Shreve v. City of Romulus et al
OPINION AND ORDER granting 26 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-12037
Paul D. Borman
United States District Judge
CITY OF ROMULUS and ROBERT J.
Elizabeth A. Stafford
United States Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
Plaintiff Stacey Shreve was roughly two weeks into his probationary period
as a newly sworn officer of the Romulus Police Department when he was severely
injured in an auto accident. The accident occurred while he was sitting in the
passenger seat of a patrol car during a training exercise. The physical effects of the
accident on Plaintiff were enduring, and in some respects permanent. He was on
disability leave for approximately fifteen months after the accident, returned to
work for around six months, went on disability leave again when his injuries
turned out to be more severe and persistent than initially diagnosed, and was
terminated about a year later.
Plaintiff originally brought this six-count action against Defendant City of
Romulus (“the City”) and Defendant Robert Dickerson (Chief of Police and later
Director of Public Safety for the City), asserting that Defendants committed due
process violations, racial discrimination, disability discrimination, and intentional
infliction of emotional distress. Plaintiff has since conceded that he cannot
maintain any claims against Dickerson, and that he cannot maintain his race
discrimination and intentional infliction of emotional distress claims against the
City. The Court will dismiss these claims accordingly, leaving Plaintiff’s due
process and disability discrimination claims in the action.
A hearing on Defendants’ Motion for Summary Judgment as it relates to the
remaining claims in this action was held on May 4, 2017. For the reasons stated
below, the Court will grant Defendants’ Motion for Summary Judgment.
Plaintiff’s Employment with the City (July 2012 to December 2012)
Plaintiff began to work for the Romulus Police Department after a chance
encounter with Dickerson, then chief of police, in the summer of 2012. Plaintiff
had unsuccessfully applied to work for the department earlier that year, and he was
working as a service technician for a television installation company when he was
assigned to make an installation at Dickerson’s home. Dickerson admired
Plaintiff’s work ethic, and later arranged to sponsor Plaintiff’s attendance at the
Macomb Police Academy, which Dickerson testified (and Plaintiff was told at the
time) was unusual. (ECF No. 26, Defs.' Mot. Ex. B, Deposition of Stacey Shreve at
18:17-21:8; Defs.' Mot. Ex. A, Deposition of Robert J. Dickerson at 6:12-10:8.)
In a letter dated July 27, 2012, Dickerson formally extended Plaintiff a
conditional offer of a full-time Police Officer position. The letter stated that before
being sworn in as an officer, Plaintiff would have to successfully complete all
phases of training at the Macomb Police Academy, which would run from August
13, 2012 to December 12, 2012. (ECF No. 32, Pl.'s Resp. Ex. A, Employment
Offer Letter, Pg ID 358.)
Plaintiff attended the academy and graduated without incident. (Shreve Dep.
22:8-15.) Plaintiff then began his Field Training Officer Program (“FTO”), a
program for newly sworn officers during which each new officer is assigned a fulltime training officer, who provides on-the-job training and periodic evaluations of
the new hire’s progress. (Shreve Dep. 30:12-22.) The length of the FTO period
varies from officer to officer, but is typically completed in four to six months.
(Dickerson Dep. 13:16-14:21.)
According to the Collective Bargaining Agreement (“CBA”) in effect at the
time, employees who are not certified officers on their date of hire (as was true of
Plaintiff) are subject to a fifteen-month probationary period that is separate from
the FTO. (Defs.' Mot. Ex. C, Collective Bargaining Agreement at 7, Pg ID 288.)
The CBA provides that while the probationary period is in effect, the “employee
may be terminated at the sole discretion of the Department with or without cause.
This termination will not be subject to the grievance procedure.” (Id.)
Plaintiff’s Injury and First Disability Leave Period (December 2012 to
During a road patrol with his FTO supervisor on December 29, 2012—
roughly two weeks after beginning his FTO—Plaintiff was severely injured in a
car accident while he was seated in the passenger seat of a patrol vehicle. In the
accident, Plaintiff sustained a dislocated hip, a shattered pelvis, a knee injury, and a
spinal disc injury. (Shreve Dep. 23:6-24:14.) He was hospitalized for
approximately two weeks following the accident, and received surgery on his hip
and on his knee. (Shreve Dep. 25:2-25.)
Plaintiff was on disability leave from when the accident occurred in
December 2012 until April of 2014, during which time he received worker’s
compensation benefits, and during which time the City paid him the difference
between those benefits and his salary. (Id.; Dickerson Dep. 22:9-16.)
Plaintiff’s Return to Work (April 2014 – October 2014)
In April of 2014, Plaintiff’s doctor cleared him to return to work without
restrictions. (Shreve Dep. 40:20-41:1.) Plaintiff resumed his FTO training when he
returned to work, but had difficulty passing certain phases of the training. (Shreve
Dep. 43:11-17.) John Leacher, the City’s Director of Public Safety at the time,
testified that when it was brought to his attention that Plaintiff was struggling to
complete the program, he directed his staff to give Plaintiff more time by restarting
his FTO period. (Defs.' Mot. Ex. E, Deposition of John Leacher at 11:10-12:17.)
Plaintiff continued to experience pain in his back and leg throughout this
period, and was unable to sit for a certain length of time without having to change
his position or stretch his leg. (Shreve Dep. 41:2-42:14.) A superior directed
Plaintiff to have a medical examination, after which the examining physician
determined that Plaintiff’s workload should be restricted to 75% of what it
otherwise would be. (Shreve Dep. 83:6-17.) It was also determined that Plaintiff
should not engage in bending, kneeling, lifting, or squatting. (Shreve Dep. 44:3-10;
Dickerson Dep. 30:9-22.)
