Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 11, 2004
ALLAN PEDEN,
Plaintiff-Appellee,
v No. 119408
CITY OF DETROIT, DETROIT POLICE DEPARTMENT,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider two issues: (1)
whether defendant, the city of Detroit, Detroit Police
Department, properly characterized the essential functions
or duties of a police officer position under the Americans
with Disabilities Act (ADA), 42 USC 12101 et seq., and the
Michigan Persons with Disabilities Civil Rights Act
(PWDCRA), MCL 37.1101 et seq.; and (2) whether plaintiff,
who suffers from a permanent heart condition, has presented
prima facie evidence that he is able to perform the
essential functions of this position. Regarding the first
issue, the circuit court granted summary disposition in
favor of defendant and the Court of Appeals subsequently
reversed that judgment. Because there is no genuine
question of material fact that defendant properly
characterized the essential functions of the police officer
position, we reverse the Court of Appeals judgment and we
reinstate the circuit court's grant of summary disposition
in favor of defendant. Likewise, regarding the second
issue, the circuit court granted summary disposition in
favor of defendant and the Court of Appeals reversed that
judgment. Because there is also no genuine question of
material fact that plaintiff cannot perform the essential
functions of the police officer position, we reverse the
Court of Appeals judgment on this issue as well. We
reinstate the circuit court’s grant of summary disposition
in favor of defendant.
I. BACKGROUND
In 1986, plaintiff, Allan Peden, a police officer in
Detroit’s 13th Precinct, suffered a heart attack while
performing clerical tasks consistent with his “A Clerk”
position. Plaintiff was diagnosed with heart disease and
underwent successful heart surgery. Plaintiff’s physician
released him to work on indefinite restricted duty. For
2
about ten years, plaintiff continued working on restricted
duty status, first remaining in the “A clerk” position and
eventually winning a “bidded” position with the police
department’s Crime Analysis Unit (CAU).
In 1995, the Detroit Police Department compiled a list
of “24 Essential Job Functions of a Law Enforcement
Officer” (the essential functions list or EFL). This list
was based on model standards developed by the Michigan Law
Enforcement Officers Training Council, a council created by
statute to develop educational, mental, and physical
standards for all commissioned law enforcement officers in
the state of Michigan. See MCL 28.601 et seq. The
department’s list includes such tasks as pursuing suspects
in foot chases, engaging in vehicle pursuits, effecting
forcible arrests, overcoming violent resistance, and
qualifying with a firearm.1
In 1996, the department placed plaintiff on
involuntary, nonduty, disability retirement. The CAU
physician, Dr. Hill, signed the application for early
1
Although the EFL was compiled in 1995, the record in
this case indicates that, at least since 1975, the
department has maintained a written job description for
police officer positions providing that the duties of
officers include patrolling an assigned post, enforcing
3
retirement on behalf of the department. Dr. Hill reviewed
plaintiff's medical records, including records made by
plaintiff's physicians and the department’s physicians over
the course of several years of routine medical
examinations, and determined, on the basis of those
records, that plaintiff was unable to perform the EFL tasks
and was therefore eligible for disability retirement.2
Plaintiff filed suit against defendant, alleging that
the department violated the ADA and the PWDCRA when it
placed him on involuntary disability retirement. Defendant
argues that plaintiff cannot perform the essential
functions of his former CAU police officer position and,
therefore, plaintiff is not entitled to proceed on his ADA
and PWDCRA discrimination claim. Plaintiff contends that
the EFL tasks are not essential to his former CAU position
because that position is essentially clerical in nature.
Alternatively, plaintiff argues that he can perform the EFL
laws, apprehending violators of the law, transporting sick
and injured people to hospitals, and serving warrants.
2
For instance, Dr. Hill’s summary of plaintiff’s
medical history includes comments made periodically by
plaintiff’s doctor that plaintiff should remain on
restricted duty and other statements made by plaintiff’s
doctor and other department physicians during various
examinations, such as “coronary artery disease,” “[h]e is
working without problems,” and “advised to check with his
4
tasks.
The circuit court dismissed plaintiff’s case on
summary disposition pursuant to MCR 2.116(C)(10),
concluding, as a matter of law, that the department is
entitled to define the essential functions of a police
officer position and that plaintiff failed to present prima
facie evidence demonstrating that he is capable of
performing those functions.
The Court of Appeals reversed, holding that a
determination regarding what constitutes the essential
functions of a position and whether a plaintiff is capable
of performing those essential functions must be made with a
case-by-case examination of the particular circumstances
involved.3 The Court of Appeals held that while defendant
had presented some evidence showing that the EFL tasks are
essential to a police officer position, plaintiff presented
evidence raising a genuine issue of material fact regarding
whether those functions are, in practice, essential to
plaintiff’s specific position with the CAU and whether
plaintiff can perform the essential functions of his
doctor because the diastolic pressure is above normal
limits.”
3
Unpublished opinion per curiam, issued March 23, 2001
(Docket No. 214491).
5
position despite his disability.
II. STANDARD OF REVIEW
This case presents a question of statutory
interpretation that is an issue of law reviewed de novo. G
C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 419; 662
NW2d 710 (2003). The grant or denial of summary
disposition pursuant to MCR 2.116(C)(10) is likewise
reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118;
597 NW2d 817 (1999).
III. ANALYSIS
A. Overview of the ADA
The ADA was enacted by Congress in part “to provide a
clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities.” 42 USC 12101(b)(1).4 42 USC 12112(a),
4
Plaintiff’s federal ADA claim is properly before this
Court because state courts enjoy concurrent jurisdiction
over such claims. In Gulf Offshore Co v Mobil Oil Corp,
453 US 473, 478; 101 S Ct 2870; 69 L Ed 2d 784 (1981), the
United States Supreme Court stated:
In considering the propriety of state-court
jurisdiction over any particular federal claim,
the Court begins with the presumption that state
courts enjoy concurrent jurisdiction. Congress,
however, may confine jurisdiction to the federal
courts either explicitly or implicitly. Thus,
the presumption of concurrent jurisdiction can be
rebutted by an explicit statutory directive, by
unmistakable implication from legislative
6
prohibiting employment discrimination, states that “no
covered entity[5] shall discriminate against a qualified
individual with a disability because of the disability of
such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms,
conditions, and privileges of employment.”
