Jewett v. Mesick Consol. Sch. Dist.

332 Mich.App. 462

957 N.W.2d 377

Randy K. JEWETT, Plaintiff-Appellant,

v.MESICK CONSOLIDATED SCHOOL DISTRICT, Defendant-Appellee.

No. 348407

Court of Appeals of Michigan.

Submitted May 12, 2020, at Lansing.

Decided June 4, 2020, 9:05 a.m.

The Mastromarco Firm, Saginaw (by Victor J. Mastromarco, Jr. ) for plaintiff.

Kluczynski, Girtz & Vogelzang (by Mark T. Ostrowski, Grand Rapids, and Bogomir Rasjic, III) for defendant.

Before: Ronayne Krause, P.J., and Servitto and Redford, JJ.

Ronayne Krause, P.J.

In this employment-discrimination action brought under the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. , plaintiff, Randy K. Jewett, appeals by right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff was hired in 1992 by defendant, the Mesick Consolidated School District (the School), as a custodian. According to a psychological evaluation, plaintiff suffers from attention deficit hyperactivity disorder (ADHD), an unspecified anxiety disorder, a "Reading Disorder," and a "Disorder of Written Expression." Plaintiff contends that he also suffers from dyslexia and hypoglycemia. It is not seriously disputed that plaintiff is unable to read, although plaintiff contends that he has no difficulty understanding, memorizing, and following verbal directions. Plaintiff was a former special education student at the School, and on that basis, he contends that the School was aware of his disabilities when he was hired. Various personnel at the School generally agreed that they understood plaintiff to have difficulty reading and to possibly have ADHD. However, by plaintiff's own admission, he never actually described himself as "disabled"; rather, he only described himself as dyslexic and unable to read.

Throughout plaintiff's employment, his various supervisors and administrators provided plaintiff with verbal instructions regarding his job. Plaintiff was given colored charts of where he was to clean and laminated photographs of what and how to clean; those visual aids were attached to plaintiff's cleaning cart. At least one superintendent personally demonstrated to plaintiff how to perform some of his job duties. Plaintiff contends that he understood what he was supposed to do, did what he was supposed to do, and consistently worked to the utmost of his ability. Nevertheless, personnel at the School complained about the quality of plaintiff's work for many years. Those complaints included leaving floors and bathrooms dirty, failing to follow directions, and attendance problems. Plaintiff's personnel file reflects an extensive history of disciplinary action, and plaintiff admitted that he was disciplined by numerous supervisors or superintendents. Plaintiff nevertheless disputes that there was anything wrong with his work that was not attributable to other causes.¹ Plaintiff contends that he was accommodated until Scott Akom was promoted to superintendent. However, plaintiff admitted that he was never actually denied any requested accommodations, which consisted of asking people to read things to him.

Notably, Akom's predecessor as superintendent, Michael Corey, personally observed plaintiff's work to be substandard, believed plaintiff willfully disregarded instructions and knowingly shirked his duties when he thought no one would know, and thought that plaintiff performed unacceptable work that plaintiff believed was good enough despite knowing it would not be acceptable to a supervisor. Corey testified that plaintiff's problems followed a consistent pattern of improving for a while after being talked to and plaintiff appearing to understand, only for plaintiff's performance to inevitably fall off again and that "nothing was ever resolved." There is no evidence that Akom interfered with the ongoing practice of giving plaintiff verbal and graphic instructions. As noted, plaintiff could not recall anyone ever refusing any request he made for accommodation. There is also no evidence that plaintiff's job required him to be able to read.

