Full opinion text
MEMORANDUM AND ORDER WAXSE, United States Magistrate Judge. This is an employment discrimination action in which Plaintiff Harriet Conrad asserts claims against the Board of Johnson County, Kansas Commissioners and the Johnson County Health Department (collectively referred to as “the County”). Plaintiff alleges the County violated the Americans with Disabilities Act (“ADA)” in three different respects. First, she claims the County subjected her to a fitness for duty evaluation and psychiatric testing in violation of the ADA. Second, she alleges the County discriminated against her on the basis of a perceived disability. Third, she claims the County retaliated against her for engaging in conduct protected by the ADA. Plaintiff also asserts a claim against the County for age discrimination under the Age Discrimination in Employment Act (“ADEA”). In addition, she asserts three state law claims against the County: breach of. implied contract, retaliatory discharge, and intentional infliction of emotional distress. Pursuant to 28 U.S.C. § 636(c)(1), this case has been assigned to the undersigned Magistrate Judge for all further proceedings. The Court issued an Order (doc. 154) on September 30, 2002 summarily granting the County’s Motion for Summary Judgment (doc. 81). This Memorandum and Order will set forth the Court’s reasons for granting summary judgment in favor of the County. I. Facts In keeping with the standards governing summary judgment, any facts in the parties’ briefs not properly supported by the record have not been included in the following statement of facts. In addition, any matters on which the record discloses a genuine dispute of material fact have been construed in Plaintiffs favor. The Court’s analysis was made very difficult by both parties’ failure to fully comply with D. Kan. Rule 56.1. After conducting a very time-consuming review of the more than 3,000 pages of materials submitted by the parties, the Court sets forth the following material facts that are uncontroverted, deemed admitted, stipulated to by the parties, or where disputed, viewed in the light most favorable to Plaintiff. Plaintiff began her employment with the County in February 1995, and she continued to be employed by the County until her termination on March 15, 1999. She was employed as Prenatal Program Manager and Advanced Registered Nurse Practitioner and worked in the Johnson County Health Department (“Health Department”). Plaintiff is an Advanced Registered Nurse Practitioner, Clinical Nurse Specialist. According to her job description, Plaintiffs primary function was to deliver “advance practice prenatal nursing care” and to provide consultation and education within the technically current standards of practice in order to promote positive pregnancy outcomes for the mother, infant, and family unit, especially among high-risk patients. Plaintiff performed comprehensive physical examinations on pregnant clients in order to assess their health status and the health status of the fetus. In addition, she managed the care of pregnant clients by developing individual, comprehensive plans of care.- The Prenatal Program is contained within the Personal Health Services Division of the Health Department. At all times relevant to this case, the Personal Health Services Division was directed by Martha Hutcheson (“Hutcheson”). Plaintiff reported to Ruth McKenzie (“McKenzie”), who was the Maternal Child Coordinator. ■ McKenzie reported to Hutcheson. Hutcheson, in turn, reported to Debby Sullivan (“Sullivan”), who was the Director of the Health Department. The parties have stipulated that “[a]ll of the written evaluations in Plaintiffs personnel file show she was meeting or exceeding Defendants’ expectations.” The most recent evaluation of Plaintiffs job performance was conducted in February 1998. Up until the fall of 1998, Plaintiff either met or exceeded the County’s expectations regarding her job performance. In September 1998, McKenzie counseled Plaintiff about failing to complete sufficient work on protocols for the- Prenatal Program, which were required for state accreditation of the program. She also counseled Plaintiff about her inability to stay focused on her work. On or about November 16,1998, McKenzie had a conference with Plaintiff and discussed her concerns about whether Plaintiff was properly performing her program manager responsibilities. McKenzie expressed concern that Plaintiff was spending too much time away from the Mission, Kansas office and that Plaintiffs time sheets reflected she was working too many hours. McKenzie asked Plaintiff not to work after hours late into the evening and asked Plaintiff to stay focused on her program manager responsibilities. In early January 1999, McKenzie gave Plaintiff a note thanking her for a Christmas gift Plaintiff had given her. After thanking her for the gift, McKenzie stated: “It’s great to see how the Prenatal Program has grown in numbers this year. Know it has been very challenging for you with staff changes, but you have done a great job.” On or about January 14, 1999, McKenzie learned of complaints from Plaintiffs subordinates that Plaintiff was keeping them from doing their jobs because of the amount of time she spent discussing the work schedule with them. On January 15, McKenzie counseled Plaintiff about having spent the entire afternoon of January 13 with only one client, which had contributed to a chaotic clinic. McKenzie instructed Plaintiff to stay focused on her job. McKenzie believed Plaintiff was not spending her time on appropriate job duties. On January 20, Plaintiff called McKenzie at 5:40 p.m. to express her frustration about a co-worker. McKenzie told Plaintiff she should go home and worry about the problem the next day. Plaintiff did not go home, however, and stayed at work until approximately 12:45 a.m. Shortly before leaving work, Plaintiff sent an e-mail memo to McKenzie and Hutcheson. The e-mail memo contained a lengthy discussion of various problems in the Health Department. The memo was single spaced and approximately four pages long on paper. The memo set forth Plaintiffs concerns about a certain health management issue and then stated: Please advise, I am quite concerned about this as you can tell, (not mad or blaming anyone just frustrated and needing some answers/questions and I’ve felt a lot of “shunting” from this person to that person lately has been in large part responsible for the increased number of hours I’ve had to spend at work lately ensuring that the things happen that need to get done by “somebody” when “nobody” seems to be the one that is “responsible for that”. “Its not my job” frequently becomes “Harriet’s job” for lack of anyone else accepting the responsibility to do it, find out who can do it, or even offering to help me to do it. :}c * * * * * I cannot keep up this pace and I cannot cut corners when it means possible jeopardizing a client or making an error or oversight)[sic], I don’t want to be a griper or complainer and I thought this was just a temporary thing but it’s going on and on and the “to do” pile is growing and growing. It’s no one person or program it’s a prevailing “poor morale” type feeling like I just want to put in my time [sic] do my little piece of the work and go home at 