A plaintiff alleging a violation of the ADA carries
the burden of proving a prima facie case. Doe v Univ of
Maryland Medical Sys Corp, 50 F3d 1261, 1264-1265 (CA 4,
1995). To satisfy this burden, the plaintiff must first
show that he is a “qualified individual with a disability”
entitled to the ADA’s protections. 42 USC 12112(a). A
“disability” is defined under § 12102(2) as “(A) a physical
or mental impairment that substantially limits one or more
of the major life activities of such individual; (B) a
history, or by a clear incompatibility between
state-court jurisdiction and federal interests.
[Citations omitted.]
Moreover, 42 USC 12202 provides that “[a] State shall
not be immune under the eleventh amendment to the
Constitution of the United States from an action in [a]
Federal or State court of competent jurisdiction for a
violation of this chapter.” (Emphasis added.)
5
A “covered entity” includes any employer who has
fifteen or more employees each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year. Section 12111(2),(5).
7
record of such an impairment; or (C) being regarded as
having such an impairment.” A “qualified individual with a
disability” is defined as “an individual with a disability
who, with or without reasonable accommodation, can perform
the essential functions of the employment position that
such individual holds or desires. . . .” Section 12111(8).
It is important to recognize that the ADA does not
protect against discrimination based on any disabilities,
but only against discrimination based on those disabilities
(or perceived disabilities) that substantially limit at
least one major life activity of the disabled individual,
but that, with or without reasonable accommodation, do not
prevent the disabled individual from performing the
essential functions of the position held or sought.
After the plaintiff presents sufficient evidence
demonstrating that he is a “qualified individual with a
disability,” his next burden lies in proving that his
employer “discriminated” against him. The ADA broadly
defines the term “discriminate” to prohibit employers from
undertaking a variety of measures that adversely affect
qualified individuals with disabilities. See § 12112(b).6
6
Generally, an employer may not purposefully
discriminate through direct action, by the use of
standards, criteria, or methods of administrations, or
8
Plaintiff in this case has alleged purposeful
discrimination. In claims under the ADA alleging
purposeful discrimination, once the plaintiff has presented
a prima facie case, the burden shifts to the employer to
rebut plaintiff's evidence. Raytheon Co v Hernandez, 540
US ___, ___; 124 S Ct 513, 520; 157 L Ed 2d 357 (2003).
B. Overview of the PWDCRA
In Chmielewski v Xermac, Inc, 457 Mich 593, 601; 580
NW2d 817 (1998), quoting Allen v Southeastern Michigan
Trans Auth, 132 Mich App 533, 537-538; 394 NW2d 204 (1984),
we stated that the Handicappers' Civil Rights Act (amended
in 1998 and renamed the “Persons With Disabilities Civil
Rights Act”) “‘prohibits discrimination against individuals
through the denial of reasonable accommodations against a
qualified individual with a disability because of that
individual’s disability. An employer also may not utilize
qualification standards, tests, or other criteria that are
not job-related in a manner that has the effect of
screening out qualified individuals with disabilities from
the workplace. Section 12112(b).
Pursuant to § 12112(b), the United States Supreme
Court has explained that “[b]oth disparate-treatment and
disparate-impact claims are cognizable under the ADA.”
Raytheon Co v Hernandez, 540 ___, ___; 124 S Ct 513, 519;
157 L Ed 2d 357 (2003). Liability in a disparate-treatment
case “‘depends on whether the protected trait . . .
actually motivated the employer’s decision.’ . . . By
contrast, disparate-impact claims ‘involve employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
9
because of their handicapped status. The purpose of the act
is to mandate ‘the employment of the handicapped to the
fullest extent reasonably possible.’” Under MCL
37.1202(1)(a)-(e), which prohibit employment
discrimination, an “employer”7 shall refrain from taking any
of a number of adverse employment actions against an
individual “because of a disability . . . that is unrelated
[or not directly related] to the individual’s ability to
perform the duties or a particular job or position.”
The plaintiff bears the burden of proving a violation
of the PWDCRA. “To prove a discrimination claim under the
[PWDCRA], the plaintiff must show (1) that he is [disabled]
as defined in the act, (2) that the [disability] is
unrelated to his ability to perform his job duties, and (3)
that he has been discriminated against in one of the ways
delineated in the statute.” Chmielewski, supra at 602.
A “disability,” for purposes of article 2, MCL
37.1201-37.1214, is defined in MCL 37.1103(d) as: (i) “[a]
determinable physical or mental characteristic of an
necessity.’” Id. (citations omitted).
7
An “employer” is defined in MCL 37.1201(b) as “a
person who has 1 or more employees or a person who as
contractor or subcontractor is furnishing material or
performing work for the state or a governmental entity or
10
individual . . . if the characteristic: (A) . . .
substantially limits 1 or more of the major life activities
of that individual and is unrelated to the individual's
ability to perform the duties of a particular job or
position . . . ”; (ii) “[a] history of [such a]
determinable physical or mental characteristic . . . ”; or
(iii) “[b]eing regarded as having [such a] determinable
physical or mental characteristic . . . .” “‘Unrelated to
the individual’s ability’ means, with or without
accommodation, an individual’s disability does not prevent
the individual from . . . performing the duties of a
particular job or position.” MCL 37.1103(l)(i).
Thus, like the ADA, the PWDCRA generally protects only
against discrimination based on physical or mental
disabilities that substantially limit a major life activity
of the disabled individual, but that, with or without
accommodation, do not prevent the disabled individual from
performing the duties of a particular job. See Sanchez v
Lagoudakis (After Remand), 458 Mich 704, 715; 581 NW2d 257
(1998).
Once the plaintiff has proved that he is a “qualified
person with a disability” protected by the PWDCRA, he must
agency of the state and includes an agent of such a
11
next demonstrate that he has been discriminated against in
one of the ways set forth in MCL 37.1202. Like the ADA,
the PWDCRA prohibits employers from taking any of a variety
of measures that adversely affect protected individuals.8
If the plaintiff presents a prima facie case of
purposeful discrimination, the burden then shifts to the
defendant to rebut such evidence. Kerns v Dura Mechanical
Components, Inc (On Remand), 242 Mich App 1, 12; 618 NW2d
56 (2000). See also Hazle v Ford Motor Co, 464 Mich 456,
463-466; 628 NW2d 515 (2001).
C. Essential Functions of a Detroit Police Officer
The dispute in this case primarily concerns whether
the EFL tasks are essential to plaintiff’s former police
officer position.9 If so, plaintiff must show that he is
person.”
