Michael v. City of Troy Police Department et al
Filing
35
OPINION and ORDER Granting Defendants' re 26 MOTION for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Todd Michael,
Plaintiff,
v.
Case No. 12-cv-13344
Hon. Judith E. Levy
Mag. Judge Paul J. Komives
City of Troy Police Department
and City of Troy,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ [26]
MOTION FOR SUMMARY JUDGMENT
Plaintiff Todd Michael is a police officer. He brings this action
against his employers, defendants City of Troy Police Department
(“Department) and the City of Troy (“City”), and his supervisor at the
Department, Troy Police Chief Gary Mayer, for discrimination and
retaliation in violation of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. Michael alleges defendants violated the ADA by
placing him on administrative leave and not returning him to his job
because of certain medical conditions.
He also alleges defendants
retaliated against him for requesting a desk assignment and permission
to work outside the police department.
Before the Court is the
defendants’ Motion for Summary Judgment (Dkt. 26). For the reasons
discussed below, the Court will grant the motion.
I.
Factual background
The following facts are undisputed unless otherwise noted.
Michael was hired as a police officer by Troy in 1987. (Dkt. 1, Compl. ¶
13).
He was diagnosed with a brain tumor in March 2000, and
underwent a craniotomy that same month to remove the tumor. (Dkt.
30-2, Ex. A to Pl.’s Resp., Michael Dep. 10 [hereinafter “Michael Dep.”]).
Michael’s tumor was initially diagnosed as cancerous; a second opinion
correctly determined that Michael had a meningioma, a non-malignant
but, in this case, recurring brain tumor.
(Id. at 11-12).
Doctors
performed a second craniotomy in March or April 2001 or 2002, and a
third in March 2009. (Id. at 12-13). Michael underwent a follow-up
radiosurgery in April or May 2009. (Id. at 13).
A.
The City’s requirement that Michael undergo a
neuropsychological evaluation
Because of certain incidents of what defendants regarded as odd
behavior in the several months before plaintiff’s third craniotomy,
2
defendants
required
Michael
to
undergo
a
neuropsychological
evaluation to determine his fitness to return to work after the surgery.
(Dkt. 26, Def.’s Br. 15; Dkt. 30-10, Ex. K to Pl.’s Br.). Concentra is the
contractor responsible for the City’s fitness evaluations.
Concentra
refers psychological evaluations to other contractors. (Dkt. 30-17, Ex. R
to Pl.’s Resp., Sears Dep. 22 [hereinafter “Sears Dep.”]).
Concentra
referred the City’s request to Med-Eval, which in turn selected Dr.
Firoza Van Horn to conduct Michael’s neuropsychological evaluation.
(Id.).
B.
Dr. Van Horn’s December 7, 2009 evaluation
Dr. Van Horn evaluated Michael on Dec. 7, 2009. (Dkt. 30-11, Ex.
L to Pl.’s Br.). She interviewed and tested Michael at her office for 7
hours and 15 minutes. (Id. at 2). She spent another 9 hours reviewing
testing data, Michael’s medical records, and preparing her report. (Id.).
Dr. Van Horn also reviewed the City’s job description for a police officer
in preparing the report. (Id.).
Dr. Van Horn found that Michael’s test results “indicate several
cognitive losses which are directly related to deteriorating brain
functions . . . The specific deficits that Officer Michael demonstrates are
3
difficulty switching mental set and handling more than one task at a
time, visual memory, tactile perception, problem solving and new
learning ability.”
(Id. at 12).
Dr. Van Horn concluded “there is
convincing evidence that Officer Michael is not competent to handle his
duties as a police officer.”
(Id.).
Defendants received Van Horn’s
evaluation on December 18, 2009. (See id. at 2).
C.
Dr. Mikkelsen’s December 29, 2009 letter
By letter dated December 29, 2009, Michael’s treating physician,
Dr. Tom Mikkelsen, stated that “[i]n my professional opinion, Mr.
Michael’s medical condition in no way affects his ability to properly and
adequately care for his children, and in no way affects his judgment or
temperament.” (Dkt. 30-12, Ex. M to Pl.’s Resp.). It is unclear from the
record when defendants received this letter.
D.
Officer Michael’s January 23, 2010 placement on
unpaid administrative leave
Defendants relied on Dr. Van Horn’s evaluation in determining
that Michael was “not able to perform the duties of a police officer.”
(Dkt. 30-13, Ex. N to Pl.’s Resp.; Sears Dep. 25). On January 20, 2010,
4
Michael was placed on unpaid administrative leave, effective January
23, 2010. (Dkt. 30-13, Ex. N to Pl.’s Resp.).
E.
