United States District Court, E.D. Michigan, Southern Division, Detroit
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
Gary Boike was asked by his employer, Defendant Akal
Security, Inc., to take a color-vision examination that
confirmed what he, his physician, and the federal agency
overseeing his position already knew: Boike’s ability
to distinguish between certain colors was impaired. The
United States Marshals Service, pursuant to its contract with
Defendant Akal Security, Inc., required Boike to take a
follow-up color-vision test, which again confirmed his
impairment. He was subsequently fired from his position as a
court security officer. After exhausting his administrative
remedies, Boike filed this action against his former employer
under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112(b)(2), and
Michigan’s Persons with Disabilities Civil Rights Act
(“PWDCRA”), Mich. Comp. Laws § 37.1101,
Security, Inc. (“Akal”), has filed a motion for
summary judgment [DE 25] on Boike’s claims, alleging
that his color-vision deficit is not a
“disability” as defined by the ADA. Even if Boike
is disabled, Akal argues that the color-vision exams Boike
took did not violate the ADA because those exams are a means
to achieve the overarching goal of protecting the federal
judiciary and the public. The parties disagree on several
factual premises in this case, namely, whether the ability to
recognize basic colors is an essential function of a court
security officer. Boike has responded [DE 35] and Akal
Security replied [DE 39], making this matter ripe for review.
reasons set forth below, Akal’s motion for summary
judgment is granted in part and denied in part.
PROCEDURAL AND FACTUAL BACKGROUND
United States Marshals Service (“USMS”) is
statutorily responsible for security in federal courthouses.
28 U.S.C. § 566(a). The USMS fulfills this
responsibility by contracting with private companies to
provide court security officers (“CSOs”). 28
U.S.C. § 604(a)(22). Akal is one of the security
contractors hired by USMS to provide CSOs at federal
courthouses and facilities. [See DE 25-1 at 11].
Boike began working as a CSO at the United States District
Court for the Eastern District of Michigan in 1999.
[See DE 35 at 10]. Prior to his employment as a CSO,
Boike was a police officer with the Hamtramck, Michigan
police department for twenty-five years. [Id.].
Boike worked for Akal during most of his career as a CSO.
[Id. at 11]. When Boike was terminated, he held the
preeminent title of “Lead CSO.” [DE 35 at 12].
USMS requires CSOs to be able to perform certain functions
and meet specific medical standards to ensure that they can
adequately protect members of the judiciary and the public.
[DE 34 at 4]. The contract between USMS and Akal stated that
Akal was responsible for providing employees that met
USMS’s qualifications. [DE 34 at 25]. The CSO medical
standards can be found in a report authored by Dr. Richard J.
Miller, the former Director of Law Enforcement Medical
Programs within the Federal Occupational Health
agency(“FOH”). These standards are included in
USMS “Form 229” [see DE 25-6 at 4-10]
and were created following the 1995 bombing of the federal
building in Oklahoma City and pursuant to a specific request
from the Judicial Conference Committee to analyze the CSO
position. [DE 34 at 7-8]. Dr. Miller’s report was
adopted by the Judicial Conference after concluding that he
satisfactorily determined the essential functions of the CSO.
[Id. at 8].
ensure that CSOs meet the medical standards, the USMS
requires annual physical examinations, including color-vision
testing. [Id. at 12]. Physicians approved by USMS
and Akal examine CSOs and compile a complete medical history,
documenting the exam’s results in USMS Form 229.
[See DE 34-10]. Then, a medical review is performed
by a physician with the Law Enforcement Medical Programs, a
component of FOH, who makes a recommendation to USMS
regarding the medical qualifications of the CSO examined. [DE
25-6 at 2, 8].
are required under the medical qualifications to be able to
recognize and distinguish between basic colors. [Id.
at 62; DE 34-10 at 4]. The Miller Report describes basic
color vision as “the ability to distinguish yellow,
green, red, and blue.” [DE 25-6]. Dr. Gregory Good,
whom Dr. Miller consulted about the vision standards in his
report, stated that recognizing basic colors means
“that you can use color names appropriately and you
don’t confuse colors, basic colors.” [DE 25-9 at
44]. The vision standard in Dr. Miller’s report
explains that “severe color deficiency in any color is
generally disqualifying, ” while loss of vision in one
eye is completely disqualifying [DE 25-6 at 62; DE 35 at 13].
