            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF THORNTON JACKSON, JR., by                                 UNPUBLISHED
LOIS JACKSON, Personal Representative, and                          September 3, 2019
JEREMIAH WEATHERLY,

               Plaintiffs-Appellants,

v                                                                   No. 343774
                                                                    Wayne Circuit Court
36TH DISTRICT COURT,                                                LC No. 16-012009-CD

               Defendant-Appellee.


Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

        After employing plaintiffs, Thornton Jackson, Jr.,1 and Jeremiah Weatherly, as bailiffs for
more than three decades, defendant, 36th District Court, terminated their employment in 2016.
Plaintiffs subsequently filed a complaint asserting that defendant had terminated them because of
their age and disabilities in violation of the Elliot-Larsen civil rights act (ELCRA), MCL 37.2101
et seq., and the people with disabilities civil rights act (PWDCRA), MCL 37.1101 et seq.
Defendant moved for summary disposition on grounds that plaintiffs could not establish a prima
facie case of age discrimination and that neither plaintiff was disabled for purposes of the
PWDCRA. The trial court granted defendant’s motion, and plaintiffs appealed. We affirm.

                          I. RELEVANT FACTS AND PROCEDURE

        At the time of the events underlying this appeal, defendant employed only three bailiffs,
plaintiffs and non-party Robert Rhue; all three were in their 80s. Historically, defendant’s


1
 Thornton Jackson, Jr., died during the pendency of this appeal, after which this Court granted
appellants’ motion to substitute the personal representative of Jackson’s estate in his stead.
Thornton Jackson, Jr v 36th District Court, unpublished order of the Court of Appeals, entered
August 13, 2019 (Docket No. 343774).



                                                -1-
bailiffs held office “until death, retirement, resignation, or removal from office by the court for
misfeasance or malfeasance in office.” MCL 600.8322(1) and (2). Vacancies in the office of
bailiff established under MCL 600.8322(1) and (2) were not filled. Id. In 2015, the Legislature
passed 2015 PA 132, eff. December 29, 2015, which amended MCL 600.8322 to allow the court
to also remove bailiffs “for inability to perform essential functions of the office[.]” Soon after
passage of the bill, defendant scheduled physical examinations for all three of its bailiffs to take
place after the amendment’s effective date and to determine plaintiffs’ fitness to perform the
essential functions of the office of bailiff. Defendant also provided the examining physician with
a copy of the job description for bailiffs.

        According to the bailiff job description, a bailiff’s primary duties and responsibilities
include serving individuals with various court documents; serving summons and complaints and
working with local law enforcement to execute writs of eviction; repossessing furniture, cars,
and appliances on claim and delivery orders, gaining access by forceful entry when necessary;
and operating a motor vehicle in performing their assigned duties. Bailiffs must also “[o]btain[]
and maintain[] all required state licenses and certifications necessary to perform the functions of
Bailiff.” Among the qualifications for the job of bailiff is the “[p]hysical ability to frequently
perform [the] essential physical functions of the job, including, but not limited to lifting[,]
moving furniture, appliances and other objects, and climbing stairs . . . .” They also “[m]ust
possess a valid Michigan motor vehicle operator’s license and be able to qualify for an
unrestricted concealed weapons permit.”

        Based on Jackson’s medical history and physical examination, examining physician
Vanessa Robinson, M.D., concluded that Jackson was not fit to perform the duties of bailiff. She
reported in a letter to defendant that Jackson’s examination was “remarkable for the continuous
use of oxygen by nasal cannula and abnormal lung findings[,]” and that Jackson reported a
history of “Emphysema, Congestive Heart Failure and Sarcoidosis.” Defendant subsequently
informed Jackson that, based on the results of his physical examination, it was removing Jackson
from office “for inability to perform the essential functions of the office.”

