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June 24, 1997

JAMES BRANSFIELD and the CITY OF CHICAGO, an Illinois Municipal Corporation, Defendants.

The opinion of the court was delivered by: LINDBERG

 Plaintiff Vincent J. Krocka is a police officer in the 16th District of the Chicago Police Department ("CPD"). He brings this action against the City of Chicago ("City") under Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to remedy allegedly unlawful employment practices and discrimination on the basis of disability. In addition, Krocka brings a claim against Dr. James Bransfield, former chief surgeon of the CPD, pursuant to 42 U.S.C. § 1983 for deprivation of his constitutional and statutory rights. Both plaintiff and defendants have moved for summary judgment.

 Krocka began working for the CPD in January 1984 and has been assigned to the 16th District since 1992. As a beat officer, Krocka performs patrol duties that involve answering calls, writing tickets, making arrests and going to court. Krocka is now a licensed attorney in Illinois, Washington, DC, and Florida; and works 20 to 25 hours a week as an attorney in addition to his police work. From 1990 until 1992, he took a leave of absence from the police force to study for the bar and practice law.

 Plaintiff has experienced depression nearly all of his life, with symptoms including irritability, antisocial behavior, fear, anxiety, upset stomach, gagging, loss of self-esteem, feelings of worthlessness, insomnia, an aversion to social contact and the inability to get out of bed. He has had problems with authority figures since he was a child and responds negatively to supervisory personnel in employment. His feelings of irritability and antisocial behavior have existed "throughout his working career." Krocka's bouts with more severe depression have lasted from six months to a year.

 After he finished law school and began practicing, Krocka went through a period of depression, during which he experienced an inability to get out of bed for much of the day, although he stated that it did not affect his ability to research or write. During this time, his law partner would call him in the morning to get him out of bed when they had to be in court. On days that Krocka did not have to be in court, he stayed in bed until early afternoon.

 In 1990, plaintiff told his physician, Dr. Glenn Cabin, that he was experiencing difficulty with authority figures at the CPD, that he had been terminated from a law firm after being accused of sexual harassment, and was having trouble finding another legal position. The law firm at which Krocka was working terminated him in July 1990 after a clerk accused him of sexual harassment. *fn1" Krocka indicated that he thought he might be having a nervous breakdown, that he did not get out of bed until early afternoon, was short-tempered and felt that his job situation was deteriorating.

 Throughout his working life, plaintiff has been fired numerous times. Krocka stated that he had not gotten along with supervisors at previous positions, including a security position at the University of Chicago that he held from 1975 to 1977. Krocka began working at the Evanston Police Department in November 1977, where he admitted he was sometimes insubordinate towards supervisors and did not get along with his fellow officers. Krocka was fired from this position in May 1978, while still on probation, for misconduct. *fn2" After his termination, Krocka experienced a more severe period of depression and contemplated suicide. He began working as a security officer at Swedish Covenant Hospital in December 1978 but was terminated approximately a month later for excessive absenteeism. In 1979, Krocka was fired from a job with the University of Illinois campus police force when it learned about his discharge from the Evanston Police Department. In Spring 1991, Krocka began working for the Federal Aviation Administration, a position he lost in April 1992 for using the phone for personal business. *fn3" Krocka returned to the CPD in 1992 and has continued to maintain a private law practice, which has become increasingly active over the years.

 Dr. Cabin referred Krocka to Dr. Michael Bresler, a psychologist, who began intensive psychotherapy in weekly sessions that lasted until mid-1992. Dr. Bresler also referred plaintiff to another psychologist, Dr. Edward Wittert, for an interview and testing to confirm Dr. Bresler's diagnosis of depression. Dr. Wittert diagnosed plaintiff as having dysthymia associated with an impulse control disorder and mixed obsessive-compulsive and paranoid personality features. Dysthymia is defined as mild to moderate depression that lasts more than two years in an adult. Dr. Bresler indicated that plaintiff's depression was in the range of low end of severe to high end of moderate. He also experienced "double depression," which refers to dysthymia that is punctuated by a bout of major depression.

 Dr. Bresler recommended that plaintiff begin taking Prozac, and Dr. Cabin prescribed it for Krocka based on this recommendation. Prozac is an antidepressant medication that entered the market in the late 1980s. It is prescribed to treat depression and in 1 in 100 to 1 in 1,000 users can cause physical side effects such as chills and fever, abnormal dreams and agitation, migraines, neck rigidity and pain, and dermatological conditions, among others. Although Dr. Bransfield stated that ataxia, or stumbling and falling, can be a side effect of taking Prozac, the Physician's Desk Reference does not list it as such. Dr. Bransfield stated that the literature he read indicated that a small percentage of users have experienced suicidal or homicidal ideation while taking Prozac. Eli Lilly, the manufacturer, advises patients not to drive or operate hazardous machinery until their doctor determines that Prozac is not affecting them. The drug reaches a steady state in the body within two weeks. Both Drs. Cabin and Bresler monitored plaintiff's use of Prozac. Besides the weekly sessions with Dr. Bresler, Krocka spoke to Dr. Cabin every 90 days. Although Dr. Cabin did not personally observe plaintiff using a firearm or driving a car, plaintiff stated that Dr. Wittert tested his motor skills and indicated that they were "intact."