Dr. Liethen’s February 1, 2010 evaluation
On
his
own
initiative,
Michael
underwent
a
second
neuropsychological assessment, conducted by Dr. Philip Liethen on
February 1, 2010. (Dkt. 30-16, Ex. Q to Pl.’s Resp. 3). Dr. Liethen
interviewed Michael and conducted neuropsychological tests. He also
reviewed Dr. Van Horn’s report. (Id. at 5). He does not appear to have
reviewed the City’s job description for a police officer.
Dr. Liethen
indicated that his findings were consistent with the findings in Dr. Van
Horn’s report. (Id. at 9). Dr. Liethen differed from Dr. Van Horn in his
ultimate conclusions, however. Dr. Liethen concluded that his findings
“do not indicate any functional incapacity or incompetency” and “do not
indicate any basis for Mr. Michael not to return to duty as a police
officer in the capacity in which he was serving premorbidly.” (Id.). Dr.
Liethen had no recommended restrictions. (Id.).
It is unclear when defendants received Dr. Liethen’s report.
Peggy Sears, the City’s Human Resources Director who participated in
the decision to place Michael on leave, recalled receiving Dr. Liethen’s
5
report sometime after Michael was placed on leave. (Sears Dep. 29-30).
While the copy of the report in the record bears a “received” date of
March 5, 2010, that appears to correspond to a generation of an
electronically signed copy of the report by Dr. Liethen. (Dkt. 30-16, Ex.
Q to Pl.’s Resp. 2). At any rate, it appears that defendants had not
received Dr. Liethen’s report by July 22, 2010, when defendants’
counsel, by letter to counsel for the Troy Police Officers’ Association
(“TPOA”), indicated that “[w]e do not have any records from
examinations performed after Officer Michael’s evaluation at Dr. Van
Horn’s office on December 7, 2009.” (Dkt. 26-19, Ex. 18 to Defs.’ Br. 3).
It appears defendants may not have had Dr. Liethen’s report at the
time of Dr. Sewick’s evaluation of Michael on August 11, 2010 (see
below), as Dr. Sewick’s report indicates he did not have Dr. Liethen’s
report. (Dkt. 30-22, Ex. W to Pl.’s Resp. 2).
F.
Dr. Morad Daniel’s June 10, 2010 review
The City’s long-term disability insurance carrier, Standard,
referred Michael’s file to Dr. Morad Daniel for review.
Dr. Daniel
reviewed Michael’s medical records, Dr. Van Horn’s report, and Dr.
Liethen’s report. (See Dkt. 30-21, Ex. V. to Pl.’s Resp.). Dr. Daniel also
6
appears to have considered the job requirements of a police officer. (See
id. at 2).
Dr. Daniel concluded “there is no evidence of any active
limitation that would preclude the claimant from performing his duties
as a police officer on a regular basis.” (Id. at 8). He found that Dr. Van
Horn’s assessment “concluded with several erroneous statements, which
were not based on the claimant’s actual test performance data.” (Id.).
Dr. Daniel found no limitations or restrictions on Michael’s functional
capacity at the time, but recommended a repeat claim review if Michael
developed “recurrent seizures or new neurological symptoms.” (Id. at
9).
G.
Michael’s union grievance and its resolution in June /
July 2010
At some point in early 2010, the TPOA filed a grievance on behalf
of Michael.
The City had invoked Article 25 of the Collective
Bargaining Agreement (“CBA”) as the basis for requiring Michael’s
psychological evaluation. (See Dkt. 30-10, Ex. K to Pl.’s Resp.). The
TPOA maintained that Article 37, not Article 25, was the applicable
CBA provision. (Dkt. 30-15, Ex. P to Pl.’s Resp. 2). Article 25 governs
medical examinations of officers.
Article 37 governs psychological
examinations of officers.
7
Article 37 provides that such exams shall include a fit / unfit for
duty determination. (Id.). If the examiner determines the officer is
unfit for duty, a doctor at a second facility must review the objective
test results and interview the officer. (Id. at 3). If the second doctor
disagrees with the conclusion of the first, a third doctor must review the
test results and interview the officer.
(Id.).
The TPOA and the City agreed that Article 37 would apply to
Michael “for going forward purposes.” (Id.). They also agreed that Dr.
Van Horn’s evaluation “will be considered the Employer’s initial fitness
for duty report,” and that Van Horn’s results would be sent to a doctor
at a second facility for review, pursuant to Article 37. (Id. at 3-4).
By letter of July 14, 2010, the TPOA sought the City’s full
compliance with Article 37; specifically, an explanation of the
circumstances underlying the initial order for psychological evaluation,
and acknowledgment that the City had the test results to forward to the
second doctor. (Id. at 5). At least the latter issue appears to have been
resolved, as a second doctor, Dr. Bradley Sewick, interviewed Michael
and reviewed Dr. Van Horn’s test results on August 11, 2010. It is
unclear from the record whether the former issue was resolved.
