Pietro Degiuli v. City of Taylor

STATE OF MICHIGAN

COURT OF APPEALS

PIETRO DEGIULI, UNPUBLISHED

December 23, 2014

Plaintiff-Appellant,

v No. 317681

Wayne Circuit Court

CITY OF TAYLOR and TAYLOR POLICE LC No. 12-011667-CZ

DEPARTMENT,

Defendants-Appellees.

Before: JANSEN, P.J., and TALBOT and SERVITTO, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting defendant’s1 motion for

summary disposition pursuant to MCR 2.116(C)(10) on plaintiff’s disability discrimination and

whistleblower claims. We affirm.

This action arises from defendant’s decision not to reinstate plaintiff as a public safety

officer (PSO) in July 2012. Plaintiff worked as a PSO from February 1996 until early 2005,

when he went on medical leave due to an injured shoulder. That year, plaintiff was named as

one of several defendants in a wrongful death action brought by the estate of Donald Clausen.

Clausen died in jail after he was arrested by City of Taylor police officers. Plaintiff testified in a

deposition in the Clausen matter that he believed Clausen’s death could have been prevented by

proper police training. Plaintiff reiterated this claim in letters to the city’s human resources

department and mayor. The letters further stated that Clausen’s death caused plaintiff to suffer

“Major Depression[.]” The defendants were ultimately granted summary judgment in the

Clausen matter in 2007.

1

Plaintiff originally named the city of Taylor and the Taylor Police Department as individual

defendants, but agreed to dismiss the police department as a party based on the City’s argument

that the department was not a distinct legal entity. The trial court granted summary disposition

on this issue and plaintiff does not challenge it on this appeal. We therefore refer to the city of

Taylor as the singular defendant.

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Between 2007 and 2008, plaintiff filed a claim for workers’ compensation benefits, citing

his shoulder injury and a psychiatric condition. During hearings on his claim, plaintiff stated that

he was depressed, suicidal, and described visions of “eviscerate[ing]” or “cut[ting] the guts out”

of then police chief Dale Tamsen and others at the police department. The Workers’

Compensation Appellate Commission ultimately denied plaintiff benefits.

Between 2009 and 2011, plaintiff sent additional communications to Tamsen, the mayor,

and others, alleging that the police department treated him unfairly in connection with the

Clausen case. Plaintiff also accused the department and others of “Multiple Acts of Public

Corruption . . . Suppression of Evidence . . . Civil Rights Violations . . . [and] Acts of Perjury . .

.” among other offenses.

Plaintiff treated for depression with psychologist Paul Savickas. Plaintiff reported

suicidal and homicidal ideations to Savickas multiple times between 2009 and 2011. On January

24, 2011, Savickas completed a written evaluation stating:

[Plaintiff] views the world as a malevolent place and his mission is to destroy evil

in the world. That need to attack evil often resulted in dissociative states wherein

he felt very intense anger directed at people he felt were acting improperly. In his

psychotherapy sessions, he detailed frequent urges of wanting to eviscerate others,

to eat their flesh, or to bite off their heads.

As of October 2011, plaintiff was “still voicing urges to hurt [him]self.”

On July 2, 2012, plaintiff requested to return to duty as a PSO. Plaintiff provided

defendant notes from a physician and a psychiatrist clearing him for work without restrictions.

Before reinstating plaintiff, defendant requested that he undergo a three-step process to

determine his fitness for duty, which involved a physical examination, a mental examination, and

a criminal background check. Tamsen suggested the testing. Tamsen, Mary Sclabassi,2 and

human resources representative Sheila Gorski, decided that an evaluation was necessary “due to

the position [plaintiff is] in,” as a PSO. PSOs deal with “frantic 911 calls,” “violent prisoners,”

and “sensitive information”[.] They also monitor inmates, communicate with other officers,

prepare investigative reports, interview victims, witnesses and suspects, and subdue suspects in

the event of resistance. Tamsen, Sclabassi, and Gorski wanted to ensure that plaintiff could

interact safely with other officers and the public. City firefighters also underwent reemployment

screening when they returned from a layoff in September 2012, but their evaluations did not

include mental examinations. Sclabassi did not know of any other person who was required to

complete the three-step process, but stated, “we have never had anyone in this circumstance who

has been gone for such a substantial amount of time.”

