The 6th U.S. Circuit Court of Appeals has held that under the Americans with Disabilities Act (ADA), an employer may rely on a credible, scientifically-based medical opinion to exclude someone from returning to work, even if that opinion is contradicted by another medical provider’s opinion.
This holding came in the case of a city that decided not to allow a police officer to come back to work after his medical leave for brain surgery. Michael v. City of Troy Police Department, et al, 6th Circ., No. 14-2478, December 14, 2015. Here’s a timeline of the relevant facts:
- Todd Michael began working for the City of Troy, Michigan, as a police officer in 1987;
- In 2000, Michael was diagnosed with a non-cancerous brain tumor;
- Michael underwent surgeries in 2000 and 2001, each of which was only partially successful in removing the tumor;
- The City granted paid leave for each surgery and returned Michael to work after each, once his surgeon cleared him for work;
- In 2007, the City became aware of certain “aberrant” behavior on Michael’s part that continued into 2009;
- The behavior included episodes in which Michael secretly recording marriage counseling sessions with his then-wife and then used the recordings in an attempt to charge her with perjury;
- He also filed a lawsuit against the police chief after the chief was provided a number of steroid vials (some of which were labeled “for veterinary use only” and some with labels in foreign languages) belonging to Michael;
- Finally, the City learned that Michael accompanied a drug dealer to several drug deals without explanation or work-related reason;
- The City began an internal investigation into these issues, but the investigation was suspended when, in early 2009, Michael informed his superiors that he needed additional brain surgery;
- The surgery took place in 2009, and Michael’s surgeon subsequently cleared him to return;
- In light of Michael’s pattern of behavior beginning in 2007, the City informed Michael that he had to pass a psychological evaluation before he returned to work.
The neuropsychologist to whom Michael was referred by the City interviewed Michael for a total of seven hours, conducting various neurological tests, and then drafted an 11-page detailed written report in which she opined that he “may be a threat to himself or others.” Based on that report, the City put Michael on unpaid leave.
Subsequently, Michael sought his own evaluations and received opinions from other medical providers that he was fit to return to duty. (One other neuropsychologist hired by Michael to evaluate him agreed with the original opinion of “direct threat” – but Michael did not provide that report to his superiors.)
Michael then sued the City of Troy and its police department under the ADA, alleging that he was a “qualified individual with a disability,” and that the City had discriminated against him on that basis. The lower court granted summary judgment in favor of the City, holding that Michael was not qualified for the position of patrol officer. Michael appealed to the Sixth Circuit, which upheld the lower court’s ruling.
The ADA protects individuals who are qualified for their positions from unfair firings or demotions. However, under that same law, a disabled individual is deemed not to be qualified if he or she poses a “direct threat” to the health or safety of others which cannot be eliminated by a reasonable accommodation.
Whether an employer properly determines an individual to be a direct threat, for purposes of the ADA, depends upon the objective reasonableness of the employer’s actions. For example, an employer’s actions are deemed to be reasonable when the employer relies on a medical opinion that itself is objectively reasonable. That opinion does not have to be uncontroverted and may conflict with other opinions, but still can be viewed by the courts as objectively reasonable if based on sound and thorough medical reasoning.
The Sixth Circuit pointed out that there have been cases in which courts have held medical opinions of “direct threat” to be unreasonable – but those cases did not involve the level of detail found in the report regarding Michael. In one case, a doctor opined that an individual could not be a lifeguard because “he’s deaf” and in another, a doctor simply provided “two scribbled lines at the bottom of a boilerplate evaluation form.”
According to the Sixth Circuit, the combination of the neuropsychologist’s testing and opinion, along with the investigation of Michael’s own conduct, led the City to its objectively reasonable conclusion. A well thought-out and detailed dissent in this case raises points for discussion, including questions regarding the court’s criteria for the determination of what constitutes a “reasonably objective” medical opinion. This issue seems to be far from clear, and is one that both employers and employees should be watching for further development.