8
Generally, an employer shall not purposefully
discriminate, through direct action or by failing to
provide necessary accommodation, against a person because
of a disability that is unrelated to that person’s ability
to do the duties of a job; an employer shall not limit,
segregate, or classify employees in a manner that adversely
affects a person because of a disability that is unrelated
to that person’s ability to do the duties of a job; an
employer shall not take direct adverse action against an
individual on the basis of examinations that are not
directly related to the requirements of the job. MCL
37.1202.
9
Plaintiff cites Rourk v Oakwood Hosp Corp, 458 Mich
25; 580 NW2d 397 (1998), for the proposition that in
determining the essential functions of his former position,
12
able, with or without accommodation, to perform these
functions; otherwise, he may not proceed on a claim under
either the ADA or the PWDCRA. If plaintiff shows that he
is able to perform the essential functions of the position,
he may proceed to demonstrate that the department
discriminated against him in one of the ways set forth in
the acts.
i. The ADA
Regarding what the “essential functions” of an
we must consider the functions of the CAU position that he
held before being forcibly retired rather than the
functions of a patrol officer position. Rourk is an
accommodation case in which this Court addressed whether an
employer must transfer a disabled person to a new position
that the person could perform. In holding that no transfer
was required, we stated that “an individual is handicapped
even if some accommodation is necessary to allow that
individual to perform the duties of a particular job or
position,” but that “the existence of a [disability is]
determined with reference to the job actually held or
applied for . . . .” Id. at 31, 33. In other words, we
held that the mere fact that a disabled person can perform
“some” job is not relevant; rather, he must be able to
perform the job he held or sought at the time the alleged
PWDCRA violation occurred, and any accommodation must be
directed toward enabling the plaintiff to perform the
duties of that job. As such, Rourk is not directly
relevant because plaintiff here is not making an
accommodation argument and is not seeking transfer to a new
position. Rather, plaintiff is arguing that he can perform
the essential functions of the CAU position. As we explain
in our analysis, the EFL tasks are essential functions of
all sworn police officer positions, including those, such
as in the CAU, that are typically less demanding than
patrol officer positions.
13
employment position are, Congress specifically provided
under the ADA that “consideration shall be given to the
employer's judgment as to what functions of a job are
essential, and if an employer has prepared a written
description before advertising or interviewing applicants
for the job, this description shall be considered evidence
of the essential functions of the job.” 42 USC 12111(8).10
The Equal Opportunity Employment Commission (EEOC)
regulations provide that the term “essential functions
means the fundamental job duties of the employment position
the individual with a disability holds or desires. The
term ‘essential functions’ does not include the marginal
functions of the position.” 29 CFR 1630.2(n)(1). A
function may be essential if, inter alia:
(i) [t]he reason the position exists is to
perform that function; (ii) [there is a] limited
number of employees available among whom the
performance of that job function can be
distributed; and/or (iii) [t]he function [is]
highly specialized so that the incumbent in the
position is hired for his or her expertise or
ability to perform the particular function. [29
CFR 1630.2(n)(2)(i)-(iii).]
10
This statutory provision, in our judgment, reflects
a congressional affirmation of the general right of
employers to determine what the essential functions of any
particular employment position are.
14
The EEOC regulations further provide:
Evidence of whether a particular function is
essential includes, but is not limited to:
(i) The employer's judgment as to which
functions are essential; (ii) Written job
descriptions prepared before advertising or
interviewing applicants for the job; (iii) The
amount of time spent on the job performing the
function; (iv) The consequences of not requiring
the incumbent to perform the function; (v) The
terms of a collective bargaining agreement; (vi)
The work experience of past incumbents in the
job; and/or (vii) The current work experience of
incumbents in similar jobs. [29 CFR
1630.2(n)(3).][11]
11
As noted, in § 12111(8) of the ADA, the Congress has
specifically provided that “consideration shall be given to
an employer’s judgment as to what functions of a job are
essential . . . .” The statute is silent, however,
regarding what constitutes “consideration” in accordance
with § 12111(8). In Yellow Transp Inc v Michigan, 537 US
36, 45; 123 S Ct 371; 154 L Ed 2d 377 (2002), the United
States Supreme Court held that “[i]f a statute is ...
‘silent or ambiguous with respect to [a] specific issue,’
[courts] must sustain the agency's interpretation if it is
‘based on a permissible construction of the statute.’”
Regarding this issue, the EEOC has concluded that, to
afford the employer’s judgment adequate “consideration,” it
is sufficient to include the “employer’s judgment” in its §
1630.2(n)(3) listing of factors to consider in determining
whether a job function is essential. While we accept that
this construction of “consideration” is not altogether
unreasonable, and is therefore “permissible,” we do not
necessarily think that it is the best or the most
reasonable construction of the law. In our estimation, §
1630.2(n)(3)—by seemingly providing that the employer's
judgment is to be accorded the same weight as any other
factors—risks diluting any real significance of the
Congress’s specific, and exclusive, statutory directive
that consideration is to be given to the employer’s
judgment. Nonetheless, in accordance with Yellow Transp,
we accord deference to the EEOC regulations and apply them
15
Because the plaintiff bears the overall burden of
demonstrating under the ADA that he is a “qualified
individual with a disability,” the burden of proving that a
challenged function is not “essential” lies with the
plaintiff. See Laurin v Providence Hosp, 150 F3d 52 (CA 1,
1998). Further, a contrary position would be at odds with
§ 12111(8), which requires that “consideration shall be
given to the employer's judgment as to what functions of a
job are essential . . . .” We find compelling the court’s
analysis of this issue in Hamlin v Charter Twp of Flint,
942 F Supp 1129, 1138 (ED Mich, 1996), in which Judge Rosen
stated succinctly:
Pretty clearly, placing the burden on the
employer to show a certain job function is
essential would place courts and jurors in the
position of second-guessing an employer's
business judgment as to what the essential
functions of a job are, without even requiring
the plaintiff challenging the function to first
come forward with evidence that the function is
not essential.[12]
to the extent they are relevant to our analysis of the ADA.
12
The United States District Court for the Eastern
District of Michigan, unlike this Court, is bound by
decisions of the United States Court of Appeals for the
Sixth Circuit. Thus, although the district court in Hamlin
believed that the burden to prove that a disputed function
is not essential belonged with the plaintiff, it was
nonetheless required, in accordance with contrary Sixth
Circuit precedent, to place this burden on the defendant.
