By Lee Dryden
BridgeTower Media Newswires
DETROIT—A Wayne County Circuit Court decision upholding the dismissal of two 36th District Court bailiffs was affirmed by a Michigan Court of Appeals panel.
In Estate of Jackson and Weatherly v. 36th District Court, the plaintiffs alleged they were terminated because of their age and disabilities. The appeals court panel concluded that “medical evaluations revealed that neither Jackson nor Weatherly was capable of performing the essential functions of the bailiff’s position himself, with or without accommodation.”
The unpublished per curiam opinion was issued by Judges Jane M. Beckering, David H. Sawyer and Thomas C. Cameron.
Bailiffs Thornton Jackson Jr. and Jeremiah Weatherly, both in their 80s, had their employment terminated in 2016 after more than three decades with the district court. Jackson died during the appeal.
Defendant’s bailiffs have typically held office “until death, retirement, resignation, or removal from office by the court for misfeasance or malfeasance in office,” according to the COA opinion. But, in 2015, the state Legislature passed 2015 PA 132, effective Dec. 29, 2015, which amended MCL 600.8322 to allow the court to also remove bailiffs “for inability to perform essential functions of the office.”
After the bill’s passage, the defendant scheduled physical examinations for its bailiffs to determine their fitness to perform the essential functions of the job. The defendant also provided the examining physician with a copy of the job description for bailiffs.
Based on Jackson’s medical history and physical examination, the examining physician concluded that he was not fit to perform the duties. The physician reported the examination was “remarkable for the continuous use of oxygen by nasal cannula and abnormal lung findings” and that Jackson reported a history of emphysema, congestive heart failure and sarcoidosis. The court informed him that he was being removed “for inability to perform the essential functions of the office.”
The physician found Weatherly’s physical examination unremarkable, but recommended a “functional capacity exam to determine the ability to lift and move furniture, appliances, and other objects as well as stair climbing,” and neuropsychiatric testing “to determine if there are any memory deficits.” The evaluator suspected that Weatherly had vision problems, and recommended a formal vision test, which revealed that he was “visually impaired secondary to glaucoma.” Based on the testing, the court removed Weatherly for inability to perform.
A third bailiff, Robert Rhue, also in his 80s, passed both his physical examination and functional capacity examination and remained a bailiff until his sudden death in December 2016. He was not part of the suit.
The two plaintiffs filed suit. During his deposition, Jackson stated that he had a four-man crew that helped with evictions. He acknowledged physical limitations, but he added that when he used the wheelchair at the court, he was just “putting on a show” because he wanted the attention.
Weatherly acknowledged in his deposition that his son had driven him around during his last five years of his employment with the court, but insisted that it was to save money and that he was able to drive.
In her deposition, Chief Judge Nancy Blount stated that she decided to terminate the plaintiffs after reviewing the state law, bailiff’s job description, the examining physician’s letter, Jackson’s medical records, and Weatherly’s functional capacity and vision test results. She acknowledged that hiring a crew was a common practice for bailiffs and she had not disciplined anyone for doing so.
“However, she insisted that what amounted to subcontracting the bailiff’s duties to crewmembers was not an accommodation. With regard to Weatherly, Judge Blount testified that his eye condition precluded him from fulfilling the driving requirement of the bailiff’s job description. As with Jackson, the judge said that subcontracting the driving requirement to a permanent chauffer was not an accommodation, and stated that by having his son drive him at work, Weatherly was not performing an essential job duty,” the opinion stated.
The trial court granted the defendant’s motion for summary disposition.
As for the alleged violation of the People with Disabilities Civil Rights Act, the COA panel stated, “By asserting in their brief to this Court that they have ‘accommodated themselves,’ plaintiffs concede that they are unable to perform the duties of bailiff without aid of some kind.”
“Plaintiffs’ own deposition testimony indicates that they can perform the duties of bailiff only if defendant modifies or adjusts those duties, or assigns them to someone else, or allows plaintiffs to assign them to someone else, such as members of their respective crews,” the opinion stated.
“Defendant’s obligation under the PWDCRA to accommodate does not reach that far.
“Because plaintiffs’ disabilities relate to their abilities to perform the duties of the bailiff position with or without accommodation, they cannot establish a prima facie case of discrimination under the PWDCRA.”
The plaintiffs also alleged a violation of the Elliott-Larsen Civil Rights Act. While the panel stated it is undisputed that plaintiffs are members of a protected class and they suffered an adverse employment action, it ruled they cannot go forward with their age discrimination claim because they cannot establish that they were qualified for the bailiff job.
The court stated that the plaintiffs’ age discrimination claim fails because they cannot establish a prima facie case giving rise to a presumption of discrimination.
“Even if the presumption of unlawful age discrimination did arise, the record shows that defendant presented evidence rebutting the presumption and establishing that it based its termination decision on plaintiffs’ health conditions. Plaintiffs presented no evidence that defendant’s non-discriminatory reason was pretextual or that age was a motivating factor in defendant’s decision,” the court concluded.
Plaintiffs’ counsel Herbert A. Sanders of The Sanders Law Firm PC in Detroit said he is “very disappointed” in the COA ruling and an appeal to the Michigan Supreme Court is under consideration.
“I think it’s a very unfortunate decision and I disagree with it,” Sanders said, adding that the decision sets a “terrible precedent.”
“My position is the purpose of the law was to try to eliminate the union, which it effectively did,” he said.
Sanders alluded to the chief judge’s statements in her deposition that there were no issues with the plaintiffs’ job performance.
“You had two elderly men who had admittedly performed their jobs effectively,” he said.
There is legal precedent that a doctor cannot determine if someone is fit to perform a certain function, Sanders said. An occupational specialist is needed, but the court did not have that type of expert, he added.
Defense counsel Kathleen L. Bogas of Bogas & Koncius PC in Bingham Farms said, “There is nothing unusual about this case. Both the trial court and the Court of Appeals took the facts most favorable to the plaintiffs and applied the law. I do not see how it could or would influence future cases.”
“Just as the trial court made the correct decision on the facts, so did the Court of Appeals,” she said.
Bogas acknowledged that the facts of the case are “a bit unusual due to the ages of the plaintiffs.”
“But if they were able to do the essential functions of the job, no matter what age, they would have retained their positions,” she said.
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