color vision has been tested pursuant to this standard using
two vision exams, the “Ishihara” and the
“Farnsworth D-15.” [DE 25-8 at 15-16; DE 25-2 at
20-21; see DE 25-9 at 15-18, 49-51]. Dr. Good
described the Ishihara test as a “very precise test,
” but explained that the Ishihara does not screen
individuals with blue-yellow color deficiency. [DE 25-9 at
48]. According to USMS “protocol, ” but not
pursuant to a specific, documented policy, a CSO is required
to correctly identify the number contained on at least ten of
the fourteen plates to pass the Ishihara screening. [DE 25-2
at 21; DE 25-8 at 16]. Akal states that USMS
“protocol” is to require anyone who scores below
a ten out of fourteen on the Ishihara to take another
vision-deficient exam, the Farnsworth D-15 test. [DE 25-8 at
15-16; DE 25-2 at 20]. Dr. Miller’s report says basic
color vision may be demonstrated by passing the Farnsworth
D-15, but it is not official procedural policy of USMS. [DE
25-6 at 62].
Farnsworth D-15 test is designed to distinguish between
individuals who have a slight color-vision deficiency from
those who have a more severe impairment. [DE 25-1 at 18]. On
the Farnsworth D-15, CSOs are allowed unlimited minor errors
and one major error to obtain a passing score. [DE 25-8 at
17]. The FOH physician responsible for making qualification
determinations stated in her deposition that a prospective or
incumbent CSO needed to pass at least one of the color-vision
exams to demonstrate that he or she met the color-vision
requirement. [Id. at 18-19].
to the December 2013 test at issue in this case,
Boike’s color vision was tested multiple times
according to USMS “protocol.” [See DE
24-10 at 1, 4]. Akal and USMS approved the medical clinic
Boike frequently used for his annual physical exam [DE 25 at
14]. During these medical exams, Boike was always required to
take a color-vision test. The record reflects that the clinic
had discretion to choose which color-vision exam should be
administered, and on at least one occasion, Boike told Dr.
Thomas Koehler that he needed to pass the Ishihara
specifically for work. [DE 34-7 at 4]. Boike failed the
Ishihara a number of times prior to 2013, but was rarely
asked for a follow-up and was never medically disqualified.
[See DE 35 at 15; DE 40 at 22-23].
underwent the same testing in late 2013 for his annual 2014
medical exam, Boike once again failed the Ishihara by scoring
a four out of fourteen. [DE 25-1 at 13; DE 35 at 17]. This
time, he was given a medical review form indicating that his
medical determination was pending further testing and
documentation. [DE 34-10 at 8]. Although it was possible to
do so, Boike was not temporarily removed from the job pending
the additional testing. [DE 35 at 18; DE 40 at 19-20]. The
medical review required Boike to take the Farnsworth D-15
exam to further evaluate his color deficiency.
[Id.]. Dr. Koehler performed the Farnsworth and
concluded that Boike had a “deutan defect (mild),
” but indicated that he had performed his job for the
last fifteen years adequately and should still be able to.
physician, after reviewing Boike’s Farnsworth results,
decided he should be medically disqualified from his position
as a CSO. [Id.] More than half a year after Boike
first took the Ishihara, FOH Judicial Security Division
Reviewing Medical Officer Dr. Haviva Goldhagen submitted a
medical review form stating the following:
CSO Gary Boike has a significant color vision deficit
according to the results of the Ishihara color vision test (4
correct/14 tested) and the Farnsworth D15 color vision test
(6 major errors) provided by Thomas F. Koehler, OD on
4/12/14. This condition impairs the ability to recognize
basic colors and does not meet the required color vision
standard for the job. Good color vision is important and
sometimes a crucial factor in the efficient performance of
all duties and responsibilities. The recognition and proper
identification of persons, vehicles, buildings, color coded
electronic screeners, and/or documents is important. In
officer to officer communication, the description of
suspects, vehicles or buildings may be dependent upon
accurate color descriptions. In addition, court testimony may
depend on proper color descriptions. Therefore, the CSO does
not meet the color vision requirement for the job of Court
[DE 34-1 at 9]. Dr. Goldhagen in a deposition stated that her
review is not a final disqualification, but rather a
recommendation to USMS. [DE 34-4 at 10]. Additionally, Dr.
