Boike v. Akal Security, Incorporated

Filing 48

MEMORANDUM OPINION AND ORDER granting in part and denying in part 25 Motion for Summary Judgment and ordering a Joint Status Report be filed no later than Friday, November 15, 2019. Signed by District Judge Joseph M. Hood. (VLun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION at DETROIT
GARY BOIKE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AKAL SECURITY, INC.,
Defendant.

Case No.
2:17-cv-10109
MEMORANDUM OPINION
AND ORDER

***
Plaintiff Gary Boike was asked by his employer, Defendant
Akal Security, Inc., to take a color-vision examination that
confirmed what he, his physician, and the federal agency overseeing
his position already knew: Boike’s ability to distinguish between
certain colors was impaired. The United States Marshals Service,
pursuant to its contract with Defendant Akal Security, Inc.,
required Boike to take a follow-up color-vision test, which again
confirmed his impairment. He was subsequently fired from his
position

as

a

administrative

court

security

remedies,

officer.

Boike

filed

After

this

exhausting

action

against

his
his

former employer under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12112(b)(2), and Michigan’s Persons with Disabilities
Civil Rights Act (“PWDCRA”), Mich. Comp. Laws § 37.1101, et seq.

1

Akal Security, Inc. (“Akal”), has filed a motion for summary
judgment [DE 25] on Boike’s claims, alleging that his color-vision
deficit is not a “disability” as defined by the ADA. Even if Boike
is disabled, Akal argues that the color-vision exams Boike took
did not violate the ADA because those exams are a means to achieve
the overarching goal of protecting the federal judiciary and the
public. The parties disagree on several factual premises in this
case, namely, whether the ability to recognize basic colors is an
essential function of a court security officer. Boike has responded
[DE 35] and Akal Security replied [DE 39], making this matter ripe
for review.
For the reasons set forth below, Akal’s motion for summary
judgment is granted in part and denied in part.
I. PROCEDURAL AND FACTUAL BACKGROUND
The United States Marshals Service (“USMS”) is statutorily
responsible for security in federal courthouses. 28 U.S.C. §
566(a). The USMS fulfills this responsibility by contracting with
private companies to provide court security officers (“CSOs”). 28
U.S.C. § 604(a)(22). Akal is one of the security contractors hired
by USMS to provide CSOs at federal courthouses and facilities.
[See DE 25-1 at 11].
Gary Boike began working as a CSO at the United States
District Court for the Eastern District of Michigan in 1999. [See
DE 35 at 10]. Prior to his employment as a CSO, Boike was a police
2

officer with the Hamtramck, Michigan police department for twentyfive years. [Id.]. Boike worked for Akal during most of his career
as a CSO. [Id. at 11]. When Boike was terminated, he held the
preeminent title of “Lead CSO.” [DE 35 at 12].
The USMS requires CSOs to be able to perform certain functions
and meet specific medical standards to ensure that they can
adequately protect members of the judiciary and the public. [DE 34
at 4]. The contract between USMS and Akal stated that Akal was
responsible

for

providing

employees

that

met

USMS’s

qualifications. [DE 34 at 25]. The CSO medical standards can be
found in a report authored by Dr. Richard J. Miller, the former
Director of Law Enforcement Medical Programs within the Federal
Occupational Health agency(“FOH”). These standards are included in
USMS “Form 229” [see DE 25-6 at 4-10] and were created following
the 1995 bombing of the federal building in Oklahoma City and
pursuant

to

a

specific

request

from

the

Judicial

Conference

Committee to analyze the CSO position. [DE 34 at 7-8]. Dr. Miller’s
report was adopted by the Judicial Conference after concluding
that he satisfactorily determined the essential functions of the
CSO. [Id. at 8].
To ensure that CSOs meet the medical standards, the USMS
requires

annual

physical

examinations,

including

color-vision

testing. [Id. at 12]. Physicians approved by USMS and Akal examine
CSOs and compile a complete medical history, documenting the exam’s
3

results in USMS Form 229. [See DE 34-10]. Then, a medical review
is performed by a physician with the Law Enforcement Medical
Programs, a component of FOH, who makes a recommendation to USMS
regarding the medical qualifications of the CSO examined. [DE 256 at 2, 8].
CSOs are required under the medical qualifications to be able
to recognize and distinguish between basic colors. [Id. at 62; DE
34-10 at 4]. The Miller Report describes basic color vision as
“the ability to distinguish yellow, green, red, and blue.” [DE 256]. Dr. Gregory Good, whom Dr. Miller consulted about the vision
standards in his report, stated that recognizing basic colors means
“that you can use color names appropriately and you don’t confuse
colors, basic colors.” [DE 25-9 at 44]. The vision standard in Dr.
Miller’s report explains that “severe color deficiency in any color
is generally disqualifying,” while loss of vision in one eye is
completely disqualifying [DE 25-6 at 62; DE 35 at 13].
CSO color vision has been tested pursuant to this standard
using two vision exams, the “Ishihara” and the “Farnsworth D-15.”
[DE 25-8 at 15-16; DE 25-2 at 20-21; see DE 25-9 at 15-18, 49-51].
Dr. Good described the Ishihara test as a “very precise test,” but
explained that the Ishihara does not screen individuals with blueyellow color deficiency. [DE 25-9 at 48]. According to USMS
“protocol,” but not pursuant to a specific, documented policy, a
CSO is required to correctly identify the number contained on at
4

least ten of the fourteen plates to pass the Ishihara screening.
[DE 25-2 at 21; DE 25-8 at 16]. Akal states that USMS “protocol”
is to require anyone who scores below a ten out of fourteen on the
Ishihara to take another vision-deficient exam, the Farnsworth D15 test. [DE 25-8 at 15-16; DE 25-2 at 20]. Dr. Miller’s report
says

