Nerenberg v. RICA

⁶⁵³ THIEME, Judge. This is an appeal from an order of the Circuit Court for Prince George’s County granting summary judgment to the Regional Institute for Children and Adolescents (RICA) of Southern Maryland, a State operated facility for children with psychiatric and emotional disorders. Laura Nerenberg was hired by RICA as a therapeutic recreator. Because concerns arose about her job performance, management extended her initial six-month period of probation.

Problems continued, and RICA management finally allowed Laura to choose between resigning from her job or being let go. Subsequently, Laura died of complications from insulin-dependent diabetes. Her estate sued RICA under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 at seq. (1994), and the Rehabilitation Act, 29 U.S.C. § 794 (1994), after receiving a Probable Cause Determination and “right-to-sue” letter from the Equal Opportunity Employment Commission (EEOC).

Laura’s estate alleges that she was discharged solely because she suffered a disability. The court granted summary judgment in favor of RICA, and Laura’s estate brings this appeal and asks: 1. Did the trial court err by granting RICA summary judgment when the estate failed to establish a prima fade case of discrimination under the ADA because it did not show that Laura met the legitimate expectations of her employer and that she was discharged because of her diabetes? 2. Did RICA produce evidence of Laura’s poor job performance sufficient to overcome any presumption that she was discharged because of her diabetes and that its reasons were not pretextual? 8.

Does a Probable Cause Determination by the EEOC preclude a grant of summary judgment to RICA when the estate did not present evidence sufficient for a reasonable jury to find that she was discharged because of her diabetes? ⁶⁵⁴ Facts The facts, set forth in the light most favorable to the appellant, who was the non-moving party at summary judgment, are as follows. Laura Nerenberg, a probationary employee of RICA of Southern Maryland, was given the choice of resignation or termination from her position as a Therapeutic Administrator I after her employer became increasingly dissatisfied with her job performance. After Laura died, at age 31, from complications of diabetes, her estate sued RICA under the ADA 1 and the Rehabilitation Act, 2 claiming that she was discharged because she was diabetic. ⁶⁵⁵ RICA is a facility for children with psychiatric or emotional disorders recognized by the Diagnostic and Statistical Manual (“DSM”) IV. Children placed at RICA may suffer from impulsivity disorders, severe disturbances in interpersonal relations and behavior, sexual identity problems, aggressiveness, and the aftereffects of physical and emotional abuse.

These children are prone to behaving in ways that might result in harm; thus, they must be continually supervised by staff members who exercise sound judgment. Monica Cooke, then the Director of Nursing and Residential Services, hired Laura in May 1994 for the position of Therapeutic Recreator I. Laura was responsible for supervising male children and adolescents, designing and implementing recreational activities used to evaluate their physical and emotional strengths, and evaluating whether they could engage in developmentally appropriate programs. She was also responsible for transporting them to off-campus events, and, we note, “state vehicles” were listed as required equipment on the position description form for a Therapeutic Recreator I. As with all new State employees, Laura was initially placed on probation for a six-month period. 3 Cooke transferred to another facility in October 1994, and Janette Carson became the Acting Director of Nursing and Residential Services. Carson, who holds a master’s degree ⁶⁵⁶ with a specialty in psychiatric nursing, supervised all nurses and therapeutic recreators who provided care and services to the RICA children.

She directly supervised Eddie Spearman, RICA’s former Director of Therapeutic Recreation, who, in turn, supervised Laura. Laura proved popular with the children, and she earned praises from Spearman. Because Spearman had considerable autonomy in running his department, Laura had relatively little contact with Carson and upper management. Nevertheless, even as Laura’s probationary period was set to expire in November 1994, Carson harbored significant concerns about her job performance, and not without reason.

For example, in October, while RICA children and staff participated in a tree-planting event, Laura allowed the children under her care to play near heavy equipment located in the vicinity. When Laura failed to heed Carson’s warning to supervise the children more closely, Carson herself directed the children away from the equipment. Thus, in late October, Carson met with Spearman to discuss Laura’s job performance. At this meeting, Spearman also reported some concerns, but he said that he was willing to work with Laura to overcome them.

