Michael Curtis v. Humana Military Healthcare Ser

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge, Authoring; Julia Smith Gibbons, Circuit Judge and George C. Steeh, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

Case: 10-5614

Document: 006111140389

Filed: 11/29/2011

Page: 1
FILED

Nov 29, 2011
LEONARD GREEN, Clerk
File Name: 11a0796n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 10-5614
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL W. CURTIS,
Plaintiff-Appellant,
v.

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY

HUMANA MILITARY HEALTHCARE
SERVICES, INC.,
Defendant-Appellee.

/
MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*

Before:

BOYCE F. MARTIN, JR., Circuit Judge. Michael W. Curtis suffers from neuropathy in his
legs, a lack of feeling that causes difficulty walking, bending, and balancing. Curtis filed suit against
his former employer, Humana Military Healthcare Services, Inc., after he was terminated from his
position. Curtis claims that Humana terminated him because of his disability and failed to
reasonably accommodate his disability during his employment, in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12112. Humana moved for summary judgment on both claims, and the
district court granted its motion. Curtis now appeals. For the reasons set forth below, we AFFIRM.

*

The Honorable George Caram Steeh III, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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I.
In December 2003, Curtis underwent back surgery to relieve pain caused by a herniated disk.
As a result of complications during the surgery, Curtis was completely paralyzed in his legs for six
to seven months following the surgery. Curtis gradually regained the use of his legs. Even after his
recovery, Curtis had difficulty walking and standing. He frequently used a cane or leaned against
walls to help him walk and balance himself. During his tenure with Humana, Curtis “tried as much
as he could to walk without a cane,” but probably used a cane 70 to 75% of the time. Curtis also
asserts that he had great trouble walking on wet or snow-covered surfaces.
Curtis began working for Humana in June 2007. Curtis’s work consisted primarily of
answering the telephone while seated at a desk. Both parties agree that he did not require special
accommodations while at work.
Humana provided subsidized employee parking. Curtis’s assigned space was approximately
four blocks away from his place of employment. Early in his employment, Curtis requested that he
be given a closer parking space to accommodate his impairment. Because parking spaces were
assigned according to seniority, Humana refused to provide him with a closer spot and instead told
him that he could either find a closer spot on his own or use the public bus for free. By showing his
Humana identification card to the driver, Curtis could have taken the bus directly from his parking
lot to his work building at no charge. Curtis declined to use the free bus and, instead, walked to
work from his parking space each day because he believed it would be too difficult for him to step
onto the bus. There is evidence in the record that the buses were fitted with lift mechanisms or
ramps.

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It is undisputed that Humana had concerns about Curtis’s employment record throughout his
employment. Humana addressed Curtis about his attendance issues twice. The first time, on January
8, 2008, Curtis’s supervisor noted five absences and one late arrival that occurred between July 16,
2007, and January 8, 2008. Curtis’s supervisor warned him that Humana considered this to be an
unacceptable number of absences. Between January 22, 2008, and May 6, 2008, Curtis incurred six
additional attendance incidents.

On May 7, Curtis’s supervisor warned him again about his

attendance and told him to avoid any additional absences, full or partial, before August 4. His
supervisor informed him that a failure to meet this stated attendance expectation could result in
termination. After this warning, Curtis was absent on May 16. On May 19, Humana terminated
Curtis because of his attendance problems.
On October 3, Curtis filed suit in the United States District Court for the Western District
of Kentucky, alleging that (1) Humana’s refusal to provide a closer parking space was a failure to
provide a reasonable accommodation for his disability, and (2) he was terminated because of his
disability. The district court found that Curtis’s claims of discrimination failed because, though
impaired, Curtis is not disabled within the meaning of the Act. The district court found that, even
assuming Curtis was disabled within the meaning of the Act, Humana’s offer of free public
transportation was a reasonable accommodation that Curtis failed to accept. With respect to Curtis’s
claim that he was terminated because of his disability, the district court found that Humana offered
a legitimate, non-discriminatory reason for his termination.

