Chisolm v. Michigan Afscme Council 25

Decision Date24 July 2002
Docket NumberNo. 01-CV-71312-DT.,01-CV-71312-DT.
PartiesMelvin CHISOLM, Plaintiff, v. MICHIGAN AFSCME COUNCIL 25, Afscme Local 3451 and Willow Run Community School District, and Gayle Green and Peter Silveri, individually, Defendants.
CourtU.S. District Court — Eastern District of Michigan

James M. Brady, David L. Ravid, Ravid Assoc., Southfield, MI, for plaintiff.

Bruce A. Miller. E. Lynise Bryant, Miller Cohen, Detroit, MI, for Michigan Council 25 American Federation of State, County

and Mun. Employees, Amer. Federation of State, County and Municipal Employees Local 3451, defendants.

Donald J. Bonato, Roy H. Henley, Thrun, Maatsch, Lansing, MI, for Willow Run Community School Dist., Gayle Green, Peter Silveri, defendants.


BORMAN, District Judge.

Now before the Court is (1) Defendant Willow Run Community School District's, Defendant Gayle Green's and Defendant Peter Silveri's motion for summary judgment and (2) Defendant Michigan AFSCME Council 25's and AFSCME Local 3451's motion for summary judgment. The Court heard oral argument on July 12, 2002. Having considered the entire record, and for the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motions for summary judgment. Specifically, the Court GRANTS summary judgment with respect to Counts III — VII of Plaintiff's Complaint and DENIES summary judgment with respect to Counts I and II of Plaintiff's Complaint. Furthermore, the Court, in its discretion, declines, pursuant to 28 U.S.C. § 1367(c), to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, and REMANDS Counts I and II of Plaintiff's Complaint to the Washtenaw County Circuit Court.


Plaintiff, Melvin Chisolm is a former employee of Defendant Willow Run Community School District ("Willow Run"). Plaintiff filed the instant lawsuit against Willow Run, Gayle Green — Superintendent of the school district ("Green"), Peter Silveri — Director of Human Resources for the school district ("Silveri"), and the American Federation of State, County and Municipal Employees — Michigan Council 25 and Local 3451 ("Union Defendants"). Plaintiff's Complaint sets forth various claims arising from his termination of employment and his subsequent unsuccessful union grievance.

Plaintiff began working for the Willow Run school district as a custodian/grounds-keeper in 1977. (Pl. Dep. at 16.) Plaintiff's responsibilities included keeping the premises clean, taking out the garbage, folding cafeteria tables, mowing the grass, shoveling snow away from school's entrances and buffing/scrubbing the floors. (Id at 18-24.) Approximately ten years later, in 1987, Plaintiff began suffering from a work related medical condition — carpel tunnel syndrome. (Id. at 26.) As a result, Plaintiff underwent surgery at some point during 1988 or 1989. (Id.) Plaintiff applied for and received workers' compensation benefits as a result of this injury. (Compl. ¶ 16.)

Willow Run accommodated Plaintiff's medical restrictions by assigning Plaintiff to the position of bus aide in 1990. (Pl.'s Dep. at 27.) In this capacity, Plaintiff assisted with the transportation of handicapped students to different schools in the district. (Id. at 27-28.) Although the bus aide job was a lower paying position, Plaintiff was able to make up the pay differential through continued workers' compensation benefits. (Id. at 29.) After working as a bus aide for two years, Plaintiff was awarded a building monitor position at one of the middle schools. (Id. at 30; Pl's Resp. Br. Exh. 4.) Plaintiff's pay continued to be augmented by workers' compensation benefits. (Pl.'s Dep. at 53-54.)

In February 1998, Willow Run's workers' compensation insurance carrier requested that Plaintiff report for a physical examination with Dr. Steven Kushner.1 (Willow Run's Br. Exh. 6 — Feb. 10, 1998 Letter.) Plaintiff was permitted to have his own doctor at this examination. (Id.) The appointment was made in order to assess Plaintiff's continued carpal tunnel syndrome disability — Dr. Kushner was to determine whether continued restrictions were necessary, or whether Plaintiff could return to his previous custodial position. (Id.)

Dr. Kushner examined Plaintiff on March 12, 1998. (Id.Mar. 19, 1998 Letter). He performed an EMG and a nerve conduction test. (Id.) Dr Kushner concluded that Plaintiff "should avoid vibratory tools and air motors in his left hand. He can wear splints bilaterally. He can take anti-inflammatory medication." (Id.) This information was communicated to Willow Run's Human Resource department on April 7, 1998. (Id.April 7, 1998 Memo).