        Dr. Robinson found Weatherly’s physical examination unremarkable, but recommended
a “functional capacity exam to determine the ability to lift and move furniture, appliances, and
other objects as well as stair climbing,” and neuropsychiatric testing “to determine if there are
any memory deficits.” The functional capacity evaluator reported, among other things, that
Weatherly met the strength requirements of light work, showed some capacity for medium work,
and could occasionally climb stairs as long as he could hold onto at least one handrail. Due to
Weatherly’s poor balance, the evaluator thought it unlikely that he could carry objects up and
down stairs. In addition, the evaluator suspected that Weatherly had vision problems, and
recommended a formal vision test. The vision test revealed that Weatherly was “visually
impaired secondary to glaucoma,” and that his “best corrected visual acuity is 20/40-2 with the
right eye and 20/500+2 with the left eye.” Although Weatherly met the vision requirements for
driving, “defects in his vision field” required further assessment to determine his capacity to
compensate for such defects. Further testing revealed that Weatherly exhibited slow reaction
time and poor scanning skills, was thought likely impaired as to cognition and/or multi-tasking
skills, and was advised to discontinue driving. As with Jackson, defendant subsequently
informed Weatherly that, based on the results of his testing, it was terminating his employment
for “inability to perform the essential functions of the office.” Rhue passed both his physical

                                                -2-
examination and functional capacity examination and remained a bailiff until his sudden death in
December 2016.

        Plaintiffs filed a lawsuit as indicated, and both they and defendant’s chief judge, Nancy
Blount were deposed. Jackson arrived at his deposition with a wheelchair and an oxygen tank.
He identified his duties as serving summons and executing writs of restitution and said he had a
four-man crew2 that helped with evictions. He acknowledged that he could not lift and move
furniture or appliances during his last two years at the court, but insisted that he had never had to
do any such lifting and carrying. He explained that he had been on oxygen for a couple of years,
that he used it about 12 hours a day, and that he used a nebulizer and an inhaler twice a day each.
Jackson said he had difficulty breathing if he walked more than half a block or climbed stairs,
admitted that going to and from the restroom during a break in the deposition winded him, and
said that he used his wheelchair as much as he can. He explained that although he had used the
wheelchair while he still worked at the court, he was just “putting on a show” because he wanted
the attention that came from being thought disabled. Jackson surmised that he could still forcibly
open a door with a crowbar if his crew carried him up to the door in his wheelchair.

        Weatherly’s testimony regarding his understanding of the duties of a bailiff was similar
to Jackson’s understanding. He acknowledged that his son had driven him around at work
during the last five years of his employment with the court, but insisted that it was to “save
money,” and that he could, and did, drive whenever necessary. He could not remember whether
a doctor told him to discontinue driving, but said he had a valid driver’s license and did not have
a problem driving. He also said he had a valid concealed carry permit, which he had recently
renewed. Weatherly conceded, however, that the renewal process involved neither a vision test
nor a shooting test.

         In her deposition, Chief Judge Blount stated that she decided to terminate plaintiffs after
reviewing MCL 600.8322 as amended by 2015 PA 132, the job description for bailiffs, Dr.
Robinson’s letter, Jackson’s medical records, and the results of Weatherly’s functional capacity
and vision tests. The judge acknowledged that she had known for more than two decades that
Jackson worked with a crew. She said that hiring a crew had been a common practice among
bailiffs and that she had not disciplined anyone for this practice since becoming chief judge in
2013. However, she insisted that what amounted to subcontracting the bailiff’s duties to
crewmembers was not an accommodation. With regard to Weatherly, Judge Blount testified that
his eye condition precluded him from fulfilling the driving requirement of the bailiff’s job
description. As with Jackson, the judge said that subcontracting the driving requirement to a
permanent chauffer was not an accommodation, and stated that by having his son drive him at
work, Weatherly was not performing an essential job duty.




2
  Although Jackson testified that he normally had a set crew he would hire to work for him,
Weatherly said that he used “a lot of different guys” that he would pick up at Capuchin Kitchen
and pay them cash to help him. Among Weatherly’s crew was his son, who had worked for
defendant as a bailiff before he “got relieved.”


                                                -3-
       As indicated, defendant filed a motion for summary disposition, which plaintiffs opposed
with arguments substantially the same as those advanced on appeal. After hearing oral
arguments, the trial court issued a written opinion largely adopting defendant’s argument, and a
corresponding order that granted defendant’s motion for summary disposition. This appeal
followed.

                                         II. ANALYSIS

        Plaintiffs argue that the trial court erred in granting defendant summary disposition of
their claims for discrimination based on their disabilities and their age. We disagree.

                                 A. STANDARD OF REVIEW

        Defendant brought its motion for summary disposition pursuant to MCR 2.116(C)(10).
“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 circuit court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR
2.116(G)(5).” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The moving
party may satisfy its burden under MCR 2.116(C)(10) by “submitting affirmative evidence that
negates an essential element of the nonmoving party’s claim, or by demonstrating to the court
that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016)
(quotation marks, brackets, and citation omitted). If the moving party meets its burden, “[t]he
burden then shifts to the nonmoving party to establish that a genuine issue of material fact
exists.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). “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.” Maiden, 461 Mich at 120.

