Roetter et al v. Michigan Department of Corrections

Filing 20

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

R o e t t e r et al v. Michigan Department of Corrections

D o c . 20

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J O S E P H S. ROETTER and D I A N E K. ROETTER, P l a i n t if f s , v. M IC H IG A N DEPARTMENT OF C O R R E C T IO N S , D e f e n d a n t. ____________________________/ C A S E NO. 1:09-CV-619 H O N . ROBERT HOLMES BELL

O P IN IO N O n July 7, 2009, Plaintiffs Joseph S. and Diane K. Roetter filed a complaint alleging c la im s for violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et s e q ., violation of the Michigan Persons with Disabilities Civil Rights Act (PDCRA), Mich. C o m p . Laws § 37.1101, and loss of consortium against Plaintiff Joseph S. Roetter's former e m p lo ye r, Defendant Michigan Department of Corrections. Plaintiffs amended their

c o m p la in t on August 25, 2009, to replace the ADA claim with a claim under the R e h a b ilita tio n Act, 29 U.S.C. § 794 et seq. (Dkt. No. 9.) This matter is before the Court on D e f en d a n t's motion for summary judgment on all of Plaintiffs' claims. (Dkt. No. 12.) For th e reasons that follow, Defendant's motion will be granted.

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I . Factual Background D e f e n d a n t first hired Plaintiff 1 in 1989 to work at the Brooks Correctional Facility in M u s k e g o n , Michigan, as a food service supervisor. As food service supervisor, Plaintiff was req u ired to monitor inmates as they prepared meals for the larger prison population, ensure k itc h e n utensils were being used by the inmates in a safe and appropriate manner, and g e n e ra lly account for the safety, security, and sanitation of the kitchen area while the inmates w o rk e d . Plaintiff was usually the sole correctional facility employee overseeing food p ro d u c tio n at any given time, and he was responsible for supervising approximately fifteen to twenty inmates a day. In 2000, Plaintiff was cited and suspended for inattention to duty after he was found s le e p in g in his office while inmates were working in the kitchen. Plaintiff was cited and re p rim a n d e d for a similar occurrence in 2002, though Plaintiff denied that he was sleeping o n this occasion. On January 27, 2005, correctional facility employees observed Plaintiff d o s in g off as he monitored the breakfast line. As part of a disciplinary conference arising o u t of this incident, Plaintiff was shown a security video of himself confirming what the o th e r employees had observed. Plaintiff was given a one-day suspension. This occasion p ro m p te d Plaintiff to seek a medical consultation in April of 2005. Plaintiff visited Doctor L e e C. Marmion, who conducted sleep studies on Plaintiff and determined that he suffered f ro m narcolepsy. Dr. Marmion prescribed Plaintiff a drug called Provigil to combat his
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Unless otherwise indicated, references to "Plaintiff" herein refer to Plaintiff Joseph S. 2

Roetter.

c o n d itio n . In addition, Plaintiff asked Defendant to assign him permanently to the third shift ra th e r than rotate him among various shifts because he believed he slept better during the day a n d would come to work more rested. Defendant granted this request. On July 11, 2005, both Plaintiff and his supervisor noted that his attentiveness had im p ro v e d . (Dkt. No. 13, Ex. 10.) Nevertheless, Plaintiff continued to suffer from narcoleptic e p iso d e s. On April 24, 2006, Plaintiff was again cited and suspended for inattention to duty a f te r he was found sleeping in the kitchen. On December 27, 2006, inmates were involved in horseplay in the kitchen. An investigation revealed that the inmates were intoxicated, and that they had likely created the alcohol themselves by hiding fruits and vegetables somewhere in the facility and allowing them to ferment. As the supervisor on duty, Plaintiff was held re sp o n sib le for the actions of the inmates, and was given a four day suspension. On April 6 , 2007, Plaintiff was again found sleeping in the kitchen, and was given a five day s u s p e n sio n . On July 14, 2007, Plaintiff was standing near the breakfast line when one of the in m a tes discovered that the milk was spoiled and needed to be replaced. The inmate a tte m p te d to communicate the problem, but Plaintiff did not respond because he was leaning a g a in s t a wall of the kitchen drifting in and out of sleep. Following the July 14, 2007, incident, and as a result of all the disciplinary measures tak e n against Plaintiff, Plaintiff was discharged on November 5, 2007. Plaintiff originally b ro u g h t suit for disability discrimination under the Michigan Persons with Disabilities Civil R ig h ts Act (PDCRA) and the Americans with Disabilities Act (ADA) on July 7, 2009, but