8
H.
Dr. Bradley Sewick’s August 11, 2010 evaluation
Michael was referred by Captain Scherlinck to Dr. Bradley Sewick
for evaluation pursuant to Article 37. (Dkt. 30-22, Ex. W to Pl.’s Resp.
2).
Dr. Sewick interviewed Michael for 1.5 hours and reviewed the
City’s job police officer job description, Dr. Van Horn’s report and raw
data, and Michael’s medical records.
(Id. at 2, 5-7).
Dr. Sewick
concluded that “I cannot in good conscience indicate that he can safely
return to the full duties required of a police officer” based on his
interview with Michael and his review of Dr. Van Horn’s test results.
(Id. at 8).
Dr. Sewick issued an addendum report on August 31, 2010, in
which he stated:
[i]t is my opinion that the problems that I see in areas of
unstructured constructional capacities, motor problem
solving, marginal cognitive set shifting capacities and
compromised upper extremity sensory-motor functions can
likely adversely impact job functions, particularly in areas of
high speed defensive driving, split-second decision making,
and the hand-to-hand application of force up to and
including deadly force . . . I do unfortunately think that in
the full capacities of a police officer, with these problems
Officer Michael would pose a safety risk to himself and
others under certain conditions.
9
(Id. at 9).
I.
Dr. Linas Bielauskas’ September 15, 2010 evaluation
Michael testified that his TPOA attorney advised him to have yet
another neuropsychological evaluation. (Dkt. 30-2, Ex. B to Pl.’s Resp.,
Michael Dep. 105). Dr. Liethen gave Michael the name of Dr. Linas
Bielauskas.
(Id. at 105-06).
Dr. Bielauskas evaluated Michael on
September 15, 2010. Dr. Bielauskas interviewed Michael, administered
neuropsychological tests, and reviewed the reports of Dr. Van Horn, Dr.
Liethen, and Dr. Sewick.
(Dkt. 30-23, Ex. X to Pl.’s Resp.).
Dr.
Bielauskas did not review Michael’s medical records, although he did
review Dr. Van Horn’s, Dr. Liethen’s, and Dr. Sewick’s summaries of
those records. (Id. at 4).
Dr. Bielauskas issued his report on October 11, 2010.
concluded that Michael:
is functioning generally within normal limits in most areas
measured except for executive functioning, a weakness
which is often seen with brain injury affecting the frontal
part of the brain . . . Dr. Liethen did measure executive
functioning somewhat, though more extensive evaluation of
this with our test battery provided a consistent pattern of
weakness in this regard. Thus, in terms of occupational
implications, it is my judgment that I cannot recommend
10
He
that the patient return to full patrol duties as a police
officer, a job description which requires quick planning,
judgment, and alteration of behavior in response to
circumstances. Safety with use of weapons and high-speed
driving would be in question. In all other respects, however,
the patient is intact and desk duty as a police officer,
including duties which require organization, attention, and
concentration, would be appropriate.
(Id. at 4-5).
On December 7, 2011, Michael asked to meet with Dr. Bielauskas
again. (Dkt. 30-27, Ex. BB to Pl.’s Resp., Bielauskas Dep. 26). Dr.
Bielauskas met with Michael and afterwards wrote an addendum to his
report. The addendum is dated December 13, 2011. (Dkt. 30-23, Ex. X
to Pl.’s Resp. 6-7). Dr. Bielauskas confirmed his earlier conclusions, but
recommended that the Department directly test Michael’s executive
functioning – specifically, by high-speed driving and “search and shoot”
tests. Dr. Bielauskas suggested that passing such tests would confirm
Michael was capable of performing the duties of a police officer in spite
of his identified cognitive weaknesses. (Id. at 7; Bielauskas Dep. 53).
However, Dr. Bielauskas anticipated that Michael “would have
difficulty” passing such tests. (Bielauskas Dep. 28).
11
Michael did not provide defendants with a copy of Dr. Bielauskas’
evaluation until after the start of this litigation. (Sears Dep. 56; see
also Michael Dep. 116).
J.
Dr. Daniel Benincasa’s January 11, 2011 review
Standard submitted Michael’s medical reports and the evaluations
of Dr. Van Horn, Dr. Liethen, Dr. Sewick, and Dr. Bielauskas to Dr.
Daniel Benincasa for review on January 5, 2011. (Dkt. 30-24, Ex. Y to
Pl.’s Resp.).
Dr. Benincasa disagreed with Dr. Van Horn’s and Dr.
Bielauskas’ reports. (Id. at 5). Dr. Benincasa agreed with Dr. Liethen
and concluded that “[Michael] has work capacity in his prior occupation
as a police officer,” based on testing data and on Dr. Benincasa’s
assessment that Michael “has no deficits in ADLs and . . . looks to
manage his life very well.” (Id.).