He worried, for example, that Laura became overly involved with the children she supervised, jeopardizing the objectivity she needed to monitor and evaluate emotionally disturbed children. He was concerned that Laura became too invested in the unit’s activities, e.g., after a rock-climbing trip was canceled, she attempted to revive the activity, going from unit to unit trying to determine which children might still be available. He further noted that Laura inappropriately joined in activities outside of her unit, taking time away from her real responsibilities. Carson and Spearman met with Laura to discuss these concerns.

Carson decided, over Spearman’s protests, that the concerns justified extending Laura’s probation, and she thus contacted the personnel office to learn the appropriate procedures for doing so. She was informed that she only needed to complete a form to extend probation. She was not required to docu ⁶⁵⁷ ment her reasons for the extension. Laura’s probationary period was extended.

In December 1994, while transporting RICA clients in a State van, Laura suddenly became unresponsive. The mental health aide accompanying the group was unable to rouse her, and the van hit the car in front of it, which was stopped at a red light. Laura’s loss of consciousness was never attributed to her diabetes; indeed, her own physician stated that her fainting spell or seizure was due to an unknown etiology, for her blood glucose level after the accident was within normal limits. It should be noted that, prior to the accident, neither Carson nor Dr. Joseph O’Leary, RICA’s Acting Chief Executive Officer, seemed to know first-hand that Laura suffered from diabetes.

Although Laura had indicated her condition on an employee information sheet, wore a medic alert bracelet, and had told some co-workers about the illness, Carson claims she had only heard rumors. Cooke, however, said that Dr. O’Leary seemed to know about Laura’s medical condition and expressed concern about whether Laura’s condition was sufficiently under control so that she could do her job. After the accident, Carson, who questioned whether Laura was still able to perform the physical tasks that her job required, contacted Employer-Employee Relations, which recommended that Laura be referred to the State Medical Director’s office for an evaluation. Such a referral is standard procedure for State employees who exhibit health problems on the job.

The Medical Director requested that Carson prepare a task analysis of the Therapeutic Recreator I position, so that he might determine whether Laura could carry out her job duties. Carson included driving on the list of required tasks. Although the evaluation was incomplete at the time of Laura’s termination, a neurologist had recommended that she should refrain from driving in the future, and all parties agreed. As the probationary period continued, Carson and Dr. O’Leary identified additional problems with Laura’s performance.

For example, Laura seemed to have difficulty getting some of the more willful clients to cooperate with various ⁶⁵⁸ tasks. Laura also argued with Dr. O’Leary on, one occasion, a problem that he considered to be especially serious in an institution that deals with severely disturbed children. The argument occurred in early February 1995, after he requested that Laura cease from trying to repair a broken copier. The machine had been damaged previously when other employees had tried to fix it, and Dr. O’Leary requested that she not remove a paper jam.

Laura may have threatened to drive to the library to make copies. After Dr. O’Leary reminded her that she was not permitted to drive, she said that she would ask Spearman, her supervisor, to drive her there. Ultimately, Dr. O’Leary informed Laura that she was under his supervision and would have to respect his authority. In January 1995, Laura experienced another episode of unconsciousness.

She was supervising children in the gymnasium when she became unresponsive and fell down. Carson reported the incident to Employer-Employee Relations. Shortly thereafter, she received the Medical Director’s report indicating that Laura was still under evaluation and should refrain from operating State vehicles. On February 17,1995, Carson received a complaint from the resident grievance counselor, an independent advocate for patients housed at State facilities, questioning the appropriateness of some of Laura’s activities with the children.

Such complaints, we note, are quite atypical, according to RICA management. Carson interviewed the children who had complained and learned that Laura tried to get the children— some of whom had suffered sexual abuse or experienced sexual identity problems — to participate in games in which they might risk touching one another’s intimate parts. For example, Laura tied two boys together back to back, at the hip, and directed them to untie themselves, and she had the boys pass though one another’s legs blindfolded. Carson thought the games were inappropriate for emotionally disturbed children and reported the matter to Dr. O’Leary, who agreed with her assessment. ⁶⁵⁹ Carson also learned from another staff member on the same day that Laura planned to take the children to see Street Fighters, a movie based on a video game that the children liked and described by the Washington Post reviewer as “ultra violent” and containing “ugly language.” Both Carson and the unidentified staff member thought the movie was inappropriate for emotionally disturbed children.