Id., citing Monette v Electronic Data Sys Corp, 90 F3d 1173
(CA 6, 1996). Despite the dissent’s contrary statement, we
16
In analyzing whether the EFL tasks are “essential” to
plaintiff’s former position, the EEOC regulations suggest
that courts must undertake a factual analysis of the
relevant factors. The dominant consideration in this
factual analysis is that plaintiff was a police officer. A
police officer is a member of a profession charged with
carrying out what arguably constitute primary functions of
government, protecting the citizenry from criminals and
preserving "domestic tranquility." A police officer
performs functions that are indispensable to our free and
ordered society. In Michigan, a police officer is
“responsible for the prevention and detection of crime and
the enforcement of the general criminal laws of this
state.” MCL 28.602(k)(i). A police officer is a member of
a highly regulated profession, subject to a broad range of
municipal and state rules and policies, not to mention the
constraints of the federal and state constitutions. Each
of these regulations is designed to ensure that a police
officer performs the functions of his position within the
boundaries of public policy. When the police officer acts
outside these boundaries, adverse consequences may be
do not “disregard” the conclusion reached by the Sixth
Circuit in Monette. We simply find the trial court’s
reasoning in Hamlin to be more persuasive.
17
considerable, including the failure to detect and apprehend
criminals, the erosion of the freedoms of citizens,
transgressions of the Constitution, and a general
undermining of the well-being of society. As a police
officer, plaintiff was entrusted with the full measure of
the responsibilities of his position.
The statutory law in Michigan further defines the role
of a police officer, and provides guidance regarding the
essential functions that enable a police officer to perform
his duties. MCL 92.2, for example, provides that a city
council, such as that of the city of Detroit
may make and establish rules for the regulation
and government of the police, prescribing and
defining the powers and duties of policemen and
nightwatchmen, and shall prescribe and enforce
such police regulations as will most effectually
preserve the peace and good order of the city,
preserve the inhabitants from personal violence,
and protect public and private property from
destruction by fire and from unlawful
depredation. . . .
Pursuant to these powers, the city of Detroit has
given the department the authority to promulgate rules that
will enable the department and its officers to effectively
maintain the peace in the city. In response, the
18
department promulgated the EFL.13 Because the EFL was
formulated in accordance with MCL 92.2 and with the purpose
of satisfying the statutory obligations imposed on
defendant and its police officers, the defendant’s claim
that the functions included in that list are “essential” to
police officer positions is, in this Court’s opinion,
highly persuasive.14
Further, it is the “duty of all sheriffs, deputy
sheriffs, constables, policemen and public officers, to
arrest and prosecute all persons of whose violation of the
[Michigan Penal Code] they may have knowledge or reasonable
notice, and for each neglect of such duty, the officer so
offending shall be deemed guilty of a misdemeanor.” MCL
750.52 (emphasis added). MCL 479.13 provides that “every
peace officer shall arrest, on sight or upon warrant, any
13
While defendant may not promulgate rules that
themselves violate federal law, the only issue in this case
is whether the EFL tasks constitute essential functions of
the position. There is no allegation that the EFL tasks
are otherwise violative of federal law.
14
Although the ADA is a federal statute, relevant
state statues may be consulted because the ADA does not
specifically define what the essential functions of any
position are; it provides only that a plaintiff must be
able to perform those functions and that the employer’s
judgment about those functions must be taken into
consideration. State statutes are relevant where, as here,
19
person found violating or having violated, any provision of
[the Motor Carrier Act] . . . .” See also MCL 765.26 and
MCL 764.1b. Thus, the ability to effect arrests is not
only a duty arising from the police officer's general
obligation to maintain the peace, but it is a duty
specifically imposed on police officers. An officer who
neglects to attempt to make an arrest where necessary has
committed a criminal offense.
It is apparent that the EFL is a compilation of
functions that the department expects an officer will be
able to perform so that he may adequately “preserve the
peace and good order of the city, preserve the inhabitants
from personal violence, and protect public and private
property from destruction by fire and from unlawful
depredation,” MCL 92.2, and thereby satisfy his
professional and legal duties.
As noted above, EEOC regulation 29 CFR 1630.2(n)(2)(i)
provides that an alleged job function may be essential if
“the reason the position exists is to perform the function
. . . .” Accordingly, there is no question that the
reason cities such as Detroit hire police officers and fund
their positions is so that the officers will perform those
they provide evidence supporting the employer’s judgment
20
functions necessary to adequately maintain the peace and
enforce the laws of the community.15 MCL 92.2 grants
municipalities the authority to prescribe and enforce
police regulations that will most effectively serve these
ends, and the department promulgated the EFL pursuant to
this authority. Thus, the police officer positions exist
specifically for the purpose of performing the very tasks
identified in the EFL.
Further, EEOC regulation 29 CFR 1630.2(n)(2)(ii)
provides that a function may be essential if there are a
"limited number of employees available among whom the
performance of that job function can be distributed . . .
.” In fact, there is a highly limited number of police
officers available among whom the performance of the EFL
tasks can be distributed. Because of budgetary
constraints, there is a limited number of officers that the
department employs to effectively police and patrol the
entire city of Detroit, a city of nearly one million people
that serves as the center of a metropolitan area of more
regarding which functions are essential to the job.
15
In support of this, MCL 92.1, which grants cities
the power to maintain a police force, provides: “The
council of any city may provide, by ordinance, for a police
force . . . as they may think necessary for the good
government of the city and for the protection of the
persons and property of the inhabitants . . . .”
21
than four million people and that functions as an
international gateway into the United States.16
Additionally, EEOC regulation 29 CFR 1630.2(n)(2)(iii)
provides that a function may be essential if it is “highly
specialized so that the incumbent in the position is hired
for his or her expertise or ability to perform the
particular function.” In fact, because of the nature of
the obligations under which police officers labor, the
police officer position involves highly specialized
responsibilities such that new officers are hired
specifically for their ability to perform the EFL tasks.17
Only a small portion of the overall population would be
physically and otherwise equipped to carry out such
responsibilities. Thus, the EEOC regulations at 29 CFR
1630.2(n)(2) lead to the conclusion that the EFL tasks
constitute essential functions of a police officer
position.
16
US Census 2000, available on-line at
(accessed May 26, 2004).
17
Pursuant to state law, a police officer candidate
must demonstrate the ability to perform tasks similar to
those on the department’s EFL by passing an approved
physical agility examination before he may be employed as a
commissioned officer in this state. See 203 PA 1965, MCL
28.601 et seq.; 1979 AC, R 28.4102(h).