Plaintiff testified that around this time, he asked Sergeant Sadler, a
supervising officer, whether there was any “light-duty” work available for him, and
that after the officer put the question to the human resources department, “I was
told no, there were no light-duty work for me.” (Shreve Dep. 82:14-83:23.)
Plaintiff went on disability leave again shortly thereafter, on October 10, 2014.
(Shreve Dep. 41:2-6.)
Plaintiff’s Second Disability Leave Period (October 2014 to October
Plaintiff was still on disability leave when Dickerson, who by then was chief
of staff for the mayor’s office, called a meeting on February 26, 2015 at Romulus
City Hall with Plaintiff and Captain Joshua Monte, the officer responsible for the
police department’s patrol division. (Shreve Dep. 48:9-21, 49:13-21; Defs.' Mot.
Ex. D, Deposition of Joshua Monte at 4:20-22.) Two topics relevant to this lawsuit
were discussed at that meeting: the status of Plaintiff’s certification as a police
officer by the Michigan Commission on Law Enforcement Standards
(“MCOLES”),1 and the possibility of Plaintiff being reassigned to a dispatcher
Dickerson told Plaintiff at the February 2015 meeting that his MCOLES
certification had lapsed while he was on disability leave, and handed him a printout
reflecting that fact. (Shreve Dep. 50:6-22; Dickerson Dep. 35:13-36:7.) This was
later determined to be erroneous, and Plaintiff’s certification was reinstated.
(Shreve Dep. 50:17-22; Dickerson Dep. 36:13-37:7.)
The February 2015 meeting also involved a conversation about the prospect
of Plaintiff working as a dispatcher rather than a police officer. Plaintiff testified
that Dickerson broached the subject at the meeting, and told him that “there may be
a position opening up in June or July.” (Shreve Dep. 51:9-15.) Plaintiff responded
The MCOLES is empowered by Michigan statutory law to oversee the licensure
of law enforcement officers in the state. The version of the Michigan Commission
on Law Enforcement Standards Act that was in effect at the time of these events
relevantly defined “certification” as “[a] determination by the commission that a
person meets the law enforcement officer minimum standards to be employed as a
commission certified law enforcement officer and that the person is authorized
under this act to be employed as a law enforcement officer.” Mich. Comp. Laws
28.602(b)(i) (2013) (amended 2013) (effective January 3, 2017).
that he “still wanted to be a police officer, that was my main goal, was to try and
get better to stay as a police officer.”2 (Shreve Dep. 51:16-20.) Although there was
an anticipated vacancy at the time of this meeting, there was not a dispatcher
position actually available. (Dickerson Dep. 26:9-27:20.) The City did not offer
Plaintiff a dispatcher position when one did open up, according to Dickerson’s
testimony, because of his statements at the February 2015 meeting. (Dickerson
Dep. 27:21-24.) At no point did Plaintiff himself apply for a dispatcher position
with the City. (Shreve Dep. 51:21-23.)
Plaintiff’s Termination (October 2015)
Plaintiff was terminated on October 30, 2015, in a meeting with Dickerson,
then-police chief Jadie Settles, and union representative Officer Chris Hines.
(Shreve Dep. 61:3-18.) Dickerson testified that the decision to terminate Plaintiff
was made jointly by Dickerson and Settles, and that the reason for the decision was
that Plaintiff was unable to meet the physical requirements of the position.
In his deposition, Dickerson gave the following account of the exchange:
He wanted to be a police officer. His goal was to get better. His goal was to
keep the rehab and keep working to get his hip and his other injuries In
order, and he just was not interested, and I think he even said, "I just -- I'm
not the kind of guy that can sit around," because there's a lot of sitting. Then
you can stand, too, but it is a very -- It takes a special person to be a
dispatcher. You got to work in a small, confined area and a lot of radio
activity, and, you know, a lot of down time and up time, and, you know, not
everybody can do it. And, you know, like I said, his position was he didn't
think that that was a good fit for him.
(Dickerson Dep. 27:5-17.)
(Dickerson Dep. 38:4-15.) Plaintiff himself testified that the reason for his
termination was that he was no longer able to perform the essential functions of his
job. (Shreve Dep. 47:4-15.) Plaintiff also testified that he had not completed the
FTO program as of the date of his discharge. (Shreve Dep. 45:8-25.)
The termination letter that was issued to Plaintiff by the City and signed by
Dickerson stated in relevant part:
[A]fter reviewing recent information from your physician as well as
the Independent Medical Examiner (IME) on your physical condition,
it appears as though you will be unable to return to work as a police
officer without restrictions anytime soon, so granting any further
extensions, like we did in the past, is no longer an option.
After reviewing your actual work history, you have physically worked
a total of seven months and have been off work on a worker's
compensation claim for approximately twenty-four months, which far
exceeds the limitations listed within the Collective Bargaining
Agreement. Therefore, your employment with the city of Romulus is
being terminated effective immediately.
(Pl.'s Resp. Ex. 8, Termination Letter, Pg ID 503.)
Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging that his termination was wrongful and that the
City failed to accommodate his disability. (Shreve Dep. 67:12-68:19.) The EEOC
closed its investigation into the matter and issued Plaintiff a right-to-sue letter on
or about March 4, 2016. (ECF No. 1, Compl. ¶ 44.)
Plaintiff filed this action on June 4, 2016. (ECF No. 1, Compl.) Plaintiff’s
Complaint asserted a total of six claims against both the City and Dickerson in his
individual and official capacities: deprivation of due process under 42 U.S.C. §
1983 (Count I); race discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (Count II); disability discrimination in violation
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102 et seq. (Count
III); race discrimination in violation of Michigan’s Elliott-Larsen Civil Rights Act,
Mich. Comp. Laws § 37.2201 et seq. (Count IV); disability discrimination in
violation of Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”),
Mich. Comp. Laws 37.1201 et seq. (Count V); and the tort of intentional infliction
of emotional distress (“IIED”) under Michigan common law (Count VI).
