                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0106n.06
                                                                                   FILED
                                           No. 15-3450                        Feb 19, 2016
                                                                          DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

PEGGY J. BARNUM                                           )
                                                          )
       Plaintiff - Appellant                              )
                                                          )
v.                                                        )
                                                          )
THE OHIO STATE UNIVERSITY MEDICAL                         )
CENTER; E. GORDON GEE, in his official capacity           )
as President of The Ohio State University; STEVEN         )
                                                              ON APPEAL FROM THE
G. GABBE, in his official capacity as Chief               )
                                                              UNITED STATES DISTRICT
Executive Officer of OSUMC; RONALD HARTER,                )
                                                              COURT     FOR     THE
in his individual and official capacity as Chair of the   )
                                                              SOUTHERN DISTRICT OF
Anesthesia Department of OSUMC; STEPHEN                   )
                                                              OHIO
PARISER, in his individual and official capacity as       )
Chair of the Peer Review Committee of The Ohio            )
State University; JOHN AND JANE DOES, 1-10, in            )
their individual and official capacities as members of    )
the Peer Review Committee                                 )
                                                          )
       Defendants - Appellees                             )
                                                          )



BEFORE:        DAUGHTREY, ROGERS, and WHITE, Circuit Judges.

       ROGERS, Circuit Judge.        After Peggy Barnum exhibited unusual behavior while

working as a Certified Registered Nurse Anesthetist, her superiors at The Ohio State University

Medical Center required her to undergo a psychological evaluation. Barnum was eventually

placed on paid sick leave pending her compliance with certain requirements, one of which was a

more thorough psychiatric evaluation. Before Barnum met the requirements, she filed multiple

complaints regarding OSUMC’s privacy practices. When Barnum exhausted her paid leave, her
No. 15-3450
Barnum v. Ohio State University Medical Center, et al.

leave was converted to unpaid.     She eventually fulfilled all of the requirements and was

reinstated.

       Barnum filed suit against the University, OSUMC, and her superiors, alleging among

other claims that her employer retaliated against her for protected speech regarding privacy

practices, and that her employer—regarding her as disabled—discriminated against her. The

district court granted the defendants’ motion for summary judgment, which Barnum now

appeals. Barnum can show no connection between the defendants’ actions and her protected

speech. Furthermore, Barnum failed to show that the defendants’ actions violated the Americans

with Disabilities Act or the Rehabilitation Act. The district court court’s grant of summary

judgment was therefore proper.

       Barnum worked as a Certified Registered Nurse Anesthetist (CRNA) at OSUMC,

beginning in 2006. In 2011, her home life began to disintegrate, ending in divorce proceedings

and the criminal prosecution of her daughter. Her personal issues began to surface during her

work at OSUMC. According to Lisbeth Hill, another CRNA, Barnum was going through a hard

time in the fall of 2011 and “without being certain of [Barnum’s] exact words, she has said

maybe I’d be better off I wasn’t here, maybe I should just put a gun to my head, maybe I should

just not be here.” Hill told Barnum’s supervisor, Chuck Martin, of her concern for Barnum, and

Martin went directly to his supervisors, Dr. Ron Harter, the chair of the Anesthesia Department

at OSUMC, and Steve Smith.

       Dr. Fernando Arbona, an anesthesiologist at OSUMC East, also became concerned about

Barnum when, over a two-to-four-week period, he received a “gradual escalation of []

undocumented reports” from surgeons, operating room nurses, anesthesiologists, and other

CRNAs regarding Barnum’s ability to concentrate on taking care of patients. Arbona notified


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Barnum v. Ohio State University Medical Center, et al.

Harter after learning a surgeon had to ask Barnum at least twice to raise a patient’s operating

table because Barnum was not paying attention. When the surgeon eventually got Barnum’s

attention, she allegedly responded along the lines of “I’m not worth anything or I’m worthless,

what good does it do or what difference does it make, why should I even be here, maybe I should

do everybody a favor and not be around.” Harter testified that he was particularly concerned

about this incident because adjusting the height of an operating table is a routine task, and her

response “calls into question not only her well-being but her ability to focus on providing care to

the patient if something that’s [a] relatively straightforward request is met with tears.”