basic

color

vision

may

be

demonstrated

by

passing

the

Farnsworth D-15, but it is not official procedural policy of USMS.
[DE 25-6 at 62].
The Farnsworth D-15 test is designed to distinguish between
individuals who have a slight color-vision deficiency from those
who have a more severe impairment. [DE 25-1 at 18]. On the
Farnsworth D-15, CSOs are allowed unlimited minor errors and one
major error to obtain a passing score. [DE 25-8 at 17]. The FOH
physician

responsible

for

making

qualification

determinations

stated in her deposition that a prospective or incumbent CSO needed
to pass at least one of the color-vision exams to demonstrate that
he or she met the color-vision requirement. [Id. at 18-19].
Prior to the December 2013 test at issue in this case, Boike’s
color

vision

was

tested

multiple

times

according

to

USMS

“protocol.” [See DE 24-10 at 1, 4]. Akal and USMS approved the
medical clinic Boike frequently used for his annual physical exam
[DE 25 at 14]. During these medical exams, Boike was always
required to take a color-vision test. The record reflects that the
clinic had discretion to choose which color-vision exam should be
5

administered, and on at least one occasion, Boike told Dr. Thomas
Koehler that he needed to pass the Ishihara specifically for work.
[DE 34-7 at 4]. Boike failed the Ishihara a number of times prior
to 2013, but was rarely asked for a follow-up and was never
medically disqualified. [See DE 35 at 15; DE 40 at 22-23].
When he underwent the same testing in late 2013 for his annual
2014 medical exam, Boike once again failed the Ishihara by scoring
a four out of fourteen. [DE 25-1 at 13; DE 35 at 17]. This time,
he was given a medical review form indicating that his medical
determination was pending further testing and documentation. [DE
34-10 at 8]. Although it was possible to do so, Boike was not
temporarily removed from the job pending the additional testing.
[DE 35 at 18; DE 40 at 19-20]. The medical review required Boike
to take the Farnsworth D-15 exam to further evaluate his color
deficiency.

[Id.].

Dr.

Koehler

performed

the

Farnsworth

and

concluded that Boike had a “deutan defect (mild),” but indicated
that he had performed his job for the last fifteen years adequately
and should still be able to. [Id.].
An FOH physician, after reviewing Boike’s Farnsworth results,
decided he should be medically disqualified from his position as
a CSO. [Id.] More than half a year after Boike first took the
Ishihara, FOH Judicial Security Division Reviewing Medical Officer
Dr. Haviva Goldhagen submitted a medical review form stating the
following:
6

CSO Gary Boike has a significant color vision deficit
according to the results of the Ishihara color vision
test (4 correct/14 tested) and the Farnsworth D15 color
vision test (6 major errors) provided by Thomas F.
Koehler, OD on 4/12/14. This condition impairs the
ability to recognize basic colors and does not meet the
required color vision standard for the job. Good color
vision is important and sometimes a crucial factor in
the
efficient
performance
of
all
duties
and
responsibilities.
The
recognition
and
proper
identification of persons, vehicles, buildings, color
coded
electronic
screeners,
and/or
documents
is
important. In officer to officer communication, the
description of suspects, vehicles or buildings may be
dependent upon accurate color descriptions. In addition,
court testimony may depend on proper color descriptions.
Therefore, the CSO does not meet the color vision
requirement for the job of Court Security Officer.
[DE 34-1 at 9]. Dr. Goldhagen in a deposition stated that her
review is not a final disqualification, but rather a recommendation
to USMS. [DE 34-4 at 10]. Additionally, Dr. Goldhagen stated that
“in

order

to

make

the

reviews

go

quicker,”

the

FOH

used

“boilerplate language” that physicians would modify or change
according

to

each

case.

[Id.

at

12].

Dr.

Goldhagen

was

not

personally familiar with the security equipment CSOs use and the
need for color, but drafted this boilerplate language herself based
in part on her “knowledge of how a medical condition could impact
sage and effective job performance.” [Id. at 13-14, 22-23]. Based
on this recommendation, USMS directed that Boike be removed as CSO
and Akal terminated his employment on July 9, 2019. [Id. at 16].
Akal argues that (1) the USMS color-vision examination and
standard do not violate the ADA, (2) Akal did not discriminate

7

against Boike when it fired him pursuant to those standards, and
(3) Boike is not entitled to punitive damages as a matter of law.
II. STANDARD OF REVIEW
Summary judgment is appropriate only when no genuine dispute
exists as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving
party has the burden to show that “there is an absence of evidence
to support the nonmoving party’s case,” but that burden can be
discharged when the moving party points to an absence of evidence
to support the nonmoving party’s claim. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Summary judgment may only be granted if
“the evidence is so one-sided that one party must prevail as a
matter of law.” Lexington—South Elkhorn Water Dist. v. City of
Wilmore, 93 F. 3d 230, 233 (6th Cir. 1996).
“A dispute about a material fact is genuine if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825
(6th Cir. 2013) (internal quotations omitted). The Court construes
all facts, including inferences, in the light most favorable to
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

8

III. ANALYSIS
Employers

are

prohibited

from

discriminating

against

“a

qualified individual on the basis of disability in regard to …
[the] discharge of employees.” 42 U.S.C. § 12112.
To establish a prima facie case of disability discrimination
under the ADA,1 the plaintiff must show that he is (1) disabled,
(2) otherwise qualified to perform the essential functions of the
position, and that he (3) suffered an adverse employment action
because of his disability. See Ferrari v. Ford Motor Co., 826 F.
3d 885, 891 (6th Cir. 2016)(citing Monette v. Elec. Data Sys.
Corp., 90 F. 3d 1173, 1178 (6th Cir. 1996)). A plaintiff may make
this showing by introducing direct evidence of discrimination,
including

that

the

employer

considered

and

relied

on

the

plaintiff’s disability in making its employment decision. Id.
A. Is Boike disabled under the ADA?
The threshold question to address on this motion is whether
Boike is disabled, and thus, whether he is protected by the ADA.
If Boike is not disabled, he is not entitled to relief from a
discrimination claim under the ADA.