On January 25, 2017, Plaintiff filed a Motion to Compel (ECF No. 20),
claiming that the City improperly withheld discoverable documents, including
“complete policy and procedures manuals for the City of Romulus and its Police
Department.” (See id. at 6, Pg ID 114.) That Motion was referred to Magistrate
Judge Elizabeth A. Stafford (ECF No. 21), but before the scheduled hearing was
held, the parties stipulated that “Defendant has now complied with Plaintiff’s
Discovery Requests,” and that the motion was therefore moot. (ECF No. 30.) The
Magistrate Judge denied the Motion to Compel on that basis. (ECF No. 31.)
Defendants filed the present Motion for Summary Judgment on February 28,
2017. (ECF No. 26, Defs.' Mot.) Plaintiff responded on March 22, 2017. (ECF No.
32, Pl.'s Resp.) In his Response, Plaintiff conceded that he could not maintain his
race discrimination claims asserted in Counts II and IV of the Complaint, his IIED
claim asserted in Count VI of the Complaint, or any of the claims in his Complaint
to the extent that they are asserted against Dickerson. (Pl.'s Resp. at 2-3.)
Defendants filed a timely Reply on April 5, 2017. (ECF No. 34, Defs.' Repl.)
Summary judgment is appropriate where the moving party demonstrates that
there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). A fact is “material” for purposes of a
motion for summary judgment where proof of that fact “would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or
defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th
Cir. 1984) (quoting Black’s Law Dictionary 881 (6th ed. 1979)) (internal citations
omitted). A dispute over a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“Rule 56(e) identifies affidavits, depositions, and answers to interrogatories
as appropriate items that may be used to support or oppose summary judgment.”
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v.
Leis, 556 F.3d 484, 496 (6th Cir. 2009)). “Of course, [the moving party] always
bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Taft
Broadcasting Co. v. United States, 929 F.2d 240, 247 (6th Cir. 1991) (internal
quotation marks omitted) (quoting Celotex, 477 U.S. at 323). If this burden is met
by the moving party, the non-moving party’s failure to make a showing that is
“sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial,” will mandate the
entry of summary judgment. Celotex, 477 U.S. at 322-23. “[A] complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 324.
“The plaintiff must present more than a mere scintilla of the evidence. To
support his or her position, he or she must present evidence on which the trier of
fact could find for the plaintiff.” Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.
2000) (internal citations and quotation marks omitted). The non-moving party may
not rest upon the mere allegations or denials of his pleadings, but the response, by
affidavits or as otherwise provided in Rule 56, must set forth specific facts which
demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). In other
words, he or she “must do more than simply show that there is some metaphysical
doubt as to the material facts . . . . Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine
issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586–587 (1986) (footnote omitted).
In determining whether there are genuine issues of material fact for trial, the
court must examine the evidence and draw all reasonable inferences in favor of the
non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.
1984). At the same time, that party must produce enough evidence to allow a
reasonable jury to find in his or her favor by a preponderance of the evidence,
Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility’ of a factual dispute is not
enough.” Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th
Cir. 2008) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)).
“If the evidence is merely colorable, . . . or is not significantly probative, . . . the
court may grant judgment.” Anderson, 477 U.S. at 249–50. Plaintiff cannot meet
his or her “burden by relying on mere ‘[c]onclusory assertions, supported only by
[her] own opinions.’” Green v. Central Ohio Transit Authority, 647 F. App’x 555,
558 (6th Cir. 2016) (quoting Arendale v. City of Memphis, 519 F.3d 587, 560 (6th
Cir. 2008)) (alterations in original). Plaintiff “must show sufficient probative
evidence, based ‘on more than mere speculation, conjecture, or fantasy,’ that
would enable a jury to find in her favor.” Green, 647 F. App’x at 558-59 (quoting
Arendale, 591 F.3d at 601).
Finally, all evidence submitted in opposition to a motion for summary
judgment must ultimately be capable of presentation in a form that would be
admissible at trial:
The submissions by a party opposing a motion for summary judgment
need not themselves be in a form that is admissible at trial. . . .
However, [that party] must show that she can make good on the
promise of the pleadings by laying out enough evidence that will be
admissible at trial to demonstrate that a genuine issue on a material
fact exists, and that a trial is necessary. Such “‘evidence submitted in
opposition to a motion for summary judgment must be admissible.’”
Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting
United States Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185,
1189 (6th Cir. 1997)). That is why “‘[h]earsay evidence . . . must be
disregarded.’” Ibid. It is also the basis of this court’s repeated
emphasis that unauthenticated documents do not meet the
requirements of Rule 56(e).
CareSource, 576 F.3d at 558-59 (internal citations omitted).
As noted above, Plaintiff conceded in his Response to the present Motion
that he could not maintain his race discrimination or IIED claims as against the
City, and that he could not maintain any of his claims as against Dickerson. For
this reason, the Court will grant Defendants’ Motion for Summary Judgment as to
Plaintiff’s remaining claims are for deprivation of due process pursuant to 42
U.S.C. § 1983 (Count I), disability discrimination under the ADA (Count III), and
disability discrimination under the PWDCRA (Count V). As discussed in detail
below, Plaintiff has not shown that a reasonable jury could find in his favor on
essential elements of each of these claims: specifically, that he had a legally
cognizable property interest in his employment with the City, as he must show to
maintain his due process claim; and that he was “otherwise qualified” for the
position with the benefit of a “reasonable accommodation,” as he must show to
maintain his disability discrimination claims.
