Work Suspension After Brain Surgery Upheld

     (CN) – A Michigan police officer cannot sue his employer for disability discrimination after it concluded he could no longer perform his job following his third brain surgery, the Sixth Circuit ruled.
     The city of Troy, Michigan, placed Officer Todd Michael on unpaid leave in 2010, after he had brain surgery for a third time to remove a non-cancerous tumor.
     Following Michael’s brain surgery, two of three consulted doctors concluded that Michael could no longer safely perform the functions of a patrol officer, finding that he “may be a threat to himself and others.”
     A fourth doctor, independently consulted by Michael unbeknownst to the city, also found that Michael had weak “executive functioning” and that “safety with use of weapons and high-speed driving would be in question.”
     The city asked for the neurological evaluations after it became concerned about Michael’s performance due to a pattern of “aberrant behavior” in the prior two years.
     For example, in 2007, Michael’s then-wife found a box of empty steroid vials, some of which were labeled “for veterinary use,” and turned them over to Michael’s superior, Police Chief Charlie Craft. Michael then embarked on a two-year campaign to get them back, even attempting to serve Craft with process at a party celebrating the chief’s retirement.
     Michael had a very public falling out with his former wife, and brought secret recordings of their marriage-counseling sessions to the city prosecutor, asking the prosecutor to charge her with perjury.
     He also quickly came to the attention of the new Police Chief Gary Meyer, who received reports that Michael had accompanied a cocaine dealer to several drug deals. Meyer suspended him pending an investigation.
     The investigation was placed on hold when Michael informed the department he needed brain surgery.
     Michael sued the city for discrimination under the Americans with Disabilities Act, but a federal judge ruled against him.
     A divided Sixth Circuit affirmed Monday.
     “The City did not act on the opinions of Drs. Van Horn and Sewick alone,” said U.S. Circuit Judge Raymond Kethledge, writing for the majority. “The second basis of the City’s decision, rather, was Michael’s own conduct, which Dr. Leithen and the insurance-company doctors did not discuss, and which obviously raised grave concerns regarding Michael’s judgment.”
     On the basis of the record, the city’s concern about allowing Michael to return to active duty was “objectively reasonable,” Kethledge said.
     U.S. Circuit Judge Ronald Lee Gilman dissented, saying the medical evidence is unclear as to whether Michael can perform the essential functions of his job as a police officer. He said he would have left the matter for a jury to decide.

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