Carson contacted Frances Legg in the Employer-Employee Relations Unit at RICA about these incidents. Legg had previously informed Dr. O’Leary that Laura’s conduct at the copier alone warranted her termination, because she was a probationary employee and thus under evaluation for fitness to perform her job. Given these new complaints, she counseled Carson either to discharge Laura or give her an opportunity to resign. Legg had no knowledge that Laura suffered from diabetes.

Later that day, Carson and O’Leary met with Laura and offered her a choice between resigning or being fired. 4 Laura initially chose termination, although she later submitted a letter of resignation. Discussion This appeal arose because the trial court granted RICA’s motion for summary judgment. We now seek to determine whether the trial court was legally correct, because, by granting a summary judgment motion, the trial court has ruled as a matter of law and refrained from resolving any disputed issues of fact. Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); accord, Barnett v. Sara Lee Corp., 97 Md.App. 140, 146 , 627 A.2d 86 , cert. denied, 332 Md. 702 , 632 A.2d 1207 (1993).

This Court must thus review the record and decide the same issues as the circuit court. Nationwide Mut. Ins. Co. v. Scherr, 101 Md. App. 690, 695 , 647 A.2d 1297 (1994), cert. denied, 337 Md. 214 , 652 A.2d 670 (1995). ⁶⁶⁰ Summary judgment may be properly granted only where the movant “ ‘(i) clearly demonstrate^] the absence of any genuine issue of material fact, and (ii) demonstrate(s) that it is entitled to judgment as a matter of law.’ ” Suburban Hosp., Inc. v. Health Resources, 125 Md.App. 579, 588 , 726 A.2d 807 (quoting Fearnow v. Chesapeake & Pot.

Tel. Co. of Md., 104 Md.App. 1, 48 , 655 A.2d 1 (1995), aff'd in part, rev’d in part, 342 Md. 363 , 676 A.2d 65 (1996)), cert. granted, 354 Md. 570 , 731 A.2d 969 (1999); see also, Md. Rule 2-501(e). “A material fact is one that will ‘somehow affect the outcome of the case.’ ” Fearnow, 104 Md.App. at 49 , 655 A.2d 1 (quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985)). A disputed fact only becomes significant and creates a genuine issue when it is material to the outcome of the case. Keesling v. State, 288 Md. 579 , 420 A.2d 261 (1980).

To meet his burden, the movant must identify portions of the record that demonstrate absence of a genuine issue of material fact. Fearnow, 104 Md.App. at 49 , 655 A.2d 1 (citing Bond v. NIBCO, Inc., 96 Md.App. 127, 136 , 623 A.2d 731 (1993)). Once the movant makes his showing, the burden shifts to the nonmoving party to “identify with particularity the material facts that are disputed.” Md. Rule 2-501(b); see also Fearnow, 104 Md.App. at 49 , 655 A.2d 1 . “Neither general allegations of facts in dispute nor a mere scintilla of evidence will suffice to support the non-movant’s position; there must be evidence upon which the jury could reasonably find for the moving party.” Id. (citations omitted). “Thus, when a movant has carried its burden, the party opposing summary judgment ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ” Beatty v. Trailmaster Prod., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993) (quoting Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986)). When considering a summary judgment motion, the trial court makes no findings of fact; instead, it decides whether a genuine issue that would preclude the entry of ⁶⁶¹ summary judgment exists in the facts before it. Suburban, 125 Md.App. at 587 , 726 A.2d 807 .

The court considers the motion and response submitted by the parties in the light most favorable to the non-moving party. Fearnow, 104 Md. App. at 49 , 655 A.2d 1 . It resolves all inferences from that evidence against the moving party, Goodwich v. Sinai Hosp. Baltimore, 343 Md. 185, 207 , 680 A.2d 1067 (1996), and “the non-moving party is ... given the benefit of all reasonable doubts in determining whether a genuine issue exists.” Fearnow, 104 Md.App. at 49-50 , 655 A.2d 1 .

