2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 1 of 12

Pg ID 688

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DIANNE DOWN,
Case No. 14-10086
Plaintiff,
Honorable Nancy G. Edmunds
v.
ANN ARBOR PUBLIC SCHOOLS, ET AL,
Defendants.
/

OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY

JUDGMENT [41]
In January 2014, Plaintiff filed this civil rights action against her employer, Ann Arbor
Public Schools, and its director of human resources, Cynthia Ryan (collectively
"Defendants"), asserting claims under the Fourth Amendment and Michigans Persons with
Disabilities Civil Rights Act ("PWDCRA") as amended, Mich. Comp. Laws 37.1101, et al.
The viability of Plaintiff's complaint depends, in large part, on whether a school board may
lawfully compel a teacher with a prolonged and particularly egregious disciplinary record
to submit to a psychological evaluation. According to Plaintiff, requiring her to participate
in this process amounts to an unreasonable search and seizure that was not warranted
under the terms of the Collective Bargaining Agreement in the first place.
Currently before the Court is Defendants' motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56. Plaintiff's response to Defendants' motion includes a
request for partial summary judgment with respect to her PWDCRA claim. While

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 2 of 12

Pg ID 689

procedurally improper,1 the Court need not consider Plaintiff's argument in light of its
decision here.
I.

BACKGROUND
A brief foray into the procedural history of this case provides some helpful context. On

or around December 9, 2013, Defendants informed Plaintiff that she was "being placed on
administrative paid leave of absence effective immediately pending an investigation of
allegations of verbal abuse of students." (Defs.' Mot. Ex. 11, Letter, Dec. 9, 2013). Two
days later, Defendants mailed Plaintiff a letter instructing her to appear for an Independent
Medical Exam ("IME") designed to assess whether she was mentally fit for the professional
duties associated with teaching at the high school level. (Id. at Ex. 12, Letter, Dec. 13,
2013). Shortly after receiving the letter, Plaintiff filed the instant action alleging that
"Defendants [were] violating [her] privacy interest by requiring her to submit to an
unreasonable search . . . ." (Compl. 50).
In May 2014, Plaintiff filed a request seeking to prohibit Defendants from moving
forward with the IME. After conducting an extensive evidentiary hearing and considering
the testimony of several witnesses--including Plaintiff--the Court ultimately concluded that:
Given the long history of issues that have evolved with Plaintiff over the
years, the long history of parent complaints and student difficulties, including
the summer school problems which seem particularly difficult, the Court finds
that the Ann Arbor Public Schools have established that it is reasonable for
them, under these circumstances, to require Plaintiff to undergo an IME to
see if there is some medical or mental or emotional condition which is
preventing Plaintiff from becoming an effective teacher and performing her
teaching job. The Ann Arbor Public Schools have satisfied the requirement
1

Pursuant to Rule 5 of the Electronic Filing Policies and Procedures governing the
Eastern District of Michigan, a response or reply to a motion must not be combined with
a counter-motion.
2

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 3 of 12

Pg ID 690

for invoking 4.911 [of the CBA] by showing that it had reason to suspect
that Plaintiff was unable to perform her professional duties due to physical,
mental, and/or emotional disability.
(Order, July 7, 2014, Dkt. 33 at 39). With respect to Plaintiff's Fourth Amendment claim,
the Court further held that "Plaintiff has not shown that requiring a public school teacher
with Plaintiff's record to submit to an IME is an unreasonable search . . . . " (Id. at 14). In
light of the Court's decision--and the close of the discovery period--Defendants argue that
this matter is now ripe for adjudication on the merits.
II.

FACTS
The facts giving rise to Plaintiff's complaint were throughly documented in the Court's

order denying her motion for a preliminary injunction. See (Order, July 7, 2014, Dkt. 33).
Based on the parties submissions here, it is clear that the record has not evolved in any
material way since that time. Accordingly, except where otherwise noted, the Court relies
on--and incorporates--its previous findings of fact.
In summary, Plaintiff has been a high school teacher at Ann Arbor Huron High since
1999. During that time, her relationship with the students, parents, and Ann Arbor Public
Schools (AAPS) administration slowly degraded to the point of no return. Indeed, Plaintiff's
tenure was plagued by formal reprimands, individualized development plans, and, perhaps
most notably, a small army of vocal parents who actively campaigned for her termination
based on the negative experiences of their children. While the record is replete with
examples of Plaintiff's unprofessional conduct--including, by way of example, telling one
student to "shut up, chipmunk" (Defs. Mot. Ex. 4, Letter of Reprimand, Oct. 22, 2004), and
asking another "what drug" they were on in response to a question (Ex. 9, Letter of
Reprimand, Nov. 20, 2013)--things officially came to a head in December 2013 following
3

