Mark Alan Miller v. Michigan State Police

STATE OF MICHIGAN

COURT OF APPEALS

MARK ALAN MILLER, UNPUBLISHED

July 18, 2017

Plaintiff-Appellee,

v No. 331406

Wayne Circuit Court

MICHIGAN STATE POLICE, LC No. 14-008094-CZ

Defendant-Appellant,

and

MONICA YESH, ANN MCCAFFERY, SHEILA

SHIELDS, ROBERT T. WOLFORD, KAREN

SUNIGA, STEPHANIE HORTON, CATHY

HOWELL, HEATHER WYATT, YORK RISK

SERVICES GROUP, INC., LINDA K.

FORSBERG, PH.D, and PSYBUS, P.C.,

Defendants.

Before: MURPHY, P.J., TALBOT , C.J., and O’CONNELL, J.

PER CURIAM.

Defendant Michigan State Police (MSP) appeals by leave granted1 an order denying its

motion for summary disposition. Among other arguments, MSP contends that it was entitled to

summary disposition in this employment discrimination action brought under the Persons with

Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., because plaintiff Mark Miller

was unable to demonstrate that he was “disabled” for purposes of the PWDCRA. Because we

agree that Miller did not satisfy his initial burden of demonstrating that his actual mental

conditions or perceived mental impairment satisfied the definition of disability set forth in the

PWDCRA, we reverse and remand for entry of summary disposition in favor of MSP.

1

Miller v Yesh, unpublished order of the Court of Appeals, entered June 2, 2016 (Docket No.

331406).

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This matter arises from Miller’s former employment with MSP as a state trooper. The

actions taken against Miller were precipitated by events that occurred during a traffic stop he

conducted on May 19, 2013. After initiating the stop directly in front of MSP’s Cadillac Place

post in the city of Detroit, it quickly became apparent to Miller that the female driver, Doreen

Bey, was in the midst of a domestic dispute with a pedestrian standing across the street, who was

later identified as Shannon Sanders. The two continued to shout at one another, and Miller was

eventually forced to restrain both individuals. Miller placed Sanders in handcuffs and called for

backup as he physically controlled Bey. As these events unfolded, two onlookers stopped nearby

to watch the encounter. Miller told the onlookers to leave but had his attention focused on Bey.

Several people responded to Miller’s request for backup, including three troopers dressed

in civilian clothing and Miller’s supervisor, Sergeant Sheila Shields. Bey was arrested and

escorted into the MSP post. As Shields was conversing with Sanders, Miller once again

instructed the onlookers to leave the scene, to no avail. After the female onlooker refused to

show Miller her identification, Miller led her into the MSP post. He returned outside and began

the same procedure with the male onlooker. However, before Miller could take the man inside,

Shields intervened and instructed Miller to let the man go. Miller complied and briefly discussed

the situation with Shields before leaving his badge on the hood of his patrol vehicle and entering

the MSP post. Once inside, he placed his guns and ammunition on Shields’s desk, changed into

civilian clothes, and left.

The parties offered contrasting descriptions of the nature of Miller’s conduct and attitude

during the encounter. Based on Shields’s recollection, MSP averred that Miller was highly

agitated when he confronted the second onlooker and was physically aggressive toward the man.

In a memorandum regarding the incident, Shields wrote:

I then began to talk to Tpr. Miller telling him that he needed to calm down, that he

was out of control. The arrest of [Bey] was good but he can’t arrest everybody

for just being in the area. Tpr. Miller continued to yell that this was just b******t

and he was sick of MSP. . . . I continued to try and deescalate the situation, to no

avail. Tpr. Miller said, “he had had enough and was sick of all the MSP

b******t”. [sic] As he was saying this he took off his badge from his uniform

and flung it on the hood of his patrol vehicle. I kept telling him that this was

ridiculous and he needed to calm down and regain control. Tpr. Miller went off

heading for the detachment saying, “he didn’t need this. He was through with it.”

By contrast, Miller’s description of his own conduct reflected a calm and controlled

demeanor. He characterized the onlookers as “hecklers” and said he asked them to leave because

unnecessary crowds can pose safety risks during an arrest. Miller denied that he acted violently

toward the male onlooker, testifying that he gently led the man by the arm toward the MSP post.

Miller conceded that he abandoned his badge and other gear during the incident, but explained

that he felt humiliated because Shields had belittled him in front of other troopers and citizens.

He clarified that he did not attempt to quit when he left the post; rather, it was the end of his shift

and he did not intend to return until he spoke with Lieutenant Ann McCaffery the next day.