22
As further noted above, EEOC regulation 29 CFR
1630.2(n)(3) provides a nonexhaustive list of factors that
may be considered in determining a position’s essential
functions. The first factor is “[t]he employer’s judgment
. . . .” Section 1630.2(n)(3)(i). This factor has already
been discussed and clearly does not weigh in favor of
plaintiff’s argument. The second factor, “[w]ritten job
descriptions prepared before advertising or interviewing
applicants for the job,” § 1630.2(n)(3)(ii), is not
relevant in this case because neither side has presented
evidence relating to any job description prepared before
plaintiff was hired. However, because the written job
description currently used by the department includes the
EFL tasks, and because, at least since 1975, the department
has maintained a written job description that includes many
tasks similar to those on the EFL, this factor too does not
appear to weigh in plaintiff's favor. Another EEOC factor
is “[t]he consequences of not requiring the incumbent to
perform the function . . . .” Section 1630.2(n)(3)(iv).
If defendant, rather than plaintiff, is correct in its
assessment of the necessary functions of the police officer
position, then the consequences of siding with the
plaintiff would potentially exact a considerable cost on
the ability of defendant to carry out its responsibilities.
23
As earlier noted, the duties of the police officer position
are essential to carrying out what is arguably the primary
function of government, protecting the citizenry from
criminals and preserving "domestic tranquility.” Thus,
this factor likewise does not weigh in plaintiff’s favor.
Another EEOC factor refers to the “terms of a collective
bargaining agreement [CBA] . . . .” Section
1630.2(n)(3)(v). Plaintiff notes that there is nothing in
the CBA that prevents the department from employing
individuals with disabilities or making accommodations for
these individuals. Although that may be the case, there
has been no evidence presented to this Court that a
decision by the department to refrain from doing so
violates the CBA. Thus, this factor also does not weigh in
favor of the plaintiff.
This leaves three remaining factors from the EEOC
nonexhaustive list to consider, all of which are relied on
by plaintiff in support of his case. These are “[t]he
amount of time spent on the job performing the function,”
“[t]he work experience of past incumbents in the job,” and
“[t]he current work experience of incumbents in similar
jobs.” Section 1630.2(n)(3)(iii), (vi), (vii). These
three factors implicate similar considerations. Plaintiff
claims that in his CAU position, he was never called upon
24
to perform the EFL tasks and that other employees in
similar positions were likewise not required to perform
these tasks. Thus, plaintiff argues that the EFL tasks are
not “essential functions” of his and similar positions.
Were this Court to agree with this analysis, we would
effectively be eviscerating the CAU and other similar
positions of their “police officer” significance. We
decline to do this because the fact remains that these
positions are advertised as police officer positions, hired
as police officer positions, supervised as police officer
positions, governed by laws pertaining to police officer
positions, and subject to the terms and benefits of police
officer positions. Further, such positions are supported
by public funds appropriated for the employment of police
officers and they must be filled by applicants who satisfy
the standards for police officers. Moreover, to ensure
satisfaction of its critical public obligations, the
department has determined that all Detroit police officers,
including those who need not regularly engage in patrol
functions, must be constantly capable of performing those
functions during times of riots or crises, or special
circumstances, such as the recent electrical blackout or,
more predictably, during large special event gatherings,
such as the Detroit Thanksgiving Day parade, the Fourth of
25
July fireworks, or major sporting events such as the
upcoming Super Bowl. While it may be true that plaintiff,
as well as other individual officers, have been rarely
called on to perform EFL tasks, this does not obviate the
fact that these tasks remain essential to the police
officer position.18
18
In Holbrook v Alpharetta, 112 F3d 1522, 1528 (CA 11,
1997), the United States Court of Appeals for the Eleventh
Circuit stated:
[F]or quite some time . . . the City of
Alpharetta was able to accommodate Holbrook with
respect to those essential functions he concedes
he cannot perform without assistance. It is
equally apparent, however, that the City of
Alpharetta's previous accommodation may have
exceeded that which the law requires. . . . [I]t
seems likely that the City retained a productive
and highly competent employee based partly on its
willingness to make such accommodations. However,
we cannot say that the City's decision to cease
making those accommodations that pertained to the
essential functions of Holbrook's job was
violative of the ADA.
Likewise, the fact that the department may have thus
far “accommodated” plaintiff by not requiring him to
actively perform patrol functions and by allowing him to
remain on light duty does not by itself suggest that the
EFL tasks are rendered unessential to plaintiff’s police
officer position or that the department cannot place
plaintiff on disability retirement if he is unable to
perform those functions. A contrary conclusion would, in
fact, inhibit a police department from ever granting any
officer a light duty assignment for fear of permanently
redefining that officer’s essential functions and thereby
undermining the flexibility of the department regarding
future employment action.
26
Accordingly, under the relevant EEOC standards, there
is no genuine question of material fact presented in the
record before us that the EFL tasks are essential to
plaintiff’s former police officer position.19 Therefore, we
reverse the decision of the Court of Appeals, and reinstate
the circuit court's grant of summary disposition on this
issue in favor of defendant. Unless plaintiff can, with or
without reasonable accommodation, perform the EFL tasks,
his claim under the ADA must be dismissed.20
19
In Laurin, supra at 58-59, the United States Court
of Appeals for the First Circuit noted:
[Plaintiff] vainly string-cites cases which
acknowledge that the . . . “essential function”
inquiry [under EEOC regulation § 1630.2(n)(3)]
tends to be fact-intensive, such that it is
relatively rare that a trial court may enter
summary judgment. Nevertheless, since an ADA
plaintiff ultimately must shoulder the burden of
establishing that she was able to perform all
"essential functions" of her position, at summary
judgment [plaintiff]—and not the [defendant-
employer]—bore the burden of adducing competent
evidence from which a rational factfinder could
have found in her favor . . . . [Citations
omitted.]
20
The dissent argues that, to constitute a basis for
dismissal, the alleged essential function must be
"uniformly applied in practice to all [officers].” Post at
7. The dissent asserts that the evidence shows that the
EFL tasks here are not "uniformly applied in practice to
all [officers]." Id. (emphasis added), However, if the
dissent’s reasoning is carried to its inevitable
conclusion, it would exclude from the essential functions
of the police officer virtually all EFL tasks since few of
these, as the dissent itself recognizes, id., are
27
ii. The PWDCRA
The Court of Appeals noted in its opinion that “[t]he
ADA’s ‘qualified’ language and the PWDCRA’s ‘disability’
language require essentially the same analysis . . . [and]
the result under either statute is the same.”21 We agree
that both statutes require essentially the same analysis,
and in the predominant number of cases, the result under
either statute may well be the same. However, because the
acts are not identical, and because federal laws and
regulations are not binding authority on a Michigan court
“uniformly applied" to "all" officers, including, for
example, "all" intake or desk officers. As a result, the
dissent would effectively ensure that there is almost no
EFL task that would constitute a truly essential function
of a police officer position, including that of the “beat
cop” who is daily patrolling the streets and on the
frontline in protecting the public from criminal offenders.