                   B. PEOPLE WITH DISABILITIES CIVIL RIGHTS ACT

        To establish a prima facie case of discrimination under the PWDCRA, a plaintiff must
show that (1) he is “disabled” as defined by the statute, (2) the disability is unrelated to the
plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been
discriminated against in one of the ways set forth in the statute. See Kerns v Dura Mech
Components, Inc, 242 Mich App 1, 12; 618 NW2d 56 (2000) (Kerns addresses alleged violations
of the handicappers’ civil rights act [HCRA], MCL 37.1101 et seq., which 1998 PA 20 renamed
“persons with disabilities civil rights act” [PWDCRA]). Unless a plaintiff establishes the first
two elements, there is no need to consider whether a defendant discriminated against the plaintiff
based on his or her disability. See Peden v City of Detroit, 470 Mich 195, 205; 680 NW2d 857
(2004) (indicating that a plaintiff must first prove that he or she is a “qualified person with a
disability” protected by the PWDCRA before demonstrating employer discrimination in one of
the ways set forth in MCL 37.1202.”).

       In the employment context, MCL 37.1103(d) defines “disability” in relevant part as

       (i) A determinable physical or mental characteristic of an individual, which may
       result from disease, injury, congenital condition of birth, or functional disorder, if
       the characteristic:
                                                -4-
       (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 . . . .

“ ‘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.” Peden, 470 Mich at 203 (quoting MCL 37.1103(l)(i)).

        It is undisputed that plaintiffs have physical characteristics “which may result from
disease, injury, congenital condition of birth, or functional disorder.” MCL 37.1103(d)(i).
Assuming for the sake of argument that plaintiffs’ disabilities limit one or more of their major
life activities, MCL 37.1103(d)(i)(A), the dispositive issue is whether the disabilities, with or
without accommodation, prevent plaintiffs from performing the duties of bailiff.

        By asserting in their brief to this Court that they have “accommodated themselves,”
plaintiffs concede that they are unable to perform the duties of bailiff without aid of some kind.
The employer’s duty under the PWDCRA to make reasonable accommodations is “limited to
alteration in physical structures and modification of peripheral job duties.” Mauro v Borgess
Med Ctr, 886 F Supp 1349, 1355 (WD Mich, 1995), citing Ashworth v Jefferson Screw Prod,
Inc, 176 Mich App 737, 744; 440 NW2d 101 (1989); see also Kerns, 242 Mich App at 16.
Plaintiffs’ own deposition testimony indicates that they can perform the duties of bailiff only if
defendant modifies or adjusts those duties, or assigns them to someone else, or allows plaintiffs
to assign them to someone else, such as members of their respective crews. Defendant’s
obligation under the PWDCRA to accommodate does not reach that far. Because plaintiffs’
disabilities, with or without accommodation, prevent them from performing the duties of bailiff,
they are not disabled for purposes of the PWDCRA and, therefore, they are not entitled to its
protections. MCL 37.1103(d)(i)(A).

        Plaintiffs rely on Peterson v Consumers Energy Co, 2012 ACO # 31, a decision issued by
the Workers’ Compensation Appellate Commission (now the Michigan Compensation Appellate
Commission), to argue that under Michigan law, vocational evidence is necessary to translate
medical evidence into a vocational assessment. Because defendant presented no vocational
evidence, its medical evidence was not a sufficient basis on which to conclude that plaintiffs
were unable to perform the essential functions of their job. Plaintiffs’ reliance on Peterson is
misplaced. We are not bound by decisions issued by the Michigan Compensation Appellate
Commission. Further, the Peterson decision involves a claim brought under the Workers’
Disability Compensation Act (WDCA), MCL 418.101 et seq., which defines “disability”
differently than does the PWDCRA. The WDCA defines “disability” in terms of the loss of
wage earning capacity in the range of work suitable to the employee’s qualifications and
training. MCL 418.301(4). Given the various elements involved in this broad definition of
disability, it makes sense to require vocational proofs where issues involve a plaintiff’s training
and experience, the suitability of jobs given that training and experience, and whether the
plaintiff’s injuries preclude his or her performance of all suitable jobs. However, such issues are
irrelevant to analysis of a claim under the PWDCRA. Plaintiffs cite no authority requiring
vocational proofs for claims under the PWDCRA, nor does the relevant caselaw indicate that
such proofs are required. See, e.g., Peden, 470 Mich 195.