Michigan’s PWDCRA “substantially mirrors the ADA, and resolution
of a plaintiff’s ADA claim will generally, though not always,
resolve the plaintiff’s PWDCRA claim.” Cotter v. Ajilon Servs.,
Inc., 287 F. 3d 593, 597 (6th Cir. 2002)(abrogated on other grounds
by Lewis v. Humboldt Acquisition Corp., Inc., 681 F. 3d 312 (6th
Cir. 2012). Absent a claim that the two statutes should be analyzed
separately, courts analyze both claims under the ADA standards.
Arndt v. Ford Motor Co., 247 F. Supp. 3d 832 (E.D. Mich. 2017).
1

9

A disability can be established where (1) the plaintiff has
a physical or mental impairment that substantially limits one or
more major life activity; (2) a record of an impairment exists; or
(3) the employer regards the person to have such an impairment. 42
U.S.C. § 12102(1)(A)-(B). The definition of disability under the
ADA is to be construed broadly in favor of coverage. Id. at (4)(A).
The parties do not address in the motion or responses whether
a record of the impairment exists that would establish a disability
for the purposes of the ADA. Thus, the Court will address only
whether Boike was (1) actually disabled under the ADA’s definition,
and if he was not, (2) whether Akal regarded him to be disabled
when it terminated him. Boike carries the burden of showing he is
or was perceived by Akal to be disabled, and for the purposes of
the motion before the Court, Akal carries the burden of showing
that there is an absence of evidence tending to demonstrate an
actual or perceived disability.
(1) Boike was not “actually disabled” under the ADA
To meet the definition of an actual disability under the ADA,
the plaintiff must have a physical or mental impairment that
substantially limits one or more major life activity. Color-vision
deficiency, commonly known as color-blindness, is certainly a
physical impairment. The EEOC, in its regulations interpreting the
amended ADA, defines a physical impairment as “[a]ny physiological
disorder or condition … such as neurological, musculoskeletal,
10

special sense organs ...” 29 C.F.R. § 1630.2(h)(1)-(2). The parties
do not dispute that Boike’s ability to recognize basic colors is,
at the very least, impaired.2 The question here, however, is
whether that physical impairment substantially limits a major life
activity for Boike.
The ADA lists some conditions that may be considered “major
life activities,” including, notably, “seeing” and “working.” Id.
at (2)(A). The statute explains that the determination of whether
an impairment substantially limits a major life activity should be
made without considering ameliorative efforts, like equipment,
appliances

or

“low-vision

devices.”3

42

U.S.C.

§

12102

(4)(E)(i)(I).
To “substantially limit” a major life activity, the plaintiff
must be be “significantly restricted as to the condition, manner
or duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general population

Viewed in the light most favorable to the non-moving party,
Boike’s ability to recognize basic colors was impaired. Though
Boike argues that there is a genuine dispute of material fact as
to whether he could distinguish between basic colors, he repeatedly
received low scores on annual color-vision tests and admitted in
depositions that he has known for a while about his own vision
deficiency. Thus, at the very least, Boike had difficulty
identifying and distinguishing basic colors such as yellow, green,
red, and blue.
3 Low-vision devices are those that “magnify, enhance, or otherwise
augment a visual image.” 42 U.S.C. § 12102 (4)(E)(iii)(II).
2

11

can

perform

1630.2(j)(1).

that

same

major

Additionally,

life

the

activity.”

nature

and

29

C.F.R.

severity

of

§
the

impairment, its expected duration, and its permanent or long-term
impact should all be considered. Id. at (j)(2)(i)-(iii). The
question must be answered on a case-by-case basis that takes into
account the actual experience of an individual and the impact of
the impairment on his or her daily life. Albertson’s, Inc. v.
Kirkinburg, 527 U.S. 555, 566 (1999). Even though the ADA seeks to
address

more

than

utter

inabilities,

it

is

only

meant

to

concentrate on limitations that are, at least, substantial. Id.;
see

also

Bragdon

v.

Abbott,

524

U.S.

624,

642

(1998).

To

demonstrate a limitation on the major life activity of seeing, the
plaintiff must point to more than a “difference” in vision between
a person in the average population and the plaintiff. Id. at 565.
Boike has not presented evidence that he is substantially
limited in daily life because of his color-vision deficiency.
Instead, Boike simply states that there is a dispute of fact
regarding whether he is substantially limited in the activity of
seeing. [DE 35 at 24-26].
Next, Boike argues that he was substantially limited in the
major

life

activity

of

working.