The proper question is not whether a particular task is
“uniformly applied” to "all" positions, but only whether it
constitutes an essential function of the position at issue.
Moreover, the question is not, as the dissent posits, post
at 8, whether other officers who arguably cannot perform
one or more of the EFL tasks should be placed on disability
retirement, but rather whether it was appropriate to place
plaintiff on disability retirement because he cannot
perform the essential functions of his police officer
position. The practical consequences of the dissent's test
would be to accord little respect for the judgment of
police departments in determining the qualifications of
their officers, and undue regard for the judgment of courts
in making this determination. These consequences would be
hastened by the dissent's apportionment of the burden of
proof upon the police department. See n 12.
21
Slip op at 3 n 4.
28
interpreting a Michigan statute, we caution against simply
assuming that the PWDCRA analysis will invariably parallel
that of the ADA.22
Unlike the ADA, the PWDCRA does not provide specific
guidance regarding what the duties of a particular job are.
Thus, the task falls upon the judiciary to determine how to
resolve relevant disputes in the absence of a more specific
legislative directive. In doing this, we take into account
a number of considerations. First, we take cognizance of
the obvious fact that there is statutory silence on this
matter in the PWDCRA and that something more than silence
is required, in our judgment, to warrant redefining the
role of the employer in determining the scope of job
positions within its purview. That is, there is no
indication anywhere in the PWDCRA that the employer's
customary responsibilities in this regard were to be
22
In cases filed under both the ADA and the PWDCRA
against employers subject to both acts, if an employer is
found to have violated the ADA, rarely will it make any
practical difference whether the employer has also violated
the PWDCRA. However, the PWDCRA covers a broader range of
employers than the ADA (while the PWDCRA covers any
employer who has one or more employees, the ADA only covers
employers who have fifteen or more employees). Thus, small
business employers are most likely to be affected
exclusively by the PWDCRA. Thus, it is important that
courts refrain from glossing over relevant differences
29
altered by the act, and we decline to read any such
indication from the act's silence. Therefore, in the
absence of any contrary indication, we believe that the
customary responsibilities of the employer in defining the
scope of job positions are unaffected by the act and that
the judgment of the employer in terms of such scope is
entitled to substantial deference by the courts under the
PWDCRA.
Second, we take into consideration that the PWDCRA is
an antidiscrimination statute. It is not a statute
designed to regulate, or to set governmental standards for,
particular employment positions. Nor is it a statute
designed to enable judges to second-guess, or to improve
upon, the business judgments of employers. Rather, the
PWDCRA's purpose is to ensure that “[t]he opportunity to
obtain employment . . . without discrimination because of a
disability” is established as a protected civil right. MCL
37.1102(1). In order to avoid transforming the PWDCRA
from an antidiscrimination statute into something that is
unwarrantedly broader, we believe that the judgment of the
employer regarding the duties of a given job position is
entitled to substantial deference.
between these two acts and conflating them in a manner
30
Third, our analysis regarding what constitute the
"duties of a particular job" is premised on an assumption
that the employer is the single most interested person in
the world in the success of his business. Therefore, as a
general matter, it can reasonably be expected that the
functions or duties that the employer specifies for a given
position will be those reasonably well-designed to effect
the success of such business. It is contrary to the
economic interests of a reasonable employer to define a job
position in a manner that is either inadequate or
irrelevant. While the employer's own judgment about the
duties of a job position will not always be dispositive, it
is nonetheless always entitled to substantial deference.
Finally, in Chmielewski we stated that
in interpreting provisions of the HCRA [the
former PWDCRA], analogous federal precedents are
persuasive, although not necessarily binding. . .
.
* * *
Because the HCRA definition [of disability]
mirrors that of the ADA, we examine federal law
for guidance. [Chmielewski, supra at 601-604
(citations omitted).]
Accordingly, because the PWDCRA and the ADA are similar in
purpose, and generally require similar proofs, we examine
the ADA for guidance. The ADA specifically provides that
unwarranted by their language.
31
the employer’s judgment regarding what functions of a job
are essential shall be given consideration. This is the
only such provision in the ADA. As earlier noted, see n
10, it is our judgment that this provision reflects a
general congressional affirmation of the right of employers
to determine what the essential functions of any particular
employment position are. While we do not accept as
dispositive in interpreting the PWDCRA the EEOC regulations
pertaining to the ADA, see n 11, we do believe that the
explicit emphasis set forth in the ADA itself suggests the
extent of the deference due the employer's own judgment in
determining the duties of a job under the PWDCRA.
Thus, we hold that, in disputes regarding what the
duties of a particular job are, the employer’s judgment is
entitled to substantial deference. Consistent with the
plaintiff’s burden of proving discrimination under the
PWDCRA, the plaintiff bears the burden of presenting
sufficient evidence to overcome this deference. Unless the
plaintiff can satisfy this burden, it is to be presumed
that the employer’s judgment concerning the duties of a
particular job is reasonable. In such circumstances, the
plaintiff must prove that he can, with or without
accommodation, perform those duties.
32
Accordingly, the department’s judgment that the EFL
tasks are duties of plaintiff’s former police officer
position is entitled to considerable deference. Plaintiff
here has not sustained his burden of demonstrating that the
department’s judgment in this regard is not reasonable.
Thus, we hold that the EFL tasks are “job duties” of a city
of Detroit police officer position under the PWDCRA.
Therefore, we reverse the Court of Appeals reversal of the
circuit court’s grant of summary disposition for defendant
on this issue. Unless plaintiff can, with or without
accommodation, perform these functions, his claim under the
PWDCRA must be dismissed.
D. Ability to Perform Essential Functions
Defendant moved for summary disposition of plaintiff’s
entire case, arguing that plaintiff is unable to perform
the EFL tasks and, therefore, is not entitled to proceed on
his ADA and PWDCRA claims. To overcome defendant’s motion,
plaintiff bears the burden of raising a genuine issue of
material fact regarding whether he can perform the EFL
tasks. Unless plaintiff can satisfy this burden, summary
disposition in defendant’s favor is warranted.