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 4 of 12

Pg ID 691

an email from a concerned parent to Arthur Williams, principal of Huron High. In it, the
parent notes that they were "distressed to find that my daughter's concerns [about Plaintiff]
were backed up by uniformly damning reviews posted by Huron students describing the
verbal abuse (e.g. calling students "whores"), emotional abuse (denigrating comments,
racist comments), and even physical abuse (throwing a pencil at a dozing student) during
instruction time." (Ex. 10, Parent Email, Dec. 6, 2013). The "reviews" referred to in the
email were posted on a website known as www.ratemyteachers.com; an internet forum
allowing students to submit anonymous feedback about their teachers. See id.
Following Mr. Williams' review of the website--which, according to the email, included
"40 odd comments" about Plaintiff--he escalated the issue to AAPS' director of human
resources, Cynthia Ryan. Within days, Ms. Ryan placed Plaintiff on administrative leave
and scheduled her for an IME with Dr. Gerald Williams. (Ex. 12, IME Letter, Dec. 11, 2013).
To date, Plaintiff has refused to participate in the IME- an evaluative process that is
explicitly authorized under the Collective Bargaining Agreement (CBA); a formal
agreement governing the relationship between AAPS administration and union employees.2
See (Ex. 1, CBA Agreement, 4.911) ("Should the Board or its agent have reason to
suspect that a teacher is unable to perform [her] professional duties due to . . . [an]
emotional disability, they may demand that said teacher submit to a physical or
psychological/psychiatric evaluation.").
Plaintiff, for her part, does not dispute that her behavior resulted in multiple
2

While Plaintiff claims that AAPS has since "abandoned" the IME, the record fails
to support that assertion. In fact, Plaintiff's counsel specifically informed Defendants that
"[d]uring the pendency of the appeal, my client does not intend to appear for an IME."
(Defs.' Reply, Ex. A).
4

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 5 of 12

Pg ID 692

admonishments from AAPS and created a hostile environment for many of her students.
Nevertheless, she argues that "a jury could reasonably conclude that Defendants had no
good faith belief that a psychological examination was necessary, and instead was merely
a stratagem to appease a group of increasingly vocal and militant group of parents
determined to have [her] removed." (Plf.'s Resp. 13). The Court considers this argument
in the context of Plaintiff's Fourth Amendment and PWDCRA claims.
III.

STANDARD OF REVIEW
The Sixth Circuit employs the familiar standard for summary judgment, namely, that

summary judgment is proper when the movant "shows that there is no genuine dispute as
to any material fact, and that the movant is entitled to judgment as a matter of law." U.S.
SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986)) (quotations omitted). When
reviewing the record, "the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor." Id. Furthermore, the
"substantive law will identify which facts are material, and summary judgment will not lie if
the dispute about a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
When considering the material facts on the record, a court must bear in mind that
[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 252.
Moreover, [i]n order to survive a motion for summary judgment, the non-moving party
must be able to show sufficient probative evidence [that] would permit a finding in [their]
5

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 6 of 12

Pg ID 693

favor on more than mere speculation, conjecture, or fantasy. Arendale v. City of Memphis,
519 F.3d 587, 605 (6th Cir. 2008) (citing and quoting Lewis v. Philip Morris Inc., 355 F.3d
515, 533 (6th Cir. 2004)).
IV.

ANALYSIS
A. Fourth Amendment
As both parties acknowledge, the Court, in its order denying Plaintiff's motion for a

preliminary injunction, thoroughly discussed the state of the law with respect to Fourth
Amendment challenges to compelled psychological examinations of public sector
employees. See (Order, July 7, 2014, Dkt. 33 at 14-24). More specifically, the Court
concluded that, while it "predicts that the Sixth Circuit will find that a compelled
psychological examination is a search for Fourth Amendment purposes", "Plaintiff has not
shown that requiring a public school teacher with Plaintiff's record to submit to an IME with
a psychologist is an unreasonable search in violation of her Fourth Amendment rights." Id.
at 14. With respect to the first layer of the Courts analysis, Defendants have failed to
introduce any new authority suggesting that the Sixth Circuit would decide the search
issue any differently. For that reason, the Court is satisfied that a compelled psychological
exam is a search for Fourth Amendment purposes.
Having determined that the IME is a search, the Court must "balance the individual's
privacy expectations against the Government's interests to determine whether it is
impractical to require a warrant or some level of individualized suspicion in the particular
context." Knox Cnty. Educ. Assoc. v. Knox Cnty. Bd. of Educ., 158 F.3d 361, 370 (6th Cir.
1998) (citations and quotations omitted). Once again, the Court carefully considered this
question at the preliminary injunction stage, finding that:
6

