                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0080n.06

                                           No. 10-1952                                     FILED
                                                                                      Jan 23, 2012
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


JOSEPH S. ROETTER; DIANE K. ROETTER,              )
                                                  )
               Plaintiffs-Appellants,             )
                                                  )            ON APPEAL FROM THE UNITED
       v.                                         )            STATES DISTRICT COURT FOR
                                                  )            THE WESTERN DISTRICT OF
MICHIGAN DEPARTMENT                            OF )            MICHIGAN
CORRECTIONS,                                      )
                                                  )
               Defendant-Appellee.                )




Before: SILER and KETHLEDGE, Circuit Judges; ADAMS, District Judge.*

       ADAMS, District Judge. Appellants, Joseph and Diane Roetter, appeal the District Court’s

grant of Appellee Michigan Department of Corrections’ (“the MDOC”) motion for summary

judgment on all claims. In their appeal, the Roetters assert that the district court erred when it

determined as a matter of law that the Mr. Roetter was not qualified to perform the essential

functions of his job. For the reasons set forth below, we AFFIRM the judgment of the District Court.

                                         I. Background

       The District Court accurately explained the factual background before it as follows:

       Defendant first hired Plaintiff [, Joseph Roetter,] in 1989 to work at the Brooks
       Correctional Facility in Muskegon, Michigan, as a food service supervisor. As food
       service supervisor, Plaintiff was required to monitor inmates as they prepared meals

*
   The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
       for the larger prison population, ensure kitchen utensils were being used by the
       inmates in a safe and appropriate manner, and generally account for the safety,
       security, and sanitation of the kitchen area while the inmates worked. Plaintiff was
       usually the sole correctional facility employee overseeing food production at any
       given time, and he was responsible for supervising approximately fifteen to twenty
       inmates a day.

       In 2000, Plaintiff was cited and suspended for inattention to duty after he was found sleeping

in his office while inmates were working in the kitchen. Plaintiff was cited and reprimanded for a

similar occurrence in 2002, though Plaintiff denied that he was sleeping on this occasion. On

January 27, 2005, correctional facility employees observed Plaintiff dosing off as he monitored the

breakfast line. As part of a disciplinary conference arising out of this incident, Plaintiff was shown

a security video of himself confirming what the other employees had observed. Plaintiff was given

a one-day suspension. This occasion prompted Plaintiff to seek a medical consultation in April of

2005. Plaintiff visited Doctor Lee C. Marmion, who conducted sleep studies on Plaintiff and

determined that he suffered from narcolepsy. Dr. Marmion prescribed Plaintiff a drug called Provigil

to combat his condition. In addition, Plaintiff asked Defendant to assign him permanently to the third

shift rather than rotate him among various shifts because he believed he slept better during the day

and would come to work more rested. Defendant granted this request.

       On July 11, 2005, both Plaintiff and his supervisor noted that his attentiveness had improved.

(Dkt. No. 13, Ex. 10.) Nevertheless, Plaintiff continued to suffer from narcoleptic episodes. On

April 24, 2006, Plaintiff was again cited and suspended for inattention to duty after he was found

sleeping in the kitchen. On December 27, 2006, inmates were involved in horseplay in the kitchen.

An investigation revealed that the inmates were intoxicated, and that they had likely created the

alcohol themselves by hiding fruits and vegetables somewhere in the facility and allowing them to

ferment. As the supervisor on duty, Plaintiff was held responsible for the actions of the inmates, and
was given a four day suspension. On April 6, 2007, Plaintiff was again found sleeping in the

kitchen, and was given a five day suspension. On July 14, 2007, Plaintiff was standing near the

breakfast line when one of the inmates discovered that the milk was spoiled and needed to be

replaced. The inmate attempted to communicate the problem, but Plaintiff did not respond because

he was leaning against a wall of the kitchen drifting in and out of sleep.