After meeting with MSP’s chief police psychologist, Dr. Robert Wolford, Miller was

initially placed on medical leave, without objection. However, on June 25, 2013, MSP’s human

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resources director placed Miller on administrative leave pending his completion of a fitness for

duty evaluation (FFDE). Dr. Wolford also opined that an FFDE was warranted and referred

Miller to Dr. Linda Forsberg for the evaluation. On the referral form, Dr. Wolford stated that

Miller lost his professional demeanor during a traffic stop and noted “evidence of elevated

anxiety, poor impulse control, emotional reactivity, resistance to orders, and use of poor

judgment.” While the FFDE was being arranged, Miller’s treating psychiatrist, Dr. Raad Jajo,

M.D., wrote a letter to MSP indicating that he had been treating Miller for adjustment disorder

with anxiety, depressive syndrome, and attention deficit hyperactivity disorder (ADHD), but that

these conditions would not prevent Miller from returning to work. Miller produced similar

letters and reports from his other personal healthcare providers and an expert psychiatrist in the

months to come.

Dr. Forsberg met with Miller on four occasions, beginning on July 26, 2013. At the

conclusion of the evaluation process, Dr. Forsberg provided the following summary and

conclusion:

Mr. Miller is not psychologically fit for duty because he poses a safety risk

due to poor judgment, inaccurate reasoning, emotional reactivity, and poor

impulse control. He does not now meet the MCOLES [Michigan Commission on

Law Enforcement Standards] standard of being “free from mental and emotional

instabilities.” His inability to report situations in an accurate and logical manner

also contributes to his being a safety risk. While Mr. Miller may show a

willingness to admit to actions he has taken, he lacks the insight into why his

actions were inappropriate. Hence, he is likely to demonstrate repeated poor

decision making since a large part of police work is about making sound

independent decisions and demonstrating good discretionary judgment in addition

to “following orders.”

It is recommended that he be off work for an additional six months with

the goal of achieving a constant plateau of mental stability. At such time, he

should be reevaluated for psychological fitness for duty as a State of Michigan

State Trooper as a condition of his returning to work. At that time, complete

documentation of treatment will be requested from his treating psychiatrist.

Based on the evaluation procedures outlined in this report, it is this

examiner’s professional opinion that Mr. Miller is not psychologically fit at this

time to perform the essential job functions of a Michigan State Police Trooper.

As a result of Dr. Forsberg’s determination that he was unfit for duty, Miller became “ineligible

to remain on administrative leave but was allowed to utilize sick leave and to apply for long-term

disability benefits.”

At some point after the May 19, 2013 incident, several MSP employees of varying rank

expressed concerns to McCaffery that Miller might engage in workplace violence. Given these

concerns, McCaffery issued a written notice to squad sergeants at six detachments instructing

them that Miller was restricted from entering the “Metro Post or its detachment offices, with the

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exception of Second District Headquarters.” McCaffery also provided a photograph of Miller to

at least one commander who was unfamiliar him.

Miller initiated the instant action in the Wayne Circuit Court on June 24, 2014, alleging

that MSP discriminated against him on the basis of his depression, anxiety, and ADHD, or other

perceived disabilities. MSP moved for summary disposition and the trial court denied its motion,

reasoning that the conflicting opinions of the parties’ experts created a question of fact regarding

Miller’s fitness for duty. This appeal followed.

We review a trial court’s ruling regarding summary disposition de novo.2 When a party

moves for summary disposition pursuant to MCR 2.116(C)(10),3 its motion should be granted “if

there is no genuine issue regarding any material fact and the moving party is entitled to judgment

as a matter of law.”4 “A genuine issue of material fact exists when the record, giving the benefit

of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds

might differ.”5 When the nonmoving party has the ultimate burden of proof at trial, the moving

party can satisfy its burden of production under MCR 2.116(C)(10) by “ ‘submit[ting]

affirmative evidence that negates an essential element of the nonmoving party’s claim,’ or by

‘demonstrat[ing] to the court that the nonmoving party’s evidence is insufficient to establish an

essential element of the nonmoving party’s claim.’ ”6 If the nonmoving party fails to produce

evidence sufficient to demonstrate an essential element of its claim, the moving party is entitled

to summary disposition. 7

With respect to employment rights, the PWDCRA provides that an employer shall not

“[d]ischarge or otherwise discriminate against an individual with respect to compensation or the

terms, conditions, or privileges of employment, because of a disability or genetic information

that is unrelated to the individual’s ability to perform the duties of a particular job or position.”8

To establish a prima facie case of discrimination under the statute, a plaintiff must show that (1)

he is “disabled” as defined by the statute, (2) the disability is unrelated to the plaintiff’s ability to

2

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

3

MSP sought summary disposition in the lower court under MCR 2.116(C)(8), which tests the

legal sufficiency of the pleadings, and MCR 2.116(C)(10), which tests the factual sufficiency of

the opposing party’s claim. Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010).