K.
Michael’s requests for a desk officer position and for
leave to work outside the Department
By email of March 22, 2012, Michael requested a “civilian desk
position” with the Department. That request was denied by Captain
Scherlinck in a letter dated April 5, 2012. (Dkt. 26-47, Ex. 46 to Defs.’
Br.). The reason given for the denial was that Michael had previously
12
been found in unauthorized possession of confidential police records.
(Id. at 2).
Michael submitted requests for permission to work outside of the
Department dated October 2, November 8, and November 18, 2011, and
April 9 and May 27, 2012.
(Dkt. 26-36, Ex. 35 to Defs.’ Br.).
The
proposed positions all involved security or “asset protection” and were
denied for not conforming to the Department’s regulations governing
outside employment. (Id.; Dkt. 26-35, Ex. 34 to Defs.’ Br. 2).
L.
This litigation
Michael filed his complaint in this matter on July 30, 2012. (Dkt.
1). He brings two counts in his complaint: disability discrimination in
violation of the ADA against all defendants (Count I), and retaliation in
violation of the ADA against all defendants (Count II). Michael alleges
he is not disabled, but is perceived as disabled by defendants (Id. ¶ 29).
Defendants
allegedly
discriminated
against
Michael
by
“constructively terminating” his employment and by refusing to provide
his requested accommodation of permitting him to work outside of the
Department. (Id. ¶¶ 44-45). Defendants allegedly retaliated against
13
Michael for “requesting accommodations, a return to assignment, or a
release to work outside the police department.” (Id. ¶ 49). The alleged
retaliatory
actions
consisted
of
placing
Michael
on
unpaid
administrative leave, not returning him to work, denying him a
reasonable accommodation, and refusing to permit him to take
employment outside the Department. (Id. ¶ 50).
Defendants moved for summary judgment on both counts on
October 14, 2013. The motion was fully briefed by the parties before the
case was reassigned to this Court on May 13, 2014. A hearing on the
motion was held on July 10, 2014.
II.
Standard of review
Summary judgment is required where “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
“views the evidence, all facts, and any inferences that may be drawn
14
from the facts in the light most favorable to the nonmoving party.” Pure
Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir.
2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th
Cir.2002)).
The non-movant cannot, however, “rely on the hope that the trier
of fact will disbelieve the movant’s denial of a disputed fact, but must
present affirmative evidence” to defeat the motion.
Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
The “mere
existence of a scintilla of evidence in support of the [non-movant’s]
position will be insufficient.” Liberty Lobby, 477 U.S. at 252. “If the
evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.”
Id. at 249-250.
Furthermore, the trial
court is not obligated “to search the entire record to establish that it is
bereft of a genuine issue of material fact.” Street, 886 F.2d 1479-80.
III. Analysis
A.
Plaintiff’s stipulation to dismiss defendant Mayer and
Count II
As a preliminary matter, the Court entered an order on July 23,
2014, pursuant to the parties’ stipulation, dismissing defendant Mayer
from the case and dismissing Count II as to the remaining defendants.
15
(Dkt. 34).
The Court’s analysis will therefore focus on whether the
Department and the City are entitled to summary judgment on Count I.
B.
Plaintiff’s discrimination claim (Count I) is a
“regarded as disabled” claim
The ADA prohibits covered employers from “discriminat[ing]
against a qualified individual on the basis of a 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(a). A
“qualified individual” is one “who, with or without reasonable
accommodation, can perform the essential functions of the employment
position.” 42 U.S.C. § 12111(8).
To establish a prima facie case of employment discrimination
under the ADA, a plaintiff must show that 1) he is disabled; 2) he is
otherwise qualified for the position, with or without reasonable
accommodation; 3) he has suffered an adverse employment decision; 4)
defendants knew or had reason to know of plaintiff’s disability; and 5)
the position remained open while defendants sought applicants, or
16
plaintiff was replaced. Whitfield v. Tennessee, 639 F.3d 253, 259 (6th
Cir. 2011).
A person is considered disabled under the ADA if he has “a
physical or mental impairment that substantially limits one or more
major life activities,” or “a record of such an impairment,” or is
“regarded as having such an impairment.” 42 U.S.C. § 12102(1). A
person is “regarded as” disabled if “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.” Id. § 12102(3)(A).
Michael alleges in his complaint that he has no disability, but is
perceived as disabled by defendants. (Dkt. 1, Compl. ¶ 29). In a single
sentence in his response brief, however, Michael states, “There is a
material question of fact as to whether Michael is disabled.” (Dkt. 30,
Pl.’s Resp. 31).