5pm everyday. :¡< i'fi ifc ❖ I feel like a dump, the final dumping ground. The e-mail concluded with the following: Please hear me that I’m not mad at anyone, blaming anyone individual. It’s an unbalance in the system that needs correction but where I don’t know. I love the Health Department but I[sic] suffering from exhaustion and chronic fatigue and have too much to do to even call in sick and miss a day. After sending the e-mail memo at 12:43 a.m., she went home. At 9:30 that morning, Plaintiff sent another e-mail memo, this one to the entire staff of the Health Department. The “subject line” of the memo read “freedom.” The body of the memo read as follows: On behalf of every wonderful, caring, dedicated servant of the people at the JCHD (includes everyone, without exception!) and as a gift to Denise Brennan and Ellen Rangel for their combined years of service. I am asking the “force” to release everyone of us from the “chains that bind” and “the walls that keep our Spirits apart.” We NEED each other to reach our shared vision, “health at the Highest Level”. A vision we can attain if we are all free to do our personal best. I believe that we have all the talent, skill, and ability we need to attain this vision! However, it remains “out of our reach” until we ALL as one “release the chains” and “tear down the walls.” THE “force” THAT KEEPS U.S. APART, IS ACTUALLY LIKE THE “EMPERORS NEW CLOTHES”. THERE’S REALLY NOTHING THERE! WE JUST IMAGINE THERE IS UNTIL IT BECOMES A BELIEF! When we let go of this belief (the chains) we will be FREE at last to begin to realize our shared dream. We must each accept the reality that no matter how hard we each try in our separate ways, we can not and will not make it happen. YET! ■ United as ONE we are strong enough to “break down the walls”. SIMPLY, BELIEVE!!!!!!!!!!!!!!!!!!!!!!! As ONE, united, together, close your eyes and tell yourself, “I AM WONDERFUL! WALLS COME DOWN!!!!!! Do it mostly for yourself, but also in recognition of these 2 “faithful” and “dedicated” ones, DENISE BRENNAN AND ELLEN RANGEL. After receiving the two e-mail memos from Plaintiff on January 21, 1999, McKenzie discussed them with Hutcheson, and they both expressed concern about the memos and Plaintiffs behavior. In particular, McKenzie was concerned about Plaintiffs statement that she was suffering from exhaustion and chronic fatigue. McKenzie was also concerned about the language Plaintiff used in the second memo. In addition, McKenzie thought it was inappropriate for Plaintiff to send the memo to the entire staff of the Health Department. Some time that same morning, McKenzie met with Plaintiff and communicated to Plaintiff her concerns about the two e-mail memos. McKenzie told Plaintiff she was concerned about Plaintiffs behavior and that she seemed to be acting erratically. McKenzie also told Plaintiff it was inappropriate to send the second e-mail to the entire staff. During the meeting, it appeared to McKenzie that Plaintiff was not focusing on the concerns she was expressing. Later in the day, Plaintiff and other County employees working in the Health Department attended a client care conference called by Hutcheson. Hutcheson called the conference to discuss the care of a pregnant patient who was HIV positive and who had tuberculosis. (The parties, and the Court, will refer to this patient as “Doe” to protect her privacy.) Everyone in attendance at that meeting, other than Plaintiff, was a registered nurse. As noted above, Plaintiff was an Advanced Registered Nurse Practitioner. At the time of the January 21 meeting, Frances Zampine (“Zampine”), an Infectious Disease Case Manager, and Natalie Adams (“Adams”), the Ryan White HIV Case Manager, were managing Doe’s care. Doe had not been seen by the Prenatal Program since September 1995. Earlier in January, Zampine had spoken to Plaintiff about difficulties she was encountering with Doe. At that time, Zampine asked for Plaintiffs assistance because the Health Department had been unsuccessful in contacting Doe. Zampine was concerned for the welfare of the children and care givers at the daycare facility where Doe worked and wanted to contact Doe to discuss her treatment. Zampine knew Plaintiff had dealt with Doe during a prior pregnancy, and she thought Plaintiff might have some rapport with Doe, which would facilitate communication with her. At Zampine’s request, Plaintiff contacted Doe on January 10. Doe informed Plaintiff that she was in fact pregnant and that she wanted to continue her care with the Health Department. There is nothing in the record to indicate that Plaintiff had any other contact or any professional relationship with Doe between the time Doe was transferred out of the Prenatal Program in September of 1995 and the January 1Ó, 1999 telephone conversation. Prior to the January 21 client care conference, Plaintiff had reviewed the charts and medical records on Doe and she became concerned about Doe, Doe’s unborn child, and the children at the daycare facility where Doe was employed. Plaintiff believed the different programs at the Health Department were not communicating with each other about Doe’s care. Plaintiff felt that Doe’s treatment, diagnosis and charting, in addition to the Health Department’s communication with • Doe, were confusing, fragmented, and not in compliance with orders by Doe’s doctor. Plaintiff communicated her concerns to those at the January 21 care conference. The record does not reveal exactly what Plaintiff said at the meeting with regard to those concerns. Plaintiff recommended a certain nursing plan of care, which included Plaintiff coordinating Doe’s plan of care and either Plaintiff or an Area Nurse scheduling a personal visit with Doe at her place of employment. Plaintiff proposed that during the personal visit, Doe would be informed of the proposed medical plan, the rationale for the plan, the expected outcome, the risks involved, and the effect of no treatment at all. Hutcheson proposed a different plan of care for Doe, one which did not involve a personal visit to Doe at her place of employment. Hutcheson’s plan called for Doe to be referred back to the care of Adams (the Ryan White HIV Case Manager) for HIV case management. At the end of the meeting, Hutcheson ultimately decided to refer Doe back to the care of Adams and Plaintiff was instructed not to contact Doe at her place of employment. Plaintiff voiced an objection to Hutcheson’s decision to refer Doe back to the care of Adams. The record does not reveal exactly what Plaintiff said in raising her objection. No one else at the meeting, other than Plaintiff, voiced any objection to Hutcheson’s decision. Plaintiff objected because she viewed Hutcheson’s decision as essentially closing the case on the patient. Plaintiff believed that Hutcheson, who was a Registered Nurse and not an Advanced Registered Nurse Practitioner like Plaintiff, did not have the authority to override Plaintiffs plan of care. Before leaving the client care conference, Plaintiff stated: “I believe that we need to reach out a hand of compassion to a very troubled, confused, frightened and needy young woman not only for her sake but for the sake of public safety.” According to Plaintiff, Hutcheson acted in an aggressive manner toward her during the meeting. Plaintiff