                                                 -5-
        Plaintiffs also contend that if defendant thought them disabled, defendant should have
initiated a conversation about accommodation. To the extent that plaintiffs imply a claim for
failure to accommodate, such claim fails as a matter of law. A person with a disability may
allege a failure to accommodate claim under the PWDCRA “only if the person with a disability
notifies the person in writing of the need for accommodation within 182 days after the date the
person with a disability knew or reasonably should have known that an accommodation was
needed.” MCL 37.1210(18). It is undisputed that plaintiffs did not make a written request for
accommodation. Absent a written request for accommodation, a plaintiff alleging a failure to
accommodate claim cannot prevail. Petzold v Borman’s, Inc, 241 Mich App 707, 716; 617
NW2d 394 (2000).

        Relying on federal cases involving claims brought under the Americans with Disabilities
Act (ADA), 42 USC 12101 et seq., plaintiffs next argue that, because defendant failed to engage
in a discussion about accommodation, defendant bears the burden of proving that no reasonable
accommodation existed. Plaintiffs are incorrect. Not only did they not bring a claim under the
ADA, but even if they had, they would still have to establish that they are “qualified
individual[s]” under the ADA. McBride v BIC Consumer Prod Mfg Co, Inc, 583 F3d 92, 97 (CA
2, 2009). “[F]or purposes of the ADA, a ‘qualified individual’ is ‘an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.’ ” Id. at 96, quoting 42 USC 12112(b)(5)(A). The
Michigan Supreme Court has quoted with approval this Court’s observation 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.” Peden, 470 Mich at 216-217
(quotation marks and citation omitted). Plaintiffs having failed to prove that they are disabled
for purposes of the PWDCRA, there is no reason to think that they could establish that they are
“qualified individuals” under the ADA.

        Because plaintiffs’ disabilities relate to their abilities to perform the duties of the bailiff
position with or without accommodation, they cannot establish a prima facie case of
discrimination under the PWDCRA. MCL 37.1103(d)(i); Kerns, 242 Mich App at 12.
Accordingly, the circuit court did not err in granting defendant summary disposition of plaintiffs’
PWDCRA claim.

                           C. ELLIOT-LARSEN CIVIL RIGHTS ACT

        The ELCRA prohibits employers from discharging or discriminating against individuals
“with respect to employment, compensation, or a term, condition, or privilege of employment”
because of age. MCL 37.2202(1)(a). A plaintiff may prove unlawful discrimination based on
direct evidence or indirect evidence. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d
515 (2001). Direct evidence is “evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s actions.” Id.
(quotation marks and citation omitted).

        Plaintiffs allege in the factual section of their brief to this Court that they have direct
evidence of age discrimination in the form of a nonnotarized affidavit from DeAngelo Malcolm,
staff representative of the union that formerly represented bailiffs, stating that Carolyn Bogerty,
defendant’s human resources director, told him in December 2015 or January 2016 that

                                                 -6-
defendant sent plaintiffs for tests “because they are old.” However, because the affidavit is not
notarized, it does not qualify as a proper affidavit. See Holmes v Mich Capital Med Ctr, 242
Mich App 703, 711-712; 620 NW2d 319 (2000) (determining that a document lacking any
indication that its contents have been confirmed “by oath or affirmation before a person
authorized to issue the oath or authorization” is not a valid affidavit). In addition, plaintiffs have
presented no evidence to establish that Bogerty’s alleged statement was related to the decision-
making process,3 and there is no evidence that anyone who was involved in the decision
communicated to Bogerty the basis for the decision. Moreover, both plaintiffs testified in their
depositions that they never heard any comments about age, suggesting that Bogerty’s alleged
comment was not part of a pattern of biased comments. For these reasons, the alleged comment,
if made, was a “stray remark” at best, and stray remarks do not constitute direct evidence of
discriminatory intent. See Sniecinski v Blue Cross and Blue Shield of Mich, 469 Mich 124, 136 n
8; 666 NW2d 186 (2003).4

        To establish a prima facie case of age discrimination indirectly, plaintiffs must present
evidence that they belong to a protected class, they suffered an adverse employment action, they
were qualified for the bailiff position, and the job was given to someone else “under
circumstances giving rise to an inference of unlawful discrimination.” Hazle, 464 Mich at 462.
Once plaintiffs establish a prima facie case and the presumption of discrimination arises, the
burden shifts to defendant to prove a non-discriminatory reason for its decision to terminate
plaintiffs. If defendant successfully rebuts the presumption of discrimination, the burden shifts
again to plaintiffs to prove that discrimination was a motivating factor in defendant’s termination
of their employment. Id. at 463-465.