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II.
This Court “reviews a district court’s grant of summary judgment de novo.” Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (citation omitted). Summary judgment is proper when
“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 movant is
entitled to a judgment as a matter of law.’” Id. (citation omitted). “In deciding a motion for
summary judgment, the court must view the factual evidence and draw all reasonable inferences in
favor of the nonmoving party.” Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003)
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Curtis claims that the district court erred in granting summary judgment in favor of Humana.
He argues that the district court erred by (1) determining that Curtis was not disabled within the
meaning of the Act; (2) finding that Humana had offered a reasonable accommodation; and (3)
improperly applying the burden-shifting framework of McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). We agree with the district court’s finding that Curtis has failed to adduce
evidence that would allow a reasonable jury to conclude he was disabled within the meaning of the
Act. We affirm the district court’s grant of summary judgment to Humana on this basis.
Pursuant to section 12112(a) of the Act, an employer may not discriminatorily terminate an
otherwise qualified individual on the basis of his disability. To state a prima facie case of
employment discrimination under the Act, “a plaintiff must show that 1) he . . . is disabled; 2) [he
is] otherwise qualified for the position, with or without reasonable accommodation; 3) [he] suffered
an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's

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disability; and 5) the position remained open while the employer sought other applicants or the
disabled individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011)
(citation and internal quotation marks omitted). To show that he is disabled, Curtis needed to present
evidence that he suffers from a physical or mental impairment that substantially limits a major life
activity. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194-95 (2002).1 Major
life activities “refers to those activities that are of central importance to daily life.” Id. at 197.
Curtis argues that he is substantially limited in his ability to walk. While walking is
considered a major life activity for purposes of the Act, see 29 C.F.R. § 1630.2(i)(1)(i), Curtis has
failed to present sufficient evidence that his impairment substantially limits his ability to walk. An
“impairment that only moderately or intermittently prevents an individual from performing major
life activities is not a substantial limitation under the Act.” Mahon v. Crowell, 295 F.3d 585, 590-91
(6th Cir. 2002) (citation omitted). Curtis does not dispute that he was able to walk during his tenure
with Humana. Instead, he asserts that he had difficulty with balance; relied on a cane and walls to
walk and to navigate curbs, steps, and rough roads; tripped frequently; experienced frequent muscle
cramps; and had great difficulty walking on snow-covered or wet surfaces. These conditions do not
show that Curtis was “severely restrict[ed]” in his ability to walk. See Wood v. Crown Redi-Mix,
Inc., 339 F.3d 682, 685 (8th Cir. 2003) (finding that a plaintiff who had the ability to walk only
about one-quarter mile before stopping and resting, and whose knee sometimes collapsed, had only

1

Curtis’s claims arose prior to the effective date of the Americans with Disabilities
Amendments Act of 2008 and his claims are thus appropriately analyzed under legal standards that
predate the passage of the Amendments Act. See Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d
562, 565 (6th Cir. 2009) (holding that the Amendments Act is not retroactive).

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moderate, and not substantial, limitations on his ability to walk); Penny v. United Parcel Serv., 128
F.3d 408, 415 (6th Cir. 1997) (“[M]oderate difficulty or pain experienced while walking does not
rise to the level of a disability.”); see also Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007).
While severe limitations on walking would certainly amount to a disability under the Act, Curtis has
failed to adduce evidence to support the conclusion that his restrictions are so severe. Cf. EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (finding evidence sufficient to show
substantial limitation on plaintiff’s ability to walk where plaintiff would become numb after walking
one city block and walking would become “nearly impossible and extremely slow” sufficient to show
a substantial limitation on ability to walk).
The record here shows that Curtis walked from his car to work almost every day. Indeed,
Humana offered Curtis the option of taking the free bus from his subsidized parking spot to the front
door of the building, but Curtis declined to try taking the bus even once, instead choosing to walk.
Curtis fell only once while walking to his workplace and, on that occasion, he fell while attempting
to avoid being struck by a vehicle. Finally, as the district court noted, Curtis has not presented any
medical opinions supporting a disability under the Act. We agree with the district court’s analysis
that Curtis has not presented sufficient evidence to allow a reasonable juror to find a “substantial
limitation” on Curtis’s ability to walk. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.
1999) (finding that a noticeable limp and significantly slower pace of walking is insufficient to
establish a disability under the Act); Kelly v. Drexel Univ., 94 F.3d 102, 106-107 (3d Cir. 1996)
(affirming district court’s finding that plaintiff’s “trouble climbing stairs, which requires him to
move slowly and hold the handrail, does not substantially limit his ability to walk”). Cf. Scheerer

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v. Potter, 443 F.3d 916, 920 (7th Cir. 2006) (“Although there can be no doubt that [plaintiff] suffered
from pain and significant inconvenience from his . . . condition, he does not point to enough
evidence in the record to show that he was prevented from performing, or was otherwise severely
restricted in, any major life activities.”). Because we determine that Curtis has not presented
sufficient evidence to demonstrate disability under the Act and because a prima facie case requires
satisfaction of each element, we need not consider his other claims. See Whitfield, 639 F.3d at 259
(stating a prima facie case of employment discrimination requires showing disability within the
meaning of the Act).
III.
For these reasons, we AFFIRM the judgment of the district court.