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P la in tif f amended his complaint on August 25, 2009, to replace the ADA claim with a R e h a b ilita tio n Act claim. Plaintiff's wife, Diane K. Roetter, brings a claim for loss of

c o n so rtiu m . Defendant filed this motion for summary judgment on all claims on September 2 5 , 2009. II. Law and Analysis " T h e Rehabilitation Act, not the Americans with Disabilities Act, constitutes the e x c lu s iv e remedy for a federal employee alleging disability-based discrimination." Jones v. P o tte r, 488 F.3d 397, 403 (6th Cir. 2007) (citing 42 U.S.C. § 12111(5)(B)(i)). Nevertheless, in the Sixth Circuit, ADA claims and Rehabilitation Act claims "share the same substantive s t a n d a r d s ." Id. (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1 9 9 6 )). In addition, "[c]laims of handicap discrimination under Michigan law [including c la im s under the PDCRA] essentially track those under federal law." Monette, 90 F.3d at 1 1 7 8 n.3. P la in tif f s may attempt to prove unlawful discrimination by either presenting direct e v id e n c e of discrimination, or by presenting indirect evidence of discrimination, and by s h if tin g the burden to the employer to articulate a non-discriminatory reason for the d is c h a rg e . Monette, 90 F.3d at 1178, 1186-87. If an employee attempts to prove a violation o f the Rehabilitation Act through reliance on direct evidence of discrimination: 1) The plaintiff bears the burden of establishing that he o r she is "disabled." 2 ) The plaintiff bears the burden of establishing that he o r she is "otherwise qualified" for the position despite his or her 4

d isa b ility: a) without accommodation from the employer; b) with a n alleged "essential" job requirement eliminated; or c) with a p ro p o s e d reasonable accommodation. 3 ) The employer will bear the burden of proving that a c h a l le n g e d job criterion is essential, and therefore a business n e c es s ity, or that a proposed accommodation will impose an u n d u e hardship upon the employer. M o n e tte , 90 F.3d at 1186. If, on the other hand, an employee has no direct evidence of discrimination, but seeks to prove a Rehabilitation Act violation through indirect and circumstantial evidence, the th re e -ste p burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U .S . 792 (1973), applies. Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007). First, the e m p l o ye e must make a prima facie showing of indirect discrimination. The prima facie case re q u ire s the employee to prove by a preponderance of the evidence: 1) that he or she is d is a b le d ; 2) that he or she is otherwise qualified for the position; 3) that he or she suffered a n adverse employment decision; 4) that the employer knew or had reason to know of the e m p lo ye e 's disability; and 5) that the position remained open while the employer sought o th e r applicants or the disabled individual was replaced. Id.; see also Monette, 90 F.3d at 1 1 8 6 . After the employee proves a prima facie case of disability discrimination, the burden s h if ts to the employer to articulate a legitimate, non-discriminatory justification for the a d v e rs e employment action. Jones, 488 F.3d at 404. If the employer is able to articulate a leg itim a te justification for the discharge, the burden shifts back to the employee to d e m o n s tra te that the explanation is pretextual. Id.