 Dr. Bresler testified that after Krocka began treatment with Prozac, he was functioning much better in all areas of life and that "within a few weeks [of beginning Prozac] we saw considerable improvement in Mr. Krocka's overall condition. His symptoms of depression diminished significantly, and his functioning in his family and on the job improved considerably." Bresler also indicated that plaintiff's touchiness, impatience and overaggressiveness could be the result of depression because "the discomfort of the symptoms" can make a person touchy or irritable. According to Bresler, depression affects a person's performance in general.

 In 1991, when plaintiff reduced the amount of Prozac he took for about four to six months, his depressive symptoms returned. In April 1992, Dr. Bresler administered the Millon Clinical Inventory, which indicated that plaintiff was at the low end of the scale for dysthymia, and the Beck Depression Inventory, which indicated that plaintiff was at the lower end of moderate depression. Dr. Bresler increased plaintiff's Prozac dose in late 1993 from 20 mg a day to 30 mg a day. In 1995, Dr. Bresler moved out of state and plaintiff began seeing Dr. Peter Fink for psychotherapy and for prescriptions for Prozac. *fn4" Dr. Fink has diagnosed Krocka as having a major depressive disorder that is recurrent and in remission; and a separate dysthymic disorder in remission. He counsels Krocka every three to four months; and also monitors Krocka's Prozac use and watches for signs of depression and mood instability. Dr. Fink states that plaintiff's cognitive abilities are unaffected by taking Prozac. He states that plaintiff is resilient and has the capacity to function in pressured situations. Krocka states that he still suffers diminished symptoms of depression, including irritability, insomnia, stomach problems, and difficulty getting out of bed. He intends to take Prozac for the rest of his life, and would experience serious depressive symptoms if he stopped taking it. In April 1995, plaintiff stopped taking Prozac for three days, after which he felt that he had no energy and did not want to do anything.

 In October 1991, Commander Richard Wedgbury, Director of the Labor and Management Affairs Division of the CPD, developed and implemented a written Psychotropic Medication Policy in response to the CPD's concerns about armed police officers on such medication. Wedgbury consulted with psychiatrists at area hospitals, who indicated that decisions as to the duty status of an officer taking Prozac should be made on a case-by-case basis. The policy states that no officer will be deemed psychologically fit for duty while taking psychotropic medication unless the officer's treating psychiatrist indicates that the officer is being closely monitored and that the medication is not impairing the officer's judgment, cognitive abilities, reaction time, driving skills or performance abilities. An officer could also be deemed fit for duty upon agreement of Dr. Bransfield and Stanard & Associates, a psychological evaluation firm hired by the CPD to examine officers.

 In April 1993, Wedgbury updated the policy to require an officer's treating physician to attest that the officer can safely handle a firearm and to agree to monitor the patient and see the officer on a periodic basis, preferably once a month. Wedgbury stated that the policy is based on a concern that the taking of psychotropic medication indicates an underlying psychological problem that could affect the safety of others, including the public and the officer's family.

 When the CPD learns that an officer is taking psychotropic medication, it mandates a physical exam and a psychological evaluation at Stanard & Associates. Dr. Stanard determines an officer's fitness for duty and makes recommendations regarding monitoring the officer. The CPD claims that these evaluations as to whether an officer is fit for duty were made on a case-by-case basis.

 In November 1992, plaintiff fell down a flight of stairs while on duty and was rendered unconscious. After Krocka's return from medical leave, Dr. Bransfield learned that he was taking Prozac. On January 8, 1993, pending a physical examination by his own doctor and a psychological evaluation, plaintiff was relieved of his star and placed on medical roll. The same day, Dr. Cabin wrote a note to the CPD that stated that plaintiff had been on Prozac since October 1990, had no psychological abnormalities and could carry out his duties as a police officer. After a psychological evaluation at Stanard & Associates, plaintiff was found "symptom-free" but could not be deemed fit for active duty unless his physician--not just a psychologist--monitored his medication. The physician also had to indicate that Prozac was not impairing Krocka's judgment, cognitive abilities, reaction time, driving skills or performance ability. On January 14, 1993, Dr. Bresler wrote to Dr. Bransfield and stated that Krocka could perform all duties as a police officer. On February 9, 1993, Dr. Cabin wrote to Dr. Bransfield and stated that plaintiff was able to perform his full duties as a police officer, that his use of Prozac was being monitored, and that he was not suffering any adverse side effects from taking Prozac. On February 10, 1993, Dr. Stanard informed Commander Wedgbury that plaintiff was fit for active duty but should be placed in the Personnel Concerns Program for a year while on the medication.