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 7 of 12

Pg ID 694

Plaintiff has a diminished expectation of privacy because, as a school

teacher, (1) she is employed in a safety-sensitive position in a highly
regulated industry and plays a unique role in the lives of school children; and
(2) her union contract provides for psychological examinations. In contrast,
. . . the School Districts interest in ensuring a safe, effective, and productive
educational environment is strong. Balancing Plaintiffs privacy interests
against Defendants interests results in a conclusion that Plaintiffs
constitutional rights were not violated.
(Order, July 7, 2015, Dkt. 33 at 14). Plaintiff does not take issue with the Court's balancing
analysis, but argues that "[a] jury can reasonably conclude that nothing in the complaints
or Plaintiff's behavior . . . led [Defendants] to believe that Plaintiff suffered from any
impairment warranting [a] psychological examination." (Plf.'s Resp. 15). In other words,
Plaintiff appears to be arguing that Defendants failed to follow the standard set forth under
the CBA before scheduling the IME. The record belies this contention.
Under the terms of the CBA, where the Board has reason to suspect that a teacher
is unable to perform [her] professional duties due to . . . [an] emotional disability, they may
demand that said teacher submit to a physical or psychological/psychiatric evaluation. (Ex.
1, CBA Agreement, 4.911) (emphasis added). Notwithstanding the exceedingly low
burden imposed on the Board, the evidence in support of Defendants decision to move
forward with the IME was overwhelming. As of December 11, 2013--the date AAPS
informed Plaintiff that she was scheduled for an IME--Plaintiff had been formally
reprimanded on at least four occasions for a wide variety of erratic behavior. See (Defs.
Mot. Exs. 4, 7, 8, 9, Written Reprimands). While Defendants could have moved forward
with the IME after any one of these reprimands, they continued to give Plaintiff the
opportunity to correct her behavior- and, in fact, developed a number of individualized
development plans geared towards aiding her progress in the classroom. (Id. at Exs. 3,
7

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 8 of 12

Pg ID 695

5). Indeed, as early as 2004 Plaintiff was warned that she needed to [c]reate a classroom
environment where students feel free to discuss with the teacher areas of concerns without
students feeling demeaned or unable to work with teacher. (Id. at Ex. 5, p. 2) (emphasis
added) (recommending that Plaintiff [l]isten for how [she] say[s] things (angry? [s]harp?
[s]arcastic?). The review went on to note that Plaintiff needed to work on [decreasing] the
number of student complaints[] and reducing the number of requests to be moved to
another mathematics class due to teacher related reasons. (Id.). Worthy of note, Plaintiffs
signature appears on each of the improvement plans, and she does not contest receiving
the various letters of reprimand.
Finally, on December 6, 2013, after receiving yet another scathing email from a
concerned parentincorporating 40 odd comments from various studentsabout Plaintiffs
behavior, Defendants were left with no choice but to explore their options under the CBA.
As such, the Court is satisfied that the Board had reason to suspect that Plaintiff might
be suffering from some degree of emotional impairment on or before the date the IME was
scheduled. Accordingly, Plaintiff has failed to raise an issue of genuine material fact with
respect to her Fourth Amendment claim.
B. Michigans Persons with Disabilities Civil Rights Act
Finally, Plaintiff alleges that Defendants violated her rights under the Michigans
Persons with Disabilities Civil Rights Act (PWDCRA) which provides, in relevant part, that
[t]he opportunity to obtain employment . . . without discrimination because of a disability
is guaranteed . . . . Mich. Comp. Laws 37.1102(1). As Defendants accurately point out,
the viability of this claim hinges on whether Plaintiff suffers from a disability that is
recognized under the PWDCRA. The Court finds that Plaintiff has fallen far short of the
8

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 9 of 12

Pg ID 696

mark in this regard.