However, because the parties relied on documentary evidence beyond the pleadings, we will

review MSP’s claim of error under the standards applicable to a motion made under MCR

2.116(C)(10). Id.

4

West, 469 Mich at 183.

5

Id.

6

Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016), quoting Quinto v Cross

& Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996) (alteration in original).

7

Lowrey, 500 Mich at 9.

8

MCL 37.1202(1)(b).

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perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one

of the ways set forth in the statute.9 Before a court can consider the second and third elements,

the plaintiff bears the burden of establishing that he is a person with a “disability” entitled to

protection under the PWDCRA.10 When reviewing PWDCRA claims, Michigan courts view

federal precedent concerning analogous antidiscrimination statutes, like the Americans with

Disabilities Act (ADA), 42 USC 12101 et seq., as persuasive.11

In pertinent part, MSP argues that the trial court erred by denying its motion for summary

disposition because Miller failed to establish that he is disabled within the meaning of the

PWDCRA. We agree. In the context of employment discrimination, the PWDCRA uses the

term “disability” to refer to one or more of the following:

(i) A determinable physical or mental characteristic of an individual,

which may result from disease, injury, congenital condition of birth, or functional

disorder, if the characteristic:

(A) . . . [S]ubstantially 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 or substantially limits 1 or more of the major life

activities of that individual and is unrelated to the individual’s qualifications for

employment or promotion.

* * *

(iii) Being regarded as having a determinable physical or mental

characteristic described in subparagraph (i).[12]

Thus, not every impairment constitutes a “disability” under the PWDCRA. Instead, the

plaintiff’s actual or perceived physical or mental characteristic must be one that “substantially

limit[s] a major life activity,” but does not “prevent the disabled individual from performing the

duties of a particular job.”13

Miller presented evidence that he suffers from three mental health conditions—

depression, anxiety, and ADHD. MSP does not seem to dispute Miller’s diagnoses. Instead, it

argues that Miller did not adequately demonstrate that any of these conditions substantially

limited a major life activity. Surprisingly, Miller makes no attempt to argue that he is

substantially limited by depression or anxiety, let alone offer evidence in support of that position.

9

Peden v City of Detroit, 470 Mich 195, 204; 680 NW2d 857 (2004) (citation omitted).

10

Chiles v Machine Shop, Inc, 238 Mich App 462, 473; 606 NW2d 398 (1999).

11

Id. at 472-473.

12

MCL 37.1103(d).

13

Peden, 470 Mich at 204.

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Instead, he limits his argument to the effect of his ADHD, which he contends substantially limits

his ability to think and concentrate.

The plain language of the statute mandates that in order for a physical or mental

condition to qualify as a disability for purposes of the PWDCRA, it must substantially limit a

major life activity.14 “To determine whether an individual is substantially limited, a court

considers (i) the nature and severity of the impairment, (ii) the duration or expected duration of

the impairment, and (iii) the permanent or expected permanent or long-term effect.”15

Additionally, the plaintiff’s condition should be considered as it exists with the benefit of

medication.16 In support of his contention that his ADHD substantially limited his ability to

think and concentrate, Miller relied on a medical report from his former psychologist, Dr. John

George, Ph.D., which describes “noteworthy attention deficit issues” and reiterates complaints

from Miller’s wife that might be attributable to his ADHD. However, this report undermines

Miller’s argument, as Dr. George’s ultimate diagnostic impression of Miller’s attention deficit

condition was that Miller suffered from moderate ADHD symptoms. Moreover, letters from

Miller’s treating psychiatrist and physicians indicated that Miller’s condition was controlled with

medication.17 Dr. Jajo expressed a similar opinion in his deposition. Thus, the evidence

presented does not create a genuine issue of fact as to whether Miller was actually disabled

within the meaning of the PWDCRA because it does not show that Miller’s ADHD substantially

limited at major life activity.

Miller also alleged that he was discriminated against on the basis of a perceived

disability. A plaintiff pressing a claim of employment discrimination arising from a perceived

disability must prove that the defendant regarded him as being actually disabled within the

meaning of the PWDCRA.18 Thus, in order to prevail on this theory, Miller was required to

demonstrate that he is a member of the protected class by offering proof that

(1) [he] was regarded as having a determinable physical or mental characteristic;

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

of [his] major life activities; and (3) the perceived characteristic was regarded as

being unrelated either to [his] ability to perform the duties of a particular job or

position or to [his] qualifications for employment or promotion.[19]

14

Chiles, 238 Mich App at 479.