       It is undisputed that plaintiffs are members of a protected class and that they suffered an
adverse employment action. However, plaintiffs cannot go forward with their age discrimination
claim because they cannot establish that they were qualified for the bailiff job. As discussed at
length above, medical evaluations revealed that neither Jackson nor Weatherly was capable of
performing the essential functions of the bailiff’s position himself, with or without
accommodation.


3
  Defendant presented a notarized affidavit from Bogerty, supported by attached employment
records, in which she stated that she made no such statement and did not start working for
defendant until March 7, 2016, well after defendant made and communicated to plaintiffs its
decision to send all its bailiffs for physical examinations.
4
    As the Sniecinski Court explained:
         Factors to consider in assessing whether statements are “stray remarks” include:
         (1) whether they were made by a decision maker or an agent within the scope of
         his employment, (2) whether they were related to the decision-making process,
         (3) whether they were vague and ambiguous or clearly reflective of
         discriminatory bias, (4) whether they were isolated or part of a pattern of biased
         comments, and (5) whether they were made close in time to the adverse
         employment decision. Sniecinski, 469 Mich at 136 n 8.



                                                 -7-
        Further, even if plaintiffs had established a prima facie case such that the presumption of
discrimination arose, defendant presented evidence to rebut the presumption. Plaintiffs’ fitness
for duty became relevant only with the 2015 amendment of MCL 600.8322 permitting removal
of bailiffs from office “for inability to perform essential functions of the office.” Soon after
passage of the bill, defendant scheduled all three of its bailiffs for physical examinations to
determine their ability to perform the essential functions of their jobs. Judge Blount testified that
the decision to remove plaintiffs from their position was based solely on comparing the results of
those examinations and the recommended follow-up testing with the bailiff’s job description.
Defendant’s insistence that age was not a motivating factor in its decision finds additional
support in the fact that the third bailiff, Rhue, who was in the same protected class as plaintiffs,
passed his physical examination and functional capacity test, kept his job, and served as bailiff
until his sudden death in December 2016.

         Plaintiffs also cannot prove that their duties went to someone else “under circumstances
giving rise to an inference of unlawful discrimination.” Hazle, 464 Mich at 462. Plaintiffs assert
that defendant required none of its court officers to take a physical examination. This assertion
overlooks the fact that defendant’s decision to require all of its bailiffs to undergo physical
examinations was in response to the 2015 amendment of MCL 600.8322 allowing defendant to
remove bailiffs from office “for inability to perform essential functions of the office[.]”. This
statute applies only to bailiffs in the 36th district court, it does not apply to court officers. In light
of the legal context, the fact that defendant did not require court officers to undergo physical
examinations does not give rise to an inference of unlawful discrimination. Plaintiffs also assert
that all of the court officers to whom the duties of bailiff fell were under 70 years of age. While
one might assume that this is true, plaintiffs provide no evidence in support of their conclusion.
“Parties opposing a motion for summary disposition must present more than conjecture and
speculation to meet their burden of providing evidentiary proof establishing a genuine issue of
material fact.” Bennett v Detroit Police Chief, 274 Mich App 307, 319; 732 NW2d 164 (2006).

        In conclusion, plaintiffs’ age discrimination claim fails because they cannot establish a
prima facie case giving rise to a presumption of discrimination. Even if the presumption of
unlawful age discrimination did arise, the record shows that defendant presented evidence
rebutting the presumption and establishing that it based its termination decision on plaintiffs’
health conditions. Plaintiffs presented no evidence that defendant’s non-discriminatory reason
was pretextual or that age was a motivating factor in defendant’s decision.

        Affirmed.



                                                                 /s/ Jane M. Beckering
                                                                 /s/ David H. Sawyer
                                                                 /s/ Thomas C. Cameron




                                                   -8-