In our judgment, the evidence supports summary
disposition. After plaintiff suffered a heart attack and
was diagnosed with heart disease, his physician released
33
him to work on restricted duty only. Accordingly,
plaintiff spent the majority of his career as a desk
clerk.23 The record indicates that for approximately ten
years, there was never a question that plaintiff’s heart
condition prevented him from performing the full range of
duties normally required of police officers. This is
precisely why plaintiff’s physician placed him on
restricted duty and why he remained in a nonpatrol, desk-
clerk position for ten years. Plaintiff’s own counsel
admitted to the trial court that plaintiff, because of his
heart condition, cannot perform regular patrol functions.
In attempting to withstand defendant’s motion,
plaintiff argues that the department failed to undertake an
individualized assessment of his condition before placing
him on disability retirement in 1995, and, therefore, that
a genuine question of material fact necessarily remains
regarding whether he can perform the EFL tasks. However,
in light of the circumstances of plaintiff’s employment
history and the nature of his medical condition, we believe
23
Consistent with the decision of the Eleventh Circuit
Court of Appeals in Holbrook, see n 18, the fact that the
department allowed plaintiff for a period of years to
continue working, even though he could not perform the
essential functions of his position, does not preclude it
34
that the department was not required to perform an
individualized assessment of plaintiff’s condition beyond
those assessments that were routinely carried out.
Department physicians examined plaintiff and consulted the
medical records prepared by plaintiff’s own physicians.
Plaintiff’s medical records indicated, as would be
expected, that plaintiff’s heart condition continued to
persist. Under such circumstances, it would be pointless
to require the department, before placing plaintiff on
disability retirement, to have him undertake agility tests
in order to determine whether he could perform the EFL
tasks. Such tests would essentially require plaintiff to
perform those very tasks that, because of his heart
condition, his medical records indicated he was to refrain
from performing. When the department stated in 1995 that
plaintiff was unable to perform the essential functions of
a police officer position, it was relying on evidence that
already had been conclusively established by plaintiff’s
own medical records and accepted as the truth by all
parties.
Plaintiff has presented evidence that he chased down a
purse-snatcher on foot approximately fifteen years ago.
from subsequently changing its mind, perhaps on the basis
35
This evidence perhaps demonstrates that plaintiff is not
incapable of performing on a sporadic basis individual EFL
tasks. However, in light of the substantial contrary
evidence reflected in plaintiff’s medical records and by
ten years of employment history, that evidence does not
create a genuine question of material fact regarding
whether plaintiff is capable of performing the essential
functions of a police officer.
Accordingly, in light of the evidence in support of
summary disposition, the evidence presented by plaintiff
does not raise a genuine question of material fact.
Because the record establishes that plaintiff is unable to
perform the EFL tasks, he may not proceed on his ADA and
PWDCRA claims. We therefore reverse the decision of the
Court of Appeals and reinstate the circuit court’s grant of
summary disposition in favor of defendant.
V. CONCLUSION
In conclusion, plaintiff has raised no genuine issue
of material fact regarding whether the EFL tasks are
“essential functions” of his former police officer
position. Therefore, we reverse the decision of the Court
of Appeals on this question, and we reinstate the circuit
of budgetary or other considerations.
36
court’s grant of summary disposition in favor of defendant.
We further hold that plaintiff has not raised a
genuine issue of material fact regarding whether he is able
to perform the essential functions of a police officer
position. Therefore, we reverse the decision of the Court
of Appeals on this question as well. We reinstate the
circuit court’s grant of summary disposition in favor of
defendant.
Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
37
S T A T E O F M I C H I G A N
SUPREME COURT
ALLAN PEDEN,
Plaintiff-Appellee,
v No. 119408
CITY OF DETROIT, DETROIT
POLICE DEPARTMENT,
Defendant-Appellant.
_______________________________
KELLY, J. (dissenting).
While I agree with much of the majority's analysis, I
cannot join in its decision to uphold the trial court's
summary dismissal of this case. Instead, I would affirm
the decision of the Court of Appeals, reverse the trial
court’s ruling, and remand the matter for trial.
The issue is not whether defendant has the right to
require all its officers to meet what it determines are
essential functions of police work within the department.
It is whether plaintiff presented a factual question about
whether the requirements that defendant has designated as
essential for its police officers are actually imposed on
all officers.
THE APPROPRIATE STANDARD OF REVIEW
The appropriate standard of review for this case is
recited in Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d
817 (1999):
A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. In
evaluating a motion for summary disposition
brought under this subsection, a trial court
considers affidavits, pleadings, depositions,
admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion.
Where the proffered evidence fails to establish
a genuine issue regarding any material fact,
the moving party is entitled to judgment as a
matter of law. MCR 2.116(C)(10), (G)(4). Quinto
v Cross & Peters Co, 451 Mich 358; 547 NW2d 314
(1996).
THE SIGNIFICANCE OF THE EEOC INTERPRETIVE GUIDELINES
The majority describes the statutory framework of the
Americans With Disabilities Act (ADA), 42 USC 12101 et
seq., and the Michigan Persons With Disabilities Civil
Rights Act, MCL 37.1101 et seq. It disregards the
Interpretive Guidelines promulgated by the Equal Employment
Opportunity Commission (EEOC). These guidelines are
valuable in clarifying that the "essential functions" of a
police officer must be essential in reality, not just on
paper:
The inquiry into whether a particular
function is essential initially focuses on
whether the employer actually requires employees
in the position to perform the functions that the
employer asserts are essential. For example, an
2
employer may state that typing is an essential
function of a position. If, in fact, the employer
has never required any employee in that
particular position to type, this will be
evidence that typing is not actually an essential
function of the position.
* * *
It is important to note that the inquiry
into essential functions is not intended to
second guess an employer's business judgment with
regard to production standards, whether
qualitative or quantitative, nor to require
employers to lower such standards. (See § 1630.10
Qualification Standards, Tests and Other
Selection Criteria). If an employer requires its
typists to be able to accurately type 75 words
per minute, it will not be called upon to explain
why an inaccurate work product, or a typing speed
of 65 words per minute, would not be adequate.
Similarly, if a hotel requires its service
workers to thoroughly clean 16 rooms per day, it
will not have to explain why it requires thorough
cleaning, or why it chose a 16 room rather than a
10 room requirement. However, if an employer does
require accurate 75 word per minute typing or the
thorough cleaning of 16 rooms, it will have to
show that it actually imposes such requirements
on its employees in fact, and not simply on
paper. [29 CFR Pt 1630, App 1630.2(n) (emphasis
added).]