When

addressing

whether

a

plaintiff’s impairment limits his ability to work, regulations to
the ADA explain that “substantially limits” means restricting the
ability to perform a class or broad range of jobs compared to the
12

average person with similar training, skills, and abilities. 29
C.F.R.
single,

§

1630.2(j)(3)(i)(2012).
particular

job

does

“The
not

inability

constitute

to
a

perform

a

substantial

limitation in the major life activity of working.” Id; see also
Booth v. Nissan N. Am., Inc., 927 F. 3d 387, 394 (6th Cir. 2019)
cert. docketed No. 19-252. Several factors may be considered in
determining if a person is limited, such as the geographic area
where the person has reasonable access to work, the number of jobs
with similar training, knowledge, skills or abilities in that area
where the person would also be disqualified, and the job that the
person was disqualified from. 29 C.F.R. § 1630.2 at (j)(3)(ii)(A)(C); see also Jasany v. U.S. Postal Serv., 755 F. 2d 1244, 1248
(6th Cir. 1985)(citing E.E. Black, Ltd. v. Marshall, 497 F. Supp.
1088, 1100-01 (D. Hawaii 1980)(evaluating the ADA’s identical
language to the Rehabilitation Act of 1973)).
In response to Akal’s motion for summary judgment, Boike bore
the burden of presenting some evidence that he was substantially
limited from working due to his color-vision deficiency. Boike’s
response, however, only points out that Boike could not get a job
as a printer for his father many years ago because he failed a
color-vision test. Working as a printer is certainly not within
the same skill set required for a court security officer. Boike
has presented no evidence tending to show that other jobs requiring

13

his skillset in the geographical area he is located would not hire
him because of his color-vision deficiency.
Thus, based on the undisputed facts of Boike’s career history
and the lack of evidence to suggest that he could not obtain jobs
like that of a CSO, this Court agrees with Akal that Boike was not
substantially limited in the major life activity of working.
Because he is not substantially limited in a major life activity,
he is not “actually disabled” under the ADA, and summary judgment
should be granted for Akal on this issue.
(2) Akal might have regarded Boike as disabled when it fired
him

Boike is not precluded from the protections of the ADA on a
finding that he was not “actually disabled.” An ADA plaintiff can
also meet the disability requirement by demonstrating that his
employer perceived him to be disabled when it fired him. Congress
intended that this route expand ADA coverage to people who felt
the negative reactions to disabilities that were just as disabling
as

the

actual

impairment.

See

29

C.F.R.

Pt.

1630,

App.

§

1630.2(l)(interpretive guidance on Title I of the ADA, discussing
Congress’s original intent in drafting the ADA). After a series of
Supreme Court cases narrowed the scope of this protection, Congress
chose to amend the ADA in 2008. See Milholland v. Sumner Co. Bd.
of Educ., 569 F. 3d 562, 566 (6th Cir. 2009).

14

Specifically, Sutton v. United Airlines held that the ADA
“regarded as” prong required a plaintiff to show that the employer
mistakenly

believed

the

employee’s

actual

or

nonlimiting

impairment substantially limited a major life activity. 527 U.S.
471, 489 (1999)(overturned by P.L. 110-325 (2009)). The amended
ADA no longer requires plaintiffs to show that the impairment
limited his or her life activity, or that the employer assumed the
employee was limited in that way to demonstrate that he or she was
regarded as disabled. In fact, the statute was amended to say the
opposite:
An individual meets the requirement of “being regarded
as having such an impairment” if the individual
establishes that he or she has been subjected to an
action prohibited under this chapter because of an
actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to
limit a major life activity.
42 U.S.C. § 12102(3)(A)(emphasis added).4
Although the statutory language is clear that the plaintiff
does

not

need

to

demonstrate

that

his

or

her

impairment

substantially limits or is perceived to substantially limit a major
life activity, the Sixth Circuit Court of Appeals continues to
apply the pre-amendment definition of “regarded as” disabled. In

The EEOC regulations state that a “prohibited action” against an
employee regarded as disabled includes a “refusal to hire,
demotion, placement on involuntary leave, termination, exclusion
for failure to meet a qualification standard, harassment, or denial
of any other term, condition, or privilege of employment.” 29
C.F.R. § 1630.2(l)(1)(2012). 
4

15

Ferrari v. Ford Motor Co., a 2016 case, the Sixth Circuit relied
on cases applying the pre-amendment standard. 826 F. 3d 885, 89293 (6th Cir. 2016)(quoting Gruener v. Ohio Cas. Ins. Co., 510 F.
3d 661, 664 (6th Cir. 2008): “Individuals may be regarded as
disabled when (1) [an employer] mistakenly believes that [an
employee] has a physical impairment that substantially limits one
or more major life activities, or (2) [an employer] mistakenly
believes that an actual, nonlimiting impairment substantially
limits one or more [of an employee’s] major life activities.”).
The Sixth Circuit applied the Ferrari definition again in its
most recent case on this issue, Booth v. Nissan of North America,
Inc. 927 F. 3d 387 (6th Cir. 2019). In fact, in Booth, the Sixth
Circuit expressly stated that “a plaintiff may seek relief under
the

ADA

if

his

employer

mistakenly

believes

that

he

is

substantially limited from performing a major life activity, such
as work.” Id. at 395 (citing Ferrari, 826 F. 3d at 893). The line
of cases relied on by the Sixth Circuit in Booth and Ferrari trace
back to Sutton v. United Air Lines, Inc. — the very case Congress
sought to supersede through its amendments to the ADA. 527 U.S.
471 (1999).
In

comparing

the

language

in

the

statute

to

the

Sixth

Circuit’s standard, this Court notes the contradiction between the
two definitions of “regarded as disabled.” In fact, the Sixth
Circuit noted the distinction immediately after the amendments in
16

Milholland v. Sumner County Board of Education. The Sixth Circuit
noted there that the amended version of the ADA “no longer requires
the plaintiff to bringing a claim under subpart (C) to show that
the impairment limited her life activity, including working in a
broad class of jobs.” 569 F. 3d at 566.
The

EEOC’s

regulations

interpreting

the

ADA

confirm

a

“regarded as” definition that contradicts recent Sixth Circuit
decisions.