        Barnum denies ever having a one-on-one conversation with Hill as Hill described, and

opined that Hill overheard a conversation Barnum had with another CRNA. Barnum admitted to

being unable to adjust the height of the operating table and becoming frustrated, and also

remembered being tearful in the operating room.

        In its opinion on the summary-judgment motions below, the district court laid out the

facts of the case in a timeline:

                In September to early October of 2011, over a period of two to four
        weeks, several of Barnum’s coworkers expressed concern about Barnum
        [described above]. In response, Dr. Arbona, an anesthesiologist at OSU East,
        called Dr. Harter and reported that Barnum may have “suicidal intention.”
        (Arbona Dep. 43–83.) Barnum testified that she thought that her coworkers’
        concern for her would have been “sincere and genuine.” (Barnum Dep. 105.)

               On October 7, 2011, Drs. Harter and [Stephen] Pariser[, a psychiatrist at
        OSUMC and Chair of the Peer Review Committee,] requested that Barnum report
        to the OSUMC emergency department (“ED”) to be evaluated for suicide risk.
        Barnum told Drs. Harter and Pariser that she was concerned that her husband[,
        who was a case manager for OSU mental health,] may see treatment records. She
        was told that, although she was welcome to go elsewhere, her information would
        be more likely to cross her husband’s desk if she went to a different hospital. She
        went to the OSUMC ED. (Barnum Dep. 73–74.) While Barnum was at the
        OSUMC ED, Dr. Pariser emailed Barnum stating that he would schedule a
        meeting with the [Peer Review Committee]. (Barnum Dep. 75–76.)


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                On October 9, 2011, Dr. Harter placed Barnum on “sick time” leave for
        one to two weeks, pending an evaluation. (Harter Dep. 45–46 (doc. 69).)

              On October 11, 2011, in an email, Dr. [Pariser] scheduled the [Peer
        Review Committee] meeting for October 25, 2011 and told Barnum that the [Peer
        Review Committee] wanted her to see a psychiatrist. (Barnum Dep. 107, ex. 11.)

                On October 25, 2011, Barnum met with the [Peer Review Committee],
        which recommended that Barnum remain off work until she secured a fitness for
        duty examination from a psychiatrist. Barnum testified that she initially resisted
        seeing a psychiatrist because she felt that the request amounted to “saying [she
        was] a nut job.” She was also concerned that her husband would know any
        psychiatrist at OSUMC, and she did not want to see a psychiatrist outside
        OSUMC because she did not believe it would be covered by her health insurance
        policy. (Barnum Dep. 137–38.)

                 On November 16, 2011, Barnum saw a psychiatrist, Dr. Masterson.

                On November 22, 2011, Barnum met with Dr. Thomas,[ another superior
        at OSUMC,] who indicated that a “fit-to-return-to-work” report from a
        psychiatrist Barnum selects would be adequate, as long as that individual had
        talked to Dr. Harter. (Barnum Dep. 205.)

               Barnum testified that, following her November 16, 2011 meeting with a
        psychiatrist, “[she] spent months and a total of 21 communications with [her]
        divorce attorney saying where is the report from Dr. Masterson.” (Barnum Dep.
        207.)

              On February 1, 2012, Barnum filed an internal complaint with OSUMC
        human resources, including allegations of privacy violations.

               On February 22, 2012, Barnum delivered to OSUMC a report by Dr.
        Masterson stating that Barnum was and always had been fit for duty. (2d. Am.
        Compl. ¶ 23.) Dr. Masterson had not spoken with Dr. Harter.

               In March of 2012, OSU requested Barnum to sign a release permitting
        OSU personnel to confer with Dr. Masterson. Barnum objected and requested
        that OSU either submit written questions to Dr. Masterson or confer with Dr.
        Masterson in a conference call attended by Barnum’s attorney.

               In April of 2012, Barnum filed a Charge of Discrimination with the [Ohio
        Civil Rights Commission].1

1
  Barnum also filed a complaint with the U.S. Department of Health and Human Services (HHS), Office for Civil
Rights (OCR), alleging that OSUMC violated the Federal Standards for Privacy of Individually Identifiable Health
Information, by failing to restrict Barnum’s protected health information from being shared and used by her
husband. On August 30, 2012, HHS OCR provided OSUMC materials explaining the Privacy Rule provisions and

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Barnum v. Ohio State University Medical Center, et al.