Goldhagen stated that “in order to make the reviews go
quicker, ” the FOH used “boilerplate
language” that physicians would modify or change
according to each case. [Id. at 12]. Dr. Goldhagen
was not personally familiar with the security equipment CSOs
use and the need for color, but drafted this boilerplate
language herself based in part on her “knowledge of how
a medical condition could impact sage and effective job
performance.” [Id. at 13-14, 22-23]. Based on
this recommendation, USMS directed that Boike be removed as
CSO and Akal terminated his employment on July 9, 2019.
[Id. at 16].
argues that (1) the USMS color-vision examination and
standard do not violate the ADA, (2) Akal did not
discriminate against Boike when it fired him pursuant to
those standards, and (3) Boike is not entitled to punitive
damages as a matter of law.
STANDARD OF REVIEW
judgment is appropriate only when no genuine dispute exists
as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party has the burden to show that “there is an absence
of evidence to support the nonmoving party’s case,
” but that burden can be discharged when the moving
party points to an absence of evidence to support the
nonmoving party’s claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Summary judgment may
only be granted if “the evidence is so one-sided that
one party must prevail as a matter of law.”
Lexington-South Elkhorn Water Dist. v. City of
Wilmore, 93 F.3d 230, 233 (6th Cir. 1996).
dispute about a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Smith v. Perkins Bd. of
Educ., 708 F.3d 821, 825 (6th Cir. 2013) (internal
quotations omitted). The Court construes all facts, including
inferences, in the light most favorable to the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
are prohibited from discriminating against “a qualified
individual on the basis of disability in regard to …
[the] discharge of employees.” 42 U.S.C. § 12112.
establish a prima facie case of disability discrimination
under the ADA,  the plaintiff must show that he is (1)
disabled, (2) otherwise qualified to perform the essential
functions of the position, and that he (3) suffered an
adverse employment action because of his disability. See
Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir.
2016)(citing Monette v. Elec. Data Sys. Corp., 90
F.3d 1173, 1178 (6th Cir. 1996)). A plaintiff may make this
showing by introducing direct evidence of discrimination,
including that the employer considered and relied on the
plaintiff’s disability in making its employment
Is Boike disabled under the ADA?
threshold question to address on this motion is whether Boike
is disabled, and thus, whether he is protected by the ADA. If
Boike is not disabled, he is not entitled to relief from a
discrimination claim under the ADA.
disability can be established where (1) the plaintiff has a
physical or mental impairment that substantially limits one
or more major life activity; (2) a record of an impairment
exists; or (3) the employer regards the person to have such
an impairment. 42 U.S.C. § 12102(1)(A)-(B). The
definition of disability under the ADA is to be construed
broadly in favor of coverage. Id. at (4)(A).
parties do not address in the motion or responses whether a
record of the impairment exists that would establish a
disability for the purposes of the ADA. Thus, the Court will
address only whether Boike was (1) actually disabled under
the ADA’s definition, and if he was not, (2) whether
Akal regarded him to be disabled when it terminated him.
Boike carries the burden of showing he is or was perceived by
Akal to be disabled, and for the purposes of the motion
before the Court, Akal carries the burden of showing that
there is an absence of evidence tending to demonstrate an
actual or perceived disability.
Boike was not “actually disabled” under the
the definition of an actual disability under the ADA, the
plaintiff must have a physical or mental impairment that
substantially limits one or more major life activity.
Color-vision deficiency, commonly known as color-blindness,
is certainly a physical impairment. The EEOC, in its
regulations interpreting the amended ADA, defines a physical
impairment as “[a]ny physiological disorder or
condition … such as neurological, musculoskeletal,
special sense organs ...” 29 C.F.R. §
1630.2(h)(1)-(2). The parties do not dispute that
Boike’s ability to recognize basic colors is, at the
very least, impaired. The question here, however, is whether
that physical impairment substantially limits a major life
activity for Boike.
lists some conditions that may be considered “major
life activities, ” including, notably,
“seeing” and “working.” Id.
at (2)(A). The statute explains that the determination of
whether an impairment substantially limits a major life
activity should be made without considering ameliorative