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T h e parties have conducted only limited discovery in this matter. Thus, Plaintiff does n o t yet know whether he will attempt to prove his case using direct evidence or indirect e v id e n c e. However, regardless of whether Plaintiff will rely on direct or indirect evidence, P lain tiff will be required to show that, with or without reasonable accommodation, he is q u a lif ie d to perform the essential functions of his job description despite his discharge.2 D ef en d an t is entitled to summary judgment if the pleadings, affidavits, and other discovery m a ter ials show that there is no genuine issue as to any material fact and that Defendant is e n titled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Because, even at this early s ta g e , the record is clear that Plaintiff is not "otherwise qualified" to perform the essential f u n c tio n s of his position, with or without reasonable accommodation, Defendant is entitled to summary judgment. T h e re is no question that attentiveness is an essential part of Plaintiff's job d e sc rip tio n . As food service supervisor, Plaintiff was responsible for supervising fifteen to tw e n ty inmates throughout the course of a night. (Dkt. No. 16, Ex. 1 ¶ 7.) The inmates had t h e potential to, and occasionally did, become unruly. (Id. at ¶ 8.) In the kitchen, inmates w e r e given potentially dangerous tools and other common dining and food preparation u te n s ils . The threat to security posed by an inattentive supervisor is obvious. Plaintiff first seems to argue that, even without additional accommodation, he is
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As noted above, Plaintiff can also demonstrate a violation of the Rehabilitation Act using direct evidence by showing that he is "otherwise qualified" for his position with an alleged "essential" job requirement eliminated. However, Plaintiff does not allege that any of his claimed "essential" job requirements are not, in fact, essential. 6

c a p ab le of remaining attentive, and that any bouts of inattentiveness he may have e x p e rie n c ed were not sufficiently egregious to warrant his dismissal. For example, Plaintiff a rg u e s that he should not have been suspended for the events that occurred on December 27, 2 0 0 6 , when inmates were found to be intoxicated on his watch, because he did not do a n yth in g wrong. In addition, Plaintiff argues that he should not have been suspended for f a llin g asleep on April 6, 2007, because "the incident was caused by an honest mistake" in c o n n e ctio n with an adjustment that Plaintiff made to his sleep schedule during the previous w e e k while Plaintiff was on vacation. (Dkt. No. 16 Pl.'s Br. 8.) Plaintiff further admits that " [ t]h e re have been a few occasions, however, in which his condition for a few minutes ren d ere d him inattentive to his duties," but claims that these "one or two occasions a year" d o not give Defendant sufficient grounds for termination. (Id. at 1, 15.) These "one or two o c c as io n s a year" include Plaintiff sleeping in the kitchen on April 24, 2006, and the incident o n July 14, 2007, when Plaintiff failed to respond to an inmate's request to change the milk d is p e n se r because he had fallen asleep. Even assuming the Court should not consider the D e c em b e r 27, 2006, and April 6, 2007, incidences, it is clear to the Court that the remaining in c id e n c es are alone sufficient to suggest that Plaintiff is not capable of performing the e ss e n tial functions of his job without additional accommodation. Even if Plaintiff only b e c o m e s unresponsive a few times a year, an unresponsive supervisor poses a serious threat to the operation and safety of the correctional facility. Prison officials were justified in lo sin g confidence in Plaintiff's ability to do his job as a result of these events. Likely

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a g g ra v a tin g the significance of these events to Defendant is the fact that Plaintiff often w o rk e d alone, meaning that there could have been other instances of Plaintiff's inattention th a t no correctional facility employee ever discovered. Thus, the Court is left to decide whether, with reasonable accommodation, Plaintiff w o u ld have been able to remain attentive while working. Plaintiff claims that, to

a c c o m m o d a te his disability, Defendant should have created a requirement, applicable to all correctional facilities employees, that employees that discover Plaintiff sleeping should shake h i m and shout at him until he awakens (the "shake and shout technique"), and that this a c c o m m o d a tio n would have enabled Plaintiff to perform the essential duties of his o c c u p atio n . First, Plaintiff never suggested this accommodation to Defendant. Plaintiff ra is e s it only in response to Defendant's motion for summary judgment. Although an e m p lo ye r and an employee are required to engage in an interactive dialogue to determine w h e th e r reasonable accommodations exist, the employee bears the initial burden of starting th e dialogue by proposing a reasonable accommodation. Kleiber v. Honda of Am. Mfg., Inc., 4 8 5 F.3d 862, 870 (6th Cir. 2007). After Defendant transferred Plaintiff to third shift, his n a rc o lep tic episodes did not cease, yet there is no evidence that Plaintiff suggested to D e f en d a n t that any further accommodations be made. E v e n if the Court were to conclude that Defendant was charged with a unilateral o b lig a tio n to identify and suggest possible accommodations, the shake and shout technique, th o u g h possibly "reasonable" and simple to implement, would not have significantly