Accordingly, the Court must treat Michael’s
discrimination claim as a so-called “regarded as” claim. See Jennings,
2013 WL 1962333, at *9.
C.
Defendants’ lack of duty to provide a reasonable
accommodation
17
It is the law of this Circuit that “a finding of regarded-as disability
. . . obviate[s] an employer’s responsibility to offer reasonable
accommodation to an employee.” Baker v. Windsor Republic Doors, 414
F. App’x 764, 776 (6th Cir. 2011) (citing Workman v. Frito-Lay, Inc., 165
F.3d 460 (6th Cir. 1999)).
Defendants are accordingly entitled to
summary judgment on the issue of their alleged failure to accommodate
Michael’s “perceived disability.” (See Dkt. 1, Compl. ¶¶ 33-34).
Even if Michael were entitled to a reasonable accommodation,
summary judgment would still be appropriate. The accommodations
Michael requested were 1) a desk officer position with the Department,
and 2) leave to pursue several employment opportunities outside the
Department.
(Dkt. 1, Compl. ¶ 34; see also Michael Dep. 75).
Defendants have articulated legitimate, nondiscriminatory reasons for
denying those requests.
According to defendants, the desk officer position necessarily
entails access to confidential Department files. (Dkt. 26-47, Ex. 46 to
Defs.’ Br. 2). Defendants maintain that Michael has previously been
found in unauthorized possession of such files, and therefore cannot be
entrusted with a desk officer position. (Dkt. 26, Defs.’ Br. 43-44; Dkt.
18
26-47, Ex. 46 to Defs.’ Br. 2). Michael admits to possession of the file in
question (Michael Dep. 131-33).
“Once an employer articulates a
legitimate, nondiscriminatory reason for its action, the plaintiff must
then show that the reason given by the employer is pretextual in order
to prevail.” Bare v. Fed. Exp. Corp., 886 F. Supp. 2d 600, 612 (N.D.
Ohio 2012) (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804,
810 (6th Cir.1999). Michael offers no evidence that the reason for not
offering him the desk officer position was pretextual.
Between October 2011 and May 2012, Michael submitted five
applications for leave to work outside the Department. (Dkt. 26-36, Ex.
35 to Defs.’ Br.).
Each job involved providing security or “asset
protection.” (See id.). Each application was denied for not comforming
to Department regulations prohibiting outside employment as a private
guard. (Dkt. 26-37, Ex. 36 to Defs.’ Br.; Dkt. 26-35, Ex. 34 to Defs.’ Br.
2). Michael offers no evidence that this reason was pretextual.
Even though Michael does not allege he is disabled, and therefore
does not qualify for a reasonable accommodation, he has not presented
any evidence that defendants’ denials of his request to work a desk job
and his requests to work outside the Department were pretextual.
19
Defendants are thus entitled to summary judgment on Michael’s failure
to accommodate claim.
D.
Whether Michael was “otherwise qualified” for the
police officer position
Michael also claims defendants discriminated against him in
violation of the ADA by placing him on unpaid administrative leave.
Defendants argue Michael cannot establish the second element of his
prima facie case of discrimination – namely, that he is “otherwise
qualified” to work as a police officer. See Whitfield, 639 F.3d at 259. To
establish that he is “otherwise qualified” as a police officer, Michael
must show that he “satisfied the prerequisites for the position” and “can
perform the essential functions of the position . . . with or without
reasonable accommodation.” Burns v. Coca-Cola Enterps., Inc., 222 F.3d
247, 256 (6th Cir. 2000).
As discussed above, however, defendants had no obligation to
provide Michael with a reasonable accommodation.
Michael must
therefore establish that he can perform the essential functions of a
patrol officer without a reasonable accommodation.
20
According to
defendants, the neuropsychological evaluations of Dr. Van Horn, Dr.
Sewick, and Dr. Bielauskas confirm that he cannot.
It is undisputed that defendants placed Michael on unpaid
administrative leave based on Dr. Van Horn’s evaluation. It is further
undisputed that defendants relied on the evaluations of Dr. Van Horn
and Dr. Sewick to make a final determination that Michael was not
qualified to perform the essential functions of a police officer. (Dkt. 26,
Defs.’ Br. 38).
Defendants maintain they reasonably relied on both
evaluations in making those decisions. Defendants also point to Dr.
Bielauskas’ evaluation as additional confirmation of Michael’s inability
to perform the essential functions of a police officer.
Michael advances several arguments in opposition to defendants’
motion. First, he argues that defendants should not have relied on Van
Horn’s evaluation for two reasons: because it was not conducted
pursuant to the proper article of the CBA, and because it was
“incomplete and inadequate.”