On September 4, 2012, plaintiff filed the present lawsuit, alleging that defendant’s refusal

to reinstate him constituted retaliation in violation of the Michigan Whistleblowers’ Protection

2

Tamsen retired in October 2012 and Mary Sclabassi became chief of police.

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Act (WPA), MCL 15.361 et seq., and discrimination under the Persons with Disabilities Civil

Rights Act (PWDCRA), MCL 37.1101 et seq. Plaintiff’s PWDCRA claim posited that

defendant wrongfully perceived plaintiff as disabled.

After filing the complaint, plaintiff proceeded with the three-step process. On December

3, 2012, psychologist Lyle Danuloff evaluated plaintiff on behalf of defendant. Danuloff

concluded that plaintiff was fit to return to work and reported his findings to Sclabassi. Sclabassi

then asked Danuloff to meet with plaintiff a second time to discuss plaintiff’s 2008 threats. At

the follow up evaluation, plaintiff explained that his “utterances in 2008 were only that-

utterances, and did not represent any indications of intent to take action” against Tamsen or any

other coworker. Plaintiff assured Danuloff that he had no intention or thoughts of hurting

himself or others. Danuloff told Sclabassi that plaintiff “was an angry guy and was holding

some anger at the Taylor Police Department,”3 but Danuloff stated that he still believed plaintiff

was fit to return to work.

Savickas’s reports from the latter half of 2012 also showed that plaintiff harbored anger

toward the police department. When discussing those associated with the department at an

August 29, 2012, appointment, Savickas reported that plaintiff stated that, “in public, [plaintiff]

want[s] to knock their face off.” During an October 31, 2012, meeting, Savickas stated that he

was “unsure if [plaintiff’s] ego strength will tolerate future stressors.”

In addition to the mental evaluation, plaintiff passed the physical examination and

background check. Defendant, however, refused to reinstate plaintiff, citing his 2008 threats.

On June 21, 2013, defendant moved for summary disposition on all of plaintiff’s claims

based, in part, on MCR 2.116(C)(10). Defendant argued that plaintiff could not show a causal

connection between his whistleblowing and its decision because of the different police chiefs,

human resources representatives and mayors defendant had between 2005 and 2011. Defendant

also argued that plaintiff’s prior threats were legitimate reasons not to reinstate plaintiff under

both the PWDCRA and WPA. In response, plaintiff characterized the three-step return to work

evaluation as pretext because no other employee had been required to undergo such testing

before returning to work. Plaintiff also argued that the prior threats could not have been the true

reason for defendant’s decision not to reinstate him because Danuloff cleared plaintiff for work.

The trial court ruled that “[p]laintiff cannot establish that being a person perceived with a

disability is unrelated to [his] qualifications for employment and that [d]efendant’s refusal to hire

[p]laintiff [is] because of a discriminatory intent.” Citing Collins v Blue Cross Blue Shield of

Michigan, 228 Mich App 560; 579 NW2d 435 (1998), the trial court stated that defendant was

not required to reinstate a potentially violent employee. The trial court further ruled that

plaintiff’s threats precluded his WPA claim because “[plaintiff] can’t prove any damages

because he can’t get rehired as a Police Officer because he’s threatened to eviscerate Tamsen and

3

According to Sclabassi, Danuloff told her “that [plaintiff] is the angriest son of a b---- I have

ever met, but if you tell anyone I said that, I will deny it.”

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others at the police department.” The trial court granted defendant summary disposition on both

claims under MCR 2.116(C)(10).

This Court reviews a trial court’s decision on a motion for summary disposition de novo.

Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). A motion for

summary disposition under MCR 2.116(C)(10) tests the factual support for a party’s claims.

Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). When reviewing a motion

brought pursuant to MCR 2.116(C)(10), this Court considers the pleadings, affidavits, and other

documentary evidence in a light most favorable to the nonmoving party. Quinto v Cross and

Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). Summary

disposition should be granted where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Id.; see MCR 2.116(C)(10). A genuine issue of

material fact exists if, when viewing the record in the nonmovant’s favor, reasonable minds

could differ on the issue. Skinner, 445 Mich at 162.

