STANLEY WILLIAMS V UNIVERSITY OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
STANLEY WILLIAMS,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellant,
v
No. 291323
Washtenaw Circuit Court
LC No. 08-000411-CL
UNIVERSITY OF MICHIGAN,
Defendant-Appellee.
Before: O’CONNELL, P.J., and BANDSTRA and MARKEY, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff has worked for defendant’s medical center as an anesthesia technician since
1995. On July 24, 2006, plaintiff was placed on an approved leave of absence from his
employment because of severe obstructive sleep apnea, which caused tiredness at work,
difficulties with concentration and attention, falling asleep while driving, and decreased sleep.
Plaintiff’s treating physician authorized him to return to work on February 1, 2007. Defendant
referred plaintiff to sleep medicine specialist Michael Zupancic, M.D., for a fitness-for-duty
evaluation required by defendant, and based on that evaluation, Zupancic concluded that plaintiff
could return to work provided that he work part-time, with a later starting time, and with the
assistance of a colleague to work alongside him to monitor his work and correct any mistakes he
might make. Defendant determined that it could not authorize plaintiff’s return to work with this
“work buddy” restriction, even after Zupancic indicated that, as an alternative to the “work
buddy” arrangement, a colleague could check on plaintiff at regular intervals, such as every five
minutes. In July 2007, after a subsequent evaluation, Zupancic authorized plaintiff to return to
work without a colleague working alongside him, and defendant returned plaintiff to work in
August 2007.
In July 2008, plaintiff filed the instant action, alleging that defendant discriminated
against him on the basis of his disability, in violation of the Michigan Persons with Disabilities
Civil Rights Act (PWDCRA), MCL 37.1101, et seq., by not allowing him to return to work when
first authorized, and under the conditions established, by Zupancic. Plaintiff also alleged that
defendant had engaged in retaliatory conduct against him, because he sought accommodations
under the PWDCRA. Defendant moved for summary disposition, pursuant to MCL
2.116(C)(10). The trial court granted the motion, finding that plaintiff’s disability (severe
obstructive sleep apnea) prevented him from performing his job even with reasonable
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accommodation, and further, that providing a second person to monitor plaintiff and to correct
any mistakes or oversights if necessary was not a reasonable accommodation under the statute.
The trial court also found that defendant had not retaliated against plaintiff, because he was
working in the same position, his performance reviews were reasonable, and his raises and
compensation were comparable to other employees in his position.
Plaintiff first argues on appeal that the trial court erred by finding that plaintiff could not
perform the essential functions of his job, even with the proposed accommodation, and that the
proposed accommodation was unreasonable. We disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo.
Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). When reviewing a
motion brought under MCR 2.116(C)(10), the court considers the affidavits, depositions,
pleadings, admissions, and other evidence submitted by the parties in the light most favorable to
the non-moving party. Rose v Nat’l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455
(2002). Summary disposition is appropriate if there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law. Id.
The PWDCRA prohibits discrimination against individuals because of their disability
status. Peden v City of Detroit, 470 Mich 195, 203; 680 NW2d 857 (2004). “[T]he PWDCRA
generally protects only against discrimination based on physical or mental disabilities that
substantially limit a major life activity of the disabled individual, but that, with or without
accommodation, do not prevent the disabled individual from performing the duties of a particular
job.” Id. at 204. “The purpose of the act is to mandate the employment of the [disabled] to the
fullest extent reasonably possible.” Id., quoting Chmielewski v Xermac, Inc, 457 Mich 593, 601;
580 NW2d 817 (1998) (internal quotation omitted). Accordingly, the PWDCRA prohibits
employment discrimination by mandating that “employers” refrain from taking any of a number
of adverse employment actions against an individual “because of a disability . . . that is unrelated
[or not directly related] to the individual’s ability to perform the duties or a particular job or
position.” MCL 37.1202(1)(a)-(e); Peden, 470 Mich at 203-204. “[U]nrelated to the
individual’s ability” means, with or without accommodation, an individual’s disability does not
prevent the individual from performing the duties of a particular job or position. MCL
37.1103(l)(i); Peden, 470 Mich at 204.