contends Hutcheson acted in such a manner because she had questioned Hutcheson’s decision regarding Doe’s care. Although Plaintiff cannot remember what Hutcheson said to her at the meeting, Plaintiff was upset by the way Hutcheson treated her, and Plaintiff felt humiliated, embarrassed, and intimidated. Following the meeting, Plaintiff went to Sullivan’s office to complain about Hutche-son’s actions. Plaintiff cried quite a bit when talking to Sullivan. Plaintiff told Sullivan she was “really, really, really” upset. She also told Sullivan that she could not think clearly and that she needed time to think about what to do. Sullivan had never seen anyone as upset as Plaintiff was during their meeting. Sullivan perceived Plaintiff to be agitated, angry, and unable to control her emotions. She observed that Plaintiffs speech was very rapid and her thoughts scattered. Plaintiff insisted that Hutcheson had to be stopped and that she would be the one to do it. Sullivan perceived Plaintiffs conduct to be an excessive, over-reaction to the meeting with Hutcheson, but nevertheless she tried to comfort Plaintiff. Plaintiff eventually calmed down and was able to return to the clinic to see patients. On the morning of January 22, Plaintiff called McKenzie from home. McKenzie knew something had happened the night or day before. Plaintiff told McKenzie that after “last night,” she was really upset and thought it would be helpful to talk to someone about it. McKenzie was concerned about Plaintiffs ability to do her work because Plaintiff sounded very upset and she seemed unfocused. It was agreed that Plaintiff would take the day off. McKenzie suggested that Plaintiff consider using the County’s Employee Assistance Program (“EAP”). Plaintiff asked McKenzie to make an appointment for her with the EAP. Later that same day, Plaintiff .met with Sharon Glass, Ph.D., a psychologist who was the Facilities Coordinator of the EAP at Saint Luke’s-Shawnee Mission Health System. Dr. Glass was not employed by the County. The following Monday, January 25, 1999, Plaintiff did not go into work. At some point in time during this course of events, McKenzie discussed Plaintiffs behavior with Rhonda Baugus (“Baugus”). Baugus was the Employment Manager in the County’s Human and Organizational Development Department (also referred to as the Department of Human Resources). After McKenzie discussed the matter with her superiors, ie., Hutcheson and Sullivan, and with Baugus, it was decided Plaintiff sh.ould receive a written warning. They decided that her conduct was severe enough for the warning to be deemed a “Second Warning” under the County’s Disciplinary Action Policy. (As discussed later in more detail, the County’s Disciplinary Action Policy provides for an “Oral Warning,” which is typically followed by a “First Warning” and then a “Second Warning.” The First and Second Warnings are written warnings.) On Tuesday, January 26, McKenzie and Baugus met with Plaintiff to discuss McKenzie’s concerns that Plaintiffs work performance over the last three months was declining. At the meeting, McKenzie told Plaintiff she believed Plaintiff was exhibiting erratic behavior. McKenzie also told Plaintiff she was being given a “Second Warning.” McKenzie explained that she considered the counseling Plaintiff had received in the fall of 1998 to be Plaintiffs “First Warning.” Plaintiff strongly voiced her objections to McKenzie’s conclusion that she was exhibiting erratic behavior which was affecting her ability to do her job. In addition, Plaintiff told McKenzie and Baugus it was discriminatory for them to accuse her of erratic behavior and to ignore that same type of behavior in others, and, in particular, in Hutcheson. At no time during this meeting did either McKenzie or Baugus ask Plaintiff whether she was suffering from any disability or physical or mental impairment. At some point in time on the 26th, McKenzie and Baugus discussed whether Plaintiff should be allowed to return to work because Plaintiff was behaving erratically and not focusing on her work. They decided that Plaintiff should be suspended, ie., placed on administrative leave. The record is not clear as to when this discussion took place or when the actual decision to suspend Plaintiff was made. Resolving this factual issue in favor of Plaintiff, the Court will assume that the discussion and suspension decision were both made some time after Plaintiff objected to McKenzie’s conclusion that Plaintiff was acting erratically and some time after Plaintiff complained that it was discriminatory for them to accuse her of erratic behavior and to ignore that same type of behavior in Hutcheson. McKenzie and Baugus informed Plaintiff that she was being placed on administrative leave and requested that she leave the Health Department. Plaintiff objected because she had patients waiting. McKenzie and Baugus advised Plaintiff that if she did not leave, law enforcement would be called. Plaintiff responded that she would be willing to leave, but she insisted a witness be present. Baugus called Dr. Glass at the EAP and asked her to act as a witness. Dr. Glass came to the Health Department, where she met with Plaintiff for almost two hours in order to, as Dr. Glass phrased it, “assist in defusing the crisis.” Dr. Glass also referred to her meeting with Plaintiff as an “on-site crisis intervention.” During her meeting with Dr. Glass, Plaintiff insisted she be allowed to talk with the Director of the Human and Organizational Development Department, and Plaintiff indicated that she would not leave unless and until the Director ordered her to do so. After talking with the Director, Plaintiff agreed to leave. Plaintiff left the building at 6 p.m., several hours after first meeting with Dr. Glass. She was given a memo from McKenzie indicating that she was being placed on administrative leave, with pay, beginning that afternoon at 2:30 p.m. and continuing through the next day, Wednesday, January 27. During the course of her discussions with Plaintiff on the 26th, McKenzie became even more concerned about Plaintiff because she perceived Plaintiff was unable to focus on the issues she and Baugus were raising. Plaintiff refused to discuss the performance-related issues and she appeared confused. Plaintiffs behavior caused McKenzie to question whether Plaintiff was capable of performing her Prenatal Program Manager duties. The warning Plaintiff was given at the January 26 meeting was memorialized in a document the following day. The document was a form document entitled “Second Warning,” and was signed by McKenzie (as Plaintiffs supervisor) and Baugus (as a witness) on the 27th. In the section entitled, “Description of Problem,” the warning stated: Erratic behaviors as evidenced by (1) inappropriate e-mail messages, (2) inability to focus on specific program, inability or unwillingness to complete assigned tasks, i.e. see clients as scheduled, (3) working hours outside of regularly scheduled hours. The warning contained the following recommendation and timetable for taking corrective action: Supervisor’s Recommendation for Corrective Action: Harriet will see dints [sic] as assigned. Harriet will avoid inappropriate e-mails and other communications and will not work hours outside of those- assigned. Timetable