On August 21, 1998, Defendant Silveri sent Plaintiff a memorandum documenting Plaintiff's medical restrictions and reassigning Plaintiff to the afternoon custodial position at Willow Run High School, beginning August 26, 1999. (Union's Br. Exh. B.) The letter indicated that Plaintiff's duties would conform to the medical restrictions documented in the memorandum. (Id.)

Plaintiff alleges that before he returned to work, he hurt his ankle in a slip and fall accident at his home.2 (Pl.'s Dep. at 49.) According to Plaintiff, the slip and fall injury occurred during August of 1998. (Id.) Plaintiff's short-term disability application indicates that the accident occurred on August 20, 1998. (Unions Br. Exh. D.) Plaintiff, however, did not seek treatment for the injury until August 27, 1998. (Id.)

On this same day, August 27, 1998, Plaintiff first returned to work. Plaintiff only remained on the job for approximately one hour. (Pl.'s Dep. at 91; Silveri Affidavit ¶ 8.) Plaintiff informed Todd LaPrairie, the Buildings and Grounds Supervisor, that he had injured his ankle at home, that it was hurting, and that he needed to go home. (Pl.'s Dep. at 82-83.)

On September 8, 1998, LaPrairie sent a memorandum to Plaintiff. (Willow Run's Br. Exh. 8.) The memo documented that Plaintiff failed to report to work on August 26, 1998 and only reported for one hour on August 27, 1998.3 (Id.) The memo also reminded Plaintiff that he had promised to provide a doctors' excuse by August 31, 1998; no excuse, however, had been received by the district. (Id.) LaPrairie requested that appropriate medical documentation be submitted by September 14, 1998. (Id.)

Plaintiff apparently complied with the district's request—submitting a note from his treating physician, Dr. Mafee, indicating that Plaintiff suffered an "ankle injury" and was unable to work until further notice. (Willow Run's Br. Exh. 8; Pl.'s Dep. at 99-100.) This note was supplemented by Dr. Mafee's September 24, 1998 completion of the medical portion of Plaintiff's short-term disability application. (Willow Run's Br. Exh. 9.) Dr. Mafee indicated that he began treating Plaintiff for an injury to his right ankle on August 27, 1998. According to Dr. Mafee, Plaintiff would be unable to return to work for three or four weeks. (Id.)

On October 15, 1998, Mr. LaPrairie sent another certified letter to Plaintiff. (Union's Br. Exh. E.) Mr. LaPrairie documented that Plaintiff's short-term disability period had ended and that Plaintiff was to report to his position as custodian on October 19, 1998. (Id.) Plaintiff, however, did not report to work on this date.

This failure prompted another letter from the school district. On October 27, 1998, Defendant Silveri sent a certified letter to Plaintiff requesting his presence at a meeting on November 2, 1998 to discuss Plaintiff's employment status. (Id. Exh. F.) The meeting was attended by Plaintiff, Defendant Silveri, Mr. LaPrairie, and Mr. Silveri's secretary. (Silveri Affidavit ¶ 9.) After Plaintiff's medical history was reviewed, Silveri allegedly assured Plaintiff that the school district was willing to meet any reasonable work-related restriction. (Id.) Plaintiff informed Silveri that he was still recovering from his ankle injury and therefore, would be unable to return to work. (Id.) Thereafter, Plaintiff provided the school district with another doctors' note, this one dated December 24, 1998. The note indicated that Plaintiff needed surgery on his right ankle and could not return to work for approximately six weeks. (Pl.'s Br. Exh. 1; Pl.'s Dep. at 117-18.)

According to Defendant Silveri, in early February 1999, Plaintiff continued to indicate that he was unable to return to work. (Silveri Affidavit ¶ 10.) It was around this time that Silveri received surveillance videotapes taken by a private investigator for the school district's workers' compensation insurance carrier. (Id. at ¶ 11.) The videotapes reveal the following:

Surveillance Videotape # 1 (December 11, 1998): Plaintiff going about a daily routine, e.g., walking without significant difficulty, driving, standing and talking and getting in and out of his truck.

Surveillance Videotape # 2 (January 22, 1999): Plaintiff walking in the snow without any outward sign of difficulty, Plaintiff standing and talking, Plaintiff kneeling down and picking up a sheet of metal/aluminum and carrying it in his right hand (multiple times), and Plaintiff shoveling large amounts of snow on his property.

Surveillance Videotape # 3 (February 10, 1999): Plaintiff walking without any visible problem.

Based on the content of the surveillance videotapes and Plaintiff's continued absence from work since August 1998, Defendant Silveri set up a meeting with Plaintiff for April 15, 1999. (Silveri Affidavit ¶ 12;...

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