To establish a prima facie case of discrimination under the PWDCRA, plaintiff must
demonstrate (1) that he is disabled as defined by the PWDCRA,1 (2) that the disability is
unrelated to his ability to perform the duties of his particular job, and (3) that he was
1
A “disability,” for purposes of article 2 of the PWDCRA, MCL 37.1201-37.1214, is defined in
MCL 37.1103(d) as: (i) “[a] determinable physical or mental characteristic of an individual . . . if
the characteristic: (A) . . . substantially limits 1 or more of the major life activities of that
individual and is unrelated to the individual’s ability to perform the duties of a particular job or
position . . .”; (ii) “[a] history of [such a] determinable physical or mental characteristic . . .”; or
(iii) “[b]eing regarded as having [such a] determinable physical or mental characteristic. . . .”
Peden, 470 Mich at 204.
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discriminated against in one of the ways described in the statute.2 Peden, 470 Mich at 204,
quoting Chmielewski, 457 Mich at 601; Lown v JJ Eaton Place, 235 Mich App 721, 727; 598
NW2d 633 (1999). If plaintiff cannot demonstrate that he is able, with or without
accommodation, to perform the duties essential to his job, he may not proceed on a claim under
the PWDCRA. Peden, 470 Mich at 205-206; see also, Carr v General Motors Corp, 425 Mich
313, 322-323; 389 NW2d 686 (1986); Bowerman v Malloy Lithographing, Inc, 171 Mich App
110, 116; 430 NW2d 742 (1988).
At issue here is whether plaintiff’s disability (severe obstructive sleep apnea) was
unrelated to his ability to perform the duties of his job as an anesthesia technician. In Peden, our
Supreme Court explained that
. . . in disputes regarding what the duties of a particular job are, the employer’s
judgment is entitled to substantial deference. Consistent with the plaintiff’s
burden of proving discrimination under the PWDCRA, the plaintiff bears the
burden of presenting sufficient evidence to overcome this deference. Unless the
plaintiff can satisfy this burden, it is to be presumed that the employer’s judgment
concerning the duties of a particular job is reasonable. In such circumstances, the
plaintiff must prove that he can, with or without accommodation, perform those
duties. [Peden, 470 Mich at 219.]
The trial court specifically found that plaintiff’s disability prevented him from performing the
duties required of an anesthesia technician, even with a reasonable accommodation, because of
the risks posed to patient safety as a consequence of plaintiff’s disability.3
According to the anesthesia technician job description provided by both parties,
plaintiff’s duties were to set up and operate anesthesia equipment. The job duties included
setting up for and assisting in the placement of arterial lines, central lines, epidural catheters,
airway devices, echo-monitoring devices, and devices necessary for cardiac and vascular cases.
The job description provided that plaintiff would also assist in the anesthesia induction of
patients at staff’s request. Plaintiff was responsible for ensuring that the equipment used for
anesthesia was working properly. The job description further stated that plaintiff was to respond
2
MCL 37.1202 generally provides that an employer shall not purposefully discriminate, through
direct action or by failing to provide necessary accommodation, against a person because of a
disability that is unrelated to that person’s ability to do the duties of a job; an employer shall not
limit, segregate, or classify employees in a manner that adversely affects a person because of a
disability that is unrelated to that person’s ability to do the duties of a job; an employer shall not
take direct adverse action against an individual on the basis of examinations that are not directly
related to the requirements of the job. Peden, 470 Mich at 205 n 8.
3
Plaintiff argues that the trial court misunderstood the law in accepting defendant’s argument
that plaintiff could not work independently and perform the essential function of his employment
because it did not account for working with the reasonable accommodation. However, as noted
above, the trial court plainly considered whether plaintiff could perform the essential duties of
his job with, or without, a reasonable accommodation.
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quickly to pages and provide the services requested as well as to continually check with
anesthesia staff in operating rooms to determine if any assistance was required.
Plaintiff agreed that his position as an anesthesia technician involved assisting in giving
surgical patients anesthesia as required by various departments. As plaintiff described them, his
main responsibilities involved making sure that the nurse anesthetist, resident doctor, and staff
are comfortable with the assistant putting the patient asleep by making a good airway, a
procedure called induction, and then assisting in putting an IV in the patient, and then providing
whatever else the providers needed. Plaintiff also testified that his position required significant
patient care in different areas of the hospital. He acknowledged that precision was very
important in his work, and that a failure by him to do his job properly could be life-threatening to
the patient.
