NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 26, 2013*
Decided September 27, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐3228
MICHAEL A. SANDERS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 09‐3207
ILLINOIS DEPARTMENT OF CENTRAL Sue E. Myerscough,
MANAGEMENT SERVICES, Judge.
Defendant‐Appellee.
O R D E R
Michael Sanders appeals the jury verdict in favor of his former employer, the
Illinois Department of Central Management Services (CMS), in this employment‐
discrimination suit under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 to
12213. We affirm.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 12‐3228 Page 2
Sanders was fired from his job as a data‐processing technician after he repeatedly
refused to undergo a psychiatric evaluation to assess his fitness for duty. He appealed
his termination to the Illinois Civil Service Commission, arguing that his boss lacked
good cause to fire him. CMS, relying on a witness’s statement that Sanders had
threatened his direct supervisor, said that the psychiatric evaluation was necessary to
ensure that Sanders was not a threat to workplace safety. After a hearing, the
Commission ruled in Sanders’s favor, finding that CMS acted unreasonably by not
investigating the alleged threat. The Commission noted that another state agency
entrusted with investigating allegations of misconduct, the Office of Executive Inspector
General, found insufficient evidence to conclude that Sanders had threatened to harm
his supervisor.
Sanders, who does not claim to have a disability, then sued in federal court,
arguing that CMS had violated the ADA by requiring a psychiatric examination that
was not “job‐related” or “consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A). The court asked the parties to consider whether a non‐disabled
individual could bring a claim under § 12112(d). Recognizing that this circuit has not
resolved this issue, see O’Neal v. City of New Albany, 293 F.3d 998, 1007 (7th Cir. 2002),
the court allowed the claim to go forward because other circuits have ruled that a
plaintiff need not show disability to sue under § 12112(d). See Kroll v. White Lake
Ambulance Auth., 691 F.3d 809, 814 (6th Cir. 2012); Cossette v. Minn. Power & Light, 188
F.3d 964, 969 (8th Cir. 1999); Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172
F.3d 1176, 1181–82 (9th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 593–95 (10th Cir.
1998).
As discovery progressed, Sanders sought to prevent CMS from arguing at trial
that he was a threat to workplace safety; he asserted that the decision of the Illinois Civil
Service Commission precluded that argument. The district court construed his motion
as an argument for partial summary judgment based on collateral estoppel or res
judicata, and determined that neither doctrine barred CMS from litigating the issue in
federal court. First, the court noted, the issues in the two proceedings were not
identical—the Commission had used a subjective standard to determine if the firing
was reasonable, whereas the ADA requires an objective analysis of business necessity.
Second, the court explained, because Sanders had not made a claim of disability
discrimination in the administrative proceedings, CMS lacked a fair chance to litigate
that issue.
No. 12‐3228 Page 3
The case proceeded to trial on whether the psychiatric evaluation was job‐related
or consistent with business necessity based on the alleged threat to workplace safety.
The jury heard testimony about the allegedly threatening statements from Sanders, his
boss, and the witness who reported the statements to management. Deciding that the
psychiatric evaluation was job‐related, the jury found in favor of CMS.
On appeal Sanders generally challenges the district judge’s decision not to recuse
herself under 28 U.S.C. § 455. At the outset of the proceedings, the judge had raised the
possibility of recusal sua sponte, noting that the Attorney General of Illinois (who was
defending CMS here) represented her in unrelated litigation. After Sanders refused to
sign a waiver acknowledging the judge’s disclosure, see id. § 455(e), the judge concluded
that her involvement in both cases did not create an impression of prejudice. Sanders
now contends that her adverse rulings show prejudice, but to the extent he relies on
§ 455(a), he failed to pursue his only avenue for review—a pretrial petition for
mandamus. See United States v. Johnson, 680 F.3d 966, 979–80 (7th Cir. 2012); United
States v. Diekemper, 604 F.3d 345, 351 (7th Cir. 2010). Nor has he presented any evidence
that would lead a reasonable observer to believe that the judge was incapable of ruling
fairly, as required to establish actual bias under § 455(b). See Collins v. Illinois, 554 F.3d
693, 697 (7th Cir. 2009).
Sanders next contends that the district court erred in determining that collateral
estoppel did not apply; he maintains that the Commission’s decision should have
precluded CMS from characterizing the evaluation as job‐related. But the district court
correctly determined that the two proceedings involved different legal issues: The Civil
Service Commission examined whether CMS had good cause to fire Sanders, see ILL.
ADMIN. CODE tit. 80, § 1.170; Williams v. Ill. Civil Serv. Com’n, 968 N.E.2d 1238, 1240–41
(Ill. App. Ct. 2012), but this suit concerns the legality of his boss’s decision to order him
to undergo a psychiatric examination, see 42 U.S.C. § 12112(d)(4)(A); Coffman v.
Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009). Insufficient cause for firing is not
the same as discrimination under the ADA, so collateral estoppel does not apply.
See Nowak v. St. Rita High Sch., 757 N.E.2d 471, 480 (Ill. 2001). Moreover, as the district
court correctly noted, it would be unfair to apply collateral estoppel on the issue of
disability discrimination when CMS had no incentive to litigate that particular issue in
the administrative proceeding. See Edmonds v. Ill. Workers’ Comp. Comm’n, 968 N.E.2d
775, 785 (Ill. App. Ct. 2012); Preferred Pers. Servs., Inc. v. Meltzer, Purtill & Stelle, LLC, 902
N.E.2d 146, 156–57 (Ill. App. Ct. 2009).
No. 12‐3228 Page 4
Sanders also generally challenges the sufficiency of the evidence that the
psychiatric evaluation was job‐related. But his failure to file a post‐verdict motion for
judgment as a matter of law forecloses that challenge. See FED. R. CIV. P. 50(b); Unitherm
Food Sys., Inc. v. Swift‐Eckrich, Inc., 546 U.S. 394, 404 (2006); Consumer Prods. Research &
Design, Inc. v. Jensen, 572 F.3d 436, 437–38 (7th Cir. 2009).
Finally, Sanders has waived the claims that he did not include in his complaint
and thus raises for the first time on appeal, among them that CMS unlawfully retaliated
against him after he complained about racial discrimination and that CMS violated state
law by demanding that he waive doctor‐patient confidentiality before attending the
psychiatric evaluation. See James v. Hyatt Regency Chicago, 707 F.3d 775, 783 (7th Cir.
2013); Abuelyaman v. Ill. State Univ., 667 F.3d 800, 813–14 (7th Cir. 2011).1
We have reviewed Sanders’s remaining contentions—regarding evidentiary
rulings, the jury size, the attorneys who represented CMS, and damages—and conclude
that all are without merit.
AFFIRMED.
1
Because he has waived the state‐law issue of medical confidentiality, we deny
his motion to certify a question to the Supreme Court of Illinois. See CIR. R. 52(a); Brown
v. Argosy Gaming Co., L.P., 384 F.3d 413, 415–16 (7th Cir. 2004).