Hixon v. Tenn. Valley Auth. Bd. of Dirs., 1:19-CV-120

CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee
Citation504 F.Supp.3d 851
Docket NumberNo. 1:19-CV-120,1:19-CV-120
Decision Date01 December 2020

504 F.Supp.3d 851

Alex HIXON, Plaintiff,

No. 1:19-CV-120

United States District Court, E.D. Tennessee, Southern Division, at Chattanooga.

Filed December 1, 2020

504 F.Supp.3d 856

Douglas S. Hamill, Mikel & Hamill PLLC, Chattanooga, TN, for Plaintiff.

David D. Ayliffe, James S. Chase, Mark Alan Mohr, Kathleen Keough Griebel, Michael Vincent Bernier, Office of General Counsel, Knoxville, TN, for Defendant.



504 F.Supp.3d 857

Plaintiff, Alex Hixon, brings this suit against Defendant, the Board of Directors of the Tennessee Valley Authority ("TVA"), claiming TVA violated the Rehabilitation Act, 29 U.S.C. § 791(g). The Rehabilitation Act incorporates certain sections of the Americans with Disabilities Act ("ADA"). 29 U.S.C. § 791(f). Plaintiff claims Defendant violated the Rehabilitation Act by illegally examining him ( 42 U.S.C. § 12112(d)(4) ), refusing to grant him a reasonable accommodation under the ADA ( 42 U.S.C. § 12112(b)(5)(A) ), firing him due to his disability ( 42 U.S.C. § 12112(a) ), and retaliating against him.

Plaintiff moved for partial summary judgment (Doc. 19). Defendant responded in opposition (Doc. 27) and Plaintiff replied (Doc. 28). Defendant moved for summary judgment on all of Plaintiff's claims (Doc. 29). Plaintiff responded in opposition (Doc. 32) and Defendant replied (Doc. 33). Both motions are now ripe. For the reasons discussed below, the Court will DENY Plaintiff's motion for partial summary judgment. The Court will GRANT IN PART and DENY IN PART Defendant's motion for summary judgment.


Defendant employed Plaintiff as a Chemistry Laboratory Technician in May 2001. Defendant classified this job as "Safety Sensitive." (Doc. 23-1 at 1–3.) Plaintiff was required to work with high temperatures, high-voltage instruments, and noxious chemicals. Plaintiff also has a history of anxiety and depression. Plaintiff has twice taken medical leave due to issues with his depression. In 2005, Plaintiff took medical leave due to a psychiatric hospitalization, and he was required to pass a fitness-for-duty examination upon returning to work. Upon his return, Plaintiff signed a contract which, among other provisions, required him to disclose if he was "placed on a medication that might interfere with [his] ability to safely perform [his] duties." (Id. at 19.) In 2012, Plaintiff took another medical leave so he could receive psychiatric and alcohol-abuse treatment. Upon returning to work, he was once again required to pass a fitness-for-duty examination

A. Plaintiff's Use of Marinol

In November 2013, Plaintiff was prescribed Marinol by Doctor Charles Adams ("Dr. Charles Adams"), who believed the drug would treat Plaintiff's anxiety.2 Marinol is a synthetic version of delta-9-tetrahydrocannabinol ("THC"). THC is also the

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naturally occurring active ingredient in Marijuana. The Department of Health and Human Services recognizes Marinol can have psychoactive effects which can present a safety issue in the workplace. The Food and Drug Administration ("FDA") has approved the use of Marinol to stimulate appetite in patients with AIDS and cancer ; it has also been approved to reduce chemotherapy-induced nausea and vomiting. Marinol has not been approved by the FDA to treat anxiety. However, some research indicates Marinol may help individuals who struggle with anxiety.

Due to the nature of Plaintiff's job, he underwent occasional random drug tests. On December 23, 2013, Plaintiff underwent one of those random drug tests. After taking the drug test, Plaintiff informed his employer he had been lawfully prescribed Marinol ; he had not, however, previously disclosed his Marinol prescription to his supervisor. TVA's Medical Review Officer indicated Plaintiff tested positive for THC with a safety concern.

Defendant submitted Plaintiff's positive drug sample to a second lab. On January 22, 2014, the second lab concluded Plaintiff's positive drug test "could not be [from] Marinol alone" and concluded Plaintiff must have engaged in illegal drug use. (Doc. 23-1 at 4.) Plaintiff disputes the accuracy of the second drug test and maintains he has not used marijuana since college.