Although the holding in Collins, supra, is relevant to plaintiff’s claim, that case does not

necessarily control the present circumstances. The plaintiff in Collins took a medical leave of

absence for depression. Collins, 228 Mich App at 563. During an evaluation for benefits

eligibility, the plaintiff reported graphic fantasies about killing her supervisor. Id. The

defendant terminated the plaintiff based on these statements. Id. at 565. The plaintiff pursued an

arbitration claim against the employer arguing that the discharge violated the PWDCRA, then

referred to as the Handicapper’s Civil Rights Act (HCRA), and the Americans with Disabilities

Act (ADA), 42 USC 12101 et seq. Id. The arbitrator found that the plaintiff’s threats were a

manifestation of her mental illness, and thus held that the defendant “was not justified in

considering [the] plaintiff to be an unqualified person and did not have a nondiscriminatory basis

for termination.” Id. at 566. The defendant filed suit to vacate the arbitration award. Id. at 563.

This Court held that the plaintiff failed to state a prima facie case under the ADA or

HCRA because her homicidal ideation left her unqualified for employment with the defendant

and because the defendant did not discharge her because of her disability. Collins, 228 Mich

App at 574. The Court explained that employers are entitled to “wide latitude” in determining

workplace safety needs, as “the law does not require the employer to establish that the employee

would affirmatively act on her homicidal thoughts before discharging her.” Id. at 573. Pursuant

to Collins, a disability that poses a direct threat to the safety of others in the workplace is not

protected under the PWDCRA. Id. at 571-574.

The Court’s review in Collins was limited to determining whether the arbitrator

committed an error of law. Collins, 228 Mich App at 567. By contrast, the present appeal

involves a review of a MCR 2.116(C)(10) motion for summary disposition, and all facts must be

considered in a light most favorable to plaintiff. Plaintiff presented evidence that he was

qualified for duty; he supplied a psychiatrist’s note clearing him to return to work and Danuloff

found him competent. In ruling that plaintiff was unqualified, the trial court rendered an

impermissible factual finding that plaintiff still posed a threat of harm to defendant despite this

evidence. See e.g., Karaus v Bank of New York Mellon, 300 Mich App 9, 16-17, 21; 831 NW2d

897 (2012).

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Nevertheless, we affirm the trial court’s grant of summary disposition because plaintiff

failed to raise a genuine issue of material fact on the essential elements of his PWDCRA and

WPA claims. See Wickings v Arctic Enters, Inc, 244 Mich App 125, 150; 624 NW2d 197 (2000)

(“This Court ordinarily affirms a trial court’s decision if it reached the right result, even for the

wrong reasons.”).

I. PLAINTIFF’S PWDCRA CLAIM

The PWDCRA prohibits employment discrimination on the basis of actual or perceived

disability. MCL 37.1202; MCL 37.1103(d)(iii). The act defines a perceived disability as, among

other things, “[b]eing regarded as having a determinable physical or mental characteristic,” MCL

37.1103(d)(iii), which “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.”

MCL 37.1103(d)(i)(A).

To establish a claim of perceived disability discrimination, plaintiff was required to

demonstrate: (1) that he was regarded as having a determinable physical or mental characteristic;

(2) that the perceived characteristic was regarded as substantially limiting one or more of

plaintiff’s major life activities; and (3) that the perceived characteristic was regarded as being

unrelated either to his ability to perform his particular job duties or to his qualifications for

employment. Michalski v Bar-Levav, 463 Mich 723, 735; 625 NW2d 754 (2001). In addition to

showing that he was perceived as disabled, plaintiff was also required to demonstrate that he was

discriminated against in a way described in the PWDCRA, i.e., that defendant’s perception that

he was disabled played a role in its decision not to reinstate him. Id. at 730. Assuming that

plaintiff could demonstrate those elements by a preponderance of the evidence, the burden would

then shift to defendant to articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Kerns v Dura Mechanical Components, Inc, (On Remand), 242 Mich App

