United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS [#4], CANCELING HEARING AND SETTING SCHEDULING
GERSHWIN A. DRAIN United States District Judge.
March 9, 2017, Plaintiff Barry Bernau filed the instant
action against Defendant Architectural Stainless, Inc. (ASI).
Plaintiff alleges in his complaint that Defendant violated
the Americans with Disability Act (ADA), 42 U.S.C. §
12101, and Michigan's Workers Disability Compensation Act
(WDCA), Mich. Comp. Laws § 418.301. Presently before the
Court is Defendant's Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendant argues
that the Plaintiff failed to properly state a claim upon
which relief can be granted. This matter is fully briefed and
upon review of the parties' submissions, the Court finds
that oral argument will not aid in the disposition of this
matter. Accordingly, the hearing is canceled and the Court
will decide the matter on the submitted briefs. See
E.D. Mich. L.R. 7.1(f)(2).
reasons discussed herein, the Court will
DENY Defendant's motion [#4].
manufactures stainless steel in Macomb Township, Michigan.
Dkt. No. 1, p. 3 (Pg. ID No. 3). Management hired Plaintiff
as a shop helper around June 8, 2015. Id. As a shop
helper, Plaintiff's primary duties included assisting
co-workers with their tasks, sweeping floors, taking out
garbage, and miscellaneous tasks given by one of the
brothers-Carlo, Bruno, and Nick Fucciarelli-co-own Defendant
Company. Id. On July 20, 2015, Carlo instructed
Plaintiff to operate a press brake machine used for bending
sheet and plate metal. Id. at 3-4. While operating
the press brake, the machine amputated part of
Plaintiff's left index finger. Id. at 4. With no
first-aid equipment available at Defendant's facility,
Plaintiff covered his wounds in an oily tourniquet and was
rushed to the hospital. Id.
22, 2015, Plaintiff returned to the emergency room because
his finger began to turn black and he felt ill. Id.
On July 24, 2015, Plaintiff was hospitalized for the weekend
due to further complications from the injury. Id. On
July 27, 2015, Plaintiff had surgery in order to remove his
now gangrenous fingertip and replace it with a skin graft
from his left leg. Id. The next day, Defendant
submitted an OCR 100 form to the Workers' Compensation
Agency and the Agency approved Plaintiff for Workers'
Compensation. Id. at 4-5.
August 7, 2015, Plaintiff returned to Defendant's
facility with a doctor's note clearing him to work with
restrictions. Id. at 5. At this time, Carlo did not
allow Plaintiff to return to work and instead sent him home.
November 2015, Plaintiff underwent another surgery to pin his
index finger to his palm as a skin graft. Id. at 6.
A few weeks later in December, Plaintiff then had an
ultimately unsuccessful surgery to remove the index finger
from his palm. Id. Later that month, Defendant did
not invite Plaintiff to the company Christmas party to which
all other employees were invited. Id.
January 7, 2016, Plaintiff returned to work with a
doctor's note clearing him to work without restrictions.
Id. During this meeting, Bruno pulled Plaintiff
aside and reprimanded him, claiming, “no one has ever
been hurt on those machines!” Id. Bruno later
complained to another employee that Plaintiff's finger
had cost the company $65, 000. Id.
following week, Plaintiff returned to work and Carlo again
instructed him to use the press brake machine. Id.
at 7. While operating the machine, the press brushed up
against Plaintiff's finger triggering him to pull his
hand back quickly and drop the piece of metal he was working
with. Id. Upon seeing this, Carlo said to Plaintiff,
“You know why you dropped it? You scared, you're
chicken shit.” Id. Later in January,
Carlo's son, also an employee of Defendant, shot
Plaintiff in the arm with a stud inserted into an air hose,
leaving Plaintiff bloodied. Id. However, Carlo
merely asked his son to apologize and did not otherwise
discipline him. Id.
Plaintiff alleges Carlo consistently demeaned him in front of
his co-workers after the injury by referring to him as a
“shitty guy” and an “epileptic.”
Id. Finally, Plaintiff claims that Defendant
provides its employees with health insurance after working
for 90 days, but never offered it to Plaintiff. Id.
March 2016, Plaintiff took a leave of absence to have two
additional surgeries on his injured finger. Id.
Later that month, Plaintiff was hospitalized for an infection
in his injured hand. Id. When he returned to work in
April 2016, Carlo demanded that Plaintiff “get the f***
out of here and take your trailer with you!”