Plaintiff places great significance on Akom allegedly denying being told by Corey, when the superintendency was transferred, that plaintiff was disabled; plaintiff claims that this denial conflicts with Corey's testimony and shows bias. Plaintiff both misinterprets two comments and takes them out of context. Corey agreed during his deposition that he had discussions with Akom regarding plaintiff when Akom was Corey's subordinate, most of which concerned plaintiff's performance, but that "there were some discussions about the source of these performance problems, i.e., his disabilities." Corey did not elaborate. Akom testified only that he did not recall Corey telling him that plaintiff had any disabilities, which is completely different from claiming that no such conversation occurred. Akom testified that he was not aware that plaintiff suffered from any disabilities, but he also testified that long before he became superintendent, he was fully aware that plaintiff reported having ADHD and dyslexia. Plaintiff testified that he never told anyone at the School that he was disabled, and in fact, plaintiff does not claim to have reported any impediments other than ADHD, hypoglycemia, and an inability to read.² Thus, Akom was clearly aware of the substance of plaintiff's alleged disability, and plaintiff simply makes too much of either terminology or a completely normal failure to recall every detail of every conversation from years prior.

Plaintiff contends that he had an acrimonious and oppressive relationship with his supervisor, Robert Harris, and with Ron Barron, whom plaintiff regarded as Harris's assistant. Harris did yell at plaintiff on occasion, which he admitted was "not very professional," but when he did yell, "it would be [about plaintiff] not doing his job." Corey testified that he admonished Harris to treat plaintiff with more respect, after which Corey perceived that plaintiff's and Harris's relationship improved. Nevertheless, plaintiff contends that Harris and Barron continued to harass him and make negative and discriminatory comments about him.

In March 2015, plaintiff called in sick to work and was then observed a few hours later at a nearby ski resort.³ As a consequence of that incident and a list of concerns observed and reported by Tammy Cinco, then the interim elementary principal at the School, Akom imposed on plaintiff a 10-day unpaid suspension. Plaintiff was also informed that despite his claim at a meeting that he performed his duties every night, it was clear to Akom that plaintiff's duties were not being completed. During that suspension, Akom, along with plaintiff's union president and the assigned Michigan Education Association (MEA) UniServ director,⁴ developed a plan to allow plaintiff a nondisciplinary period off work, during which plaintiff could use his vacation, sick, and personal days to seek other income options, including trying to qualify for retirement disability. Plaintiff regarded the offer as a veiled threat that he should quit.

On July 6, 2015, after plaintiff exhausted his leave time, Akom provided plaintiff with a "last chance agreement" at a meeting as the condition of his continued employment. Akom was the only person at that meeting on behalf of the School. The other attendees were plaintiff, plaintiff's cousin, the cousin's wife, and the MEA UniServ director; the latter three were present to assist plaintiff or represent his interests. The agreement expressly required plaintiff to follow and complete all directives, to fully complete his duties and responsibilities, and to be prompt and regular in attendance. The agreement also provided eight additional provisions, which included that he would be immediately terminated if he failed to meet the conditions of the agreement; that he would be closely monitored and must accept that supervision; that he would be expected to report to work at his scheduled time and be prepared to work; and that he "will follow all oral and written policies, procedures, directives, and instructions communicated from administration and/or the supervisor."

Plaintiff testified that he understood he could have signed the agreement and that he had not been fired, but he "kn[e]w where it was going." Plaintiff testified that he refused to sign the agreement because he had been working hard and trying to do everything, he did not want to admit to having been negligent at his job, and he believed it was pointless because sooner or later Harris or Barron would "find something." Plaintiff therefore chose to resign rather than sign the agreement.

Plaintiff filed a complaint in circuit court, alleging that defendant's actions were in violation of the PWDCRA. Specifically, plaintiff argued that defendant had violated MCL 37.1202(1)(b) (discharge of or discrimination against individual because of disability unrelated to ability to perform job duties). Defendant moved to dismiss under MCR 2.116(C)(10), and the trial court granted defendant's motion. This appeal followed.

II. STANDARD OF REVIEW

Appellate courts review de novo a trial court's decision on a summary-disposition motion. Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Appellate courts review the entire record to determine whether summary disposition was warranted. Id. A party is entitled to summary disposition under MCR 2.116(C)(10) when the provided evidence does not establish a genuine issue of material fact. Id. at 120, 597 N.W.2d 817. The evidence is reviewed in the light most favorable to the nonmoving party. Id. "The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion." Id. at 121, 597 N.W.2d 817.

III. APPLICABLE LEGAL PRINCIPLES

The PWDCRA states that the...