Where

a

person

has

been

subjected

to

an

action

prohibited by the ADA because of an actual or perceived impairment
that is not transitory and minor, a person will be regarded as
disabled. 29 C.F.R. § 1630.2(g)(1)(iii). Further, the code notes
that the “regarded as” prong does not require a showing of an
impairment that substantially limits a major life activity. Id. at
(g)(3).
While this Court is certainly wary of critiquing the Sixth
Circuit’s

application

of

the

ADA,

these

cases

stand

in

contradiction with the unambiguous words and Congressional purpose
of the amendments. As the Western District of Michigan also noted
on this discrepancy, “this Court interprets the amended statute as
written and controlling … over case law that has been directly
superseded by the Amendments Act and is no longer binding on the
precise point at issue.” Equal Emp’t Opportunity Comm’n v. M.G.H.
Family

Health

Ctr.,

230

F.

Supp.

3d

796,

807

(W.D.

Mich

2017)(citing Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 46117

62 (2002)). For the same reasons, this Court will apply the ADA as
amended and not according to the legal standards set forth by the
Sixth Circuit in Ferrari.
Akal agreed that Boike’s color-vision was impaired when it
chose to discharge him pursuant to USMS’s medical determination.
Because the post-amendment ADA does not require a showing that
Akal regarded Boike to be substantially limited in the major life
activity of working, and because the parties agree that he does
have

an

impairment

and

was

terminated

on

the

basis

of

that

impairment, there is no dispute of material fact and Boike has met
the threshold requirement of being “regarded as” disabled.
B. Was Boike otherwise qualified for the position?
Since a reasonable jury could find that Akal regarded Boike
as disabled under the ADA, the next step in the analysis asks if
Boike was “otherwise qualified” for the position despite his colorvision deficiency. If the plaintiff introduces direct evidence
that he or she suffered an adverse employment action because of
his or her disability, he or she must show they were otherwise
qualified for the position despite it. Ferrari, 826 F. 3d at 891.
The EEOC has defined “qualified” to mean that the person “satisfies
the requisite skill, experience, education and other job-related
requirements of the employment position such individual holds or
desires and, with or without reasonable accommodation, can perform

18

the

essential

functions

of

such

position.”

29

C.F.R.

§

1630.2(m)(2012).
Where the employee alleging discrimination is doing so under
a “regarded as disabled” theory, the employer has no obligation to
provide a reasonable accommodation because the individual is not
“actually” disabled.5 42 U.S.C. § 12201(h)(an employer “need not
provide a reasonable accommodation or reasonable modification to
policies, practices, or procedures to an individual who meets the
definition of disability” under the “regarded as” prong of the
statute.).
Because

it

is

unnecessary

to

analyze

a

reasonable

accommodation to determine if a plaintiff is otherwise qualified
for a position, the only remaining prong for Boike to meet is to
show that he could still perform the essential functions of the
job. The parties agree that the job function at issue is the
ability to distinguish between basic colors. Boike acknowledges
that this function is, at the very least, important to the CSO
position. However, Akal claims that a CSO cannot adequately protect
the public and the Court with a color-vision deficiency.

Akal correctly notes that, if the Court finds that there is a
question of material fact as to whether Boike was regarded as
disabled, there is no need obligation for Akal to provide a
reasonable accommodation. Thus, as Akal notes, the effectiveness
of a tinted lens and how it might assist Boike in his position as
a CSO is not relevant.
5

19

The question of whether a job function is essential is a
question of fact typically not suitable for resolution on a motion
for summary judgment. Keith v. Cty. of Oakland, 703 F. 3d 918, 926
(6th Cir. 2013). Because these determinations are fact sensitive,
the ADA requires the employer to conduct an individualized inquiry
before finding that an employee’s disability disqualifies him from
a position. Id. at 923 (citing Holiday v. City of Chattanooga, 206
F. 3d 637, 643 (6th Cir. 2000)). In fact, courts in this Circuit
have held that employers are estopped from arguing that a plaintiff
is not “otherwise qualified” when it did not provide the plaintiff
with

a

statutorily

mandated

individualized

assessment

of

his

ability to perform the job. M.G.H. Family Health Ctr., 230 F. Supp.
3d at 813-14. The employer should consider the applicant’s personal
characteristics, his or her actual medical condition, and the
effect it may have on his ability to perform the job. Id.; see
also Estate of Mauro v. Borgess Med. Ctr., 137 F. 3d 398 (6th
Cir.)(explaining necessity of individualized inquiry into the
plaintiff’s specific situation to determine if he or she is
otherwise qualified for the job)cert. denied, 525 U.S. 815 (1998).
In Keith, the examining doctor entered the employee’s room
and briefly reviewed his file, declaring that because the employee
was deaf, he could not be a lifeguard. Id. at 923-24. Like the
case at hand, the defendant employer in Keith was not the only

20

entity with say over the employee’s potential discharge.6 Id. at
924. The Sixth Circuit held that although neither his direct
employer

nor

the

agency

advising

his

employer

conducted

an

individualized inquiry into the plaintiff’s ability to perform the
job, it was quick to mechanically fire him the moment a doctor
pointed out his disability. Id.
Another

Sixth

Circuit

case

illustrates

the

problem

with

relying on a single medical opinion with no individualized inquiry
into the impact the disability will have on the employee’s actual
ability to work. In Holiday v. City of Chattanooga, an HIV-positive
individual was disqualified from a job as a police officer based
solely on a single doctor’s medical report. That report simply
cited his HIV-positive status as the reason he could not perform
the essential functions of a police officer. 206 F. 3d at 644. The
Sixth Circuit held that the district court erred in accepting the
doctor’s

report

as

dispositive

evidence

of

the

plaintiff’s

inability to serve as a police officer. Id. at 643. The plaintiff
also introduced a significant amount of evidence to show that he