(Dkt. 30, Pl.’s Resp. 10).1
Second,
Michael does not contest that Dr. Sewick’s report qualifies as an individualized
inquiry. Rather, Michael argues that Dr. Sewick’s report is biased, because of a
professional connection between Dr. Sewick and Dr. Van Horn. (Michael Dep. 93;
see also Dkt. 30-20, Ex. U, Liethen Aff. ¶ 8). Other than the fact of a connection,
however, Michael presents no evidence of bias in Dr. Sewick’s report.
1
21
Michael argues that a genuine dispute of material fact exists as to
whether Michael could perform the essential functions of a Troy police
officer. (Id. at 27). Specifically, Michael points to the evaluations of Dr.
Liethen, Dr. Benincasa, and Dr. Daniel as evidence that he can, in fact,
perform the essential functions of a police officer. (Id.). Third, Michael
claims a material question of fact exists “as to whether the Defendants
are imposing the same essential functions on all of its officers”; namely,
whether defendants evaluate other officers’ physical fitness in relation
to the essential functions of a police officer. (Id. at 29, 31).
1. The purported invalidity of Dr. Van Horn’s evaluation under
the CBA
Defendants do not dispute that Dr. Van Horn’s evaluation was
conducted pursuant to the incorrect provision of the CBA. But that
defect was cured, according to defendants, by the agreement between
the City and the TPOA to designate Dr. Van Horn’s evaluation as the
first evaluation required under the correct provision of the CBA, Article
37. Michael maintains the agreement between the City and the TPOA
did not waive the “initial impropriety” of Dr. Van Horn’s evaluation.
(Dkt. 30, Pl.’s Resp. 11).
22
The validity of Dr. Van Horn’s evaluation for purposes of the CBA
bears no relationship to its validity for purposes of the ADA. Nothing in
the ADA or in the relevant case law, regulations, or interpretive
guidance suggests otherwise.
Whether Dr. Van Horn’s evaluation
conformed to the CBA therefore has no bearing on the Court’s decision
here.
2. The adequacy of Dr. Van Horn’s evaluation
a. Individualized inquiry
An employer may, in certain circumstances, rely on the results of
a medical examination to determine that a person cannot perform the
essential functions of a position for purposes of the ADA. See Wurzel v.
Whirlpool Corp., 482 F. App'x 1, 15 (6th Cir. 2012); Gruener v. Ohio Cas.
Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008).
Specifically, the ADA
“mandates an individualized inquiry in determining whether an
employee’s disability or other condition disqualifies him from a
particular position.” Holiday v. City of Chattanooga, 206 F.3d 637, 643
(6th Cir. 2000).
23
An individualized inquiry is one that focuses on “the individual’s
actual medical condition, and the impact, if any, the condition might
have on that individual’s ability to perform the job in question.” Id. An
inquiry meets this requirement if the examining doctor is familiar with
the relevant job duties, obtains “much individualized information”
about the employee’s medical condition, has current knowledge of the
employee’s medical condition, examines the employee in person, and
reviews the records of the employee’s other treating physicians. Wurzel,
482 F. App'x at 15; Jennings v. Dow Corning Corp., No. 12-12227, 2013
WL 1962333, *10 (E.D. Mich. May 10, 2013).
The Court will first determine whether the evaluations relied
upon by defendants to find Michael not qualified for the position of
police officer meet the standard for an individualized inquiry. If they
do, the Court will then determine whether defendants’ reliance on those
evaluations was reasonable in light of other evaluations concluding that
Michael was fit to return to his position with no restrictions.
b. Dr. Van Horn’s evaluation
24
Dr. Van Horn interviewed Michael in person and administered a
series of neuropsychological tests, for a total of 7 hours and 14 minutes
(Dkt. 26, Ex. 13 to Defs.’ Br.). She reviewed medical records related to
Michael’s surgeries and reviewed the City of Troy’s police officer job
description (Id.). She spent 9 hours reviewing these records, her test
data, the interview results, and producing a report. Dr. Van Horn’s
evaluation is comparably thorough to the medical assessment in Wurzel
and thus qualifies as an individualized inquiry for purposes of the ADA.
c. Dr. Sewick’s evaluation
Dr. Sewick evaluated plaintiff on Aug. 11, 2010. (Dkt. 30-22, Ex.
W to Pl.’s Resp. 2). Dr. Sewick interviewed plaintiff, reviewed the raw
data from Dr. Van Horn’s neuropsychological testing of plaintiff,
reviewed the City’s police officer job description, and reviewed the
medical records related to plaintiff’s surgeries (Id. at 5-7).
Defendants maintain that Dr. Sewick’s report qualifies as an
individualized inquiry, even though Dr. Sewick did not himself test
plaintiff, but relied on the raw data from Dr. Van Horn’s testing (Dkt.
26, Defs.’ Br. 34).