       Following the July 14, 2007, incident, and as a result of all the disciplinary measures taken

against Plaintiff, Plaintiff was discharged on November 5, 2007. Plaintiff originally brought suit for

disability discrimination under the Michigan Persons with Disabilities Civil Rights Act (PDCRA)

and the Americans with Disabilities Act (ADA) on July 7, 2009, but Plaintiff amended his complaint

on August 25, 2009, to replace the ADA claim with a Rehabilitation Act claim. Plaintiff’s wife,

Diane K. Roetter, brings a claim for loss of consortium. Defendant filed this motion for summary

judgment on all claims on September 25, 2009.

       On July 12, 2010, the District Court granted the MDOC’s summary judgment on all of the

Roetters’ claims. The District Court concluded that “[r]egardless of whether Plaintiff has direct

evidence of disability discrimination or has no such evidence, Plaintiff’s Rehabilitation Act and

Michigan PDCRA claims require him to show that he is ‘otherwise qualified’ to perform the

essential functions of his position, with or without reasonable accommodation.” The District Court

determined that remaining attentive was an essential function of Mr. Roetter’s position at the

MDOC. The District Court explained that Mr. Roetter could not and did not show that he could

remain attentive to his position with the accommodation that he requested and received and that

although a further accommodation might have aided his attention problems, Mr. Roetter did not

request any other accommodations. Thus, the District Court concluded that Mr. Roetter’s PDCRA

and Rehabilitation Act claims failed and that Mrs. Roetter’s loss of consortium claim failed because
it was dependent upon the success of Mr. Roetter’s claims. Accordingly, the District Court granted

the MDOC's summary judgment motion.

        The Roetters timely appealed to this Court. The Roetters contend that the evidence in the

record shows that Mr. Roetter was terminated for three narcoleptic episodes over 26 months that had

no effect on the operations of the food service department. They argue that the District Court erred

when it relied upon these episodes as evidence that Mr. Roetter was not otherwise qualified to

perform the essential functions of his job. The Roetters do not contest that these episodes were

before the District Court for consideration, but rather take specific issue with the District Court’s

conclusion that “the threat to security posed by an inattentive supervisor is obvious.” The Roetters

argue that, to the contrary, there was no evidence before the District Court that there was any threat

to the MDOC. It appears that the Roetters do not take issue with any of the District Court’s findings

of fact, but rather take issue with its application of the law to those facts.

                                       II. Standard of Review

        We review the district court’s grant of summary judgment de novo. Appalachian Res. Dev.

Corp. v. McCabe, 387 F.3d 461, 463 (6th Cir. 2004). Summary judgment is appropriate where there

is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The MDOC bears the burden of showing the absence of a genuine

dispute of material fact as to at least one essential element of the Roetters’ claims. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The Roetters must then present sufficient evidence from which

a jury could reasonably find in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). We then consider whether, drawing all reasonable inferences in favor of the Roetters, the

MDOC must prevail as a matter of law. See Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008).
                                     III. Law and Analysis

       Mr. Roetter’s disability-based discrimination claim was brought pursuant to the

Rehabilitation Act, 29 U.S.C. §794 et seq. and the Michigan Persons with Disabilities Civil Rights

Act, Mich. Comp. Laws §37.1101 et seq. In this Circuit, claims under the Rehabilitation Act

substantively mirror those brought under the Americans with Disabilities Act. See Monette v. Elec.

Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996). Similarly, claims brought under the Michigan

Persons with Disabilities Civil Rights Act “essentially track those under federal law.” Id. at 1178

n.3.

       Mr. Roetter can show a violation of the Rehabilitation Act “by introducing direct evidence

of discrimination, including evidence that the employer relied upon the plaintiff’s disability in

making its employment decision, or by introducing indirect evidence of discrimination to shift the

burden of production to the employer to articulate a legitimate, nondiscriminatory reason for making

the adverse employment decision.” Monette, 90 F.3d at 1178 (internal citations omitted).

