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Bridgewater v. Michigan Gaming Control Board

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

October 10, 2017

JAMES BRIDGEWATER, Plaintiff,
v.
MICHIGAN GAMING CONTROL BOARD and RICHARD S. KALM, Defendants.

          OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND RESCHEDULING FINAL PRETRIAL CONFERENCE

          DAVID M. LAWSON, United States District Judge

         Plaintiff James Bridgewater, employed as a gaming engineering specialist by the Michigan Gaming Control Board (MGCB), suffers from a dermatological disease that causes severe disruption of his sleep. At one time, the MGCB authorized Bridgewater to work a flexible schedule, which allowed him to make up time he missed by working later in the work day and on weekends, and writing reports at home. Early in 2015, the MGCB terminated that arrangement, and refused to accommodate Bridgewater's request to return to it. Instead, the MGCB told Bridgewater to use leave time and submit requests under the Family and Medical Leave Act (FMLA) to address his work absences. Bridgewater filed a complaint with the Equal Employment Opportunity Commission (EEOC) that the MGCB's refusal to accommodate violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. After that filing, says Bridgewater, the MGCB retaliated against him. Bridgewater's amended complaint in this Court under those same federal statutes has been challenged by the MGCB and codefendant Richard S. Kalm in their motion for summary judgment on three grounds: sovereign immunity; the accommodation request was unreasonable and insufficiently documented; and there is no evidence that Bridgewater's EEOC filing caused any acts of retaliation. Finding no merit in the defendants' arguments, the Court will deny the motion for summary judgment.

         I.

         A. The Plaintiff and His Job

         Bridgewater suffers from dermatitis, contact dermatitis, and eczema. Those conditions cause him “severe disruption” to his sleep and “pain and discomfort throughout the day.” His doctor has prescribed dozens of oral and topical medications. Nonetheless, the condition periodically and unpredictably flares up, causing unforeseeable disruptions to his sleep schedule.

         The MGCB hired Bridgewater in October 2001. Despite his condition, and throughout his time working with the MGCB, Bridgewater received satisfactory-or-better performance appraisals, including when he was allowed to work according to a flexible schedule that his supervisor had approved to accommodate the periodic disruption of his sleep schedule.

         According to the MGCB, a gaming engineering specialist “serves as the statewide staff specialist regarding the evaluation of gaming-specific technology and its ramifications on and compliance with existing laws, regulations, controls, and technical standards.” The job requires work in the office and on site at casinos. The specific tasks include (1) conducting risk assessments and developing test tools, technical standards, and internal controls, and monitoring the use of the same in the field; (2) reviewing, analyzing, and testing networked accounting and monitoring systems for auditability, verifiability, reliability, accuracy, interoperability, and compliance with MGCB rules; (3) reviewing engineering analyses prepared by outside engineers and examining new gaming technology to determine that it complies with applicable regulations; (4) reviewing and analyzing new game technologies from an engineering perspective for auditability, financial accountability, and compliance with MGCB rules; (5) evaluating all “internal control amendments as assigned by the Deputy Director of Horse Racing, ” and conducting risk analyses of the proposed amendments; and (6) reviewing test plans, procedures, and equipment, developing new ones, and testing them, and identifying “high priority laboratory initiatives.” Among those enumerated tasks, the description states that numbers (2), (4), and (5) are to be performed “as a team member [working] with the auditing specialist.” The description indicates that the gaming engineering specialist's “[s]upervisor provides general guidance on how to conduct work assignments, programs, priorities, and agency policies.” Finally, the description notes that the “[e]ngineer will be exposed to gaming environments; this usually involves bending, standing, loud noises, cigarette smoke and unusual working hours.”

         Bridgewater asserts - and the defendants apparently do not dispute - that most of his daily duties involve working in the MGCB lab and in secured rooms located at various casinos around the state, where he tests gaming devices and reports the results of his work. Bridgewater asserts that the MGCB lab and all of the on-site labs are secured by key-card readers that allow him to enter and leave at all hours, and access to casino facilities is available 24 hours a day, seven days a week, because the casinos themselves are always open, due to the nature of their business. He also asserts that he is not required to interact with casino staff, because machines to be tested are delivered to the secured facilities at various times, where they are then available until he has concluded his testing. He also contends that he and the other gaming control engineers in his department work independently of each other and do not need to coordinate their work.

         B. MGCB's Work Schedule Options

         The MGCB has several work schedule options available to its employees. The “compressed work schedule” consists either of (1) four 10-hour days per week; (2) four 9-hour work days and one 8-hour work day in one week, and four 9-hour work days in the other week of each pay period; or (3) four 9-hour work days with one 4-hour work day each week. The “modified work schedule” allows employees “to start and end their work day different from the core business hours, ” at any time between 6:30 a.m. and 6:00 p.m. However, employees working a “modified work schedule” must “maintain a consistent eight (8) hour schedule each day.” Under any of those options, the employee's schedule is required to consist of work days from Monday through Friday each week.

         Until sometime in early 2015, Bridgewater's supervisor allowed him to work a flexible schedule that permitted him to make up missed hours by working later during the day or on the weekend, and, when he had work that could be performed at home, such as writing reports, to work from home rather than in his office or lab at work, whenever he missed work hours due to his condition. On February 2, 2015, after he was informed that his “flexible” schedule no longer was allowed, Bridgewater submitted a request for an “alternative work schedule” of four 9-hour days and one 4-hour day each week, Monday through Friday. That request was approved.