Here, the appellant-plaintiff seeks to show that the trial court erred in granting summary judgment to RICA, the appellee-defendant, in an employment discrimination case brought under two federal statutes, the ADA and the Rehabilitation Act. To prove discriminatory discharge under these statutes, 5 a plaintiff must first, in the absence of direct evidence, prove by a preponderance of the evidence the four prongs of a prima facie case set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d 668 (1973). See Ennis v. National Ass’n of Bus. & ⁶⁶² Educ. Radio, Inc., 53 F.3d 55, 57-59 (4th Cir.1995); Brandon v. Molesworth, 104 Md.App. 167 , 655 A.2d 1292 (1995); aff'd in part, rev’d in part, 341 Md. 621 , 672 A.2d 608 (1996).

If the plaintiff succeeds, then the burden of production “shifts to the defendant to articulate some legitimate, non-discriminatory explanation which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Id. at 58. If the defendant meets this burden, the presumption created by the prima facie case disappears. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir.1997).

The plaintiff, however, has the ultimate burden of persuasion. Id. She must then show that the reasons put forth by the employer are merely pretextual and that her disability was the true reason for her discharge. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508 , 113 S.Ct. 2742, 2747-48 , 125 L.Ed.2d 407 (1993).

Because, however, this appeal arises from a motion for summary judgment in which the defendant was the movant, we note that the estate bore no burden of proof. Instead, after RICA produced its evidence in support of summary judgment, it fell to Laura’s estate, relying on the circumstantial evidence, to demonstrate that there existed a genuine issue by presenting, for each element of the prima facie case, facts that would be admissible in evidence. Goodwich, 343 Md. at 206 , 680 A.2d 1067 ; Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10 th Cir.1997). It failed to present such facts.

Even if it had established a prima facie case, the estate would have then been required to show that a genuine issue of material fact existed as to whether RICA’s proffered reasons for Laura’s discharge were pretextual, id., which it also failed to do. In its brief, the estate characterizes the instant appeal as one that revolves around the issue of RICA’s intent, i.e., whether it was motivated by legitimate business concerns when it fired Laura, or simply by the desire to rid itself of a handicapped employee. Cases that raise issues of intent, it argues, are inappropriate for summary judgment. See Berkey ⁶⁶³ v. Delia, 287 Md. 302, 307 , 413 A.2d 170 (1980).

Here, summary judgment is appropriate because there exists no genuine issue of material fact as to intent, id.; nevertheless, we also believe that appellant defines the issue too narrowly to encompass all considerations that the trial court would have made in granting summary judgment. We therefore apply the McDonnell Douglas framework to reach the ultimate question. 6 Our analysis of the issues faced by the trial court necessarily begins with whether the estate established a pri-ma facie case of discrimination under the ADA. I We hold that RICA is entitled to summary judgment because the undisputed facts show that the estate would be unable to establish a prima facie case under the ADA. In McDonnell Douglas, 411 U.S. at 802 , 93 S.Ct. at 1824 , the Supreme Court laid out the four prongs of the prima facie case under the Rehabilitation Act, which also apply to the ADA.

The estate must prove: 1) that [Laura] was in a protected class; 2) she was discharged; 3) at the time of the discharge, she was performing her job at a level that met her employer’s legitimate expectations; and 4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Ennis, 53 F.3d at 58 (citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981)) (applying McDonnell Douglas). The evidence adduced for the third and fourth prongs of McDonnell Douglas does not support an inference that RICA’s employment decision was based on illegal discriminatory criteria, and, without that inference, the trial court would have been unable to find a genuine issue of material fact. See O’Connor v. Consol.

Coin Caterers Corp., 517 U.S. 308, 310-11 , ⁶⁶⁴ 116 S.Ct. 1307, 1310 , 134 L.Ed.2d 433 (1996) (“As the very name ‘prima facie case’ suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a ‘legally mandatory, rebuttable presumption.’ ”) (quoting Burdins, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7) (emphasis added). RICA does not dispute that Laura was discharged. 7 Neither does it dispute, for the purposes of this appeal, that Laura was in the protected class of persons. 8 Instead, it argues, and we agree, that the proof adduced by the estate did not present genuine issues of material fact as to whether Laura’s job performance met the legitimate expectations of her employer and as to whether one might draw from the circumstances of her dismissal a reasonable inference that Laura was discharged because of diabetes. A Even when the material facts are examined in the light most favorable to the estate, there is little doubt that Laura failed to meet her employer’s legitimate job performance expectations. Laura was hired to work with emotionally and mentally disturbed adolescents, a job that required her to exercise good judgment and, when there was a policy disagreement, to yield to the seasoned perspective of those who supervised her, ⁶⁶⁵ including Dr. O’Leary, a board-certified psychiatrist, and Carson, a registered nurse with a master’s degree in psychiatric nursing.