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m itig a te d the negative effects of Plaintiffs disability on Plaintiff's ability to remain attentive w h ile supervising. In Plaintiff's affidavit he admits that, as food supervisor, the majority of h i s work he performed alone, without the company of other correctional facilities employees. (D k t. No. 16, Ex. 1 ¶ 76 ("In my job as food service supervisor, I spent a significant time a lo n e with the inmates that I supervised.")) The shake and shout technique would only be ef fe ctiv e to accommodate Plaintiff's disability if other correctional facility employees were p re se n t to use the technique when Plaintiff's narcolepsy symptoms began to manifest.3 W ith o u t the company of other employees, nothing would prevent Plaintiff from dosing off w h ile supervising, even with the shake and shout policy in place. The Court recognizes that the shake and shout technique may be effective to mitigate th e negative effects of Plaintiff's disability if he is transferred to a position that requires him to work with other employees rather than alone. If other employees work alongside Plaintiff, th e y may be able to monitor Plaintiff's drowsiness levels and alert him if he ever began to d o s e off. However, this "accommodation" actually requires two accommodations: 1) im p le m e n ta tio n of the shake and shout technique, and 2) the transfer of Plaintiff to a position th a t requires him to be near other employees at all times. See Kleiber, 485 F.3d at 870 n.3 (" [ I]t is permissible for an employee to request another job (itself an accommodation) that sh e can perform with an (additional) accommodation."). Plaintiff cannot rely on transfer to

The Court does not presume that Plaintiff is arguing that a correctional facility employee should have been assigned to "shadow" and monitor him at all times. Such an accommodation would be patently unreasonable. 9

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a n o th e r position as an accommodation supporting his Rehabilitation Act claim because he n e v e r asked to be transferred to another position. It is true that an employer must consider tra n sf e rrin g an employee to an alternative position that will reasonably accommodate the e m p lo ye e 's disability, if such a position exists, see 42 U.S.C. § 12111(9)(B), but this o b lig a tio n is triggered only after the employee first expresses interest in a transfer or p rop o ses the idea to the employer. See Kleiber, 485 F.3d at 870 ("Generally, an ADA

p la in tif f `bears the burden of proposing an accommodation and showing that that a c co m m o d a tio n is objectively reasonable.' . . . [T]o overcome summary judgment, the p la in tif f generally must identify the specific job he seeks and demonstrate that he is qualified f o r that position." (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2 0 0 4 )). Even in Plaintiff's brief he does not suggest that a transfer to another position would h a v e been possible, appropriate, or desirable, and there is no indication that he requested a tra n sf e r prior to his termination. Plaintiff argues only that Defendant should have

im p le m e n te d the shake and shout technique, which, as discussed above, would have been in s u f f ic ie n t in itself to prevent Defendant from dosing off on the days he was working alone. I I I . Conclusion R e g a rd le ss of whether Plaintiff has direct evidence of disability discrimination or has n o such evidence, Plaintiff's Rehabilitation Act and Michigan PDCRA claims require him to show that he is "otherwise qualified" to perform the essential functions of his position, w ith or without reasonable accommodation. Without reasonable accommodation, Plaintiff

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is not capable of remaining sufficiently attentive to his work to ensure the safety and proper s u p e rv is io n of the food service division of the Muskegon Correctional facility. Im p le m e n t a tio n of the shake and shout technique alone would not have been a sufficient a c co m m o d a tio n to allow Plaintiff to remain attentive to his position. In addition, although im p le m e n ta tio n of a shake and shout technique combined with the reassignment of Plaintiff to another position may have be a sufficient accommodation to allow him to remain attentive to his position, Plaintiff has never proposed or expressed interest in a reassignment. Because P lain tiff has not demonstrated that he is capable of performing the essential functions of his jo b with or without reasonable accommodation, his PDCRA and Rehabilitation Act claims f a il. Plaintiff's wife's claim for loss of consortium fails as well because it is entirely d e p e n d a n t on the success of Plaintiff's claims. See Monette, 90 F.3d at 1176 n.1. An order and judgment consistent with this opinion shall be entered.

Dated: July 12, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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