15

Id.

16

Chmielewski v Xermac, Inc, 457 Mich 593, 606; 580 NW2d 817 (1998).

17

Although Miller argues that this Court should not consider the effect of his medication because

MSP did not present that argument in the lower court, this position must fail because Miller

himself raised a cursory argument regarding the effect of his medication, thereby placing the

issue before the trial court.

18

Chiles, 238 Mich App at 475.

19

Michalski v Bar-Levav, 463 Mich 723, 732; 625 NW2d 754 (2001).

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A perceived disability is typically “one that pertains to a disability with some kind of

unusual stigma attached, often a mental disability, where negative perceptions are more likely to

influence the actions of an employer.”20 Dr. Forsberg explained that law enforcement officers

are referred for FFDEs to determine if a psychological or mental impairment is underlying or

contributing to difficulties at work. Thus, the very fact that Miller was referred for an FFDE

suggests that, at minimum, MSP was concerned that he may be suffering from some sort of

impairment. MSP’s concerns were seemingly confirmed by Dr. Forsberg’s conclusion that

Miller was not “free from mental and emotional instabilities.” Although Miller contends that Dr.

Forsberg used an inapplicable standard in the FFDE, MSP’s later reliance on Dr. Forsberg’s

evaluation clearly demonstrates that it perceived Miller as suffering from a mental instability.

Nonetheless, Miller’s perceived disability claim must fail for other reasons. Most

importantly, it is clear that MSP regarded Miller’s condition as being related to his ability to

perform the functions of a state trooper. It goes without saying that the essential duties of any

law enforcement officer include the ability to react appropriately and maintain composure in

stressful situations. Miller was referred for an FFDE because MSP believed he displayed “poor

impulse control, emotional reactivity, . . . and use of poor judgment,” during the May 19, 2013

traffic stop and earlier incidents. Dr. Forsberg relied on these same factors in concluding that

Miller posed a safety risk and was, therefore, psychologically unfit for duty. In other words,

MSP refused to allow Miller to return to work based on Dr. Forsberg’s opinion that his mental

state rendered him unfit to perform the essential functions of a state trooper.

With respect to the substantial limitation requirement, Miller contends that MSP

perceived his mental condition as substantially limiting the major life activity of working.

According to Miller, MSP’s act of distributing his photograph to various detachments with a

warning that he might engage in workplace violence demonstrated that it believed he was

incapable of performing a wide variety of jobs because such behavior would be unacceptable in

any employment setting. However, even if this Court agreed with Miller’s argument in the

context of the substantial limitation requirement, Miller’s position implicitly acknowledges that

MSP perceived his mental condition as related to his qualification for employment. “[O]ne of

the duties of any job is to work safely: employees owe a general duty to their employers to act

with due regard for the safety of themselves and others while at work.”21 Thus, to the extent that

MSP perceived Miller as posing a threat to the safety of its employees because of his mental

condition, the PWDCRA did not require that MSP refrain from taking adverse action against

him. As aptly explained by a federal court construing a similar limitation applicable to the ADA,

20

Chiles, 238 Mich App at 475.

21

Szymczak v American Seating Co, 204 Mich App 255, 257; 514 NW2d 251 (1994). See also

Collins v Blue Cross Blue Shield of Mich, 228 Mich App 560; 579 NW2d 435 (1998) (finding

that the plaintiff was not protected from termination under the Handicappers’ Civil Rights Act,

former MCL 37.1101 et seq., when she was discharged after expressing homicidal ideation

regarding her supervisor during therapy).

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The Act does not require an employer to retain a potentially violent employee.

Such a requirement would place the employer on a razor’s edge—in jeopardy of

violating the Act if it fired such an employee, yet in jeopardy of being deemed

negligent if it retained him and he hurt someone.[22]

Because Miller did not establish that he is a person to whom the PWDCRA should

apply—i.e., a person with a “disability”—the trial court erred by considering whether the

evidence presented created a material question of fact with respect to other aspects of Miller’s

employment discrimination claims.

Reversed and remanded for entry of summary disposition in favor of MSP. We do not

retain jurisdiction.

/s/ William B. Murphy

/s/ Michael J. Talbot

/s/ Peter D. O’Connell

22

Palmer v Circuit Court of Cook Co, Ill, 117 F3d 351, 352 (CA 7, 1997).

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