The plaintiff in Keith was hired by the County of Oakland, under
advisement by an organization skilled in aquatic safety. 703 F. 3d
at 920. He was fired by the County, but neither entity gave him
any individualized evaluation of the impact his disability may
have on his job as a lifeguard. Id. at 924. Though Akal does not
mention its third-party status, this Court notes that employers do
not escape their legal obligations unde the ADA because of that
status. See also Holiday v. City of Chattanooga, 206 F. 3d 637,
645 (2000).
6

21

was still qualified to be a police officer — despite his status as
an HIV-positive individual. Id. at 644.
A

leading

Sixth

Circuit

case

cited

by

Akal

is

also

instructive. In Michael v. City of Troy, a police officer was
disqualified from his position after one physician examined the
plaintiff for more than seven hours and wrote an eleven-page report
on her findings. 808 F. 3d at 308. She also reviewed the City’s
job description for the position and applied her medical findings
to find he was no longer qualified. Id. A second physician examined
both the plaintiff and the first doctor’s report to conclude that
he was not qualified. Id. In comparing similar cases on the
individualized

inquiry

issue,

the

Court

noted

that

“[t]hese

medical opinions are a galaxy apart from the ones we deemed
inadequate in Keith—where the County’s doctor dismissed out of
hand [plaintiff’s] ability to be a lifeguard because ‘[h]e’s
deaf[,]’—and in Holiday, where the doctor’s opinion was only ‘two
scribbled lines at the bottom of a boilerplate evaluation form.’”
Id. (internal citations omitted).
In

Boike’s

case,

the

parties

dispute

whether

an

individualized inquiry was made to determine if he could perform
the essential functions of the job. Dr. Koehler, Boike’s USMSapproved physician, noted his failure of the color-vision test but
concluded that he would still be able to work as a CSO. Based on
that failure, and after more than a decade of failed results, the
22

FOH asked him to perform a second color-vision test. Despite Dr.
Koehler’s opinion that Boike’s color-deficiency was “mild,” he was
disqualified based on his perceived failure of the exam. He was
then provided boilerplate language Dr. Goldenhagen admitted she
drafted based on Dr. Miller’s report and her own opinion as a
doctor

with

occupational

health

knowledge

about

color-vision

deficiency. It does not strengthen Akal’s argument that USMS did
not have a written policy describing what a failing score on either
the Ishihara or the Farnsworth would be, or even what test should
be used during the physical exam. Dr. Goldenhagen’s “report”
contradicted previous medical determinations and did not explain
why, nor did it assess, Boike’s specific ability to perform the
job. Akal accepted this report and recommendation without question
based solely on its contract with USMS.
These facts create a material dispute surrounding not only
whether Akal performed an individualized inquiry, but also whether
the ability to distinguish basic colors is an essential function
of

the

job,

and

one

that

Boike

could

not

perform

with

his

impairment.
C. Did Boike suffer an adverse employment action?

The final prong of the prima facie case requires Boike to
show that he was fired because he was disabled or because Akal
regarded him as disabled. Termination is a materially adverse
change in employment. Sessin v. Thistledown Racetrack, LLC, 187 F.
23

Supp. 869, 875 (6th Cir. 2016). The parties do not dispute that
Boike was fired because of his color-vision deficiency. Thus, if
Boike is disabled under the ADA, or if Akal perceived him to be,
the

final

prong

of

the

prima

facie

case

of

disability

discrimination will be met.
For the reasons stated above, this Court denies Akal’s motion
for summary judgment on the issue of whether Boike can establish
a prima facie case of disability discrimination. Boike’s specific
challenges to the color-vision examinations and standards, as well
as his request for punitive damages, are addressed below.
D. Boike’s challenge of color-vision examinations
In his complaint, Boike contends that USMS’s color-vision
examinations
disabilities

and
and

standards
are

screen

unnecessary

to

out

individuals

determine

if

with

someone

is

qualified to work as a CSO. [DE 25-1 at 2]. There are two statutory
sections of the ADA that apply to these claims. The first section,
42

U.S.C.

12112(d)(4)(A),

prohibits

employers

from

requiring

medical exams or making disability inquiries unless they are jobrelated and consistent with business necessity. The second, 42
U.S.C. 12112(b)(6), focuses on the standards, employment tests,
and other criteria that screen out individuals or groups with
disabilities. Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 571-

24

72 (6th Cir. 2014). The Court addresses each of these statutory
claims in turn.
(1) 12112(d)(4)(A) claim
The Sixth Circuit noted in Bates that it can be difficult to
classify a test or examination under these two provisions because
the ADA leaves 12112(d)(4)(A)’s terms — “medical examination” and
“disability inquiry” — undefined. Id. at 573. One major difference
is that (d)(4)(A) protects all employees from medical inquiries,
even if they do not have a qualifying disability. Id. at 573-74
(citing Kroll v. White Lake Ambulance Auth., 691 F. 3d 809, 813
n.6 (6th Cir. 2012)). Because this determination does not rest on
Boike’s status as a disabled individual, the Court addresses it
first.
In its enforcement guidance, the EEOC defines a “medical
examination” as “a procedure or test that seeks information about
an individual’s physical or mental impairments or health,” and
sets out a list of factors influencing this determination. EEOC,
Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities
Act

(ADA)

Part

B.2

(July

27,

2000), available

at http://www.

eeoc.gov/policy/docs/guidance-inquiries.html. The EEOC explicitly
includes vision tests as an example of a medical examination. Id.
see also Bates, 767 F. 3d at 575.