1, 12; 618 NW2d 56 (2000). A plaintiff may rebut an employer’s articulated reason by showing

that there was a triable issue of fact that the employer’s reason was not the true reason, but was

merely a pretext for disability discrimination. Hall v McRea Corp, 238 Mich App 361, 370-372;

605 NW2d 354 (1999).

Plaintiff claimed that Tamsen, and later Sclabassi, regarded him as mentally unfit for the

PSO position. “[T]o determine whether there was evidence sufficient to establish that defendant

perceived plaintiff as being disabled within the meaning of the PWDCRA, [this Court relies] on

the three-step process utilized in Bragdon [v Abbott, 524 US 624; 118 S Ct 2196; 141 L Ed 2d

540 (1998)].” Chiles v Machine Shop, Inc, 238 Mich App 462, 476; 606 NW2d 398 (1999).

That process is:

First, we consider whether respondent’s [complaint] was a physical impairment.

Second, we identify the life activity upon which respondent relies . . . and

determine whether it constitutes a major life activity under the [PWDCRA].

Third, tying the two statutory phrases together, we ask whether the impairment

substantially limited the major life activity. [Chiles, 238 Mich App at 474,

quoting Bragdon, supra.]

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Plaintiff’s perceived condition was a mental disability, which often carries negative or unusual

stigmas in the eyes of others. Chiles, 238 Mich App at 475. After plaintiff requested

reinstatement, Tamsen expressed concern whether plaintiff could handle “violent prisoners” and

“complicated 911 calls,” based in part on plaintiff’s use of psychotropic medication. Sclabassi

also questioned whether plaintiff should have the same access to weapons as other PSOs.

Further, Tamsen, Sclabassi, and Gorski required plaintiff to take a mental examination, which

Gorski acknowledged was not generally a part of the return to work process. Plaintiff therefore

raised a genuine issue of material fact regarding whether defendant perceived him as mentally

disabled.

Plaintiff did not specify the “major life activity” that was affected by the perceived

impairment. Because he was not immediately reinstated, plaintiff appears to imply that

defendant perceived him as incapable of working. While work may constitute a major life

activity, “the inability to perform a particular job does not constitute a substantial limitation.”

Chiles, 238 Mich App at 478 (emphasis in original). Rather, the perceived condition must

significantly impair plaintiff’s ability to perform “at least a wide range of jobs.” Id. The above

evidence shows that Tamsen, Sclabassi, and perhaps Gorski, may have questioned plaintiff’s

fitness to perform the specific duties of a PSO, but it does not establish that they believed him

incapable of performing any other job. Plaintiff presented no evidence that his perceived

disability was viewed as a substantial limitation to his ability to work generally. Thus plaintiff

did not raise a genuine issue of material fact regarding whether defendant perceived him to be

substantially limited in a major life activity.

Plaintiff also did not show the perceived characteristic was regarded as being unrelated to

his ability to perform his particular job duties. MCL 37.1103(A)(i); Michalski, 463 Mich at 735.

Tamsen explained that defendant was concerned about plaintiff’s mental condition “due to the

position [plaintiff is] in, he has access to sensitive information, he deals with the general public,

he deals with prisoners, he deals with frantic 911 phone calls, just like any other officer or PSO,

so we have to make sure he can do the job for the general public.” (Emphasis added.) Similarly,

Sclabassi was concerned for “the safety of the officers, the internal personnel, the prisoners and

the public.” The record demonstrates that defendant regarded plaintiff’s perceived mental

condition as related to his ability to perform as a PSO. Plaintiff offered no evidence to the

contrary. Plaintiff failed to satisfy this element of his claim.

Even if plaintiff could demonstrate a prima facie case under the PWDCRA, he could not

show that defendant’s stated reason for refusing to reinstate him, namely his prior threats,

amounted to pretext for unlawful discrimination. Plaintiff argues that the three-step return to

work process, which he alone was subjected to, demonstrates pretext. Disparate treatment may

be used as evidence that an otherwise legitimate explanation for an adverse employment action is

pretextual. Town v Michigan Bell Telephone Co, 455 Mich 688, 699-700; 568 NW2d 64 (1997).