The EEOC Interpretive Guidelines render the question
of what comprises the essential functions of a job a
factual matter. In addition, the language cited suggests
that it is the employer who must show that the purported
"essential functions" of a job are imposed uniformly.
THE APPROPRIATE BURDEN OF PROOF
With respect to which party bears the burden of
proving the essential nature of the disputed "essential
3
functions," the majority finds persuasive the analysis of a
federal district court. It disregards rulings by the
United States Court of Appeals for the Sixth Circuit that
the burden is on the employer. See Monette v Electronic
Data Sys Corp, 90 F3d 1173, 1179-1180, 1184-1185 (CA 6,
1996), and Hamlin v Charter Twp of Flint, 165 F3d 426, 429-
431 (CA 6, 1999). I find the Sixth Circuit analysis more
soundly grounded in the EEOC's Interpretive Guidelines and
more compelling.
A CASE-BY-CASE ANALYSIS IS REQUIRED
In formulating its opinion, the majority considers the
job requirements for a department’s police officers in
general terms. The consideration should be focused,
instead, case by case, on the essential functions of an
officer in the plaintiff's position. Other courts
reviewing ADA claims against law enforcement agencies have
taken the latter approach.
For example, in Champ v Baltimore Co,1 the plaintiff
did not prevail because the defendant showed that he could
not perform essential duties that actually were required of
all officers. Plaintiff had lost the complete use of one
arm and could not drive a vehicle under emergency
conditions or effectuate a forcible arrest. He was not
4
proficient with a firearm. The department provided
evidence that all officers were subject to reassignment at
any time and that nonpatrol officers actually were
reassigned to patrol in emergencies.
Similarly, in Shoemaker v Pennsylvania Human Relations
Comm,2 the court considered the small size of the police
department and the actual duties of its officers in
determining that all officers were required to perform
patrol work. Plaintiff could not do that work.
In Dorris v Kentwood,3 a Michigan federal district
court refused to grant summary disposition in favor of the
defendant police department. There, the officer offered
evidence that his position as an in-school instructor did
not require the strenuous physical exertion demanded of a
patrol officer. In each of the cases, the department was
obligated to come forward with evidence that in practice
all of its officers were required to perform the activities
that it demanded of the plaintiff.
The proper factual analysis is set forth at 29 CFR pt
1630.2(n). The trial court in this case failed to engage
1
884 F Supp 991 (1995).
2
160 Pa Cmwlth 216; 634 A2d 772 (1993).
3
1994 US Dist LEXIS 15640; 1994 WL 762219, 4 Am
Disabilities Cas (BNA) 741 (WD Mich, 1994).
5
in that analysis. Rather, it decided that public policy
considerations required that defendant be insulated from
judicial review of the "essential functions" that it had
established for its officers. It ignored that plaintiff
has raised a question of fact regarding whether those
functions were uniformly applied to all officers.
THE ESSENTIAL FUNCTIONS MAY NOT HAVE
BEEN UNIFORMLY APPLIED IN PRACTICE
In this case, for ten years after plaintiff's
physician placed him on restrictive duty status, he worked
for defendant, a large, urban police department that was
divided into many subdivisions. Eventually, he
successfully bid for both A-clerk and Crime Analysis Unit
(CAU) positions. He won these positions without regard to
his medical condition. Neither required the physical
capabilities of a patrol officer. After plaintiff had
served three years in the CAU, defendant forced him into
involuntary disability retirement.
Defendant asserts that plaintiff was unable to perform
the essential functions of his job. As evidence of its
definition of essential functions, defendant relies on a
Michigan Law Enforcement Officer Training Commission list
that it had adopted. See ante, p 3. However, plaintiff
provided testimony that full-duty officers were not
routinely evaluated to determine whether they could perform
6
all the tasks on the list. Further evidence demonstrated
that defendant continued to employ others, including a
wheelchair-bound officer, who also could not perform all
the tasks on the essential functions list.
There is precedent for adopting plaintiff’s position
that, to establish grounds for dismissal, essential
functions must be uniformly applied in practice to all.
The court in the case of Simon v St Louis Co, Mo,4 faced a
situation similar to the instant one. After the
plaintiff’s dismissal, other disabled officers remained at
work as commissioned police officers. The United States
Court of Appeals for the Eighth Circuit remanded the case
to the district court with the following order:
On remand, the district court should
consider whether the requirements for police
officers of St. Louis County, as testified to
at trial by Colonel Kleinknecht, are
reasonable, legitimate, and necessary
requirements for all positions within the
department. The district court should determine
whether the ability to make a forceful arrest
and the ability to perform all of the duties of
all of the positions within the department are
in fact uniformly required of all officers. If
not uniformly required, they should not be
considered actual requirements for all
positions. [Id. at 321.]
In Simon, the plaintiff police officer presented
evidence that the defendant police department’s physical
4
656 F2d 316, 320 (CA 8, 1981).
7
requirements for officers were not actually applied to all
officers. This case is similar to Simon in that Officer
Peden presented evidence that the department’s essential
functions were not, in fact, required of all but were
selectively required.
Contrary to the majority's characterization, I do not
imply that every officer must spend the same percentage of
time on every task on the essential functions list.
Rather, if all the tasks are applicable to all the
officers, as the police department asserts, then all tasks
must actually be considered when assessing the ability of
any officer. If one officer is subject to forced
disability retirement because he cannot perform an
essential function, then all officers who cannot perform
that function should be forced to retire.
The difficulty that plaintiff raises here is that,
although the department asserts that all officers must
satisfy all tasks on the list, that assertion may not be
true in practice. In accordance with the EEOC Interpretive
Guidelines, we should not defer to an essential function if
it is essential only on paper. Given that plaintiff has
offered evidence that officers who cannot perform the
essential functions are still employed by the department,
summary disposition should not have been granted.
8
CONCLUSION
I agree with the majority that the courts should give
deference to the descriptions given by police departments
of the essential functions of their officers’ jobs.
However, I do not believe that the deference should be
absolute.
To constitute a basis for dismissal, the essential
functions must be uniformly applied to all police officers.
The burden is on the department, if challenged, to make
this showing. In this case, plaintiff raises the issue
whether defendant viewed the tasks on its essential
functions list as applicable to all positions within the
police department and uniformly required them.
Consequently, summary dismissal of plaintiff’s claim
was not appropriate. While it is unknown whether plaintiff
would prevail at trial, he has provided enough evidence to
escape summary disposition. I would affirm the decision of
the Court of Appeals and remand the case for trial.
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
9