         Within a few days of his return, Kurtzhals told Gunness that he had been diagnosed with PTSD and that he had received counseling for that condition. Gunness replied that this wouldn’t cause a problem. The two discussed Kurtzhals’s PTSD at least five or six times over the next two years. Kurtzhals also says that he informed Bygd about his counseling and PTSD diagnosis, but Bygd denies that. According to Kurtzhals, Gunness and Bygd each said they would tell Smith about his PTSD and counseling. But Gunness, Bygd, and Smith deny that any such conversations occurred, so whether Smith knew about Kurtzhals’s PTSD is disputed.

         B. Kurtzhals’s altercation with Dennis Rhead

         Gunness retired in March 2016, and Marshall Multhauf became chief deputy. Kurtzhals had been interested in the chief deputy position and he discussed being passed over for the promotion with Smith. Smith says that Kurtzhals became upset during their conversation; Kurtzhals says that both of them were upset and raised their voices.

         Kurtzhals requested and received a reassignment as the sergeant of investigations. In this role, he supervised three investigators, including Dennis Rhead. Shortly after Kurtzhals’s reassignment, some deputies discovered a safe along a road, but its recovery had been mishandled. Kurtzhals mistakenly believed that Rhead had been involved in the incident.

         Rhead learned that Kurtzhals was upset with him about the safe and went to Kurtzhals’s office to discuss the matter on the morning of April 1, 2016. The meeting turned into an angry confrontation. Kurtzhals and Rhead offered differing accounts of the incident: each of them blamed the other for escalating the discussion to an argument. But this much is undisputed: Rhead called Kurtzhals a liar; and Kurtzhals told Rhead that if he ever called Kurtzhals a liar again, they would have to settle the matter outside. Both Kurtzhals and Rhead reported that they had felt intimidated by the other.

         Later that day, Smith investigated the incident, and he solicited statements from Department employees who overheard the altercation. The employees all stated that they heard Kurtzhals threaten to take Rhead to the parking lot, or to take him outside, to settle things. Dkt. 23-9; Dkt. 23-10; Dkt. 23-11; Dkt. 24-5.

         C. Kurtzhals’s discipline

         A few days after the altercation, Multhauf suggested to Smith that a psychological fitness-for-duty examination might be appropriate for Kurtzhals. The purpose of such an examination would be to determine whether Kurtzhals’s state of mind might interfere with Kurtzhals performing his duties safely and consistently. Dkt. 24-9, at 3. The Department didn’t have a formal policy about fitness-for-duty examinations. Since 2000, it had only required one other employee, a deputy, to undergo a fitness-for-duty examination. That deputy had threatened two coworkers, telling them that they should be looking over their shoulders because they wouldn’t be safe at work. The Department had placed the deputy on paid administrative leave pending the examination.

         Smith and Multhauf consulted with Dr. Thomas Campion, a psychologist who specialized in psychological examinations of law enforcement officers. Campion said he believed a fitness-for-duty examination would be appropriate. Smith and Multhauf also discussed the fitness-for-duty examination with county administrative officers, including corporation counsel, the county manager, and the human resources manager. All agreed that a fitness-for-duty examination was appropriate in Kurtzhals’s case.

         After these discussions, Smith decided to place Kurtzhals on paid administrative leave pending an investigation into whether his conduct violated the Workplace Violence Policy. That policy prohibited “[a]ll threats or acts of violence occurring on Dunn County property.” Dkt. 24-4. Such “threats or acts of violence” included “[t]he suggestion[] or intimation that violence is appropriate.” Id. At the time, Kurtzhals was out of the office for training, so they decided to put him on leave when he returned.

         Smith also decided to require Kurtzhals to take a fitness-for-duty examination before returning to work. Bygd didn’t participate in that decision. Smith says that he was concerned about “[a] safety issue” and the “well-being or the feeling of safety within the office.” Dkt. 27 (Smith Dep. 87:3–5). Smith also says that Kurtzhals’s angry reaction to being passed over for the chief deputy promotion also factored into his disciplinary decision.

         Smith took no disciplinary action against Rhead. Smith says this was because he didn’t believe that Kurtzhals genuinely felt threatened by Rhead and because he thought Rhead’s description of the altercation was more accurate.

         On April 13, 2016, Kurtzhals returned to the office from training. Smith and Multhauf gave Kurtzhals a letter notifying him that he would be placed on paid administrative leave “pending an investigation of a report of workplace violence and safety” and that he would have to undergo a fitness-for-duty examination with Campion on April 20. Dkt. 24-6. In response, Kurtzhals offered to take a polygraph test. He also says that he asked Smith and Multhauf whether the discipline had anything to ...


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