            On June 21, 2012, Barnum signed OSUMC’s authorization form allowing
        OSUMC personnel to speak privately with Dr. Masterson.

                On July 10, 2012, Drs. Thomas and Harter spoke with and provided
        background information to Dr. Masterson, who then issued an addendum to his
        report stating that his fitness-for-duty opinion had not changed.

               On July 31, 2012, Barnum provided OSUMC with a second opinion from
        Dr. Spare, a psychiatrist, who opined that she was fit for duty.

              On August 22, 2012, Barnum met with the [Peer Review Committee],
        which recommended her return to work. She was reinstated on November 9,
        2012.

Although Barnum had accrued enough vacation time to take her through March 10, 2012, she

declined to use it and was placed on unpaid medical leave on January 10, 2012, effective January

1, 2012, after her sick leave was exhausted.

        After her return to work, Barnum filed suit against a number of defendants. She amended

her complaint multiple times, added defendants, and eventually filed a second amended

complaint. In this complaint, she alleged six claims: (1) First Amendment retaliation; (2)–(4)

various alleged violations of equal protection and due process; (5) discrimination based solely on

disability, perceived disability, and/or classification or misclassification as disabled, in violation

of the Rehabilitation Act; and (6) discrimination based on disability or perceived disability in

violation of the Americans with Disabilities Act. Barnum sought monetary damages on some of

the claims and sought injunctive relief on others.

        The district court dismissed a number of Barnum’s claims. The court first trimmed away

the money-damage portions of the First Amendment claim against the defendants in their official

capacities. What remained of Barnum’s First Amendment count were the individual-capacity



asked that OSUMC review these materials and to ensure that noncompliance does not occur in the future. It closed
the case without further action.

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Barnum v. Ohio State University Medical Center, et al.

claims against her superiors as well as her equitable claims against OSUMC and the defendants

in their official capacities. Finding that Barnum’s April 18, 2012 complaint with the U.S.

Department of Health and Human Services Office for Civil Rights about OSUMC’s privacy

practices involved mixed questions of private and public concern, the district court denied

dismissal of the First Amendment claims: “While the privacy of Barnum’s own health

information is of private concern to her, OSUMC’s practices relating to individually identifiable

health information, particularly practices that are alleged to violate HIPAA, are a matter of

public concern.” Thus, Barnum’s First Amendment retaliation claim proceeded. The district

court dismissed some additional claims not at issue on this appeal, but the district court refused

to dismiss the disability claims, finding that Barnum alleged facts sufficient to constitute a

plausible adverse employment action.

       The district court subsequently granted the defendants’ motion for summary judgment on

the First Amendment claim. The district court analyzed four alleged retaliatory actions and the

issue of qualified immunity. First, the court examined OSUMC’s placing Barnum on leave after

initial delays and whether that constituted a retaliatory action. The court dismissed this claim

because the “[d]efendants undisputedly started the process of placing Barnum on leave before

she first expressed any privacy concerns, and . . . there is no genuine question as to whether

Barnum caused the initial delays.”      Second, the court dismissed Barnum’s claim that the

conversion of her leave from paid to unpaid was a retaliatory action, because the action was

simply a matter of Barnum’s exhausting her paid leave. Third, the district court found that there

was “no evidence that Barnum’s return-to-work ‘pathway’ was altered inappropriately” in

retaliation for her protected speech and therefore dismissed it as a retaliation claim. Fourth, the

court examined OSUMC’s demanding that Barnum sign a release so that OSUMC personnel


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Barnum v. Ohio State University Medical Center, et al.

could discuss Barnum’s mental health with her psychiatrist. Barnum argued that this was an

unnecessary requirement foisted upon her in retaliation for her speech. The court dismissed this

retaliation claim, because Barnum failed to argue that this was an unnecessary requirement and

she had previously objected to “at least one OSUMC doctor[’s] speaking with” her psychiatrist,

Dr. Masterson. Finally, because the court granted defendants’ motion for summary judgment on

each retaliation claim, the court found that a qualified immunity analysis was not necessary.