In meeting its burden to show that the termination had been for legitimate reasons, RICA adduced considerable evidence that the estate does not contest to show that Laura’s job performance had been problematic. For example, shortly after she became Director of Nursing in October 1994, Carson observed that the children in Laura’s care at a tree-planting event were playing close to heavy equipment. Some of the children in Laura’s group had problems with aggressiveness and impulse control, yet she allowed them to play with a heavy fire hose that could be used to hurt others. Ultimately, Carson intervened and removed the children from danger.

In November 1994, as Laura’s probationary period was set to expire, Carson spoke with Spearman about Laura’s performance. Both acknowledged that Laura had problems with becoming distracted by activities away from her unit and being overly involved with her charges in a way that risked her objectivity. Spearman said both at the time and during his deposition that he did not believe these concerns warranted extending Laura’s probationary period, but Carson believed that they did. After discussing the matter with Employer-Employee Relations personnel, she completed the paperwork to do so.

Laura’s performance problems continued during the extended probationary period. In February 1995, Carson learned of an incident in which Laura argued with Dr. O’Leary when he asked her to stop trying to remove jammed paper from the copier. Although details of the incident differ between witness accounts, 9 even the estate’s witness agreed that Laura ⁶⁶⁶ became quite upset with Dr. O’Leary. Employer-Employee Relations later advised Carson that this incident alone warranted dismissal.

Along with the other concerns that both Carson and Dr. O’Leary had about Laura’s judgment, two other incidents that occurred on February 17, 1995, were determinative. First, Carson received the complaint from the boys under Laura’s supervision. The boys, mainly adolescents, were uncomfortable with various trust-building exercises involving physical contact that Laura had chosen for them to do. In Dr. O’Leary’s words, these exercises, although “intended to be therapeutic!,] were actually anything but in a population of emotionally disturbed, behaviorally disordered children, many of whom had a history of abuse, physical and sexual abuse, and neglect.” Second, another staff member told Carson that Laura planned to take the children under her care to see an “ultra-violent” movie containing “ugly language.” To Carson and Dr. O’Leary, this information provided more signs that Laura lacked the judgment to continue working at RICA.

Carson spoke with a representative of Employer-Employee Relations, who advised that, based on her overall record, Laura should be terminated rather than permitted to become a permanent State employee. This procedure, we note, comports with Maryland’s policies regarding the probationary period for new State employees, as explained in the affidavit of Frances Legg, Chief of the Employer-Employee Relations Unit at RICA. See also DeJarnette v. Corning, Inc., 133 F.3d 293, 296 (4th Cir.1998) (“Corning watches its probationary employees closely and holds them to a higher standard than regular employees.”). The estate, we note, does not dispute that any of the aforementioned events occurred; rather, as the trial judge pointed out, only its characterization of those events and interpretation of what they mean differ from those of RICA.

As for the estate’s evidence that ostensibly creates genuine issues of material fact, it produced deposition testimony from Spearman and from Monica Cooke, Carson’s predecessor, who served as Spearman’s supervisor until October 1994. Both ⁶⁶⁷ Cooke and Spearman found no serious problems with Laura’s performance at RICA. Cooke said in deposition: Q: Okay. And would you say that she possessed those qualities of a good recreational therapist that you just described to me?

A: Absolutely.... Q: Did you have any — ever observe any problems with her job performance? A: No, other than those related to her inexperience and seeking feedback, which I would consider normal, not problematic. In fact, advantageous that she would do that.

No, I don’t recall any specific problems. Q: Okay. Did you ever have the opportunity to evaluate her? A: Not in — not specifically, not formally, because [Spear-man] would have done that, but I certainly would have given feedback to him about how to help her or manage situations, if she needed that....

Spearman said: I had no problem with her. The kids loved her. The staff loved her. I saw no reason for her to be on probation....