[L]ike 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. Peden v. City of Detroit, 680 N.W.2d 857,
863 (Mich. 2004). To establish a prima facie case under the PWDCRA, Plaintiff must show
that (1) she is disabled as defined in the act, (2) that her disability is unrelated to [her]
ability to perform [her] job duties, and (3) that [s]he has been discriminated against in one
of the ways delineated in the statute. Id. (internal quotation marks and citation omitted).
Disability as defined in the PWDCRA, means a determinable physical or mental
characteristic of an individual, which may result from . . . injury, . . . if the characteristic . .
. substantially limits 1 or more of the major life activities of that individual. Mich. Comp.
Laws 37.1103(d)(i)(A). Alternatively, a plaintiff can demonstrate a disability if she can
show that she is regarded as having a determinable physical or mental characteristic as
described in the act. Id. at 37.1103(d)(iii).
Michigan has adopted a three-pronged test used by the federal courts in ADA cases
to determine whether a plaintiff has a disability under the PWDCRA. See Chiles v. Machine
Shop, Inc., 606 N.W.2d 398, 406 (Mich. 1999). First, the court is to consider whether the
plaintiff has a physical impairment. Id. Next, it identifies the life activity that the plaintiff is
relying upon and determines whether it is a major life activity. Id. Finally, the court asks
whether the plaintiff's physical impairment substantially limited the major life activity. Id.
(citation and quotation omitted).
According to Plaintiff she does, in fact, have a medical condition that affects hearing[]9

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 10 of 12

Pg ID 697

tinnitus. (Plf.s Resp. 20). The next question, therefore, is whether hearing constitutes a
major life activity. While Plaintiff has failed to provide any authority on this score, under the
ADAinterpreted in a similar manner as the PWDCRAmajor life activities include, among
other things, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working. 42
U.S.C. 12102(2)(A); see also Chmielewski v. Xermac, Inc., 580 N.W.2d 817, 821 (Mich.
1998) (in interpreting provisions of the [PWDCRA], analogous federal precedents are
persuasive, although not necessarily binding.). Plaintiff has thus satisfied the first two
elements of a prima facie PWDCRA claim.
In the final step, Plaintiff must, at a minimum, establish a genuine issue of material fact
with respect to whether her tinnitus substantially limits her hearing. Michigan courts have
looked to the ADA regulations for guidance as to the meaning of substantially limited for
purposed of PWDCRA. MacDonald v. United Parcel Serv., 430 F. App'x 453, 461 (6th Cir.
2011) (citing Klimkowski v. Wayne Cnty., 1998 WL 1988424, at *4 (Mich. Ct. App.1998)
(unpublished per curiam opinion). According to ADA regulations, substantially limited
means that an individual is [u]nable to perform a major life activity that the average person
in the general population can perform; or . . . [is s]ignificantly restricted as to the condition,
manner or duration under which an individual can perform a particular life activity as
compared to the condition, manner, or duration under which the average person in the
general population can perform that same major life activity. Id. at 461-62; (quoting 29
C.F.R. 1630.2(j)).
Plaintiff fails to offer any evidenceby way of affidavit, doctors testimony, or
otherwisein support of the proposition that her hearing is substantially limited by tinnitus.
10

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 11 of 12

Pg ID 698

In fact, with respect to the severity of her condition, Plaintiff states only that it impairs her
ability to modulate her own voice level. (Plf.s Resp. 20). This is a far cry from the type and
character of evidence required to proceed beyond the summary judgment phase on a
PWDCRA claim. Indeed, the Sixth Circuit, in MacDonald, 430 F. App'x at 462, held that,
despite the testimony of the plaintiffs doctor, wife, and daughter concerning his memory
problems, the evidence of his disability [was] insufficient to create a genuine issue of
material fact as to whether he [satisfied] th[e] definition of substantially limited. See also
Cotter v. Ajilon Services, Inc., 287 F.3d 593, 598 (6th Cir. 2002) (abrogated on other
grounds) (rejecting argument that doctor's order that the plaintiff needed to take frequent
breaks to avoid stress demonstrated a substantial impairment of the plaintiff's ability to
work); Salim v. MGM Grand Detroit, L.L.C., 106 F. App'x 454, 458 (6th Cir. 2004) (holding
that [p]laintiff has not adduced sufficient evidence to show that her diabetes substantially
impaired her ability to think and care for herself.). Here, lacking any evidence to
substantiate Plaintiffs condition, the Court is left only to guess whetherand to what
extentit interferes with her ability to teach. Accordingly, Plaintiff has failed to raise a
genuine issue of material fact sufficient to withstand Defendants motion for summary
judgment.

V.

CONCLUSION
For the above-stated reasons, Defendants motion for summary judgment is

GRANTED. [41]. This order closes the case in its entirety.

SO ORDERED.
11

2:14-cv-10086-NGE-RSW Doc # 47 Filed 09/25/15 Pg 12 of 12

Pg ID 699

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 25, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 25, 2015, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

12