       The court also granted the defendants’ motion for summary judgment on Barnum’s

disability-discrimination claims. Because the analysis is similar under both the ADA and the

Rehabilitation Act, the district court analyzed together the claims under those statutes.

According to the court, OSUMC’s requiring Barnum to undergo a psychiatric examination did

not amount to regarding Barnum as disabled. The court, quoting Sullivan v. River Valley Sch.

Dist., 197 F.3d 804, 810 (6th Cir. 1999), reasoned that employers are allowed to require a mental

examination of an employee after the employee exhibits unusual behavior. Because Barnum did

not respond to Sullivan’s applicability to her case, the district court granted defendants’ summary

judgment motion on the disability discrimination claims, finding that Barnum was not “regarded

as” disabled.

       Barnum appealed the summary judgment to this court, but only as to her First

Amendment and disability-discrimination claims. On appeal of the First Amendment claim,

Barnum argues that she expressed privacy concerns before OSUMC commenced the process of

placing her on leave, that OSUMC’s keeping her on leave after she filed her privacy complaints

was retaliation, and that the district court erred in its determinations regarding her return-to-work

pathway and the release requirement. Barnum also argues that Kroll v. White Lake Ambulance

Auth., 763 F.3d 619 (6th Cir. 2014), compels a result in her favor on the disability-discrimination


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Barnum v. Ohio State University Medical Center, et al.

claim. None of these arguments has merit. Because Barnum cannot connect any of OSUMC’s

actions to her speech and because she was not regarded as disabled, the district court’s grant of

summary judgment was proper.

       Barnum’s initial “privacy concerns,” although arising before the process of placing her

on leave began, were not protected under the First Amendment and therefore fail to support her

retaliation claim. The district court held that “[d]efendants undisputedly started the process of

placing Barnum on leave before she first expressed any privacy concerns.” Barnum argues that

this is incorrect because she raised a privacy concern in the initial phone call she had with her

superiors on October 7, 2011. In that phone call, Barnum expressed concerns about undergoing

an initial psychiatric evaluation, because her husband might see the records. This was the extent

of her “privacy concerns” expressed at that time. A basic element of a First Amendment

retaliation claim is that the employee was speaking out on a matter of public concern. See

Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007) (citing McMurphy v. City of

Flushing, 802 F.2d 191, 197 (6th Cir. 1987)). Barnum’s October 7 concerns cannot be construed

as regarding a matter of public concern. In contrast to her HHS complaint’s being speech on

mixed matters of public and private concern, Barnum’s October 7 statements involved no issue

other than her husband’s potential access to her records. Her October 7 speech was thus not

protected by the First Amendment, because “the point of the protection afforded public

employees is to allow public employees a voice on issues actually affecting and interesting the

community at large.” Gragg v. Kentucky Cabinet for Workforce Dev., 289 F.3d 958, 966 (6th

Cir. 2002). Because Barnum’s only speech that received First Amendment protection—the filing

of her HHS complaint—occurred after she was placed on leave, the initial act of placing her on




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Barnum v. Ohio State University Medical Center, et al.

leave cannot be considered retaliation, and the district court properly granted the defendants

summary judgment on this claim.

       Moreover, Barnum has failed to put forth any evidence to support the connection between

OSUMC’s converting her leave to unpaid and her protected speech. As the district court stated,

the conversion of Barnum’s leave from paid to unpaid “appears to be a matter of Barnum[’s]

simply exhausting her paid [sick] leave.” No evidence exists that links the conversion to

Barnum’s protected speech. Also, because the decision to convert Barnum’s leave to unpaid was

made in January 2012, three months before she filed her HHS complaint, that decision could not

have been in response to her complaint. Because Barnum has not shown causation in this

instance, the district court properly granted the defendants summary judgment on this claim.

       Barnum’s claim that OSUMC retaliated against her by delaying her return to work

likewise lacks a causal connection. Barnum argues that the defendants impermissibly altered her

return-to-work pathway by not returning her to work after she submitted multiple fitness-for-duty

evaluations. However, she was informed of the requirements for reinstatement on November 22,

2011, when she met with Dr. Thomas. At that meeting, Dr. Thomas told Barnum that a fitness-

for-duty report from a psychiatrist Barnum selected would be adequate for reinstatement, “so

long as that individual had talked to Dr. Harter.” Thus, OSUMC had placed a requirement on

Barnum that she did not fulfill, and OSUMC therefore refused to reinstate her. Like her claim

premised on OSUMC’s converting Barnum to unpaid leave, no evidence exists that connects the

delays in her return to work to her protected speech, and therefore no jury could reasonably find




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Barnum v. Ohio State University Medical Center, et al.

for Barnum on this claim.2 The district court properly granted the defendants summary judgment

on this claim as well.