Procedural Due Process Claim (Count I)
In Count I of the Complaint, Plaintiff alleges that Defendants violated the
Due Process Clause of the Fourteenth Amendment to the United States
Constitution by terminating his employment without giving him sufficient notice
of the grounds of termination, or affording him sufficient opportunity to respond.
(Compl. ¶¶ 45-48.)
Such “procedural due process” claims brought under 42 U.S.C. § 1983
require two showings: (1) that the plaintiff “had a protectable property interest in
his position,” and (2) that the plaintiff was not “afforded the procedures to which
government employees with a property interest in their jobs are ordinarily
entitled.” Kuhn v. Washtenaw Cty., 709 F.3d 612, 620 (6th Cir. 2013) (internal
quotation marks omitted).
The first of these two elements is at issue in this case. Regarding that
element, the United States Court of Appeals for the Sixth Circuit has explained that
the existence of a property interest depends largely on state law.
Government employment amounts to a protected property interest
when the employee is “entitled” to continued employment. Neither
mere government employment nor an abstract need or desire for
continued employment will give rise to a property interest. Rather, a
property interest exists and its boundaries are defined by “rules or
understandings that stem from an independent source such as state
law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.”
Bailey v. Floyd Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 141 (6th
Cir. 1997) (internal citations omitted) (quoting Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 577 (1972)).
“There are two different theories upon which a plaintiff may establish a
property interest in continued employment under Michigan law—the ‘contract
theory’ and the ‘legitimate-expectations theory.’” Crawford v. Benzie-Leelanau
Dist. Health Dep't Bd. of Health, 636 F. App'x 261, 267 (6th Cir. 2016).
The contract theory “is grounded solely on contract principles relative to the
employment setting,” Mannix v. Cty. of Monroe, 348 F.3d 526, 532 (6th Cir. 2003)
(quoting Rood v. Gen. Dynamics Corp., 444 Mich. 107, 118 (1993)), and it
requires proof “of a contractual provision for a definite term of employment or a
provision forbidding discharge absent just cause.” Rood, 444 Mich. at 117 (internal
citations omitted). “Such provisions may become part of an employment contract
as a result of explicit promises, or promises implied in fact.” Id. (internal citations
and quotation marks omitted).
The “legitimate expectations” theory derives largely from the Michigan
Supreme Court decision Toussaint v. Blue Cross & Blue Shield of Michigan, 408
Mich. 579 (1980)—a case on which Plaintiff relies in his Response. In Toussaint,
Michigan’s high court established that “a provision of an employment contract
providing that an employee shall not be discharged except for cause . . . may
become part of the contract either by express agreement, oral or written, or as a
result of an employee's legitimate expectations grounded in an employer's policy
statements.” Id. at 598 (emphasis added).
Michigan courts, as well as the Sixth Circuit interpreting Michigan law, have
held that the “legitimate expectations” theory is generally not viable where an
employment contract expressly designates the employment relationship as an “atwill” relationship. In Mannix, for example, the Sixth Circuit took note that the
plaintiff in that case
cites no precedent, nor have we discovered any, that an expressly atwill employment relationship may be turned into a just-cause
relationship by no more than a legitimate expectation on the part of
the employee. In all cases where courts have found a Toussaint justcause relationship created by legitimate expectations, the initial
employment contract was silent on the question of whether it could be
terminated at will. The Toussaint court repeatedly recognized that
express at-will contracts would not be affected by its holding. . . .
Later courts interpreting Toussaint reached the same conclusion.
Mannix, 348 F.3d at 533 (collecting cases); see also Bracco v. Michigan Tech.
Univ., 231 Mich. App. 578, 588 (1998) (“[T]he ‘implied contract’ theory of
Toussaint may not be relied upon in Michigan when there is an express contract
covering the same subject matter.”) (quoting Meagher v. Wayne State Univ., 222
Mich. App. 700, 721 (1997)).
Thus when an employment contract unambiguously designates the
employment relationship as “at-will,” the “legitimate expectations” theory
recognized in Toussaint will not support a finding of a property interest in
continued employment. At the same time, however, Michigan law is clear that
when “the employer's policies relating to employee discharge are capable of two
reasonable interpretations, the issue is for the jury.” Horton v. 48th Dist. Court,
446 F. Supp. 2d 756, 762 (E.D. Mich. 2006) (quoting Rood, 444 Mich. at 140-41);
see also Murphy v. Birchtree Dental, P.C., 964 F. Supp. 245, 248 (E.D. Mich.
1997) (same). The Michigan Supreme Court held in Rood that “in all claims
brought under the legitimate expectations theory of Toussaint, the trial court
should examine employer policy statements, concerning employee discharge, if
any, to determine, as a threshold matter, whether such policies are reasonably
capable of being interpreted as promises of just-cause employment.” Rood, 444
Mich. at 140. If they are not, the plaintiff has no cognizable property interest in the
position; if they are, the question should go to the trier of fact. The existence of
conflicting evidence about this question can be grounds for denial of summary
judgment. See, e.g., Barachkov v. 41B Dist. Court, 311 F. App'x 863, 872 (6th Cir.
2009) (reversing a grant of summary judgment on a procedural due process claim
because there was “a direct conflict in the evidence regarding the exact contours of
the termination policy . . . and whether such a policy was ever communicated to,
and understood by, all of [the] employees”).