25
Defendants cite to Jennings, 2013 WL 1962333, at *11, in support
of this position (Id. at 34). That case involved a scenario different from
the one here: the evaluating doctor did not himself test the plaintiff, but
reviewed and discussed findings made by his assistant during an
examination. Jennings, 2013 WL 1962333, at *11.
The difference carries little weight, however, because plaintiff
does not contest the validity of Dr. Van Horn’s testing data, but rather
the validity of the conclusions Dr. Van Horn drew from the data. In
fact, Dr. Liethen, on whose evaluation plaintiff primarily relies,
confirmed that his “overall findings are consistent with the data
documented in [Dr Van Horn’s] report,” although he came to contrary
conclusions based on that data. (Dkt. 30-16, Ex. Q to Pl.’s Resp. 9).
Based on Dr. Sewick’s personal interview of Michael and Dr.
Sewick’s review of Dr. Van Horn’s raw testing data, the City’s police
officer job description, and Michael’s medical records, the Court finds
that Dr. Sewick’s evaluation qualifies as an individualized inquiry
under Wurzel.
d. Dr. Bielauskas’ evaluation
26
Defendants argue that Dr. Bieliauskas’ evaluation of plaintiff also
qualifies as an individualized inquiry.
(Dkt. 26, Defs.’ Br. 36).
Bieliauskas
in
interviewed
plaintiff
person,
Dr.
administered
neuropsychological tests, reviewed the City’s job description for a police
officer, and reviewed plaintiff’s medical records.
Dr. Bieliauskas’
evaluation qualifies as an individualized inquiry.
e. Whether defendants reasonably relied on Dr. Van Horn’s
and Dr. Sewick’s evaluations
Defendants
thus
relied
upon
individualized
inquiries
into
Michael’s neuropsychological condition to determine that he was not
qualified for the police officer position. Michael nonetheless contends
that reliance was unreasonable, given the evaluations and reviews of
Dr. Liethen, Dr. Daniel, and Dr. Benincasa.
Michael makes two
arguments based on these evaluations: first, that Dr. Van Horn’s
evaluation was flawed, and second, that Michael is, in fact, able to
perform the essential functions of a police officer.
As an initial matter, it is not clear that Dr. Liethen’s, Dr. Daniel’s,
and Dr. Benincasa’s opinions are relevant here, as “the ADA does not
provide for a plaintiff to challenge the reasonable medical judgment an
27
employer relies upon.” Jennings, 2013 WL 1962333, at *12. The Court
will nonetheless assess Michael’s challenges to defendants’ reliance on
Dr. Van Horn’s and Dr. Sewick’s evaluations.
i.
Dr. Liethen’s and Dr. Benincasa’s criticisms of Dr. Van
Horn’s and Dr. Sewick’s evaluations
Dr. Liethen expresses several criticisms of Dr. Van Horn’s and Dr.
Sewick’s evaluations. Chief among them are the following: first, Dr.
Liethen believes Dr. Van Horn and Dr. Sewick overemphasize executive
functioning in their analyses. (Dkt. 30-20, Ex. U to Pl.’s Resp., Liethen
Aff. ¶ 30 [hereinafter “Liethen Aff.”]).
criticism.
Dr. Benincasa echoes this
(Dkt. 30-24, Ex. Y to Pl.’s Resp. 5).
Second, Dr. Liethen
criticizes Dr. Van Horn’s and Dr. Sewick’s chosen range descriptor
system. (Liethen Aff. ¶ 15, 17).
Third, Dr. Liethen finds two of the
tests employed by Dr. Van Horn and Dr. Sewick to be “archaic and
obsolete.”
(Id. ¶ 24).
Fourth, Dr. Liethen believes that Dr. Sewick
misrepresented that he reviewed Dr. Van Horn’s raw testing data. (Id.
¶ 25).
Fifth, Dr. Liethen states that data from two executive
functioning tests – the category test and the Rey 15 test – are missing
from Van Horn’s data. (Id. ¶ 11).
28
Dr. Liethen states in his affidavit that multiple range descriptor
systems are “commonly accepted in the field of neuropsychology” and
that “there is no single ‘guidelines established’ system for range
descriptors.”
(Liethen Aff. ¶ 15, 16).
He also states that Dr. Van
Horn’s methods for testing executive functioning are “conventional.”
(Id. ¶ 10).
As for the remaining criticisms, Dr. Liethen offers nothing other
than his bare assertion that Dr. Sewick did not review Dr. Van Horn’s
data.
Dr. Liethen does not indicate the basis for this claim; in
particular, he does not claim to have personal knowledge that Dr.
