United States District Court, E.D. Michigan, Southern Division
For Gianni-Paolo Ferrari, Plaintiff: Angela L. Walker, David M. Blanchard, Edward A. Macey, Nacht, Roumel, Salvatore, Blanchard & Walker, P.C., Ann Arbor, MI.
For Ford Motor Company, Defendant: Elizabeth P. Hardy, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, MI; Julia T. Baumhart, Kienbaum, Opperwall, Birmingham, MI.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 
Hon. JUDITH E. LEVY, United States District Judge. Mag. Judge Michael J. Hluchaniuk.
This is an employment discrimination case. Pending is defendant Ford Motor Company's motion for summary judgment. (Dkt. 33.)
Plaintiff has been an employee of Ford Motor Company since 1996, and a member of the United Auto Workers (" UAW" ) for the duration of his employment. In 2000, while on the job, plaintiff suffered a neck injury that substantially limited him in a number of major life activities. He continued to work at Ford with accommodations that have varied based on the severity and impact of the pain originating from his neck injury.
In January of 2012, plaintiff was working in defendant's human resources department,
a placement he obtained as a reasonable accommodation for his neck injury. At that time, plaintiff was certified for his most recent Family Medical Leave Act (" FMLA" ) leave, originating from psychological issues related to his work relationship with a supervisor. (Dkt. 36-2 at 19.) By late 2012, plaintiff's treating physician agreed that his neck pain had improved to the extent that he no longer needed permanent restrictions or accommodations.
On December 3, 2012, plaintiff met with Dr. Athelia Brewer, defendant's company doctor, to be cleared to return from his FMLA leave. Plaintiff brought with him notes from his treating physicians stating that his neck-related restrictions were no longer required. Plaintiff states that he requested that his restrictions be lifted in order to apply for a potential skilled trades position. ( See Dkt. 37-1.) On December 6, 2012, Dr. Brewer imposed restrictions of " no overhead work" and " no climbing ladders," along with two other restrictions. (Dkt. 37-6.)
On December 17, 2012, defendant informed plaintiff that there was an opening for a refrigeration maintenance skilled trades position (" RMI tradesman" or " RMI position" ) at the Van Dyke plant, and that plaintiff was next on the seniority list. Based on the collective bargaining agreement between defendant and the UAW, the most senior qualified person for particular skilled trade jobs, including the position at issue here, would receive the position if interested. The position also came with higher compensation than normal production work.
On January 16, 2013, following the announcement of the RMI opening, plaintiff went back to Dr. Brewer so she could conduct a mandatory physical. Plaintiff brought with him a variety of clearances from other doctors and examiners, all related to his prior neck injury. Among the documentation was a January 7, 2013 chart entry by his family physician, Dr. David Calton, that stated plaintiff was still actively using Kadian (an extended-release morphine sulfate drug) and Valium. (Dkt. 33-8 at 5.)
Dr. Brewer did not clear plaintiff for the job, and instead sought clarification from plaintiff's treating physician, Dr. Kole, regarding both the removal of the neck-related physical restrictions and plaintiff's use of Valium and morphine. (Dkt. 37-7 at 3.) Dr. Brewer also sought a job description in conjunction with plaintiff's request for clearance. (Id.) Dr. Brewer discussed the overhead-work and ladder-climbing restrictions with Tom Ternan, the RMI supervisor. (Dkt. 36-9 at 4.)
Dr. Brewer then sent plaintiff for an independent medical examination (" IME" ), conducted by Dr. Philip Friedman, a neurosurgeon. The IME report stated that plaintiff had no physical restrictions, but that as a result of plaintiff's continued dependence on opioids such as morphine Dr. Friedman would not allow plaintiff to resume unrestricted employment. The IME did not suggest any specific restrictions for plaintiff. Following Dr. Friedman's IME, defendant also sent a letter to Dr. Kole, asking how long it would take to wean plaintiff off of opioids. Dr. Kole responded on February 7, 2013, that plaintiff could physically perform the duties in the RMI position description, but would require three months to be weaned off of his pain medications. (Dkt. 36-15.)
Plaintiff contends that he had weaned himself off of opioids as of December 2012. Defendant states that plaintiff told Dr. Brewer on January 16, 2013 that he had not used opioids for over a month, and that he told Dr. Friedman on January 29, 2013 that he had not used opioids for over three months. His last prescription for opioids from Dr. Kole was filled on December 19,
2012, and Dr. Kole states that plaintiff brought the drugs back to him unopened on May 22, 2013. (Dkt. 36-11 at 3.)
Starting on February 13, 2013, plaintiff requested his medical file. (Dkt. 36-17 at 6.) On February 26, 2013, management employee Linda Beggs, in an e-mail to another management employee, stated that Dr. Brewer would " wait until closer to the 15 day period to provide it to [plaintiff] as [Dr. Brewer] expects he will immediately ask his personal physician to take him off the prescriptions medications [ sic ] so he won't have any current restrictions." (Dkt. 36-17 at 2.)
On February 27, 2013, Dr. Brewer removed two of the four restrictions placed on plaintiff, but maintained the overhead-work and ladder-climbing restrictions based on plaintiff's opioid use and weaning-off period. (Dkt. 33-5 at 44.) Further, Dr. Brewer stated that plaintiff was " able to work without restrictions from a physical perspective." (Dkt. 33-5 at 42.) The restriction also noted that plaintiff should be re-evaluated in three to four months to determine whether he had been weaned from the opioids. (Id.) The updated restrictions were passed along to Ternan, who determined that plaintiff could not, at that time, be placed in the apprentice position. Rob Shaver, a manager at Van Dyke, approved Ternan's decision to bypass plaintiff for the position. This was a temporary bypass, and plaintiff could reapply again in three to four months.
Plaintiff did not seek review of his restrictions by defendant until September 2013. On September 11, 2013, Dr. Kole concluded that plaintiff had been successfully weaned off of pain medication. (Dkt. 33-7 at 8-9.)
Plaintiff filed suit on November 25, 2013. He brings claims for disability discrimination under the Americans with Disabilities Act (" ADA" ), Michigan's Persons With Disabilities Civil Rights Act (" PWDCRA" ), and the FMLA.
II. Legal Standard
Summary judgment is proper where " the movant shows that 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 Court may not grant summary judgment if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. The Court " views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party." Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
A. Applicable ADA Prima Facie Standard
Defendant argues that plaintiff has failed to make a prima facie case of discrimination under the Americans with Disability Act. In the Sixth Circuit, there is some conflict on which standard applies to a prima facie case of discrimination under the ADA.
In Whitfield v. Tennessee, the Sixth Circuit attempted to resolve " confusion in this circuit as to the proper test for establishing a prima facie case of employment discrimination under the ADA." Whitfield,
639 F.3d 253, 259 (6th Cir. 2011).
Two alternate tests had been used to that point. The first was a three-factor test that required a plaintiff to show: " (1) that he or she is an individual with a disability; (2) who was otherwise qualified to perform a job's requirements, with or without reasonable accommodation, and (3) who [suffered an adverse employment action] solely by reason of the disability." Id. (citing Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002). The second was a five-factor test that required a plaintiff to show 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 ...