Employee Posed a Direct Threat of Harm to Himself or Others – the Proper ADA Analysis

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By:  Claudia D. Orr

 

In the last year or so, I have had to guide my clients numerous times through the process of determining whether an employee with a disability can safely perform essential duties without causing harm to himself or others. Now, the Sixth Circuit has spoken on this issue in Michael v City of Troy Police Department.  When the Sixth Circuit speaks on Americans with Disabilities Act (“ADA”) issues in a published decision, we are all wise to listen.

Plaintiff Todd Michael became a patrol officer with the Troy Police Department in 1987. In 2000, he was diagnosed with a non-cancerous brain tumor which resulted in surgeries in 2000 and 2001. The surgeries were only partially successful, but each time Michael was cleared by his surgeons and returned to work following his leave of absence.

In 2007, Michael’s behavior became “aberrant”.  Specifically, his then wife found empty vials of steroids (some marked for veterinary use) which she turned over to the Chief of Policy, Charlie Craft. When Craft refused to return them to Michael, he engaged in a two year campaign to force the issue, which included secretly recording Craft, and serving Craft with a summons during Craft‘s retirement party for a small claims action initiated by Michael. Michael also secretly recorded conversations with his wife and sought criminal charges against her for perjury. Finally, the new chief of police, Gary Mayer received reports that Michael had accompanied a drug dealer during drug deals.

As a result of the information that had been received, Michael was suspended from duty pending an investigation.  However, shortly thereafter, Michael informed the Police Department that he needed a third brain surgery. Following his surgery, Michael was cleared to return to duty by his surgeon, but the Police Department was concerned given his prior behavior.  It ordered Michael to pass a psychological evaluation before returning to work.

Following a seven hour examination (which included testing and an interview), Dr. Van Horn, the neuropsychologist retained by the Police Department, concluded that Michael “may be a threat to himself and others.” As a result, the Police Department placed Michael on an unpaid leave.

Michael sought a second opinion on his own, and that neuropsychologist reached the opposite conclusion after a short interview.  The Police Department then sent Michael to a third neuropsychologist who reached the same conclusion as Dr. Van Horn. However, the disability insurance carriers retained two other doctors (who may have been motivated to find Michael not disabled and ineligible for benefits). The insurance doctors merely reviewed the medical file and concluded that Michael could return to work. Michael then sought, on his own, yet another opinion, but that neuropsychologist concluded that he could not recommend returning Michael to full duty which would involve the use of weapons and high speed driving.

Michael gave the Police Department only the reports supporting his return to work (i.e., the first neuropsychologist that he had retained and the two insurance company doctors). However, based on the other two reports in the Police Department’s possession, it decided to maintain Michael on a leave of absence.

When he was not returned to duty, Michael filed a lawsuit under the ADA claiming he had been “perceived” as disabled (when he is not) and discriminated against on that basis. The Eastern District of Michigan dismissed the lawsuit finding Michael was not qualified for the position of patrol officer.

On appeal, the Sixth Circuit first analyzed whether Michael was a qualified individual under the ADA.  It noted that a disabled person is “not qualified if he poses a direct threat to the health or safety of others which cannot be eliminated by a reasonable accommodation.” The risk must be significant. The court noted that “[w]hether an employer properly determined that a person poses a direct threat, for purposes of the ADA, depends on ‘the objective reasonableness of [the employer’s] actions.’ An employer’s determination that a person cannot safely perform his job functions is objectively reasonable when the employer relies upon a medical opinion that is itself objectively reasonable. A medical opinion may conflict with other medical opinions and yet be objectively reasonable.”

The court also recognized that an employer may also rely on “testimonial evidence” concerning the employee’s behavior to make this determination and concluded that both types of evidence supported the Police Department’s decision.

Michael argued that the opinions of the other neuropsychologist and two insurance company doctors show that the other opinions were wrong. However, the court found that those opinions did not reflect “an individualized inquiry” of Michael’s condition and more to the point “the effect, if any, the condition may have on his ability to perform the job in question.” On that point, Michael’s experts had little to say.

More importantly, the court recognized that reasonable doctors can disagree and “[t]hat is why the law requires only that the employer rely on an ‘objectively reasonable’ opinion, rather than an opinion that is correct.” Because the opinions upon which the Police Department relied were objectively reasonable, it could not be held liable. In addition, the Police Department had a right to rely on the testimonial evidence concerning Michael’s behavior.

This opinion is a clear victory for employers who are often placed in the position of having competing medical opinions to consider. The dissenting judge would have ruled that the evidence was not so one sided that summary dismissal was appropriately granted to the defendant.  The dissent would have required a jury to sort through the conflicting opinions and second guess the Police Department’s decision.

The actual standard for this determination, as stated in the ADA’s regulations, is whether the employee would create a “significant risk” of “substantial harm” to himself or others.  Thus, both the likelihood of the risk and the seriousness of harm must be considered when making the determination. The issues raised under the ADA are some of the most difficult and complex issues facing human resource professionals today. Always consult an experienced employment attorney, such as the author, before acting.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of the law firm Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. December 2015.