for Corrective Action and Possible, Consequences of Failure to do so: Immediate corrective action is required. Failure to adhere to the above stated recommendations will result in suspension pending investigation with posible [sic] termination. This document was not given to Plaintiff until the following day, January 28. On January 27, Baugus and McKenzie met with Dr. Glass. They met to discuss Plaintiffs Performance Improvement Plan, their concerns regarding Plaintiffs recent behavior, and Dr. Glass’ crisis intervention. Baugus and McKenzie mentioned to Dr. Glass the possibility that Plaintiffs diet medications could be affecting her behavior. It was during this meeting with Dr. Glass that McKenzie decided to require Plaintiff to undergo a fitness for duty evaluation through the EAP. McKenzie completed and signed an EAP referral form mandátorily referring Plaintiff to the EAP.' Baugus approved the referral and signed the form. As the form indicates, a representative of the Human Resources Department must approve a mandatory referral to the EAP. The form stated the reason for referral was “[behavioral changes affecting [Plaintiffs] ability to work within the scope of her responsibilities.” Plaintiff met with Baugus and McKenzie on January 28, at which time 'they informed Plaintiff that she would- be required to participate in the EAP and obtain a fitness for duty evaluation. They provided Plaintiff with the EAP referral form. McKenzie told Plaintiff she would not be allowed to resume her duties at the Health Department until she had undergone the evaluation. When Plaintiff asked why the fitness for duty evaluation was necessary, either McKenzie or Baugus told her that it was based on her erratic behavior and the possibility that her diet medications might have been adversely affecting her behavior. During this meeting, Plaintiff strongly objected to the EAP referral and fitness for duty evaluation. She objected to “having to go through [the fitness for duty evaluation] process.” She told Baugus and McKenzie that the fitness for duty evaluation was “unfair,” “unlawful,” and “discriminatory.” She further told them: “I’m being asked to do something that doesn’t make sense to me.” At no time did Plaintiff complain that her rights under the ADA were being violated. At no time did Plaintiff ever use the term “disability discrimination,” “ADA,” or “Americans with Disabilities Act.” Plaintiff testified in her deposition that when she objected to the fitness for duty evaluation, she “didn’t know anything about the Americans with Disabilities Act .... I just was complaining or just-not ‘complaining,’ but I was objecting to having to go through that process.” Although she disagreed with the need for the evaluation, Plaintiff signed the referral form on the 28th. The EAP form was then sent to St. Luke’s-Shawnee Mission Health Systems, the provider of the County’s EAP services. At the time Plaintiff was referred to the EAP for the fitness for duty evaluation, Sullivan did not believe Plaintiff could perform any job at the Health Department. On January 28, McKenzie also provided Plaintiff with a Performance Improvement Plan.- Under the section entitled “Statement of the Problem,” the Performance Improvement Plan stated: “Obvious behavioral changes affecting her ability to work within the scope of her job responsibilities. Her actions causing concerns to other health department staff and MCH coordinator [McKenzie].” Under the section provided for “documentation and other supporting evidence,” the Performance Improvement Plan listed three items: (1) other employees were having to assume responsibility for some of Plaintiffs job duties; (2) Plaintiff had sent inappropriate information via e-mail to the Prenatal Program staff and other programs’ staff members; and (3) Plaintiffs time sheets showed she had spent additional hours outside of “clinics.” Id. (Plaintiffs “clinics” consisted of the times that she was scheduled to meet with clients of the Prenatal Program.) The Performance Improvement Plan indicated Plaintiff was to work “within a planned time frame, considering the program needs first.” In addition, she was to resume management of the Mission, Kansas office client care and charts with appropriate assistance from the staff. Outside of clinic hours she was to focus on management responsibilities. On February 1, Plaintiff had her first EAP fitness for duty evaluation session with Dr. Glass. Dr. Glass reported that, during her three-hour session, Plaintiff had difficulty focusing her attention and responding to questions in an appropriate time frame. According to Dr. Glass’ report, Plaintiff was agitated during the session. She also exhibited pressure of speech, spoke excessively, and interrupted Dr. Glass several times. Plaintiff saw Dr. Glass again on February 3 for a short EAP session. At that time, Dr. Glass determined that an evaluation with a psychiatrist was necessary to assess various medical/psychiatric issues. Dr. Glass reported that she discussed with Plaintiff what medications Plaintiff was currently taking, as well as medications she had taken in the past. On that same day, Plaintiff filed a written grievance with Sullivan. In the grievance, Plaintiff stated: [I have been] [prohibited by Martha Hutcheson from performing in the expanded role of advanced registered nurse practitioner as defined by state statute ... (Kansas Nurse Practice Act for Advanced Practice Section 60-11-107). This prohibition constitutes an unfair working condition because my position description contains the accountability for functioning in this role. The acts & conduct of Martha Hutcheson violated my established duty & right to function in the role I was hired for & am licensed to perform. In support of her grievance, Plaintiff provided Sullivan with a letter dated February 6, 1999. The letter explained in greater detail the reason for Plaintiffs grievance. It also set forth Plaintiffs version of what took place at the January 21 client care conference with Hutcheson and others. Plaintiff complained in her letter that Hutcheson had arbitrarily overruled her proposed plan of care for the patient. She asserted that Hutcheson, who was a Registered Nurse, did not have the authority to override a plan of care submitted by an Advanced Registered Nurse Practitioner. Nowhere in the grievance or the February 6 letter does Plaintiff mention that she believed she had been discriminated against on the basis of age, disability, or a perceived disability or that she had been retaliated against for complaining of disability discrimination or for objecting to the fitness for duty evaluation. Sullivan began investigating the grievance and questioned several of the nurses who had participated in the January 21 client care conference. On February 4, 1999, Dr. Glass wrote a letter to a Vellore Kirubakaran, M.D. (“Dr. Kirubakaran”) referring Plaintiff for a fitness for duty evaluation. Dr. Kiruba-karan was a psychiatrist in private practice and was not employed by the County. Dr. Glass’ letter to Dr. Kirubakaran identified “[t]he specific concerns from the employer organization” as Plaintiffs “lack of focus on job responsibilities and lack of focus on supervisor’s concerns at a January 26, 1999 conference.” In addition, Dr. Glass’ letter stated: “[Pjlaintiff has demonstrated considerable agitation on multiple occasions, in session and at work, and also the potentially complicating factor of possible reaction to discontinuing weight loss medication .... ” Dr. Glass’ letter suggested that Plaintiffs use of diet medications could have contributed to Plaintiffs work difficulties and lack of focus. The letter explained that although Plaintiff had stopped using the diet medication “fen-phen,” she continued to take other medication as part of her weight maintenance program. The letter further reported that Plaintiff had exhibited “push of speech, wás agitated, and spoke excessively” in two of her sessions with Dr. Glass. Dr. Glass’ letter also stated that “the following diagnoses appear to potentially need to be ruled out: Bipolar Disorder, most recent episode manic; Substance Withdrawal (from “fen-phen”); Borderline Personality Disorder.” Dr. Glass asked Dr. Kirubakaran to perform a fitness for duty evaluation responding to the following concerns: Is Ms. Conrad able to focus on job responsibilities and supervisor’s "concerns, and is she able to work without inappropriate agitation? If she is able to return to work, are there any treatment recommendations that will enable Ms. Conrad to remain fit for duty? If she is not able to return to work at this time, what treatment recommendations are needed so that Ms. Conrad can regain fitness for duty? Finally, Dr. Glass requested a written report and indicated that she would contact Dr. Kirubakaran the following day to determine if Plaintiff could return to work the following Monday. Dr. Kirubakaran conducted the fitness for duty evaluation of Plaintiff the following day, February 5. After the evaluation, he wrote a letter to Dr. Glass dated February 5. The letter was entitled “PSYCHIATRIC EVALUATION Harriet Conrad.” Dr. Kirubakaran wrote that the employer’s concerns included: “the patient was not able to concentrate on the job, lack of focus on job responsibilities, and lack of focus on supervisor’s concerns.” Dr. Kiru-bakaran reported that “Ms. Conrad was able to admit that perhaps, in certain situations, she may have overreacted, and not responded to her supervisor’s needs. Ms. Conrad describes herself as a 'chatterbox.’ ” With respect to diet medications, Dr. Kirubakaran noted: “She admits that she has been taking phenetermine for the past year. She said that in the last two months she increased to two daily from one daily .... Patient was willing to admit that the combination of phenetermine and Zoloft may be making her hyper and think fast.” In addition, Dr. Kirubakaran reported that Plaintiff “admits to periods where she has problems with concentration, too much involved in planning things. She is aware that sometimes she gets to [sic] involved in her thinking and planning, then does not pay much attention to what is going on around her.” Dr.- Kirubakaran also reported the following: “Ms. Conrad has no clear episodes of either hyper-manic or manic episodes, and has never been in loss of touch with reality. She is oriented to time, place, and person. Her memory is intact for both past and present. Her judgement [sic] is fair; insight fair.” Although he found “no clear symptoms at this time,” Dr. Kirubakaran stated that he had discussed with Plaintiff the need for further evaluation “to look into” an underlying “Bipolar-Affective Disorder.” In addition, he had Plaintiff agree to consider coming off the phenetermine. He recommended that Plaintiff be off work for at least a week “to help her settle down.” He also strongly recommended psychological testing and stated that he wanted to see Plaintiff after the testing to make a final assessment. Plaintiff attended another EAP session with Dr. Glass on February 8. During that session, Plaintiff “disputed the need” for the fitness for duty evaluation. Plaintiff told Dr. Glass that she thought it was discriminatory for her to be given the fitness for duty evaluation when no one else at the Health Department had to undergo such an evaluation. On that same day, a County employee, Connie Murphy (“Murphy”), contacted Dr. Glass to ask her if Hutcheson “needed to be afraid” that Plaintiff might harm her. Murphy was the Health Department’s Director of Administrative Services and was in charge of operations and the clerical staff of the Health Department. Some time prior to that telephone call (probably during the time period Plaintiff was on administrative leave), Murphy had told a Health Department receptionist, Cheryl Kruger (“Kruger”), that Plaintiff had “mental problems and should be considered dangerous.” Murphy also told Kruger that the police might need to be called if Plaintiff showed up at work. On February 17, at Dr. Kirubakaran’s request, Dr. Glass gave Plaintiff the MMPI-2 test. The test consisted of over 500 questions, some of which concerned sexual issues and sexual deviation, threatened assault, and situational stress due to alcoholism. On February 22, Plaintiff was seen again by Dr. Kirubakaran for a second evaluation session. Following the evaluation, Dr. Kirubakaran reported to Dr. Glass that there was no psychiatric diagnosis. He also signed a release to return to work indicating that Plaintiff could return to work on March 1,1999. On February 25, Dr. Glass saw Plaintiff again and reported that Plaintiff had improved and was more focused. After Dr. Glass received Dr. Kirubakaran’s report of his sessions with Plaintiff, Dr. Glass prepared a written fitness for duty evaluation. Her evaluation was provided to Baugus with a February 26 cover letter. In her written evaluation, Dr. Glass stated: “The results of the evaluation [by Dr. Kirubakaran] indicated that Ms. Conrad does not have a psychiatric disorder and, in that regard, is fit for duty. Medical/psychiatric issues that were of concern have been resolved.” Dr. Glass’ evaluation further stated: While Ms. Conrad demonstrated some initial improvement, increased focus and decreased agitation, there are some serious reservations about Ms. Conrad being successful in her current position. Although the medical/psychiatric concerns that originally were present have cleared, Ms. Conrad’s feelings and attitudes about her work leave questions about whether she is the right candidate for the job. Ms. Conrad demonstrates a low tolerance for working with people who may disagree with her. There appears to be a history of low-level conflict between Ms. Conrad and her supervisor’s supervisor that was overlooked due to Ms. Conrad’s previously satisfactory job performance. If Ms. Conrad is to return to work, it is recommended that there be serious discussion regarding work expectations and Ms. Conrad’s role, duties and responsibilities. Finally, Dr. Glass’ evaluation noted that Dr. Kirubakaran had indicated Plaintiff would be ready to return to work on March 1. On the same day she prepared the written evaluation, i.e., February 26, Dr. Glass had a telephone conversation with Baugus. Shortly thereafter, Baugus sent an e-mail memo to McKenzie and Sullivan summarizing what Dr. Glass had told her. Baugus drafted the e-mail memo as if Dr. Glass were speaking. The memo stated in relevant part: Looks like we are facing a situation where the medical and psychiatric conditions are resolving but the