         C. Accommodation Request

         On March 2, 2015, Bridgewater submitted a “Disability Accommodation Request and Medical Statement” in which he asked to be allowed to return to working under the “flexible work schedule” that his supervisor previously had approved. The request stated the name of Bridgewater's doctor, and it included answers on a section of the form designated for completion by his doctor, which indicated that Bridgewater had a “physical” disability that caused “severe disruption” of his sleep and “pain and discomfort throughout the day.” On March 10, 2015, MGCB Human Resources Director Donna Wilson, responding to Bridgewater's request, indicated that “additional clarification is needed.” Wilson asked Bridgewater to identify for her (1) the medical condition that caused his sleep disorder; (2) the life limitations that the condition caused; (3) how the alternative work schedules allowed by the MGCB policy did not accommodate the medical condition; and (4) “what specific flexible schedule would accommodate the medical condition.” Bridgewater responded that same day by email, stating that he wanted a “flexible eighty hour [per] pay period (work schedule adjusted with each pay period)” or “the ability to work in a flexible location, such as home, ” and that none of the options for alternative fixed schedules that the policy allowed would accommodate this request. Bridgewater stated that his “doctor has already identified the life limitation as sleep, ” and that the “issue [is] that as my sleep is disrupted that makes it unlikely that I can maintain a predefined schedule, alternate or otherwise.” In a second email Bridgewater attached a copy of an online “Health Summary” from his doctor, which identified his medical conditions as “dermatitis, ” and “contact dermatitis and other eczema, ” and listed the medications that he had been prescribed for those conditions.

         On March 13, 2015, Wilson sent Bridgewater an email stating that it was not “mutually beneficial to the agency or operationally efficient to allow undefined work schedules for employees.” On March 19, 2015, Bridgewater met with Wilson to discuss his request, but Wilson refused to discuss a flexible schedule as an accommodation; she instead insisted that Bridgewater must “go to [his] doctor for a medical opinion on why the [MGCB's] alternative work schedule policy does not accommodate [his] disability.” On March 30, 2015, Wilson formally denied the accommodation request. She recharacterized Bridgewater's request as wanting “to adjust your schedule on any day you are unable to work due to your medical condition.” The response form referred to the March 19 meeting in which Willson wrote that Bridgewater had told her that “circling back to [his] physician was unnecessary to provide clarification to the questions previously asked.” But it also stated Wilson's understanding that the “sleep disruption is due to a dermatology (dermatitis) condition, ” and it acknowledged that Bridgewater had “provided . . . copies of the Health Summary [showing] the prescriptions [he was] taking.” Wilson further stated that the “MGCB does allow alternative work schedules.” But she concluded that if one of those options would not suffice, Bridgewater would be left with (1) using available leave credits when he was unable to work his pre-approved work schedule; or (2) requesting an intermittent FMLA leave.

         Bridgewater asserts that after the denial was issued he was forced on many occasions to deplete his accumulated leave. On days when he arrived late to work, he worked extra hours after his scheduled shift ended to get his work done, but the defendants refused to pay him for those hours worked outside of his fixed schedule, even though he had taken leave hours to cover the time that he missed earlier in the day.

         D. EEOC Charge

         On April 1, 2015, Bridgewater filed a charge of disability discrimination with the EEOC, in which he stated that his reasonable request for the accommodation of a flexible work schedule was denied unlawfully. Shortly after David Hicks became Bridgewater's new manager in August 2015, Bridgewater informed Hicks that he had filed the EEOC charge. Bridgewater testified that, soon after that notification - three weeks to be exact - he suffered retaliation by the defendants when he was: (1) subjected to an unwarranted investigation by the criminal investigations unit of the MGCB; (2) taken off of a project team and moved to another work location; (3) given an increased workload, shortened deadlines, and told to perform work without all of the information needed to complete it; (4) required to provide excessive detail to account for his hours worked and work completed that other employees in the same position were not required to provide; and (5) told that his job would be outsourced. Bridgewater also testified that, before he filed his EEOC charge, there was an initiative in the MGCB to “evaluate” the lab that he worked in and determine “what kinds of services [the lab] can provide, ” but that “the tone definitely changed on that after I filed my EEOC complaint, ” and that then the focus of the “evaluation” shifted to “let's just assume that we're going to outsource you, tell us what you would do for us.”

         The defendants submitted investigation reports showing that the investigation in question was prompted by time records indicating that Bridgewater worked three hours one Sunday, which was outside of the days and hours that employees are allowed to work under MGCB policy, and outside of the scheduled hours of Bridgewater's approved “alternative work schedule.” The investigation, which appears to have spanned from August 2015 through January 2016, ultimately concluded that Bridgewater had not engaged in any “misconduct, ” because his supervisor had approved the weekend work hours. The defendants' HR Director attested that “Bridgewater's supervisor (Chris Adams) . . . had not followed MGCB procedure in approving the [weekend work] request, ” but that, “[b]ecause Mr. Bridgewater had received permission (albeit improperly) from his supervisor, [he] was not disciplined.”

         E. The Present Lawsuit The plaintiff filed his original complaint in this Court on March 4, 2016 naming the Michigan Gaming Control Board and five state officials as defendants. After several iterations of amended pleadings, the parties agreed to resolve a motion to dismiss and a motion for leave further to amend the complaint by a stipulated dismissal of all claims except (1) the ADA discrimination (reasonable accommodation) and retaliation claims in Count I of the second amended complaint against defendant Richard S. Kalm in his official capacity (seeking prospective injunctive relief only), and (2) the congruent discrimination and retaliation claims in Count II under the Rehabilitation Act, against defendant Michigan Gaming Control Board. After discovery concluded, the defendants filed their motion for summary judgment. The Court heard oral argument on the motion on August 3, 2017.

         II.

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A trial is required when “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Notably, however, “[t]he 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 ...


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