        With regard to Barnum’s final First Amendment claim, she fails to show a causal

connection between OSUMC’s requiring her to sign a release and her protected speech. The

evidence suggests that OSUMC does not normally require releases to talk with psychiatrists in

employee situations.         Barnum argues that because requiring a release is abnormal, there

necessarily exists a genuine issue of material fact regarding whether OSUMC’s requiring the

release was retaliation. Barnum, however, fails to show any connection between the release and

her protected speech. Although requiring a release was abnormal, Barnum admits that she

objected to a previous doctor’s talking to her psychiatrist. In response to the objection, the

defendants insisted that Barnum sign a release. This explains why the defendants imposed an

abnormal requirement, which Barnum argues cannot be explained. The objection was based

solely on Barnum’s perceiving the doctor “as biased against her.” No evidence suggests that

OSUMC required the release in response to Barnum’s protected speech, and the court can make

no reasonable factual inference to that effect. Indeed, the decision to require Barnum to sign a

release also occurred prior to Barnum’s HHS complaint, which Barnum alleges is the protected

speech that OSUMC was retaliating against. The district court therefore properly granted the

defendants summary judgment on this claim.3

        Lastly, Barnum was not “regarded as” disabled under the ADA and RA, as the Sixth

Circuit has interpreted that phrase. In order to recover on a claim of discrimination under the


2
  Barnum argues that Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 42 (1st Cir. 2011), in which the First Circuit
found required counseling sufficient to send the issue of retaliation to the jury, is analogous to her case. In Tuli,
however, the requirement to attend counseling came after the protected speech. Tuli, 656 F.3d at 37–38. This
renders Tuli inapposite.
3
  Because Barnum cannot show a violation of any constitutionally protected right, we need not reach the qualified
immunity issue.

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Barnum v. Ohio State University Medical Center, et al.

ADA, a plaintiff must first show that: 1) she is an individual with a disability; 2) she is otherwise

qualified to perform the job requirements, with or without reasonable accommodation; and 3) she

suffered an adverse employment action because of her disability. Sullivan, 197 F.3d at 810.

Analyses of “regarded as” claims are identical under both statutes, except that under the RA,

Barnum must show that she suffered an adverse employment action solely because of her

disability. See Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012) (en

banc); Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2003). Because the defendants were

entitled to summary judgment on Barnum’s claim under the ADA, they were likewise entitled to

summary judgment on Barnum’s RA claim.

       Barnum argues that OSUMC regarded her as disabled and violated the ADA by requiring

her to undergo medical examinations that were not job-related and consistent with business

necessity.   “An employer may request a medical examination when ‘there [is] significant

evidence that could cause a reasonable person to inquire as to whether [the] employee is still

capable of performing [her] job.’” Kroll, 763 F.3d at 619 (alterations in original) (quoting

Sullivan, 197 F.3d at 811). The burden is on the defendants in this case to show that the required

mental-health evaluations were “job-related and consistent with business necessity.” 42 U.S.C. §

12112(d)(4)(A); Denman v. Davey Tree Expert Co., 266 F. App’x 377, 379 (6th Cir. 2007).

       Here, Harter and Pariser were informed by Arbona that there were numerous concerns

expressed about Barnum’s inability to concentrate and at least one instance where she could not

perform a routine task. Harter was also informed that one of Barnum’s concerned coworkers

reported that Barnum had made a comment suggesting suicidal thoughts. These circumstances

constitute significant evidence that would cause a reasonable person to inquire whether the

employee is still capable of performing her job. See Sullivan, 197 F.3d at 808, 812–13. Thus,


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the examinations were job-related and consistent with business necessity, and therefore no

reasonable jury could conclude that the defendants regarded Barnum as disabled under the ADA

and RA.

       The district court’s judgment is accordingly affirmed.




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