       This Court has explained in depth the differing tests required to establish a prima facie case

of disability discrimination based upon whether a plaintiff introduces direct or indirect evidence:

               To sum up, if the plaintiff has direct evidence that the employer relied on his
       or her disability in making an adverse employment decision, or if the employer
       admits reliance on the handicap:
               1) The plaintiff bears the burden of establishing that he or she is “disabled.”
               2) The plaintiff bears the burden of establishing that he or she is “otherwise
       qualified” for the position despite his or her disability: a) without accommodation
       from the employer; b) with an alleged “essential” job requirement eliminated; or c)
       with a proposed reasonable accommodation.
               3) The employer will bear the burden of proving that a challenged job
       criterion is essential, and therefore a business necessity, or that a proposed
       accommodation will impose an undue hardship upon the employer.
               If the plaintiff seeks to establish his or her case indirectly, without direct
       proof of discrimination, the plaintiff may establish a prima facie case of
       discrimination by showing that: 1) he or she is disabled; 2) otherwise qualified for
       the position, with or without reasonable accommodation; 3) suffered an adverse
       employment decision; 4) the employer knew or had reason to know of the plaintiff's
       disability; and 5) the position remained open while the employer sought other
       applicants or the disabled individual was replaced. The defendant must then offer a
       legitimate explanation for its action. If the defendant satisfies this burden of
       production, the plaintiff must introduce evidence showing that the proffered
       explanation is pretextual. Under this scheme, the plaintiff retains the ultimate burden
       of persuasion at all times. Monette, 90 F.3d at 1186-87 (internal citations omitted).

       In its motion for summary judgment, the MDOC argued that Mr. Roetter could not establish

that he was otherwise qualified to serve as an MDOC food services leader with the previously

approved accommodation of working at night.

       The District Court noted that, because the parties had only conducted limited discovery in

this case, Mr. Roetter did not yet know whether he would attempt to use direct or indirect evidence

to prove his case. The District Court explained, and this Court agrees, that regardless, Mr. Roetter

maintained the burden under either test to prove that he was “otherwise qualified” for his position

with or without an accommodation. The District Court concluded that the record was clear that Mr.

Roetter was not “otherwise qualified” to perform an essential function of his position and as such

there was no genuine dispute of material fact. This Court agrees.

       Pursuant to 29 U.S.C. §794(d), the definitions under the American with Disabilities Act of

1990, 42 U.S.C. §12111, apply to the Rehabilitation Act. To be “otherwise qualified” for the job,

the employee must show she can perform the “essential functions” of the job, with or without

accommodation. See 42 U.S.C. § 12111(8); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 456

(6th Cir. 2004). Further, “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 U.S.C. §12111(8).
Mr. Roetter was a Food Service Supervisor. The MDOC attached the following job description to

its motion for summary judgment:1

               Supervise prison inmates in preparation, handling, serving and storage of food
       in a food service operation at a correctional facility. Oversee the shipping and
       receiving of food items as well as proper sanitation of the Department. Assign
       prisoner duties and follow through to assure they are completed while following and
       enforcing all Department policies and procedures. Use independent judgement (sic)
       in making decisions related to the work.

       Notably, Mr. Roetter’s job description further allotted percentages to his assigned duties. The

description indicates that approximately 25% of his time was allotted to “Security Duties.” This was

described as supervising “prisoner workers and assist custody staff in keeping all area in food service

[secure] and safe.” Fifty percent of his time was to be allotted to prisoner supervision; supervising

prisoner workers as they prepare, hold and serve meals. The remaining 25% was allotted to

administrative duties. Therefore, Mr. Roetter’s attempt to argue to this Court that “Roetter’s

condition had not caused any threat to the institution and it is doubtful whether it could” and that

“Roetter did not work in a security position, and at 150 pounds, could be easily overpowered by the

inmates with whom he worked whether he was awake or not” is disingenuous. His job description,

as attached to the MDOC’s motion for summary judgment, clearly establishes that security duties

were part of his employment and thus an essential function. The fact that no actual harm occurred

while Mr. Roetter failed to meet his job requirements does not support an argument that Mr. Roetter

actually met the requirements of his job. Mr. Roetter’s argument that such a showing is necessary

would essentially eliminate the requirement that an employee perform his essential functions so long

as it results in no harm to his employer. This Court will not so tie the MDOC’s hands. Reading this



1
 The attached job description indicates that it was signed on March 16, 1997. While Mr. Roetter
began his employment with the MDOC in 1989, he does not challenge the job description as
presented by the MDOC.
argument liberally, it appears that Mr. Roetter admits that, even absent his disability, he could not

meet the essential function of his job.