25

As for the applicability of 12112(d)(4)(A), the Sixth Circuit
explained:
The statute clearly permits medical examinations, but
only in limited circumstances. The focus is on the nature
of the job relatedness and what constitutes a business
necessity. The interpretative guidelines to the ADA
explain that the statute was intended to prevent against
“medical tests and inquiries that do not serve a
legitimate business purpose.”
E.E.O.C. v. Prevo’s Family Market, Inc., 135 F. 3d 1089, 1094 (6th
Cir. 1998)(citing 29 C.F.R. § 1630.13(b)(1996)). When (1) the
employee requests an accommodation; (2) the employee’s ability to
perform the essential functions of the job is impaired; or (3) the
employee poses a direct threat to himself or others, the medical
examination will be found to be job-related and consistent with
business necessity. Denman v. Davey Tree Expert Co., 266 Fed. Appx.
377, 379 (6th Cir. 2007).
It is undisputed that Boike did not request an accommodation
for his color-vision deficiency while employed as a CSO. [DE 34 at
38]. The medical examination is permissible, therefore, under the
first prong of the job-related and business-necessity analysis.
Instead, Akal argues that because CSOs are hired to protect the
judiciary and the public, being able to distinguish between colors
is an essential function of the CSO job. Thus, USMS began requiring
color-vision testing as part of its mandatory annual physical
exams.

26

Thus, a CSO’s ability to distinguish between colors should be
evaluated to determine if it is an essential function of the job.
This inquiry is often made at the prima facie case stage of an ADA
discrimination case, but, as noted above, Akal failed to conduct
an individualized inquiry to determine if Boike could still perform
the essential functions of the job. Although the failure to
individually evaluate Boike estopped Akal from claiming he was not
otherwise qualified, in the context of determining the alleged
discriminatory nature of a medical exam, the Court must determine
if there is a dispute of material fact as to whether the ability
to distinguish color is an essential function of the job.
“A

job

function

is

essential

if

its

removal

would

fundamentally alter the position.” Denman, 266 Fed. Appx. at 380
(citing Kiphart v. Saturn Corp., 251 F. 3d 573, 584 (6th Cir.
2001)).

Marginal

functions

of

a

position

are

not

considered

“essential.” 29 C.F.R. § 1630.2(n)(1)(2012). To determine if a job
function is essential, courts in this Circuit look to the same
standard used to determine if a plaintiff is “otherwise qualified”
for a job despite his or her disability. Id. Federal regulations
provide several factors to consider in determining if a job
function is “essential”: (1) if the position exits to perform that
function, (2) a limited number of employees are available among
whom the performance of the job function can be distributed; or
(3) the function is highly specialized so that the position is
27

hired for the person’s expertise or ability to perform. Id. at
(n)(i)-(iii)(2012). Evidence of whether a function is essential
includes:
(i) The employer's judgment as to which functions are
essential;
(ii) Written
job
descriptions
prepared
before
advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in
similar jobs.
Id. at (n)(3)(i)-(vii). Finally, the Sixth Circuit has noted that
the determination of whether a given function is essential is
typically a question of fact. Kiphart, 251 F. 3d 573, 585 (citing
Brickers v. Cleveland Bd. of Educ., 145 F. 3d 846, 849 (6th Cir.
1998)).
The parties agree that the ability to distinguish between
basic

colors

is

a

qualification

for

service

as

a

CSO,

as

established in the contract between USMS and Akal. [DE 34 at 25].
The parties disagree, however, on the potential risk of danger
involved if Boike was called on to identify a fleeing person or a
suspicious package. [Id. at 35]. According to her deposition, the
FOH medical review officer believed this to be the case, despite

28

the fact that Boike made arrests based on descriptions that
included clothing color.
Instead of evaluating whether the ability to distinguish
basic

color

is

an

essential

function,

which,

in

turn

would

determine if that function is job-related and consistent with
business necessity, Akal separately asked if (1) the exam and
standard themselves are job-related and (2) whether they are
consistent with business necessity. That is not the inquiry the
ADA, its regulatory counterpart, or our courts have used to
determine if a function is so essential to the position that
employers should be able to test for it in medical exams that are
usually prohibited. For that reason, Akal’s reliance on cases like
Wice v. General Motors Corp., No. 07-10662, 2008 WL 5235996 (E.D.
Mich. 2008), are inapposite because they simply declare that
“ensuring a safe workplace is a business necessity” without going
through

the

essential-functions

analysis

required

under

controlling authority.  
Because Akal did not evaluate color-vision as an essential
function under the relevant cases and regulations provided above,
the Court must parse out the parties’ arguments from related
sections of their pleadings. Akal claims that the ability to
distinguish between basic colors is essential for several reasons.
First, Akal claims that because Dr. Miller found the recognition
of color important enough to include the color-vision standard in
29

his report changing the job duties of CSOs, and because USMS wrote
it into the contract with Akal, it is an essential function. Dr.
Miller’s report and the contracts explicitly list the ability to
recognize basic colors as an essential function of the job.
However, as this Court and others have noted, the employer’s job
description and judgment are not dispositive on the issue of
whether a job function is essential.
Akal also claims that because the tests used are widely
accepted in the medical community as the appropriate tests to
screen for color deficit, the color vision examination is “plainly
related to the essential job duty of recognizing basic color.” [DE
25-1 at 31]. This argument does not address any of the statutory
or regulatory definitions of an essential function. Akal’s other
arguments address issues not relevant to the evidentiary issue of
whether the ability to distinguish colors is an essential function
of the position.
In the brief section of Boike’s response addressing the colorvision exams and standards, he concludes that because the standard
has not been consistently applied and it fails to screen out some
individuals, it is not job-related or consistent with business
necessity. [DE 35 at 45]. However, again, these facts taken as
true are not relevant to the determination of whether the ability
to distinguish color is an essential function of the CSO position.
Boike did at least address the essential functions argument under
30