 Another element of the Psychotropic Medication Policy is that all officers taking such medication were placed in the Personnel Concerns Program and remain in that Program for as long as they take the medication. The Personnel Concerns Program is described in CPD General Order 83-3 as a vehicle by which the CPD can correct an officer exhibiting unacceptable behavior that is contrary to the goals of the CPD. Once an officer has been identified as exhibiting unacceptable behavior, placement in the Program is an alternative for dealing fairly and impartially with members who have not responded to routine corrective action or the increased supervision that may have already resulted if an officer has displayed Behavior Alert System Indicators. These indicators include: (1) excessive force, (2) complaint/disciplinary history, (3) repeated Medical Roll use, (4) repeated minor transgressions in a 12-month period, (5) significant reduction in performance, (6) poor traffic safety record and (7) significant deviations from an officer's normal behavior.

 Officers placed in the Program are assigned a Personnel Concerns Supervisor, who provides intensive supervision of the officer, including observing the officer in the field to see how he/she functions under normal working conditions. The supervisors do not provide psychological counseling to the officers in their charge. In May 1993, Sgt. Bradford Woods, then the manager of the Personnel Concerns Program, wrote a memo to Wedgbury requesting that Krocka be placed in the Program for one year based on Dr. Stanard's recommendation. Defendant asserts that in the CPD's view, plaintiff's use of Prozac fell under the Behavioral Alert Indicator of "significant deviation from his normal behavior."

 On June 21, 1993, at a meeting attended by Woods and Sgt. Patricia Riegler, Woods informed plaintiff that he would be placed in the Program for a year because of his Prozac use. Sgt. Riegler was assigned as his Personnel Concerns Program Supervisor. As part of her duties, Riegler followed plaintiff on and appeared at his assignments, and made notations about him in a deficiency log kept in the 16th District Commander's office. She saw Krocka three or four times during his shift, although she was not required to get out of her squad car to supervise him. Supervisors of officers who are not personnel concerns are supposed to see officers twice a shift. Riegler also called plaintiff five to six times a night for status checks and followed him on almost every radio assignment and lunch location. Another officer, Garry Krieger, testified that at one point he and his partner decided not to request that Krocka be assigned to their car because they knew they would face increased scrutiny by a Personnel Concerns Supervisor. Officer Donald Rehling also indicated that it was more troublesome to be partnered with an officer in the Personnel Concerns Program because of the heightened supervision. During the course of Riegler's supervision of plaintiff, she held two or three counseling sessions with Krocka. Krocka and Riegler did not like each other; Riegler complained to Commander Bergamin, the 16th District Commander, that she did not want to be plaintiff's Personnel Concerns Supervisor because he was hostile towards her. Krocka was not demoted, did not have his responsibilities decreased, and did not lose benefits or pay as a result of being in the Program. He will remain in the Program for as long as he is taking Prozac.

 All CPD officers are evaluated every six months; at which time they receive a performance rating. The average score in the CPD is in the 80s and an 84 is considered a good score. From December 1987 to December 1990, plaintiff generally received scores ranging from 83 to 87; although in December 1984, he received a 71. In June 1993, plaintiff received an 84; in December 1993, an 82; and in June and December 1994, scores of 85. Plaintiff has not been denied a pay increase, promotion, benefits or a transfer or reassignment request because of any performance rating.

 For much of his tenure with the CPD, plaintiff has worked the 3rd Watch, which is the 4 p.m. to midnight shift. Under their collective bargaining agreement, police officers may bid for shift and position vacancies according to seniority. Plaintiff first requested the 3rd Watch in 1983 so that he could be home during the day to care for his mother. In later years, plaintiff made similar requests so that he could take his mother to medical appointments, take his hypertension medication, study for the bar exam and practice law.

