Todd Michael v. City of Troy Police Dep't

808 F.3d 304, 2015 FED App. 0291P, 32 Am. Disabilities Cas. (BNA) 744, 2015 U.S. App. LEXIS 21546, 2015 WL 8591352
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 14, 2015
Docket14-2478
StatusPublished
Cited by35 cases

This text of 808 F.3d 304 (Todd Michael v. City of Troy Police Dep't) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Todd Michael v. City of Troy Police Dep't, 808 F.3d 304, 2015 FED App. 0291P, 32 Am. Disabilities Cas. (BNA) 744, 2015 U.S. App. LEXIS 21546, 2015 WL 8591352 (6th Cir. 2015).

Opinions

KETHLEDGE, J., delivered the opinion of the court in which COOK, J., joined. GILMAN, J. (pp. 309-18), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

The City of Troy (Michigan) Police Department placed Todd. Michael, a patrol officer, on unpaid leave in 2010. The City did so for two reasons: first, Michael had engaged in a two-year pattern of aberrant behavior from 2007-09; and second, after Michael underwent brain surgery in 2009, two doctors concluded in detailed reports that Michael could not safely perform the functions of a patrol officer. Michael thereafter sued the City under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The district court granted summary judgment to the City. We affirm.

Michael began working for the City as a patrol officer in 1987. In 2000 he was [306]*306diagnosed as having a non-cancerous brain tumor. Surgeries to remove the tumor in 2000 and 2001 were only partially successful; each time the surgeons could not remove certain parts of the tumor, which then continued to grow. The City granted Michael paid medical leave for each surgery, and returned him to the force once his surgeons cleared him for work.

Beginning in 2007, however, the City became aware of aberrant behavior on Michael’s part. Among other things, Michael’s then — wife Jamie found a box of empty steroid vials — some of which were labeled for veterinary use and all of which belonged to Michael — which she turned over to the City’s then-Chief of Police, Charlie Craft. Michael then demanded the vials back from Craft. When Craft refused, Michael embarked on a two-year campaign to get them back, which included secretly recording Craft, suing Craft in small-claims court, and attempting to serve Craft with process at a party celebrating Craft’s retirement from the Department. In addition, Michael secretly recorded Jamie during their marriage-counseling sessions (they later divorced) and during family gatherings, and then — on the basis of those recordings — asked the City prosecutor to charge Jamie with perjury. Meanwhile, the City’s new Chief of Police, Gary Mayer, received reports that Michael had accompanied a cocaine dealer to several drug deals. Mayer suspended Michael from active duty pending an investigation.

The City tabled that investigation shortly thereafter, when Michael notified them (in early 2009) that he needed brain surgery for a third time. That surgery took place as scheduled and Michael’s surgeon cleared him for work in July 2009. But the City had its doubts about his fitness— largely based on Michael’s aberrant behavior — so they informed Michael that he needed to pass a psychological evaluation before he returned to work.

To that end, the City referred Michael to a neuropsychologist, Dr. Firoza Van Horn. She interviewed and tested Michael for seven hours in her office, and then drafted a detailed report in which she ultimately concluded that Michael “may be a threat to himself and others.” Based on Van Horn’s report, the City placed Michael on unpaid leave. Michael then sought a second opinion from Dr. Philip Leithen, another neuropsychologist, who interviewed Michael and pronounced him fit for duty. The City then sent Michael to • another neuropsychologist, Dr. Bradley Sewick, who examined Michael in his office and wrote a detailed report that reached the same conclusion that Dr. Van Horn had reached. Two other doctors who reviewed Michael’s file (but did not examine him) at the request of Michael’s disability-insurance company, on the other hand, concluded that he could return to work. Finally, again on his own initiative, Michael saw Dr. Linas Bieliauskas, a professor of neuropsychology at the University of Michigan. After interviewing Michael and performing tests, Dr. Bieliauskas concluded that Michael has weak “executive functioning,” that “I cannot recommend that the patient return to full patrol duties[,]” and that “[sjafety with use of weapons and high-speed driving would be in question.”

Michael gave his superiors the reports of Dr. Leithen and the insurance-company doctors, but kept Dr. Bieliauskas’s report to himself. The City decided to keep Michael on unpaid leave, mostly because of the conclusions of Drs. Van Horn and Sew-ick, but also because Michael’s own behavior tended to confirm those conclusions.

Michael thereafter brought suit under the ADA, claiming that the City had regarded Michael as disabled and discrimi[307]*307nated against him on that basis. The district court granted summary judgment to the City, holding as a matter of law that Michael was not qualified for the position of patrol officer. We review that decision de novo. Keith v. Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir.2013).

Michael brings his claims specifically under section 12112(a) of the ADA, which provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability])]” 42 U.S.C. § 12112(a). Thus, to prevail on a claim under this section, a plaintiff must prove that (1) he is disabled as defined by the Act, (2) he is a “qualified individual]],]” and (3) his employer “discriminate^” against him “on the basis of disability.” Id.

We focus on the second element here. The Act defines “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A disabled person is not qualified for an employment position, however, “if he or she poses a ‘direct threat’ to the health or safety of others which cannot be eliminated by a reasonable accommodation.” Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir.1998); see also Holiday v. City of Chattanooga, 206 F.3d 637, 647 n. 4 (6th Cir.2000) (same); 42 U.S.C. § 12113(b). A “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” Id. § 12111(3).

Whether an employer properly determined that a person poses a direct threat, for purposes of the ADA, depends on “the objective reasonableness of [the employer’s] actions.” Bragdon v. Abbott, 524 U.S. 624, 650, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). An employer’s determination that a person cannot safely perform his job functions is objectively reasonable when the employer relies upon a medical opinion that is itself objectively reasonable. See, e.g., Holiday, 206 F.3d at 645-46; Darnell v. Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir.2005). A medical opinion may conflict with other medical opinions and yet be objectively reasonable. Bragdon, 524 U.S. at 650, 118 S.Ct. 2196 (“A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis” for doing so).

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808 F.3d 304, 2015 FED App. 0291P, 32 Am. Disabilities Cas. (BNA) 744, 2015 U.S. App. LEXIS 21546, 2015 WL 8591352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-michael-v-city-of-troy-police-dept-ca6-2015.