        Further, Mr. Roetter’s own request for an accommodation belies his argument that his state

of alertness had no effect on his job performance and therefore is not an essential function of his

position. In 2005, Mr. Roetter sought and received an accommodation due to his narcolepsy.

Specifically, Mr. Roetter requested the accommodation “due to diagnosis of severe narcolepsy the

attempt to alter my established sleep pattern adversely affects my ability to remain alert for the duties

required to fulfill my job requirements as per doctor recommendations and prescribed medications.”

This Court reads this request as an admission that the ability to remain alert is required for Mr.

Roetter to fulfill his job requirements as stated above.

        Mr. Roetter appears to argue that the MDOC, knowing of his disability, should have further

accommodated him. Mr. Roetter points out that the MDOC had a “shake and shout technique” for

dealing with a person who is unresponsive or having difficulty with any potential medical condition.

Mr. Roetter complains that his coworkers did not immediately follow this procedure when they

found him sleeping. It is clear from the record, however, that Mr. Roetter sought and received an

accommodation for his disability. There is no evidence, nor does Mr. Roetter argue, that he

requested any further accommodations or that he made any requests to modify his accommodation.

See Monette, 90 F.3d at 1183 (explaining that “the disabled individual bears the initial burden of

proposing an accommodation and showing that that accommodation is objectively reasonable.”) In

the absence of such a request, this “shake and shout technique” was nothing more than an internal

first aid policy. Whether his co-workers were following an internal procedure does not negate the

fact that Mr. Roetter was found sleeping on the job.
       Mr. Roetter argues that “because Roetter was discharged as a result of disciplinary

proceedings arising out of the symptoms of his medical condition, this is a case in which the

employer unquestionably relied upon plaintiff’s disability in discharging him.” Mr. Roetter’s

argument, at least in part, is that this conduct is direct evidence of disability discrimination. This

argument is, even if true, without merit. As explained above, even if the Court were to consider Mr.

Roetter’s termination as direct evidence of disability discrimination, the result would be to utilize

the three-part test stated in Monette rather than the five-part test. See 90 F.3d at 1186-87. But, as

the Court has explained, Mr. Roetter cannot show that he is otherwise qualified as required under

both tests. As this is an element of a prima facie case whether this Court considers the indirect or

direct test, Mr. Roetter must overcome this hurdle before the burden would shift to the MDOC.

       Finally, “the Rehabilitation Act permits an employer to make a decision because of a

handicap if the handicap is not the sole reason for the decision. ‘The Rehabilitation Act forbids

discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the

actual attributes of the handicap.’ Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 443 (6th Cir.

1991). A federal grantee may make an employment decision adverse to a handicapped person if, for

example, the person’s handicap causes him or her to be unable to perform an essential function of

the job. School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 n.17, 1131 n.17(1987) (citations

omitted); Jasany, 755 F.2d at 1250.” Burns v. City of Columbus, 91 F.3d 836, 841-42 (6th Cir.

1996). Thus, assuming arguendo that the MDOC’s decision to terminate Mr. Roetter was based

upon the attributes of his handicap, i.e., inattentiveness, the MDOC was justified in determining that

these attributes rendered Mr. Roetter unable to perform an essential function of his job. As such, the

District Court did not err in granting summary judgment in the MDOC’s favor.
         Finally, Mrs. Roetter’s loss of consortium claim was contingent upon the success of Mr.

Roetter’s claims. See Monette, 90 F.3d at 1176, n.1. As the Court has disposed of Mr. Roetter’s

claim pursuant to the Rehabilitation Act and the Michigan PDCRA, it also disposes of Mrs. Roetter’s

claim.

                                         IV. Conclusion

         The Court has reviewed the Roetters’ arguments on appeal. Finding no merit in their

arguments, for the reasons described above, we AFFIRM the district court’s grant of summary

judgment.