I’m her direct supervisor. Janet [sic ] Carson or Joe O’Leary has no direct contact with her other than seeing her down the hallway. Yet, even qualified praise for Laura’s strengths and a different interpretation of the copier incident do not create issues of material fact as to her failure to perform up to the legitimate expectations of her employer. RICA does not claim that Laura was unqualified to be a therapeutic recreator or devoid of desirable traits as an employee.

It discharged Laura not because the children or her immediate supervisor found her unpleasant, or even incompetent, but because she showed questionable judgment on several occasions. Accord Clay v. City of Chicago Dep't of Health, 143 F.3d 1092 (7th Cir.1998) (proof that plaintiff was once considered an adequate employee before her discharge does not suggest that defendants’ explanation for her discharge was illegal). As for the ⁶⁶⁸ differences between the two accounts of the copier incident, we note the commonalities of material fact in both versions of the story. Neither party disputes the fact that Laura and Dr. O’Leary argued and that Laura became emotionally overwrought, appearing to be intemperate and defiant.

The very fact that she argued with rather than immediately obeyed Dr. O’Leary is material; the precise words she used are not. Even examining this incident in the light most favorable to the estate, Laura clearly defied a direct order in an organization that by its nature must be a tight ship. After she was terminated, Laura acknowledged to the EEOC that Carson and Dr. O’Leary informed her when they terminated her that their decision was based upon her poor judgment and tendency to argue. Given RICA’s mission to serve emotionally and psychiatrically disturbed children and, in Dr. O’Leary’s words, its “very high degree of obligation to the children that were served,” we find it clear that Laura was unable to meet her employer’s legitimate needs.

While children and coworkers might have enjoyed Laura’s company, RICA had a duty to protect its clients from negligent supervision, risky decisions, and staff members who tended to defy management. Because the estate cannot show that Laura met her employer’s legitimate expectations, it failed to establish a prima facie case of discrimination under the ADA, and the court below properly granted summary judgment. B Likewise, the evidence fails to support the fourth prong of the McDonnell Douglas test, for none of the facts adduced raises a reasonable inference that Laura was discharged because of her diabetes. The estate, as we note above, does not dispute the occurrence of the events leading up to Laura’s being discharged.

Instead, it focuses on “whether they were the true motivation for Laura’s firing.” RICA, in turn, concedes that Laura’s coworkers, and possibly her managers, had “some incidental knowledge of her diabetes,” but points out— correctly, we think — that “the mere fact that an employer ⁶⁶⁹ knows that an employee suffers from a disability is not evidence of discrimination.” The undisputed facts of Laura’s termination contradict the estate’s assertion that she was fired because of her illness. Carson and Dr. O’Leary made the decision to discontinue Laura’s employment based on the advice of Frances Legg, Chief of the Employer-Employee Relations Unit at RICA. Legg states in her affidavit that she was unaware of Laura’s diabetes at the time she initially advised termination, after the copier incident, and that, furthermore, such knowledge would not have changed the advice she gave about terminating employees with discipline problems: I advised Dr. O’Leary that he should terminate Ms. Neren-berg on probation because she exhibited behavior that was inappropriate. In general, if an employee on probation demonstrates any problematic behavior, I would recommend that the employee be terminated on probation or asked to resign.

I further advised him that if he terminated Ms. Nerenberg on probation he would have to send her a notice outlining the reasons for the termination on probation and pay her for two additional weeks from the date she received notice of termination. I did not know that Ms. Nerenberg had diabetes and in any event this would not have impacted on my advice at all. As for Carson’s and Dr. O’Leary’s knowledge of and supposed concerns about Laura’s illness, we first note that her diabetes was no secret. Laura herself acknowledged the illness on her employee information form and wore a medic alert bracelet.

Carson has testified that she had some “incidental” knowledge of rumors that marks on Laura’s legs were somehow attributed to diabetes. Likewise, Monica Cooke testified that she could not remember Laura’s diabetes “being an issue with anyone,” and the only concern that Dr. O’Leary had expressed to her was whether Laura’s diabetes was under control “and I guess ... not going to black out when having a job to do with the kids.” Testimony about the extent of their knowledge is consistent with the estate’s claims that they ⁶⁷⁰ lacked day-to-day supervisory contact with Laura. Furthermore, it would be difficult to infer from the evidence anything other than concern for her safety and the smooth functioning of her unit at the center. Moreover, management’s mere knowledge of Laura’s diabetic condition is not enough to support an inference of discrimination.