To overcome defendant’s motion for summary disposition, plaintiff bears the burden of
raising a genuine issue of material fact regarding whether he could have performed duties of an
anesthesia technician with, or without, accommodation. Peden, 470 Mich at 204. In his
affidavit, plaintiff asserted that tasks he rated as “medium safety risk,” such as infusion, patient
suction, and cell saving, were infrequent and that the operating room team works together to
prevent mistakes. Plaintiff asserted that having a temporary “work buddy” was a reasonable
accommodation because his work was already frequently double checked by the other members
of the operating room team and because the three or four anesthesia technicians working together
during each shift normally utilized a team approach. However, Paul Reynolds, M.D.,
defendant’s Chief of Pediatric Anesthesiology, stated that allowing plaintiff to return to work,
even with the proposed accommodation, posed an unacceptable risk to patient safety, because
patients depended on the equipment that plaintiff set up for respiration, and plaintiff may be
required to assist in the operating room, where his failure to be sufficiently alert could have had
life-threatening consequences to the patients. Reynolds stated that he made the final
determination to prevent plaintiff’s return to work with the restrictions because of patient safety,
and the nature of the workplace and job.
Similarly, Angela Nortly, the disability claims consultant for defendant, testified that it
would not be safe for plaintiff to work with patients with a co-worker monitoring him.
Plaintiff’s supervisor, Mary Jean Yablonsky, stated that anesthesia technicians were relied on to
function fairly independently in setting up equipment that was important for patient care, and
that errors could result in trauma to the patient. Patricia Whitfield, a human resources consultant
for defendant, explained that defendant was not able to accommodate plaintiff by requiring a
colleague to work along side of him and check him, because of the danger to the patient in the
operating room due to any possible lapse of concentration by plaintiff, or the unavailability of
other staff needed to watch plaintiff.
Additionally, plaintiff’s sleep specialist, Zupancic, indicated concerns about patient
safety posed by the symptoms and consequence of plaintiff’s disability. Zupancic reported that
his intention in suggesting that a colleague should work alongside plaintiff was to keep patients
safe by ensuring that the colleague could catch any error that plaintiff may make in an important
situation. In other words, Zupancic’s reasoning was that plaintiff’s illness could result in
mistakes in plaintiff’s job performance whereby the safety of the patient would be placed at risk.
Regardless of whether we agree with the court’s determination concerning the reasonableness of
the accommodation that plaintiff sought, plaintiff cannot show that he created a question of fact
that he could perform the essential duties of his position even with the accommodation. Having
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someone available to safely perform the tasks of an anesthesia technician by correcting mistakes
that plaintiff might make in important situations is not the same as plaintiff’s being able to
perform his own duties with the accommodation. Despite an effective team environment and the
presence of a colleague to monitor and correct his work, there is no way to ensure that, plaintiff
would be able to perform safely the essential duties of an anesthesia technician.
Plaintiff argues that he was able to perform his job because he had a small role in
assisting the physician that performs the induction of anesthesia and the team environment
ensured the patient’s safety. However, as noted above, there was substantial testimony that
plaintiff’s disability would present a risk to patient care, even with an accommodation to assist
him. While the employer’s own judgment about the duties of a job position will not always be
dispositive, it is nonetheless always entitled to substantial deference. Peden, 470 Mich at 217218. No matter how often a patient would rely solely on plaintiff to safely induce anesthesia, the
testimony of plaintiff, employees of defendant, and the job description consistently demonstrate
that plaintiff played an active role in assisting this process, which undoubtedly has to be
performed without error because of the vulnerability of the patient. A disability that prevents
someone from doing a job with due regard for the safety of others is a disability that is related to
the ability to perform that job. Szymczak v American Seating Co, 204 Mich App 255, 257; 514
NW2d 251 (1994). Thus, despite plaintiff’s assertions to the contrary, the trial court did not err
when it found that defendant’s disability prevented him from being able to fully perform the
duties and tasks required of an anesthesia technician.
Plaintiff next argues that the trial court erred by concluding that providing a “job buddy”
to plaintiff was not a reasonable accommodation. However, we need not reach this issue in light
of our agreement with the trial court that plaintiff has not created a question of fact as to whether
he could perform the essential functions of his job, even with such an accommodation.