Defendants argue that the CBA clearly establishes that at the time Plaintiff
was terminated, he was an at-will employee and had no legitimate expectation of
just-cause termination. In particular, Defendants point to Section 8.1 and Section
8.2 of the CBA, which provide as follows:
8.1: An employee, who is a certified officer at time of hire, is on
probation for the first twelve (12) months of employment. An
employee who is not a certified officer at the time of hire is on
probation for the first fifteen (15) months of employment.
8.2: During the employee's probationary period, that employee may
be terminated at the sole discretion of the Department with or without
cause. This termination will not be subject to the grievance procedure.
Probationary Patrol Officers shall participate in the FTO program and
must successfully complete all the elements of the sixteen (16) week
program before being confirmed. After completion of the FTO
program, probationary officers will be evaluated every month for the
balance of the probationary period and upon successful completion of
the full twelve (12), or fifteen (15), month period shall be credited
with all seniority.
(CBA at 7, Pg ID 288 (emphasis added).) These provisions, Defendants argue,
expressly designate the employment relationship between Plaintiff and the City as
“at-will,” and therefore foreclose a finding of a cognizable property interest
premised on Toussaint’s “legitimate expectations” theory.
Plaintiff disputes this reading of the CBA in several respects. First, he argues
that neither the provisions quoted above nor any other section of the CBA provides
for tolling or extension of the probationary period, and so the plain language of the
CBA indicates that the probationary period for an officer who was not certified at
the time of hire ends after 15 months, regardless of how much of that time he or
she is actually able to spend on the job. Second, Plaintiff maintains, the CBA’s
requirement that probationary officers “must successfully complete all the
elements of the sixteen (16) week [FTO] program before being confirmed,” id.,
does not establish that the probationary period cannot end until the officer
completes the FTO program, because “confirmed” should be read to mean
“confirmed as having completed the FTO program,” and not “confirmed as a nonprobationary police officer.” Finally, Plaintiff highlights the fact that he continued
to receive seniority benefits even while he was away on disability leave.
The Court is not persuaded that the CBA is susceptible to “two reasonable
interpretations” as would require submission of this issue to a jury. Plaintiff is
correct that the CBA does not expressly state that the 15-month probationary
period is tolled whenever the officer is off work on extended disability leave as
Plaintiff was. But context makes that much clear, and refutes Plaintiff’s
interpretation of the CBA as creating a probationary period that ends after fifteen
months irrespective of whether the probationary officer was actually able to work.
This interpretation of Section 8.1 is implausible on its face—the basic purpose of a
probationary period would be defeated if the probationer were not present to be
evaluated—but even if it were not, the language of Section 8.2 clearly
contemplates a probationary period that runs during an officer’s active, working
duty. The officer is to be evaluated on his or her performance every month after
completing the FTO program, which would be needless for an officer on extended
disability leave, and the words “successful completion of the full . . . fifteen (15) . .
. month period” imply active involvement on the officer’s part, rather than simply a
period of time. A term like “at the end of the fifteen month period” or “after fifteen
months have elapsed” would be more consistent with Plaintiff’s interpretation of
the CBA provision; the more active language of the actual CBA supports
Defendants’ reading of it.
Section 8.2 also makes clear that completion of the FTO program is a
prerequisite to an officer’s moving past the “at-will” probationary phase, and the
fact that Plaintiff undisputedly did not complete the FTO program is an
independent basis for this Court to find that the CBA expressly established an “atwill” employment relationship. In this regard, the Court is unpersuaded by
Plaintiff’s interpretation of the manner in which the CBA uses the word
“confirmed.” Section 8.2 provides that a probationary officer “must successfully
complete all the elements of the sixteen (16) week program before being
confirmed.” But to read “confirmed” as simply meaning “confirmed as having
completed the program” rather than “confirmed as a police officer” renders the
word irrelevant in context. Plaintiff has not indicated any other component of the
CBA that supports this interpretation, and so the Court declines to adopt it rather
than the more obvious interpretation of the sentence.
Thus even if Plaintiff’s leave period did not toll the probationary period, his
failure to complete the FTO program did. Plaintiff highlights the fact that he was
credited with seniority while he was on disability leave, and he does so presumably
because Section 8.2 of the CBA provides that an officer “shall be credited with all
seniority” after the officer completes the probationary period. But the CBA does
not indicate that that seniority is only to be granted retrospectively after the end of
the probationary period. In view of that fact, as well as the clear meaning of the
CBA provisions quoted above, the Court does not find that any accrual of seniority
by Plaintiff raises a jury question over whether he could have reasonably assumed
that he had passed his probationary period by the time he was terminated.
Finally, Plaintiff argues that the terms of his employment may have been
governed by more than just the CBA. Attached to Plaintiff’s Response are two
exhibits that Plaintiff claims imply the existence of other employment-related
policies: excerpts from a Romulus Police Department Policy and Procedure
Manual issued in 2011 (Pl.'s Resp. Ex. 11, Romulus Police Department Policy &
Procedure Manual), and minutes from a 2016 Romulus City Council meeting
which reflect a successful motion to adopt something called the “City of Romulus
Employees Policies and Procedures Manual.” (Pl.'s Resp. Ex. 12, City Council
Meeting Minutes.) Plaintiff contrasts these exhibits with supplemental discovery
responses that he received from the City, one of which contained the City’s
representation that “the only document which governs the terms and conditions of
Plaintiff's employment is the Collective Bargaining Agreement.” (Pl.'s Resp. Ex.
10, Defendant City of Romulus’ Supplemental Answers to Plaintiff’s First
Interrogatories to Defendant – City of Romulus at 3; Pl.'s Resp. Ex. 9, Defendant
City of Romulus’ Supplemental Response to Plaintiff’s First Demand for
Production of Documents to Defendant – City of Romulus.) Plaintiff contends that
this representation was an act of bad faith on Defendants’ part, and that it creates a
genuine issue of material fact as to whether there were other policies governing the
terms of Plaintiff’s employment that outweighed the presumption of “at-will”
employment created by Sections 8.1 and 8.2 of the CBA.