However, plaintiff cannot establish disparate treatment unless he and the others to which he

compares himself were similarly situated or “nearly identical” in “all relevant aspects” of

employment. Id. This includes committing the same type of misconduct. See Venable v

General Motors Corp, 253 Mich App 473, 483; 656 NW2d 188 (2002), (holding that the plaintiff

was not similarly situated to other employees who committed less egregious misconduct). City

firefighters were not required to undergo a mental health examination as part of their return to

work process, but as a PSO with different job duties, plaintiff was not similarly situated to the

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firefighters. Sclabassi admitted that the three-step process was particular to plaintiff, but stated,

“we have never had anyone in this circumstance who has been gone for such a substantial

amount of time.” Plaintiff offered no evidence that he was treated differently from: (1) any other

PSO returning from a lengthy medical absence; or (2) from any other employee who admittedly

threatened the life of his supervisor. While plaintiff may have been subject to unique treatment,

he did not demonstrate evidence that he was subject to disparate treatment and failed to show

that the three-step process was pretext for discrimination.

Further, plaintiff has not shown that defendant’s proffered reasons for its decision not to

immediately reinstate him were untrue. An employee’s threats of harm to others in the

workplace may be a legitimate, nondiscriminatory reason for an adverse employment action.

Collins, 228 Mich App at 573-574. Tamsen and Sclabassi cited plaintiff’s 2008 threats as points

of concern. Sclabassi in particular requested that Danuloff meet with plaintiff a second time

specifically to discuss the threats. Plaintiff did not dispute stating that he wanted to “eviscerate”

or “cut the guts out” of Tamsen. Instead, he emphasized that these threats were remote in time.

But even after requesting reinstatement, plaintiff told Savickas that he wanted to “knock their

face off” in reference to persons connected with the police department. Plaintiff failed to offer

any evidence to show that his prior threats were not the actual reason for the adverse action, or

that defendant’s true motivation was animus against plaintiff’s perceived condition. See Hazle v

Ford Motor Co, 464 Mich 456, 465-466; 628 NW2d 515 (2001) (stating that a plaintiff “must

not merely raise a triable issue that the employer’s proffered reason was pretextual, but that it

was a pretext for [unlawful] discrimination.”) (quotation omitted).

Plaintiff failed to demonstrate a genuine issue of material fact that his perceived disability

was regarded as substantially limiting a major life activity and was unrelated to his ability to

perform as a PSO. Plaintiff further failed to show pretext. Summary disposition on plaintiff’s

perceived disability claim was proper, albeit for reasons other than those relied upon by the trial

court.

II. PLAINTIFF’S WPA CLAIM

To establish a WPA claim, plaintiff must demonstrate that: (1) he engaged in protected

activity as defined by the act; (2) he was subjected to an adverse employment action; and (3) a

causal connection exists between the protected activity and the discharge or adverse employment

action. West v General Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003).

“[W]histleblower claims are analogous to other antiretaliation employment claims brought under

employment discrimination statutes” and, like plaintiff’s PWDCRA claim, are also analyzed

under the McDonnell-Douglas burden-shifting framework. See Debano-Griffin v Lake County,

493 Mich 167, 175; 828 NW2d 634 (2013), citing McDonnell Douglas Corp v Green, 411 US

792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

If a plaintiff establishes a prima facie WPA claim, a presumption arises that the

employer’s action was more likely than not motivated by the plaintiff’s protected activity.

Debano-Griffin, 493 Mich at 176. That presumption drops away, however, if the employer

offers a legitimate, nonretaliatory reason for its decision, and plaintiff fails to show that his

protected activity was a “motivating factor” behind the adverse action. Id.; Hazle, 464 Mich at

464-465. “A plaintiff must not merely raise a triable issue that the employer’s proffered reason

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was pretextual, but that it was a pretext for unlawful retaliation.” Debano-Griffin, 493 Mich at

176 (quotation omitted).

Plaintiff’s testimony in the Clausen matter constituted protected activity under the WPA.

