United States District Court, Eastern District of Michigan, Southern Division
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 32)
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
In this disability discrimination case brought under the American’s with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., plaintiff Equal Employment Opportunity Commission (“EEOC”) alleges that defendant, assisted living facility The Pines of Clarkston, terminated Jamie Holden as a nursing administrator on the basis of her epilepsy. Holden intervened and filed her own two-count complaint alleging that her discharge violated the ADA and Michigan’s Persons With Disabilities Civil Rights Act, (“PWDCRA”) Mich. Comp. Laws § 37.1101 et seq. Now before the court is defendant’s motion to dismiss or for summary judgment on the grounds that (1) it is not an employer within the meaning of the ADA because it employed less than 15 employees at the time that it failed to hire or terminated Holden, and (2) it had a legitimate reason for its employment decision as Holden failed a pre-employment drug test. Because defendant admitted that it employed at least 15 employees and was a covered “employer” within the meaning of the ADA in its pleadings, and because a genuine issue of material fact exists as to whether defendant had a legitimate reason for terminating her, defendant’s motion for summary judgment shall be denied.
In July, 2011, Holden, a licensed practical nurse, applied for a position with The Pines of Clarkston to work as an administrator. (Doc. 38, Ex. 1 at 42-43). Holden interviewed with Randy Legault, owner and district manager of The Pines of Clarkston in late July, 2011 and again in early August of that same year. Id. at 44, 111. Holden alleges that she was hired on August 8, 2011. (Doc. 8 at ¶ 8). On her second day of employment, she was required to undergo a medical examination and to take a drug test. (Doc. 38, Ex. 1 at 119). Holden uses medical marijuana for her epilepsy. Id. at 121. The results of the drug test were positive. (Doc. 32, Ex. 10). Holden discussed the test results with Legault and explained that she used medical marijuana for her epilepsy. (Doc. 38, Ex. 1 at 121). The next day, on August 10, 2011, Holden met with Legault and with Robin Gepfrey, another of defendant’s owners, who was district manager of The Pines of Lapeer at that time. Id. at 125. The three met at the Pines of Burton, another Pines assisted living facility. According to Holden’s complaint, Gepfrey questioned her about her epilepsy and told her at the conclusion of the interview meeting that she did not believe that Holden could perform the job. (Doc. 8 at ¶¶ 12-13). Holden was instructed not to return to work until a decision regarding her employment was made. Id. at ¶ 14. According to Holden’s deposition, Legault left a voice mail on her home phone several days later advising her that her services were no longer needed. (Doc. 38, Ex. 1 at 137-38).
The complaint filed by the EEOC alleges that “[a]t all relevant times, Defendant The Pines of Clarkston, Inc. (the “Employer”) . . . has continuously had at least 15 employees.” (Doc. 1 at ¶ 4). In its answer, filed on November 18, 2013, defendant admitted that it had at least 15 employees. (Doc. 9 at ¶ 4). Similarly, Holden’s intervening complaint alleged that defendant “has been an employer within the meaning of the Americans with Disabilities Act of 1990 (ADA), 42 USC § 12111.” (Doc. 8 at ¶ 2). In its answer to the intervening complaint, filed on January 23, 2014, defendant admitted that it was an employer within the meaning of the ADA. (Doc. 12 at ¶ 2).
Discovery in this case closed on July 31, 2014. The dispositive motion cut-off date was September 2, 2014, and the trial of this matter was scheduled for December 22, 2014. After the dispositive motion cut-off date had expired, on September 26, 2014, defendant filed a Rule 11 motion for sanctions seeking dismissal on the basis that plaintiffs’ claims were allegedly frivolous. The court summarily denied that motion but granted defendant’s motion to extend the scheduling order to allow it to file a dispositive motion. (Doc. 31). Neither party sought additional discovery and the discovery period remained closed.
At the time defendant made the adverse decision regarding Holden’s employment, there were five assisted living centers bearing the “Pines” name: defendant The Pines of Clarkston, The Pines of Burton, The Pines of Lapeer, The Pines of Swartz Creek, and The Pines of Lake Fenton. Plaintiffs also allege that defendant is an “employer” under the ADA under the “integrated enterprise” doctrine which, if applicable, would allow plaintiffs to aggregate employees of some or all of the other Pines facilities to meet the threshold number required for liability under the ADA. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997). Because the court finds that defendant is bound by its judicial admissions that it is an “employer” under the ADA, the court does not recite here the facts germane to that inquiry.
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
The standard for determining whether summary judgment is appropriate is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).
A. The Numerosity Requirement
In order to qualify as a covered “employer” under the ADA, the defendant must employ “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A). Proving the threshold number of employees to be considered an “employer” within the meaning of the ADA is an element of a plaintiff’s claim for relief and is not jurisdictional. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (“the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue.”). Although Arbaugh applied to Title VII, not the ADA, the Sixth Circuit has relied on case law interpreting Title VII to decide ADA issues based on the similarities between the statutes. Swallows, 128 F.3d at 992 n.2 (“Because Title VII, the ADEA, and the ADA define ‘employer’ essentially the same way, we rely on case law developed under all three statutes.” (internal quotations marks omitted)). In addition, other courts have applied Arbaugh to ADA claims, ruling that the numerosity requirement is a nonjurisdictional element of the claim. Reynolds v. Nat’l American Red Cross, 701 F.3d 143, 155 (4th Cir. 2012); Dalton v. Manor Care of West Des Moines, 986 F.Supp.2d 1044, 1053 (S.D. Iowa 2013); see also Minard v. ITC Deltacom Comm., 447 F.3d 352, 356 (5th Cir. 2006) (applying Arbaugh to FMLA claims). Thus, while defendant could not consent to ...