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Boike v. Akal Security, Inc.

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

September 30, 2019

GARY BOIKE, Plaintiff,
v.
AKAL SECURITY, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood, Senior U.S. District Judge

         Plaintiff 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, et seq.

         Akal 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.

         For the reasons set forth below, Akal’s motion for summary judgment is granted in part and denied in part.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         The 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].

         Gary 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].

         The 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].

         To 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].

         CSOs 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].

         CSO 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].

         The 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].

         Prior 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].

         When he 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. [Id.].

         An FOH 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 Security Officer.

[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].

         Akal 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.

         II. STANDARD OF REVIEW

         Summary 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).

         “A 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).

         III. ANALYSIS

         Employers 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.

         To establish a prima facie case of disability discrimination under the ADA, [1] 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 decision. Id.

         A. Is Boike disabled under the ADA?

         The 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.

         A 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).

         The 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.

         (1) Boike was not “actually disabled” under the ADA

         To meet 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.[2] The question here, however, is whether that physical impairment substantially limits a major life activity for Boike.

         The ADA 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 efforts, ...


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