Hummel v. County of Saginaw

• Citation: 118 F.Supp.2d 811
• Decision Date: 07 November 2000
• Docket Number: No. 99-CV-10301-BC.,99-CV-10301-BC.
• Parties: Bonnie HUMMEL, Plaintiff, v. COUNTY OF SAGINAW, Saginaw County Sheriff's Department, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

118 F.Supp.2d 811

Bonnie HUMMEL, Plaintiff, v. COUNTY OF SAGINAW, Saginaw County Sheriff's Department, Defendants.

No. 99-CV-10301-BC.

United States District Court, E.D. Michigan, Northern Division.

November 7, 2000.

Michael J. Shovan, Smith, Bovill, Saginaw, MI, Richard L. Alger, Jr., Ralph H. Dinse, P.C., West Branch, MI, for Plaintiff.

Peter C. Jensen, Jensen, Smith,Saginaw, MI, Peter C. Jensen, Jensen, Gilbert, Saginaw, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LAWSON, District Judge.

I.

Plaintiff, Bonnie Hummel, was employed by the defendant, Saginaw County Sheriff's Department ("Department"), from October, 1991 through June, 1996. Her primary job for the Department was as a building security officer. As a member of the Department, plaintiff was also a member of a collective bargaining unit represented by the Police Officers Association of Michigan ("POAM"). As such, her terms and conditions of employment were governed by a valid Collective Bargaining Agreement ("CBA") among the Department, Saginaw County, and the POAM.

In October 1994, plaintiff informed the Department that she had been diagnosed with adenosquamous carcinoma of the upper lobe of her left lung. She remained employed on a full-time basis until June 5, 1995. At that time, she requested a medical leave of absence to facilitate her pursuit of treatment, and the request was granted. In June 1995, plaintiff underwent surgery to remove a portion of her left lung.

The plaintiff contends that on March 22, 1996 she attended a meeting with Saginaw County Sheriff McIntyre and Undersheriff Renico and was informed for the first time that the most recent CBA between the defendants and the POAM, plaintiff's union, modified the prior, two-year leave policy by changing it to a one-year leave allowance followed by termination if the employee did not return to work. The one-year provision was incorporated into the 1995-to-1998 CBA which took effect April 1, 1995, eight weeks prior to the commencement of plaintiff's medical leave of absence. Plaintiff alleges that she asked at that time to be placed on a "personal leave of absence," but she was told that she was bound by the terms of the CBA and, therefore, if plaintiff did not return to work by June 5, 1996, she would be terminated in conformity with the CBA. Article 15 of the CBA, entitled "Illness/Disability Leave," states in pertinent part:

Section 2.

Regular full-time employees with one (1) year or more of service shall be eligible for Disability Pay subject to the following condition. An employee unable to work for reason(s) of serious illness or a non-work related injury shall be paid sixty percent (60%) of his/her basic weekly gross wage for twelve (12) months or the employee's department seniority whichever is less, payable biweekly beginning the fifteenth day of disability. Absence due to reoccurrence of the same illness or injury shall be paid accordingly, except, however, no more than the period described shall be paid for the same illness or injury....

Section 5.

Disability payments shall terminate when the employee returns to regular work except in the case of a light duty assignment, if directed by medical authority and approved by the Employer; when the treating physician's statement of disability expires and an extension is not provided; when the employee retires under M.E.R.S. as a result of disability or normal service retirement, or after 12 months pursuant to Section 2, above. If disability benefits are exhausted and the employee cannot return to work, the employee's employment with the County of Saginaw shall be terminated. If an employee is terminated because of exhausting disability leave, all insurance and other employment benefits will also terminate.

1995-1998 Collective Bargaining Agreement, Article 15 §§ 2, 5.

The plaintiff did not return to work by June 5, 1996, one year after plaintiff's medical leave began. In accordance with the CBA, the defendants paid the plaintiff for 129 hours of personal-time-off (PTO) credits accrued through September 1995, and she was terminated. In September of 1996, plaintiff wrote a letter to the sheriff requesting re-employment and reinstatement of her PTO credits. She offered to reimburse monies previously paid to her for PTO credits. Her request was denied.

Plaintiff stated in a deposition that the first time she was capable of returning to work subsequent to the expiration of medical leave was September, 1996. However, she provided no medical release or written confirmation from her physician permitting her to return to work at that time. Plaintiff's first return-to-work authorization from her physician was presented to the defendants in June, 1997, one year after her disability leave ended. The physician, Dr. Khalid Masood Malik, furnished a written statement dated June 11, 1997 indicating only that "[t]he above patient has been under my care and I have advised her that she may return to work today with no restrictions." The defendant contends that Dr. Malik did not perform adequate medical tests on the plaintiff before he furnished the statement, but neither party has presented any evidence from Dr. Malik which provides a factual basis that either supports or undermines his conclusion.¹

In the meantime, the plaintiff had already filed a complaint with the Michigan Department of Civil Rights and Equal Employment Opportunity Commission ("EEOC") in February, 1997. The defendants then sought a review of plaintiff's records by another physician pursuant to C.F.R. § 825.310. Dr. David H. Garabrant conducted a record review on February 20, 1998. He observed that the plaintiff had a history of pulmonary dysfunction and that in 1994 "her lungs were incapable of supplying the amount of oxygen necessary to perform exercise as modest as climbing 2 flights of stairs." After surgery to treat her lung cancer (a left upper lobectomy), pulmonary function testing in October, 1997 demonstrated that plaintiff's "airway obstruction was substantially worse in 1997." After reviewing the job requirements of a building security officer which included "arresting subjects with weapons, ... encounter[ing] irate or disturbed people [who] ... have to be physically restrained, ... [and the] ability to walk, stand, bend, kneel, lift 150 lbs. and restrain violent persons," Dr. Garabrant concluded that the plaintiff "does not have the pulmonary capacity to perform the essential duties of Building Security Officer for Saginaw County."

Dr. Garabrant examined the plaintiff in March, 2000. He found that "[b]ecause of her pulmonary impairment, she was unable to exercise beyond a work load of 120 watts. This level of exertion is roughly equivalent to walking at 4.5 to 5 miles/ hour, gardening, or climbing stairs." Once again, Dr. Garabrant concluded that "it is extremely unlikely [the plaintiff] can perform the duties required in her position as an officer at the Saginaw County Sheriff's Department."

Upon notification from the EEOC that an attempt to conciliate her claim was unsuccessful, the plaintiff filed a three-count complaint in this Court alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., a violation of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2611, et seq., and a claim under state law for violating the Michigan Persons with Disabilities Civil Rights Act ("MPDCRA"), Mich.Comp.L. §§ 37.1101, et seq. The FMLA count was dismissed by stipulation. The defendants moved for summary judgment [dkt # 22] on plaintiff's remaining claims. The Court heard oral argument on the motion on October 17, 2000. For the reasons stated below, the Court GRANTS the defendants' motion for summary judgment.

II.

A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. A party opposing a motion for summary judgment must show by affidavits, depositions or other factual material that there is "evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, the Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

A party may support a motion for summary judgment by demonstrating that an opposite party, after sufficient opportunity for discovery, is unable to meet her burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party may not merely rely upon the pleadings to oppose a motion for summary judgment but must come forward with affirmative evidence in the form of materials described in Rule 56(c) to establish a genuine issue on a material fact. Id. at 324, 106 S.Ct. 2548. Even in complex cases, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The party opposing the motion may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact," but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).

III.

The parties do not dispute that the defendants, as plaintiff's former employer, are covered by the terms of the ADA. That legislation prohibits covered employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the...