See Henry v City of Detroit, 234 Mich App 405, 413; 594 NW2d 107 (1999) (holding that a

deponent who “(a) is an employee of the entity whose conduct is at issue, (b) has provided

testimony by deposition . . . and (c) would be subject to a court-ordered subpoena to compel his

attendance in any event,” meets the definition of a whistleblower).

Plaintiff argued that he was subject to two adverse employment actions: (1) that rather

than return him to work immediately, defendant required plaintiff to complete the three-step

return to work process, and (2) that defendant refused to reinstate him after he passed the return

to work process. However, plaintiff’s complaint is based only on the first event. Plaintiff filed

the present lawsuit on September 4, 2012, two months after defendant requested return to work

testing. Despite passing the background check and the mental examination later in 2012,

plaintiff argued that he was denied a return in March 2013, and was officially terminated in July

2013. Yet, plaintiff never amended his September 4, 2012, complaint to include the later adverse

action. The only adverse action complained of in plaintiff’s complaint was defendant’s failure to

immediately return plaintiff to work without the three-step process.

The request for a return to work mental examination was not an adverse employment

action under these circumstances. See generally Sullivan v River Valley School Dist, 197 F3d

804, 811-812 (CA 6, 1999) cert den 530 US 1262; 120 S Ct 2718; 147 L Ed 2d 983 (2000)

(holding that an employer may require a posthire mental examination consistent with the ADA

and HCRA where there is reason to doubt whether the employee is capable of performing the job

and the examination is limited to testing essential job functions). The PWDCRA prohibits an

employer from taking “discriminatory action against an individual on the basis of physical or

mental examinations that are not directly related to the requirements of the specific job.” MCL

37.1202(1)(e) (emphasis added). Thus an employer may, in certain instances, test an employee

for functions consistent with his job responsibilities.

Plaintiff made past threats to “eviscerate” his supervisor, expressed suicidal and

homicidal thoughts to Savickas, and continues to harbor anger toward the police department. In

this case, defendant had a legitimate reason to question whether plaintiff could perform his job

functions. Those functions include monitoring and subduing “violent prisoners,” handling

“frantic 911 calls,” interacting with victims, witnesses and suspects, and handling weapons. A

mental examination, including the one performed in the present case, in which Danuloff

specifically questioned plaintiff about his past threats, was primarily focused on plaintiff’s ability

to complete his duties as a PSO adequately and safely. Under these circumstances, the mental

examination did not constitute an adverse action.

Even viewing plaintiff’s claim as including his later termination, plaintiff still lacks

evidence of the required causal connection between the termination and his protected activity.

Plaintiff argues that he demonstrated a causal connection based on Tamsen’s admission that

plaintiff’s public complaints could give the police department a “black eye,” and because

Tamsen originally suggested the three-step return to work process. We disagree. Tamsen denied

being “upset” or “mad at [plaintiff]” because of the whistleblowing and, as explained above,

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tested plaintiff to ensure that he could function safely and effectively as a PSO. The fact that

plaintiff engaged in protected activity does not immunize him from the consequences of

threatening his supervisor. West, 469 Mich at 187. Further, it is not enough for plaintiff to show

that the complained of action occurred after the protected activity; causation requires “something

more than merely a coincidence in time.” Id. at 186. Plaintiff has not made this showing.

Finally, plaintiff cannot demonstrate that defendant’s reliance on plaintiff’s admitted

threats was pretext for retaliatory animus. In the WPA context, plaintiff must show that

defendant’s true motivation for refusing reinstatement was retaliation for plaintiff’s prior

whistleblowing. Debano-Griffin, 493 Mich at 176. Plaintiff has not established that the three-

step process amounted to pretext. Further, Tamsen’s concern over the police department’s

reputation does not establish that he acted on that concern, particularly in view of the other

evidence of Tamsen’s and Sclabassi’s apprehensions over plaintiff’s threats.

Because plaintiff did not demonstrate an adverse action, and did not raise a genuine issue

of material fact showing a causal connection or pretext, defendant was entitled to summary

disposition on plaintiff’s WPA claim.

Affirmed.

/s/ Kathleen Jansen

/s/ Michael J. Talbot

/s/ Deborah A. Servitto

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