employee is dissatisfied with her job. I think the employee’s problems “paranoid” are exacerbated by the these [sic] combined medical psychiatric problems that are resolving. With a fitness for duty we are covered under ADA regulations as having made reasonable accommodations. The underlying problem is ongoing conflicts with her supervisor’s supervisor, because [Plaintiff] is an ARNP and M Hutcheson [sic] is an RN. [Plaintiff] doesn’t agree with management’s use of her time. Complicated' by medical things that exacerbated the situation and connected with psychological issues. On top of the ongoing running conflicts. If we get the all clear from [EAP] we can discuss her return to work. The biggest issues is then job expectations, weather [sic] she agrees with her boss’s boss or not. With out [sic] resolving this ongoing conflict, she will most likely be here in the same place in a few weeks. s¡: ‡ # % She has not been able to return to work until today. If she is released we need to determine how she is to perform. If she doesn’t like something what are we going to do about that, discipline, discharge. Plaintiff returned to work on March 1, 1999. At that time, Plaintiff met with McKenzie, Sullivan, Murphy, Baugus, and Dr. Glass. During the meeting, Sullivan provided Plaintiff with a memo setting forth Sullivan’s expectations for Plaintiffs job performance (“Return-to-Work Plan”). The Return-to-Work Plan set forth the following expectations: “(1) [a]ll work related issues are to be discussed with and involve the direct supervisor only;” (2) feedback was to be presented in a constructive and non-judgmental, non-personal manner; (3) “[t]he relationship between supervisor and employee must be respected and that managers’ directions must be followed and respected regardless of the manager’s educational background”; and (4) “[i]t is not acceptable to discuss issues with peers and subordinates when those issues lead to disruptions in the work place.” The Return-to-Work Plan also stated that “[a]ll duties/responsibilities of the job must be performed in a consistent and independent manner with minimal supervision.” Finally, the Return-to-Work Plan warned Plaintiff that she was expected to diligently adhere to the stated expectations and that her failure to do so would result in further disciplinary action, up to and including termination of her employment. During this meeting, Plaintiff informed the meeting participants, ie., McKenzie, Sullivan, Murphy, Baugus, and Dr. Glass, that she had reported “the incident with Ms. Hutcheson” to the following agencies: the Kansas State Board of Nursing, the Kansas Nurses Association, the Kansas Department of Health and Environment, and the United States Department of Health and Human Services. There is nothing in the record to indicate Plaintiff told the meeting participants any of the particulars of her alleged reports; she merely told them she had reported “the incident with Ms. Hutcheson.” Moreover, the record does not reveal the substance of Plaintiffs alleged reports. In addition to meeting with Plaintiff on March 1, Sullivan gave Plaintiff a written response to the grievance that she had filed on February 3. The written response, which was signed by Sullivan and dated February 25, Sullivan denied Plaintiffs grievance. Sullivan denied the grievance based upon information she had received from some of the other employees who had participated in the January 21 client care conference. Those employees had provided Sullivan with the following information about the client care conference: Plaintiff had talked constantly throughout the conference and had wanted her patient care plan adopted even though the nine other nurses in attendance did not. Hutcheson never raised her voice with Plaintiff during the conference. No one could get in a word because Plaintiff would not quit talking. Plaintiff was highly agitated and Plaintiff acted inappropriately towards Hutcheson and the other nurses participating in the conference. After investigating the grievance, Sullivan was concerned about Plaintiffs behavior and her belief that she could ignore her superior (Hutcheson) merely because Hutcheson had less educational experience than Plaintiff. Sullivan determined that it had been inappropriate for Plaintiff to insist that her recommended plan of care be accepted merely because she was an Advanced Registered Nurse Practitioner. The memo McKenzie provided to Plaintiff on March 1 explained the reasons for the denial of her grievance and concluded that no evidence suggested that Hutcheson had intimidated or harassed Plaintiff and that no corrective action would be taken. The memo stated the Health Department’s position that, even though Hutcheson was a Registered Nurse and not an Advanced Registered Nurse Practitioner (as was Plaintiff), Hutcheson was Plaintiffs supervisor and therefore in a position of authority over Plaintiff. The memo explained: “Even though the State of Kansas outlines and limits the scope of authority allowed by each educational level, it in no way assigns levels of authority. Levels of authority are assigned and defined solely by the employer.” After receiving Sullivan’s response to her grievance, Plaintiff requested on March 1 an appeal of the denial of her grievance. On March 9, Baugus sent a memo to Plaintiff regarding her appeal. Baugus’ memo stated that under the County’s Grievance Policy, Policy No. 624, an employee has grievance rights only “if the employee has issues of unfair working conditions.” The memo further stated that based on Sullivan’s investigation, there was no evidence of any unfair employment practices. Baugus informed Plaintiff that she had therefore determined grievance rights were not available to Plaintiff. Plaintiff was at work in the Olathe office on March 10. She did not take her, scheduled lunch break and wanted to take a late lunch. She repeatedly paged McKenzie, who was at another office, to get permission to take a late lunch. Plaintiff was unable to contact McKenzie. When McKenzie returned to the Olathe office at approximately 1:20 p.m., McKenzie found that Plaintiff had yet to take her lunch break and that she had asked another staff member to cover for her and to see her scheduled patients while she went to lunch. McKenzie found Plaintiff to be agitated and exhibiting anger at the staff member who had refused to cover for her. McKenzie told Plaintiff she could take a twenty-minute lunch break, but Plaintiff refused. McKenzie reported to Sullivan and Murphy that Plaintiff was agitated and exhibit- ing anger towards a staff member in the clinic. After discussing these issues with McKenzie, Sullivan determined that Plaintiff should be suspended. Sullivan prepared a memo to Plaintiff notifying her that she was being suspended. The suspension notice indicated that Plaintiff had violated the written expectations she had received on March 1 by disrupting the work schedule and failing to perform her duties in a consistent manner with minimal supervision. More specifically, the notice stated that Plaintiff had violated the expectation that all work-related issues were to be discussed with her direct supervisor and not with her subordinates when such a discussion with her subordinates would lead to a disruption in the workplace. The