The Court rejects this argument for two reasons. First, as Defendants aptly
point out, the two exhibits that Plaintiff claims establish the existence of
employment policies other than the CBA are not germane to Plaintiff’s period of
employment: the 2011 Romulus Police Department Policy and Procedure Manual
predates the time during which Plaintiff worked for the City, and the Romulus City
Council meeting minutes are from August 2016, nearly a year after Plaintiff’s
discharge. Second, to whatever extent these documents could be said to imply the
existence of policies that were in effect during Plaintiff’s term of employment, as
well as bad-faith concealment of those policies by Defendants, any argument to
this effect is plainly undermined by Plaintiff’s representation that Defendants
“complied with Plaintiff’s Discovery Requests,” which Plaintiff made to the Court
when he terminated his Motion to Compel by stipulated order. (ECF No. 30.)
The Sixth Circuit made clear in Mannix that where an employment contract
unambiguously designates the employment relationship it governs as “at-will,” the
employee has no legally cognizable property interest in continued employment
even if he or she independently has a legitimate expectation of a “just-cause”
employment relationship. Mannix, 348 F.3d at 533. The CBA that governed
Plaintiff’s employment with the City contained an express “at-will” provision for
probationary officers, and the Court finds that Plaintiff was still in this category as
of the date of his discharge. Thus, Plaintiff’s due process claim could survive
summary judgment only if the other policy documents he claims were in effect
somehow created a situation allowing for “two reasonable interpretations” of
whether he was an at-will employee. Horton, 446 F. Supp. at 762. Because
Plaintiff has not given the Court any reason to conclude that additional and
conflicting policies governed his employment, and because he waived his
argument that Defendants concealed such policies in bad faith when he represented
that they fully complied with their discovery obligations, the Court finds that
Plaintiff has not identified a genuine issue of material fact as to whether he had a
property interest in continued employment with the City at the time he was
terminated. Accordingly, the Court will grant Defendants’ Motion for Summary
Judgment as to the due process claim in Count I of his Complaint.
Disability Discrimination Claims (Counts III and V)
The other two claims that Plaintiff has not conceded are disability
discrimination claims—one brought under the ADA, and the other under the
PWDCRA. “The PWDCRA ‘substantially mirrors the ADA, and resolution of a
plaintiff's ADA claim will generally, though not always, resolve the plaintiff's
PWDCRA claim.’” Donald v. Sybra, Inc., 667 F.3d 757, 763–64 (6th Cir. 2012)
(quoting Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002)). The
parties have neither argued nor provided any reason that the Court should conclude
that Plaintiff’s ADA and PWDCRA claims should be analyzed under different
The ADA broadly provides that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112. “The term ‘covered entity’ means an employer,
employment agency, labor organization, or joint labor-management committee.”
Id. § 12111(2).
The Sixth Circuit recently clarified the required showings for an ADA
disability discrimination claim in Ferrari v. Ford Motor Co., 826 F.3d 885 (6th
Cir. 2016). In general, “[t]o recover on a claim for discrimination under the ADA,
a plaintiff must show that he or she (1) is disabled, (2) otherwise qualified to
perform the essential functions of the position, with or without accommodation,
and (3) suffered an adverse employment action because of his or her disability.” Id.
at 891 (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)
and Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317, 321 (6th Cir. 2012)
(en banc)). A plaintiff can do this in two ways: “by introducing direct evidence of
discrimination, including evidence that the employer relied upon the plaintiff's
disability in making its employment decision, or by introducing indirect evidence
of discrimination.” Ferrari, 826 F.3d at 891 (quoting Monette, 90 F.3d at 1178).
Different burden-shifting frameworks apply to direct- and indirect-evidence
claims. The indirect method adopts the framework from McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973):
To establish a claim for disability discrimination under the indirect
method, a plaintiff must first establish a prima facie case of
discrimination by showing that (1) he or she is disabled, (2) he or she
is otherwise qualified for the position, with or without reasonable
accommodation, (3) he or she suffered an adverse employment
decision, (4) the employer knew or had reason to know of the
plaintiff's disability, and (5) the position remained open while the
employer sought other applicants or the disabled individual was
Ferrari, 826 F.3d at 891–92 (internal citations and quotation marks omitted). If the
plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a
legitimate explanation for the adverse employment decision, whereupon the burden
shifts back to the plaintiff to show pretext. See id. at 892.
On the other hand, if an employer “acknowledges that it relied upon the
plaintiff's handicap in making its employment decision . . . [t]he McDonnell
Douglas burden shifting approach is unnecessary because the issue of the
employer's intent, the issue for which McDonnell Douglas was designed, has been
admitted by the defendant.” Id. (quoting Monette, 90 F.3d at 1192). In that case,
“the plaintiff has direct evidence of discrimination on the basis of his or her
The Sixth Circuit elaborated in Ferrari that
[i]f there is direct evidence that the plaintiff suffered an adverse
employment action because of his or her disability, the plaintiff then
“bears the burden of establishing that he or she is ‘disabled’ ” and
“‘otherwise qualified’ for the position despite his or her disability: a)
without accommodation from the employer; b) with an alleged
‘essential’ job requirement eliminated; or c) with a proposed
reasonable accommodation.” Monette, 90 F.3d at 1186. Once the
plaintiff has established these elements, the employer “bear[s] the
burden of proving that a challenged job criterion is essential ... or that
a proposed accommodation will impose an undue hardship upon the
Ferrari, 826 F.3d at 891.