Lastly, plaintiff argues that the trial court erred by finding that plaintiff was not retaliated
against for seeking reasonable accommodations to return to work. The PWDCRA provides that
an employer shall not “[r]etaliate or discriminate against a person because the person has
opposed a violation of this act, or because the person has made a charge, filed a complaint,
testified, assisted, or participated in an investigation, proceeding, or hearing under this act.”
MCL 37.1602(a). To establish a prima facie case of unlawful retaliation, a plaintiff must show:
(1) that he engaged in a protected activity, (2) defendant knew of the protected activity, (3) that
the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal
connection between the protected activity and the adverse employment action. Aho v Dep’t of
Corrections, 263 Mich App 281, 288-289; 688 NW2d 104 (2004); Mitan v Neiman Marcus, 240
Mich App 679, 680-681; 613 NW2d 415 (2000).
Plaintiff asserts that he engaged in a protected activity when his counsel informed
defendant that it had denied reasonable accommodation to plaintiff. A plaintiff engages in
“protected activity” under the PWDCRA, when he opposes a violation of the PWDCRA, or (1)
makes a charge, (2) files a complaint, or (3) testifies, assists, or participates in an investigation,
proceeding, or hearing under the PWDCRA. Bachman v Swan Harbour Ass’n, 252 Mich App
400, 435; 653 NW2d 415 (2002). Here, the trial court did not specify whether plaintiff engaged
in protected activity, but his counsel’s July 5, 2007 letter to defendant served as notice that
plaintiff believed that he was qualified to return to work with accommodation under the ADA
and that defendant had precluded him from returning to work. In that sense, at least, plaintiff
sufficiently opposed what he perceived to be a violation of the ADA or the PWDCRA.
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Plaintiff argues that he suffered an adverse employment action when he suffered
harassment from his supervisor. Plaintiff cites Morris v Oldham Co Fiscal Court, 201 F 3d 784,
792 (CA 6, 2000), for the proposition that supervisor harassment can create an adverse
employment action. However, Morris, 201 F 3d at 786, was a case that was considered under
Title VII of the Civil Rights Act of 1964, 42 USC 2000 et seq., the Civil Rights Act of 1991, 42
USC 1981 et seq., and a Kentucky anti-discrimination statute, not the Michigan statutes at issue
here. Additionally, the Morris court reasoned that “severe or pervasive” supervisor harassment
can constitute discrimination. Id. at 792. The harassment detailed in Morris was that the
supervisor:
[C]alled Morris on the telephone over thirty times, despite Black’s warnings,
solely for the purpose of harassing Morris; (2) drove to the Road Department on
several occasions, and simply sat in his truck outside the Department building,
looking in Morris’s window and making faces at her; (3) followed Morris home
from work one day, pulled his vehicle up beside her mailbox, and gave her “the
finger”; (4) destroyed the television Morris occasionally watched at the Road
Department; and (5) threw roofing nails onto her home driveway on several
occasions. [Id. at 793.]
Here, plaintiff alleged that, after his return to work, his supervisor criticized his work
performance somewhere between one and ten times in meetings at her office, commencing
within hours of his return to work. Plaintiff also identified co-workers who had told him that his
supervisor had co-workers watch plaintiff’s work because she did not like him, and testified that
the supervisor falsely told him that a co-worker was complaining about plaintiff’s performance.
However, plaintiff also stated that he returned to the same position that he previously worked and
at the same pay. Plaintiff further admitted that the department did accommodate a later work
starting time for him, as well as giving him part-time shifts, due to his sleep-related difficulties.
Plaintiff testified that the supervisor apologized to him for her tone toward him, relayed
compliments that she received regarding plaintiff’s work, and that other employees also
complained about the supervisor’s demeanor toward them. Plaintiff also agreed that his
performance evaluations after his return were positive and included a pay increase. There is no
evidence here of the severe and pervasive supervisor harassment referenced in Morris.
The trial court found that there was no retaliation against plaintiff because plaintiff’s
employment was restored to what it was previously, his performance reviews were reasonable,
and his raises and compensation were comparable to other employees in his position. We agree.
The trial court did not err by dismissing plaintiff’s retaliation claim.
We affirm. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Jane E. Markey
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