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STATE OF MICHIGAN
COURT OF APPEALS


JEAN DILLON-BARBER, Plaintiff-Appellee/Cross-Appellant, v REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendant-Appellant/CrossAppellee. and SUSAN SHEPPARD and LINDA BOYLE CREPS, Defendants.

UNPUBLISHED June 7, 2005

No. 250596 Washtenaw Circuit Court LC No. 99-011089-CZ

Before: Murray, P.J., and Markey and O'Connell, JJ. PER CURIAM. In this disability discrimination and retaliation case plaintiff litigated and lost her claims in federal court, and then brought essentially the same claims in state court under Michigan's Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101, et seq. This Court granted defendant Regents of the University of Michigan (hereafter, the university) application for leave to appeal the trial court's denial of its motion for summary disposition with regard to plaintiff's claims that because of her depression, she was discriminated against and subjected to improper medical testing. Plaintiff cross-appeals the dismissal of her attention deficit disorder (ADD) discrimination claims and dismissal of her PWDCRA claims against the individual defendants. We affirm in part, reverse in part, and remand for entry of judgment for defendants. I. Summary of Facts and Proceedings Plaintiff began working for the university in 1980, when she was hired as a program analyst in the Medical Center Information Technology (MCIT) unit. After a series of promotions, plaintiff became a senior programmer analyst/senior system analyst in 1988. In 1993 and 1994 plaintiff took several medical leaves of absence to treat for depression. In June -1-


1995, plaintiff's psychiatrist (Dr. Bruce Schweiger) diagnosed her as suffering from ADD. That same month during her annual performance evaluation, plaintiff disclosed her ADD diagnosis to her supervisor, defendant Susan Sheppard. According to plaintiff, during August 1995, Sheppard several times asked plaintiff for medical documentation confirming the ADD diagnosis. Plaintiff provided documentation from Dr. Schweiger confirming her diagnosis of ADD, and major depressive disorder. Plaintiff also alleges that she asked Sheppard for a referral to the university's staff benefits office but Sheppard refused to do so. Plaintiff claims Sheppard instead informed plaintiff that the university required a second medical opinion confirming her ADD diagnosis. Accordingly, Sheppard informed plaintiff that she must submit to an examination to be performed by a psychiatrist chosen by the university, Dr. Thomas Carli. Plaintiff submitted to the examination on November 6, 1995. Dr. Carli referred plaintiff to Doctors Giordani and Conant for additional testing regarding her ADD. Giordani and Conant suggested some accommodations for plaintiff, including dividing tasks into smaller units, using a daily planner, structuring short breaks into the workday, and documenting certain performance consequences in writing. In his report to the university, Dr. Carli could not reach a conclusion that plaintiff had ADD, but he concurred in the recommendations of Doctors Giordani and Conant that plaintiff would benefit from some accommodations in the performance of her job. According to plaintiff, her subsequent and repeated requests for accommodation were refused. Plaintiff alleges Sheppard refused to assign senior level work to plaintiff and negatively evaluated her work performance because of plaintiff's ADD and depression. On November 15, 1996, defendant Linda Boyle Creps, the director of the Clinical Information Systems unit of the Medical Center, terminated plaintiff's employment. On January 5, 1998, plaintiff filed a nine-count complaint1 in the United States District Court, Eastern District of Michigan, alleging that she was unlawfully discriminated against because she suffers from the disabilities of chronic major depression, ADD, and morbid obesity and that her termination violated the Americans with Disabilities Act (ADA), 42 USC

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Michigan Law