suspension notice explained that Plaintiff had violated this expectation when she discussed taking a late lunch with a subordinate employee and when she asked the employee to cover for her. In addition, the suspension notice stated that Plaintiff had violated the expectation that her job duties were to be performed in a consistent and independent manner. It explained that Plaintiff had violated this expectation when she refused to take her scheduled lunch break and when she repeatedly paged her supervisor for permission to take a late lunch. Finally, the suspension notice advised Plaintiff that she was being placed on a three-day paid suspension, during which time an investigation would be conducted and a final determination made as to whether she had violated her March 1 Return-to-Work Plan. A decision would then be made to either reinstate Plaintiff or terminate her employment. Sullivan subsequently asked Wiletta Proctor (“Proctor”), a human resources consultant in the Human and Organizational Development Department, to interview employees to determine: (1) whether Plaintiff was in compliance with her Return-to-Work Plan; and (2) whether Plaintiff was creating disruptions in the workplace. Proctor interviewed six or seven Health Department staff members and summarized their comments in a report. According to her report of the employee interviews: (1) Plaintiff had a hard time concentrating on the task at hand; (2) Plaintiff spent too much with clients, time which was not proportionate to their needs and which interfered with the other clients’ appointments; and (3) clients had complained about delays or had left the clinic after waiting too long. Proctor’s report also indicated that the other nurse practitioners were being “pulled in to help Plaintiff about 85-90% of the time.” In addition, the report indicated that direct encounters with Plaintiff were uncomfortable'and that the registered nurses would not consult with Plaintiff because she tended to argue or lecture them. Proctor concluded as follows in her report: It is apparent that Ms. Conrad’s behavior continues to cause a disruption in the workplace, which has affected not only the staff, but most importantly the clients. This behavior has a direct effect on the productivity of the staff and the quality of patient care. Based upon this investigation, it is my recommendation to support a termination. Sullivan was provided with a synopsis of the information contained in Proctor’s report. In addition, Proctor personally recommended to Sullivan that Plaintiff be terminated. Based on that information, Sullivan concluded Plaintiff was causing significant disruptions in the work place and failing to comply with her Return-to-Work Plan. Based upon her own experience with Plaintiff, the prior disciplinary action taken against Plaintiff, the disruption caused by the scheduling issues and lunch break incident of March 10, as well as the information obtained by Proctor from the employee interviews, Sullivan decided to terminate Plaintiffs employment. Sullivan had the authority to discipline and terminate Health Department employees. On March 15, 1999, Sullivan provided Plaintiff with a written notice of termination. The notice stated: “A thorough investigation has been completed. It is apparent that your behavior continues to cause a disruption in the workplace, which has affected not only the staff, but most importantly, the clients. This behavior has a direct effect on the productivity of the staff and the quality of patient care.” The notice stated that Plaintiffs termination of employment was effective that day. The notice advised Plaintiff of her right to a due process hearing before the Board of County Commissioners (the “Board”), and informed her of the procedures to follow if she chose to appeal the termination decision. Plaintiff appealed the termination decision to the Board. A due process hearing was held before the Board on April 5, 1999. The Board upheld Plaintiffs termination. Prior to Plaintiffs appeal, neither McKenzie nor Sullivan saw Dr. Glass’ February 4 letter to Dr. Kirubakaran referring Plaintiff for the fitness for duty evaluation, Dr. Kirubakaran’s February 5 Psychiatric Evaluation of Plaintiff, or Dr. Glass’ fitness for duty evaluation. The County has a manual containing the County’s Personnel Policies and Procedures (“Personnel Manual”). Plaintiff did not receive a copy of the Personnel Manual when she was hired. Nothing in the record indicates that Plaintiff ever received or reviewed the Personnel Manual during the course of her employment with the County- Plaintiff received an orientation binder when she was first employed by the County. Plaintiff contends that the binder does not address employment at-will. The Court’s review of the binder, which was submitted by Plaintiff, shows otherwise. The binder, which is entitled “Employee Orientation Program,” contains a section entitled “Employment' Relationship.” That section states as follows:. All employment with Johnson County shall be employment-at-will, subject to release at any time. No person shall be considered to have tenured employment with the County nor any expectation of continued or permanent employment. Thus, contrary to what Plaintiff asserts, she did in fact receive a policy regarding employment-at-will. There is no evidence in the record, however, indicating that Plaintiff actually read this employment-at-will policy or that it was ever brought to her attention. Plaintiff did not negotiate the language or terms of any employment policy with respect to her employment. Plaintiff did not have any discussions with McKenzie, Hutcheson, or Sullivan about the County’s termination policies. Plaintiff never had any discussion with any member of the Health Department concerning whether employees could only .be fired for cause. Nothing in the record indicates that any of Plaintiffs supervisors or any member of management at the County ever told Plaintiff she could be terminated only for cause or that she had any legal right to receive progressive discipline. Some time during her employment with the County, Plaintiff attended a county-sponsored workshop on progressive discipline where the participants were told “there would be progressive discipline in terms of evaluation and ... termination.” The participants were also told that managers should have reasons for any disciplinary action taken. The workshop did not address whether employees had a legal right to progressive discipline or to be terminated only for good cause. McKenzie testified in her deposition that she had never terminated any Health Department employee without a reason and that she was not aware of any Health Department employee who had been terminated for no reason. She also testified that she had never terminated any nurse practitioner at the Health Department who was outside of his/her probationary period. Baugus testified in her deposition that the purpose of the due process hearing is to determine if there is a good reason for taking action against the employee and that terminations by the County were “for-cause terminations.” Sullivan testified in her deposition that she had never terminated anyone for no reason and that she would not have terminated Plaintiff without a good reason. Finally, Hanley, who