 In mid-December 1993, plaintiff learned that he was being assigned to the 1st Watch, which is the midnight to 8 a.m. shift. He asked Bergamin, his Watch Commander, if he could continue on the 3rd Watch for medical and health reasons, and informed Bergamin that being on 1st Watch would aggravate his health. He also produced a letter from Dr. Cabin, his physician, requesting that plaintiff remain on 3rd Watch because the midnight shift would affect his depression and hypertension. Bergamin left plaintiff on the 3rd Watch list although it appears that he informed plaintiff that in February 1994, Krocka would be placed on the 1st Watch. Although Bergamin could place a percentage of officers on a watch of his choice, officers bid for positions based on seniority and he faced union grievances for allowing less senior officers the more popular shifts. District commanders could place officers who were in the Personnel Concerns Program on any shift, but Bergamin thought Krocka's one year period in the Program was almost completed.

 On February 2 or 3, 1994, Bergamin informed plaintiff that he would actually remain in the Personnel Concerns Program for as long as he was taking Prozac. Some time thereafter, Bergamin also told Krocka that as long as Krocka was in Personnel Concerns, Bergamin had the discretion to assign him to any watch. The parties dispute when Bergamin so informed Krocka; the City alleges that it was in early February while Krocka maintains it was not until after he filed his state court complaint and EEOC charges in April 1994.

 On February 4, 1994, while on duty, plaintiff experienced chest pains, palpitations in his left arm, tension, anxiety and light-headedness. His partner drove him to Resurrection Hospital to have his blood pressure taken. Krocka was hospitalized at Resurrection from February 4th to the 10th, and the CPD placed him on medical roll. While at Resurrection, plaintiff underwent stress tests, a chemical profile and an angiogram. On March 15, 1994, Dr. Cabin wrote a letter to the CPD, stating that plaintiff could return to work if he remained on the 3rd Watch.

 On March 1, 1994, Dr. Bransfield ordered plaintiff to submit the results of a Prozac-level blood test. Dr. Bransfield testified that when he learned Krocka was taking Prozac, he consulted with Dr. Robert Barkin, a professor of pharmacology and head of the Poison Control Center at Rush-Presbyterian Hospital, who indicated that it was a good idea to get a Prozac blood level as a baseline measurement.

 Dr. Cabin, who drew the blood during an examination at his office and submitted it to a lab for testing, testified that the level of Prozac in a person's blood does not correspond to whether or not the drug is working or how well it is working and that such a determination is "more of a clinical judgment." Dr. Bransfield also testified that Prozac acts on "subjective symptoms." He stated that "you get a Prozac level blood test to find out if the patient is taking the medication" and that all the test results told him was that "it appeared that (Krocka) had Prozac in his blood. That's what it told." Although Dr. Bransfield stated that a series of blood tests might indicate over time whether the patient is taking the medication consistently or whether other medications might be affecting the Prozac level, Dr. Bransfield did not order tests for other medications in plaintiff's blood or any subsequent Prozac-level blood tests. Dr. Bransfield testified that at the time he ordered the test, Krocka was not displaying any bizarre behavior and had not been brought to his attention as having any job-performance or disciplinary problems. He never performed a physical examination of Krocka himself.

 Plaintiff filed discrimination charges with the EEOC on April 15, 1994. On April 25, 1994, he filed a state court complaint against Riegler, Wedgbury, Bransfield, Matt Rodriguez (Superintendent of the CPD) and the City, alleging slander, intentional infliction of emotional distress and handicap discrimination.

 On April 15, 1994, while still on medical roll for his coronary insufficiency, plaintiff appeared as an attorney at an arbitration hearing. Secondary employment while on medical roll is prohibited by the CPD's Rules and Regulations. The CPD Internal Affairs Division became aware of plaintiff's appearance at the arbitration after it received an unsigned, undated letter reporting the incident. It investigated the allegation and eventually issued a complaint register, which notifies the officer of the charges against him. *fn5" Plaintiff was eventually suspended for five days without pay as a result of the medical roll violation. Plaintiff filed this action on February 1, 1995, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 1983 and various state common law claims.

 Plaintiff returned from medical leave in early May 1994 and Bergamin assigned him to a limited duty post at Our Lady of Resurrection Hospital. In September 1994, plaintiff received an assignment to a limited duty post at the Alternative Response Unit, also known as the Call Back Unit. Officers in this unit respond to nonemergency telephone calls from the public and complete 30 to 50 call reports per shift. Three or four times a day, when there was an overflow of emergency calls, 911 would switch a call over to the Call Back Unit. On October 3, 1994, plaintiff produced a letter from Dr. Cabin requesting that plaintiff be assigned to full duty status in the 16th District on 3rd Watch because the stress from the unit was affecting plaintiff's hypertension. The CPD granted Cabin's request the following day. Plaintiff states that the CPD has never explicitly indicated that his placement on the 3rd Watch and on limited duty posts were reasonable accommodations for his depression.

 II. Standard for Motion for Summary Judgment

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must believe the evidence of the non-moving party and construe the evidence in that party's ...

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