Cf. DeJarnette, 133 F.3d at 298 (“Rather than suggesting discrimination, Coming’s knowledge of DeJarnette’s pregnancy while hiring her creates an inference that Coming’s reasons for discharging DeJamette are not pretextual.”). Neither can the estate infer discriminatory intent from RICA’s request that Laura be evaluated by a physician after the automobile accident in a State vehicle, which was caused by her loss of consciousness. The ADA does not bar such evaluations as long as they are “job related and consistent with business necessity.” 10 See Yin v. California, 95 F.3d 864, 867-68 (9th Cir.1996) (employer can require physical evaluation to determine employee’s ability to work); Rodriguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653, 661 (D.P.R. 1997) (“Where a medical examination serves to determine an employee’s ability to perform her job, the ADA would not prevent the plaintiffs employer from requesting the examination.”).

Here, RICA did not seek to screen Laura to determine if she was disabled, an act that might have been contrary to law. Instead, management submitted the request for an assessment ⁶⁷¹ to the State Medical Director after Laura had already caused an accident and endangered the clients riding with her, in order to learn “about any limitations that Ms. Nerenberg had,” especially those that would put those clients at risk. At this point, not to have evaluated Laura’s medical fitness would have been against State policies. As Legg stated in her affidavit, 12.

I would advise a supervisor or personnel officer to send an employee for such an evaluation even if the employer agreed to accommodate the alleged condition.... This is to protect both the employee and the employer. The employee should be evaluated so that any additional limitation could be noted. This would prevent the employee from harming herself or himself as well as harming others.

This would also protect the employer because the employer wants to minimize any injury to its employees, clients and third parties.... 19. I also learned that Ms. Nerenberg was going to be sent to the State Medical Director so that he could evaluate her ability to perform her duties and responsibilities. Because Ms. Nerenberg lost consciousness twice while she was working, and had an accident due to one such episode, such an evaluation was necessary. Ms. Nerenberg’s voluntary agreement not to drive did not change the need for such an evaluation.

It was incumbent upon the staff at RICA to learn about any and all limitations that Ms. Nerenberg had. The staff at RICA would be negligent in their duty if they failed to have such an evaluation performed.... Without question, the medical evaluation ordered was job-related and consistent -with the activities required of therapeutic recreators at RICA. Driving a State vehicle was in Laura’s position description.

Legg suggested the evaluation without any knowledge that Laura had diabetes; all she knew was that Laura had fainted and an accident had occurred. Furthermore, no evidence adduced by either side suggests that the medical evaluation, which was never completed, led to any adverse job action. Quite the contrary occurred, in fact, because Carson stated both in deposition and in her affidavit ⁶⁷² that she was willing to try to accommodate any disability that Laura had, whether or not it was caused by diabetes: 11 Q: So the fact whether or not she could drive didn’t have any impact on whether or not, in your mind, she could adequately do her job? A: It did not during this time and during the time that she was under my supervision.

It was easy to make other arrangements for people to drive, so until I had clearance from a physician, it was no problem. In her affidavit, moreover, Carson stated that she “was concerned if Ms. Nerenberg had any other limitations and they were not addressed, it could result in harm occurring either to the children or to Ms. Nerenberg.” Plainly, one could infer that RICA management was willing to work within Laura’s limitations. In contrast, the estate draws untenable inferences based upon the mere speculation of other RICA employees, including Monica Cooke and Eddie Spearman, both former employees who had disagreed with Dr. O’Leary. All Cooke’s deposition contributed was information that Spearman and Leroy Hughes, her former assistant, passed on to her by phone after Laura’s discharge. 12 Yet, Cooke could not recall any negative ⁶⁷³ comments about Laura’s diabetes made by Carson or Dr. O’Leary. 13 As for Spearman, his analysis of Laura’s termination crumbled during his deposition.

See infra Part III. In short, the evidence adduced presented little factual basis for the inferences that the estate wanted the trial court to draw. Finally, the estate makes