Defendant claims Plaintiff violated the contract he signed in 2005 by not disclosing he was taking Marinol. Plaintiff claims the 2005 contract required him to disclose only those medicines which affected his ability to work safely. Plaintiff, however, did admit he was initially taking Marinol three times a day, which made him drowsy, so he reduced his dosage to one time at night. The prescribing doctor, Dr. Charles Adams, did not warn Plaintiff it would affect his ability to work safely, and Plaintiff never believed Marinol affected his ability to work safely.

B. Plaintiff's January 6, 2014 Examination

Candice Clepper, the head of the Non-Nuclear Fitness for Duty Program ("the Fitness Program"), referred Plaintiff to receive a fitness-for-work examination. The only stated reason for this examination was Plaintiff's use of Marinol. Plaintiff's direct supervisor did not report Plaintiff was acting differently at work. Indeed, his supervisor did not complain to TVA about Plaintiff's job performance. Plaintiff's supervisor found Plaintiff's work was mostly good, and he opined Plaintiff was not a threat to himself or his coworkers.

On January 6, 2014, Plaintiff was examined by Doctor Stephen Adams ("Dr. Stephen Adams"). Dr. Stephen Adams already knew Plaintiff suffered from depression and anxiety because Plaintiff had taken medical leave from work earlier in his career. Dr. Stephen Adams also knew Plaintiff was being examined because Plaintiff admitted to taking Marinol. Dr. Stephen Adams indicated he viewed the examination as comprehensive. When asked if he was examining Plaintiff because of Plaintiff's Marinol usage, Dr. Stephen Adams replied, "[w]ell, it's more than that. It's an overall assessment. When there's a concern at TVA about an employee, they do, generally, a comprehensive assessment of whether that person is globally able to function in that job currently or not." (Doc. 32-9 at 18.) Dr. Stephen Adams also explained, "[a] fitness-for-duty examination is an overall, full examination. Is this person capable of performing their job duties in a safe manner? And it's not possible – for me to say yes or no without doing a comprehensive look at them." (Doc. 32-9 at 21.)

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Dr. Stephen Adams started the examination by asking Plaintiff why he was required to get an examination. Plaintiff responded he had tested positive for THC because he was taking Marinol to treat his insomnia. Dr. Stephen Adams, however, stated that he understood Marinol was part of a general experiment to improve Plaintiff's mood and asserted Plaintiff volunteered his use of Marinol was related to his depression and anxiety. Dr. Stephen Adams then took a comprehensive medical history. He asked Plaintiff about physical ailments, such as a shoulder dislocation, lumbar disk pain, and a stomach ulcer. He also asked Plaintiff about his relationship with his girlfriend and his finances.

Dr. Stephen Adams concluded Plaintiff's depression was not well controlled based on Plaintiff's answers and demeanor during the examination, and he believed it was possible Plaintiff posed a safety risk in his current position. Plaintiff, however, told Dr. Stephen Adams he believed his depression was well controlled. Dr. Stephen Adams recommended TVA require Plaintiff to be examined by a psychologist, Dr. G. Gary Leigh, before deciding if Plaintiff was safe to return to work.

C. Plaintiff's January 14, 2014 Examination

On January 14, 2014, Dr. Leigh examined Plaintiff to determine if his depression would prevent him from working safely in his position. Dr. Leigh noted Plaintiff stated, among other things, people "had it in for him" and his "future seemed hopeless." (Doc. 25-1 at 3.) Dr. Leigh also noted that Plaintiff stated it was difficult to concentrate on his work. (Id. ) Dr. Leigh found, "the degree of psychopathology that he demonstrated on MMPI-2 [a standardized psychological test], is seldom seen on fitness for duty evaluations." (Id. at 10.) Dr. Leigh concluded Plaintiff should not be allowed to work until he was more psychologically stable.

After being suspended, Plaintiff filed a complaint with TVA's Equal Opportunity Compliance Office ("EOCO") on February 26, 2014. Plaintiff's supervisor knew Plaintiff filed a complaint with the EOCO before he terminated Plaintiff.

D. Plaintiff's March 2014 Examinations and Return to Work

On March 5, 2014, Plaintiff was cleared by the Employee Assistance Program to return to work. It concluded Plaintiff was fit for duty and there were no signs that Plaintiff abused drugs. On March 17, 2014, Dr. Stephen Adams reexamined Plaintiff to determine his fitness for work. On this occasion, Dr. Stephen Adams viewed his examination as a "global assessment," and he claimed such an assessment was...

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