There is no dispute that the City terminated Plaintiff because his physical
limitations prevented him from carrying out the essential functions of the job of
police officer: both Plaintiff and Dickerson testified to that fact. (Shreve Dep. 47:415; Dickerson Dep. 38:4-15.) This constitutes “direct evidence” as defined in
Ferrari,3 which means that Plaintiff’s initial burden is to show that he was disabled
and that he was “otherwise qualified” for the position with or without a reasonable
accommodation, or with an alleged essential job requirement eliminated.
The parties do not dispute that Plaintiff was disabled under the ADA, and for
good reason. The definition of “disability” in the ADA’s implementing regulations
encompasses any individual with “[a] physical or mental impairment that
substantially limits one or more of the major life activities of such individual.” 29
C.F.R. § 1630.2(g)(1)(i). “Major life activities include, but are not limited to . . .
[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
Ferrari does demonstrate that in some cases a court should employ both
analytical frameworks, but not in a way that is applicable to this case: the plaintiff
in Ferrari made two distinct claims based on two different disabilities, one of
which was based on direct evidence and one of which was not. See Ferrari, 826
F.3d at 892. That is not the case here: Plaintiff’s ADA claim rests on Defendants’
admission of the reason for Plaintiff’s discharge.
walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, interacting with others, and
working . . .” Id. § 1630.2(i)(1) (emphasis added).
The question, then, is whether Plaintiff can raise a genuine issue of material
fact as to whether he was “otherwise qualified for the position despite [his]
disability: a) without accommodation from the employer; b) with an alleged
‘essential’ job requirement eliminated; or c) with a proposed reasonable
accommodation.” Ferrari, 826 F.3d at 891. Plaintiff does not maintain that he was
qualified to work in his original position without accommodation—in fact, he
conceded that owing to his disability, he could not perform essential functions of
the job. (Shreve Dep. 44:18-22.) Nor does Plaintiff argue that he was qualified for
the position with any particular essential requirement eliminated. Instead, Plaintiff
contends that the record shows two possible “reasonable accommodations” that the
City could have afforded him: a “light-duty” assignment, and reassignment to a
As to a light-duty assignment, Defendants argue that Plaintiff admitted “in
“[A] ‘reasonable accommodation’ under the ADA may include ‘reassignment to a
vacant position.’ 42 U.S.C. § 12111(9)(B). Consequently, “an employer has a duty
under the ADA to consider transferring a disabled employee who can no longer
perform his old job even with accommodation to a new position within the
[c]ompany for which that employee is otherwise qualified.” Kleiber v. Honda of
Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (quoting Burns v. Coca–Cola
Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000)).
his deposition that he never submitted a request for any reasonable
accommodation.” (Defs.' Repl. at 6 (emphasis in original).) This is not entirely
accurate. Plaintiff’s deposition testimony reflects that shortly before his second
disability leave period, he asked Officer Sadler, a supervisor, whether there was
any light-duty work available to him, to which Sadler (after speaking with the
human resources department) responded that there was not. (Shreve Dep. 82:1483:23.) Dickerson testified that while light-duty positions were not typically
formalized, they were offered “if somebody requested.” (Dickerson Dep. 24:1416.) Dickerson characterized such positions as follows:
[L]ight duty positions in the police department are police officers that
are trained to protect themselves, protect the public, understand the
policies and procedures, write police reports if, in fact, the person is
on light duty. They have to perform all those tasks. Just because it's
light duty doesn't mean you can put anybody in a light duty chair.
They have to be able to have passed the training program to be able to
interview witnesses, be able to write police reports and things like that
(Dickerson Dep. 24:2-10.)
Defendants go on to argue that Plaintiff would not have been qualified for a
light-duty position, in any case, because his MCOLES certification had lapsed,5
On this point, Dickerson testified as follows:
If you do not have the training and you haven’t passed the Field Training
Program as a police officer, you can’t work as a police officer. The state
MCOLES won’t allow you to work as an active police officer and write
police reports and do the things that a police officer needs to do.
(Dickerson Dep. 25:15-21.)
and because he had not completed the FTO program. The record does not establish
that Plaintiff’s MCOLES certification had lapsed, however. In fact, it suggests the
opposite: Plaintiff testified that the initial determination that his certification had
lapsed was later found to be in error and reinstated. (Shreve Dep. 50:17-51:8.)
For this reason, Defendants have not shown that Plaintiff would necessarily
have been precluded by state law from serving in a light-duty position by virtue of
a lapsed MCOLES certification. Defendants have, however, established that to
work in a “light duty” position, an officer must have successfully completed the
FTO program. Dickerson attested to this in his deposition, and he further testified
that since Plaintiff “didn't pass the FTO program yet, he was not capable because
he hadn't finished his training to even -- to do a light duty job as it relates to a
police officer.” (Dickerson Dep. 24:2-13.)
It is undisputed that Plaintiff struggled to advance in the FTO program
during the six to seven months in which he returned to work between his two leave
periods. (Shreve Dep. 45:8-25.) John Leacher, the official who supervised
Plaintiff’s progress in the FTO program, testified as to Plaintiff’s difficulties both
with the initial phase of the FTO program and with the remedial training he
received related to that phase:
[H]e was struggling through the program. The protocol when not
keeping up with the work that's assigned during a phase of the FTO
program is to . . . go back over things that were done already to try to
basically get the candidate up to speed. After a certain number of
hours have been dedicated to that, if the . . . officer is still not able to
perform the tasks that they need to, in the phase that they're in, the
protocol for our department was to dismiss or terminate employment.
That had been the case with Mr. Shreve at that point. The remedial
training had not improved his performance and the suggestion was
made to terminate his employment.