Sewick did not, in fact, review Dr. Van Horn’s raw data in preparing his
own report. Regarding the missing test data, Dr. Van Horn’s report
does give a score for the “Rey 15 Memory test,” one of the two tests for
which the raw data is purportedly missing. And if some test data is, in
fact, missing from Dr. Van Horn’s raw test data, the import of that is
unclear. Again, Dr. Liethen indicated his test results were consistent
with Dr. Van Horn’s, even if the conclusions they drew from those
results differed. (See Dkt. 30-16, Ex. Q to Pl.’s Resp. 9). And Michael’s
score for the category test administered by Dr. Bielauskas was
29
“consistent with brain dysfunction.” (Dkt. 30-27, Ex. BB to Pl.’s Resp.,
Bielauskas Dep. 16-18).
In sum, Michael has not shown that Dr. Van Horn’s and Dr.
Sewick’s evaluations were objectively unreasonable and that defendants
were unreasonable to rely on those evaluations in determining Michael
was not qualified to return to duty as a police officer.
ii.
Whether defendants were unreasonable not to consider
Dr. Liethen’s, Dr. Daniel’s, and Dr. Benincasa’s reports
Michael also argues that the evaluations of Dr. Liethen, Dr.
Daniel, and Dr. Benincasa show that he is able to perform the essential
functions of a police officer. Defendants were unreasonable, according
the Michael, not to consider those evaluations in making their
determination as to Michael’s fitness to work as a police officer.
Critically, Dr. Liethen expressly did not consider the City’s police
officer job description in reaching his conclusion that Michael was fit to
return to work. Dr. Liethen disclaims the relevance of Michael’s job
description – stating, for example, in his affidavit that “There are no
standard or recognized norms of capacity or functioning for a police
30
officer in particular.”
(Liethen Aff. ¶ 4).
On this basis alone, Dr.
Liethen’s evaluation fails to qualify as an individualized inquiry. See
Wurzel, 482 F. App’x at 15. Furthermore, Dr. Liethen testified that
information about Michael’s activities of daily living (“ADL”) played a
role in his conclusions, but also testified that he did not know certain
information about Michael’s ADL that might have changed his
conclusions.
(See Liethen Dep. 29, 38-42).
It was thus not
unreasonable for defendants, whenever they received Dr. Liethen’s
report, to reject its conclusion that Michael was fit to return to duty as a
police officer with no restrictions. (See Sears Dep. 30; supra part I.E);
Wurzel, 482 F. App’x at 16 (finding employer’s decision to favor
recommendations of its own physician and an independent medical
examiner
and
cardiologist
over
plaintiff
employee’s
treating
cardiologists reasonable, because the latter “did not have current and
complete information when making their recommendations”).
Neither Dr. Daniel nor Dr. Benincasa interviewed Michael in
person.
Dr. Benincasa relied on Dr. Liethen’s report to find that
Michael “has no deficits in ADLs and . . . looks to manage his life very
well.” (Dkt. 30-24, Ex. Y to Pl.’s Resp. 5). Dr. Benincasa then based his
31
conclusions in part on that finding.
But Dr. Liethen did not have
information that might have altered his assessment of Michael’s ADLs.
In short, neither Dr. Daniel’s nor Dr. Benincasa’s evaluation is
sufficiently thorough to qualify as an individualized inquiry. It was
therefore not unreasonable for defendants not to adopt Dr. Daniel’s or
Dr. Benincasa’s conclusions that Michael was fit to return to police
officer duty. See Wurzel, 482 F. App’x at 16.
3. Whether a genuine dispute of material fact exists as to
whether Michael can perform the essential functions of a
police officer
For the reasons already discussed above, Michael has not shown
the existence of a genuine dispute as to whether he can perform the
essential functions of a police officer.
4. Whether defendants require all officers to perform the
essential functions of a police officer
Finally, Michael argues that a genuine dispute of material fact
exists as to whether defendants evaluate all officers with respect to the
essential functions of the police officer position. Specifically, Michael
argues that physical fitness is important to an officer’s ability to
32
perform the essential functions of the position, yet the Department does
not remove officers from duty who become physically unfit.
Even if there is a genuine factual dispute as to this issue, it is not
a material one. Whether other officers should be determined unfit to
work as a police officer has no bearing on whether defendants’
determination as to Michael was legitimate.
IV.
Conclusion
Officer Michael’s commitment to resume work as a police officer
and
his
perseverance
through
serious
health
difficulties
are
remarkable. But he has not presented sufficient evidence that he is
“otherwise qualified” under the ADA to work as a Troy police officer.
Accordingly, defendants’ Motion for Summary Judgment (Dkt. 26) is
GRANTED; and
Plaintiff’s Complaint (Dkt. 1) is DISMISSED with prejudice. This
is a final order and closes the case.
IT IS SO ORDERED.
Dated: October 21, 2014
Ann Arbor, Michigan
/s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
33
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 21, 2014.
/s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
34
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