the “otherwise qualified” inquiry. There, Boike stated that (1)
there is no evidence that Boike’s color-vision deficiency ever
prevented him from performing his job as CSO, that (2) Akal’s
experts were not sure if the CSOs needed to see color to operate
an x-ray machine, (3) that Boike passed an active shooter training
in 2013 during which he was required to use a description of the
person and their clothing, (4) that during his career, Boike made
several arrests based on clothing descriptions, and (5) that
following Boike’s initial medical exam, the treating physician
found that he should still be able to perform his job despite his
color deficiency. [DE 35 at 35-36]. For these reasons, Akal has
not met its burden of showing there is not genuine dispute of
material fact regarding Boike’s ability to perform the job’s
essential

functions.

Further,

Boike

has

presented

sufficient

evidence for a jury to conclude that the ability to distinguish
colors is not an essential function of the CSO position.
The

final

avenue

for

Akal

to

claim

job-relatedness

and

business necessity is through a showing that Boike poses a direct
threat to himself or others, thus making the vision exam jobrelated and necessary to its business. This portion of the analysis
comes directly from the direct-threat defense in 42 U.S.C. § 12113.
An employee will meet this standard when he or she creates a
“significant risk to the health or safety of others that cannot be
eliminated

by

reasonable

accommodation.”
31

42

U.S.C.

§

12111(3)(2009).

This

determination

should

be

based

on

an

individualized assessment of the individual’s present ability to
safely perform the essential functions of the job. 29 C.F.R. §
1630.2(r)(2012).

The

employer

should

make

the

call

after

evaluating a reasonable medical judgment that relies on the most
current medical knowledge or the best available evidence. Id.; see
also Michael v. City of Troy Police Dept., 808 F. 3d 304, 307 (6th
Cir. 2015). Some factors to be considered include (1) the duration
of the risk; (2) the nature and severity of the potential harm;
(3) the likelihood that the potential harm will occur; and (4) the
imminence of the potential harm. Id. at (r)(1)-(4).
As

discussed

above,

no

individualized

assessment

was

completed to determine if Boike could still safely perform the
essential functions of the job. The direct threat defense and prong
of the medical examination analysis require an individualized
assessment of the employee’s current ability to perform the job
and a study of reasonable medical knowledge or evidence. Because
Boike has provided a sufficient factual basis for a reasonable
jury to conclude that he was not provided this detailed of an
inquiry, the Court cannot grant summary judgment in favor of Akal.
(2) 12112(b)(6) claim
To challenge medical standards under 42 U.S.C. 12112(b)(6),
the plaintiff must be a qualified individual with a disability.
Because the Court does not decide, but only denies summary judgment
32

on the issue of Akal’s perception of Boike as disabled, this
challenge should not be addressed on the motion. If a jury finds
that Boike is a qualified individual who was perceived to be
disabled

by

his

employer,

it

may

also

evaluate

the

medical

standards under which he was tested and eventually terminated.
E. Is Boike entitled to punitive damages?
Akal has also moved for summary judgment on the issue of
punitive damages. Punitive damages are only recoverable in ADA
cases where a defendant has acted maliciously or with reckless
indifference to the federally protected rights of the aggrieved
person. 42 U.S.C. § 1981a; See Kolstad v. Am. Dental Ass’n, 527
U.S. 526 (1999). The Supreme Court in Kolstad explained:
There
will
be
circumstances
where
intentional
discrimination does not give rise to punitive damages
liability under this standard. In some instances, the
employer may simply be unaware of the relevant federal
prohibition. There will be cases, moreover, in which the
employer discriminates with the distinct belief that its
discrimination is lawful. The underlying theory of
discrimination may be novel or otherwise poorly
recognized, or an employer may reasonably believe that
its discrimination satisfies a bona fide occupational
qualification defense or other statutory exception to
liability.
527 U.S. at 536-37.
Akal argues that, as a matter of law, Boike is not entitled
to punitive damages because it relied on the vision standards
established by Dr. Miller after an occupational study of the CSO
position and those standards were approved by a committee of

33

federal judges. [DE 25-1 at 50]. That is the only reason Akal gives
indicating why punitive damages are inappropriate. Boike, on the
other hand, points out that Dr. Miller’s report lacks specificity
about the vision standard and notes that it has been applied
differently through the years and to other CSOs. [DE 35 at 47-48].
Akal has not met its burden of showing that there is an absence of
evidence to support Boike’s claim for punitive damages.
IV.
In

light

of

the

CONCLUSION

foregoing

discussion,

the

undersigned

requests that the parties attempt to resolve this case through
mediation.

Thus,

the

Court

having

reviewed

the

motion

and

responses, and being otherwise sufficiently advised,
IT IS ORDERED as follows:
(1)

Defendant

Akal

Security,

Inc.’s

motion

for

summary

judgment is GRANTED as to the issue of Plaintiff Gary Boike’s
actual disability;
(2)

Defendant

Akal

Security,

Inc’s

motion

for

summary

judgment is DENIED on all other grounds;
(3)

The Court requests that the parties meet to mediate the

remaining claims in this case and will give the parties forty-five
days to do so before further scheduling in this matter. The parties
SHALL file a joint status report on this action no later than
Friday, November 15, 2019.
34

This the 30th day of September, 2019.

35