(Leacher Dep. 11:18-12:5.) Despite this suggestion, Leacher testified that owing to
Plaintiff’s unique circumstances, he “directed the captain and the officers to start
the entire process over again and give him every opportunity we could to be
successful.” (Leacher Dep. 12:8-10.) Nonetheless, Plaintiff does not dispute that he
had not completed the FTO program by the time he was terminated. (Shreve Dep.
71:18-22.) The record thus makes clear that Plaintiff did not satisfy a prerequisite
to working in a “light duty” position under the City’s standard practices, and
importantly, Plaintiff does not argue (nor does the record independently show) that
his inability to pass the FTO program despite being given remedial opportunities
was owing to his disability. For this reason, the Court finds that Plaintiff has not
raised a jury question over whether he was “otherwise qualified” for the position
with the reasonable accommodation of a “light duty” arrangement.
The other reasonable accommodation that Plaintiff puts forward as support
for his prima facie case is the potential dispatcher position that Dickerson raised as
a possibility for Plaintiff at the February 2015 meeting. The record reflects that
Dickerson mentioned at that meeting that a dispatcher position might open up in
the next few months, to which Plaintiff replied that he would rather try to improve
his physical condition and resume his training as a patrol officer. Based on that
statement, Dickerson did not inform Plaintiff when a position did open several
months later, and Plaintiff never applied for a dispatcher position himself.
Plaintiff argues that the City could not have offered Plaintiff a position that
didn’t exist at the time, and that the City therefore was remiss in not informing him
of the opening later, when it did arise. Defendants counter that Dickerson
reasonably relied on Plaintiff’s statement that he was not interested in working as a
dispatcher, such that the City had no obligation to follow up with him when the
position became available, and did not act in bad faith by failing to do so.
Defendants’ position has stronger support in the law. The ADA’s
implementing regulations provide that “[t]o determine the appropriate reasonable
accommodation it may be necessary for the covered entity to initiate an informal,
interactive process with the individual with a disability in need of the
accommodation.” 29 C.F.R. § 1630.2(o)(3). “[T]he interactive process is
mandatory, and both parties have a duty to participate in good faith.” Kleiber v.
Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007). The Sixth Circuit
comprehensively analyzed the ADA’s interactive process in the 2010 case
Jakubowski v. Christ Hosp., Inc., 627 F.3d 195 (6th Cir. 2010), and explained that:
An employee has the burden of proposing an initial accommodation,
and the employer has the burden of showing how the accommodation
would cause an undue hardship, but the employer is not required to
propose a counter accommodation in order to participate in the
interactive process in good faith. Of course, taking the extra step of
proposing counter accommodations may be additional evidence of
good faith. If an employer takes that step and offers a reasonable
counter accommodation, the employee cannot demand a different
accommodation. An employer has sufficiently acted in good faith
when it readily meets with the employee, discusses any reasonable
accommodations, and suggests other possible positions for the
Id. at 202-03 (internal citations omitted); see also Mobley v. Miami Valley Hosp.,
603 F. App'x 405, 414 (6th Cir. 2015) (“[A defendant] is not required to offer a
different accommodation to discharge its duty of good faith. But a counterproposal might evince the employer's good faith.”); Emch v. Superior Air-Ground
Ambulance Serv. of Michigan, Inc., No. 11-13275, 2012 WL 4090794, at *16 (E.D.
Mich. Sept. 17, 2012) (“[T]he employer providing the accommodation has the
ultimate discretion to choose between effective accommodations, and may choose
the less expensive accommodation or the accommodation that is easier for it to
provide.”) (quoting Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)),
aff'd (Sept. 6, 2013).
Here, the record demonstrates that the City took “the extra step” and
proposed its own potential reasonable accommodation. Plaintiff testified that in
response to the suggestion at the February 2015 meeting that he work as a
dispatcher, he stated that he “still wanted to be a police officer, that was my main
goal, was to try and get better to stay as a police officer.” (Shreve Dep. 51:16-20.)
Plaintiff did not raise the topic again at any point after that. Given that the ADA
places the ultimate burden on the employee to propose an accommodation, and
requires only that the employer participate in the interactive process in good faith,
the Court finds that Defendants’ reliance on Plaintiff’s statement to conclude that
Plaintiff would not be interested in a dispatcher position when one became
available was reasonable, and that Defendants did not therefore act in bad faith.
This is very clearly not a case of an employee responding to an employer’s
proposed accommodations by “meeting every suggestion with a complaint, and
obstinately refusing to take advantage of the accommodations that he deemed
unacceptable.” Emch, 2012 WL 4090794, at *15. The record shows that Plaintiff
turned down the proposed dispatcher position because he believed he could
overcome his disability enough to work as a police officer. The record also
indicates that his superiors understood this. None of the parties appears to have
acted in bad faith. But to justify an award of the relief he seeks, Plaintiff must
show that he was “otherwise qualified for the position despite [his] disability . . .
with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891 (internal
citations and quotation marks omitted). Because Plaintiff was not “otherwise
qualified” for light duty work by virtue of his failure to complete the FTO
program, and because Defendants fulfilled their obligations under the ADA by
proposing a reasonable accommodation that Plaintiff then turned down, the Court
finds that Plaintiff has not met his burden of raising a jury question on the
“otherwise qualified” prong of his prima facie case.
Accordingly, the Court will grant Defendants’ Motion for Summary
Judgment as to Plaintiff’s ADA and PWDCRA claims in Counts III and V
For the reasons stated above, the Court hereby GRANTS Defendants’
Motion for Summary Judgment in its entirety.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: June 9, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on June 9, 2017.
Deborah Tofil, Case Manager
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