was a Field Services Coordinator who worked under Hutcheson, testified in her deposition that pursuant to County policy, an employee must have “gone through” the discipline policy before being terminated. She also testified that the County must have a good reason to terminate an individual’s employment. In Hanley’s “estimation,” the County’s employment-at-will policy was in conflict with the County’s “day-to-day” policy that good cause was needed to terminate an employee. The County’s Personnel Manual contains a policy entitled “Employment Relationship Policy” (Policy No. 124) which provides that County employees are employed at the will of the County and are subject to termination at any time with our without cause. In addition, it provides that “[n]o person shall be considered to have tenured employment with the County or any expectation of continual or permanent employment.” It also provides that “[t]he procedures and guidelines established by these policies shall not constitute nor be considered as an employment contract.” The County’s Disciplinary Action Policy (Policy No. 618 of the Personnel Manual) sets out various procedures for taking disciplinary action against employees. The policy provides for an “Oral Warning,” a written “First Warning,” and a written “Second Warning.” A “First Warning” is a written warning that identifies the misconduct at issue and advises the employee about what corrective action must be taken to address the misconduct. A “Second Warning” is similar to a “First Warning” but also advises the employee that the employee may be subject to further discipline, including termination, if the misconduct is repeated. There is no requirement that an employee receive a “First Warning” before being given a “Second Warning.” The policy expressly states that if the nature of the employee misconduct is severe, the first three disciplinary steps “may be bypassed.” It further states that for less serious offenses or for repetitive problems, the first three steps “may be more appropriate.” Hanley testified that she would never skip the oral warning and First Warning and go straight to the Second Warning. She testified that “in all fairness to the employee, they have a right to know that this is-consider this an oral warning followed-just mere human courtesy.” She also testified: “I think it boils down to management style” and that the course of discipline taken “just depends on what the situation is... I think you have to act accordingly with what policy is in place.” McKenzie testified that, other than Plaintiff, she had never disciplined an employee without going through all the steps set forth in the Disciplinary Action Policy. Sullivan testified that she always followed the steps of Oral Warning, First Warning, and then Second Warning. Following Plaintiffs termination, Debra Whiteman (‘Whiteman”) was promoted to fill the position of Prenatal Program Manager. Because the Personal Health Services Division was reorganized, the Advanced Registered Nurse Practitioner portion of Plaintiffs job duties was not filled. At the time Whiteman was promoted to Prenatal Program Manager, Whiteman was under the age of 40. Plaintiff was age 46 when she was terminated. Plaintiff never heard McKenzie, Hutche-son, Sullivan, or Murphy make any comments that she thought indicated -a bias against older employees. In January 1999, Hutcheson was 63 years of age. No one told Plaintiff that she was being terminated in whole’ or in part because of her age. Hutcheson’s performance appraisals dating back as far as 1982 indicate Hutcheson had trouble managing her anger and needed to work on her interpersonal relationships with her subordinates. Her performance appraisals also indicate that she engaged in confrontational behavior and finger pointing. In addition, employees found Hutcheson difficult to work for. For example, Hanley, who worked under Hutcheson, found Hutcheson to be “very intimidating” and described her as a “mi-cromanager” whose “interpersonal skills were very much lacking.” Hanley testified in her deposition that Hutcheson “had an autocratic dictatorial leadership” and engaged in “in-office bullying.” Sullivan, who was Hutcheson’s superior, gave Hutcheson a written Second Warning in April of 1997. Sullivan, however, never gave Hutcheson a written First Warning, and there is nothing in the record to indicate that any other County employee ever gave Hutcheson a written First Warning. Sullivan testified in her deposition that Plaintiff and Hutcheson were “two separate situations.” According to Sullivan, “Martha’s [Hutcheson’s] was an interaction type problem and nothing with her work and Harriet’s [Plaintiffs] was a job-related [problem].” McKenzie testified in her deposition that although Hutcheson’s conduct was similar to Plaintiffs, Plaintiffs conduct occurred “in a different setting.” Plaintiff worked in a clinical setting where she served the clients. In contrast, Hutcheson did not work in the clinics and did not interact with clients. McKenzie testified that had Hutcheson’s conduct occurred in the clinical setting, Hutcheson would have been “impossible to work with.” II. Summary Judgment Standard _ Summary judgment is appropriate if ,the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. A fact is “material” if, under the applicable substantive law, it is “essential to the proper -disposition of the claim.” An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact and the entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim. The mov-ant need only point out the nonmoving party’s lack of evidence on an essential element of that party’s claim. Once the movant has met this initial burden, the burden shifts to the nonmov-ing party to set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” To accomplish this, “the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Finally, summary judgment is not a disfavored procedural shortcut. It is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” III. Analysis A. Violation of the ADA by Requiring Plaintiff to Undergo a Fitness for Duty Evaluation and Psychiatric Exam Generally speaking, the ADA prohibits employers from inquiring as to whether an employee has a disability or inquiring as to the nature and severity of any disability. This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. An employer is allowed, however, to make medical inquiries of employees in certain situations. A regulation promulgated in accordance with the ADA provides as follows: “A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.” The Equal Employment Opportunity Commission interprets this regulation as “permitt[ing] employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job.” An employer’s request that an employee undergo a medical examination must be supported by evidence that would “cause a reasonable person to inquire as to whether an employee is still capable of performing his[/her] job.” These rules apply to psychiatric and mental evaluations as well as medical examinations. 1. Were the fitness for duty evaluation and psychiatric exam consistent with business necessity? The Court holds that requiring Plaintiff to submit to the fitness for duty evaluation and psychiatric testing was consistent with the County’s business necessity. Plaintiff is