Moloney v. Home Depot U.S.A., Inc.

Filing 54

ORDER denying 45 Motion for Reconsideration re 45 MOTION for Reconsideration filed by Home Depot U.S.A., Inc. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Patrick Moloney,
Plaintiff,
v.

Case No. 11-10924

Home Depot U.S.A., Inc.,

Honorable Sean F. Cox

Defendant.
______________________________/
ORDER DENYING
DEFENDANT’S MOTION FOR RECONSIDERATION
In this action, Plaintiff Patrick Moloney (“Plaintiff”) asserts that his former employer,
Defendant Home Depot U.S.A., Inc. (“Defendant” or “Home Depot”), discriminated against him
in violation of the Americans with Disabilities Act (“ADA”) and Michigan’s Persons with
Disabilities Civil Rights Act (“PWDCRA”) when it terminated his employment. Plaintiff also
asserts that Home Depot violated both the ADA and the PWDCRA by failing to accommodate
his disability.
Following discovery, the matter came before the Court on Defendant’s Motion for
Summary Judgment. In an Opinion & Order issued on May 31, 2012, this Court granted the
motion in part, denied it in part, and took part of the motion under advisement pending
supplemental briefing. (Docket Entry No. 43). The Court granted Defendant’s motion with
respect to Plaintiff’s failure-to-accommodate claim under Michigan’s PWDCRA but ordered
further briefing as to the failure-to-accommodate claim under federal law.
The Court denied Defendant’s motion as to Plaintiff’s claims under both the ADA and

1

PWDCRA that he was terminated because of his disability. In doing so, the Court noted that:
To establish a prima facie case of disability discrimination under the ADA,1 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 action; 4) the employer knew or had reason to know of the plaintiff’s
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, 58-59 (6th Cir. 2011).
(5/31/12 Opinion & Order at 7). Defendant’s Motion for Summary Judgment challenged the
first, second, and fourth elements. This Court ultimately concluded that Plaintiff has submitted
sufficient evidence to create an issue of fact as to whether: 1) he is disabled (Id. at 7-9); 2) he is
qualified for the position (Id. at 10-11); and 3) Defendant knew or should have known that
Plaintiff has a mental disability (Id. at 11-13). The Court also concluded that Plaintiff submitted
sufficient evidence to establish pretext. (Id. at 14-16).
Thereafter, Defendant filed the instant Motion for Reconsideration. (Docket Entry No.
45). Defendant contends that the Court erred in finding that Plaintiff has submitted sufficient
evidence to establish that Defendant knew or should have known that Plaintiff has a disability.
Defendant argues that the Court erred in referring to the corporate Defendant’s knowledge,
rather than to the knowledge of the individual who actually made the decision to terminate
Plaintiff. Defendant asserts that because Keith Stevens made the decision to terminate Plaintiff’s
employment, it is his knowledge that is relevant. Defendant also asserts that Stevens was
“uncontrovertibly” without any knowledge of Plaintiff’s disability.

1

“Michigan’s Persons with Disabilities Civil Rights Act substantially mirrors the ADA,
and resolution of a plaintiff’s ADA claim will generally, though not always, resolve the
plaintiff’s PWDCRA claim.” Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 597 (6th Cir. 2002).
The Court will only address Plaintiff’s PWDCRA claims where the standard differs from the
ADA.
2

The Court agrees that it is Stevens’s knowledge, as the decision-maker, that is relevant.
Whether Stevens knew or should have known of Plaintiff’s disability, however, is not
incontrovertible simply because Stevens testified that he did not know Plaintiff was disabled.
This Court concludes that Plaintiff has identified sufficient evidence in the record to
create a genuine issue of fact as to whether Stevens knew or should have known that Plaintiff
was disabled. The evidence reflects that various symptoms exhibited by Plaintiff may be
sufficiently obvious enough manifestations of a mental disability that it may be reasonable to
infer that a person like Stevens, who supervised Plaintiff for a period of more than a year, either
knew or should have known of his disability.
Stevens himself testified that he observed that “Plaintiff is a different personality. You
know, he was never one to come up an engage you, you know, and talk about anything, but if
you engage Pat he would talk a little bit.” (Stevens Dep. at 176). Stevens testified that Plaintiff,
an adult man, walked in what Stevens called a “supersonic speed.” (Id.). He also testified that
Plaintiff speaks slowly, that he sometimes pauses for long periods of time between questions and
answers, and that he has seen Plaintiff “stutter and stuff.” (Id. at 255 & 260). At times Stevens
also observed Plaintiff have difficulty focusing. (Id. at 258).
Moreover, at trial the jury will hear Plaintiff testify and will observe Plaintiff’s speaking,
facial expressions, mannerisms, etc., which may also be relevant as to the inquiry as to whether
Stevens knew or should have known that Plaintiff has a mental disability.2

2

In its Motion for Reconsideration, Defendant notes that Stevens’s Declaration asserts
that “Plaintiff’s conduct and behavior during the course of his video deposition (long pauses
between questions and answers, staring and rolling of the eyes) was wholly inconsistent with the
conduct and behavior that I observed of Plaintiff during his employment” at Home Depot.
(Stevens Decl. at ¶ 4). Stevens, however, testified that during his employment he observed that
3

In addition, while Stevens was the supervisor who made the decision to terminate
Plaintiff, evidence regarding what other supervisors observed while working with Plaintiff is
also relevant because a reasonable jury could conclude that such testimony casts doubt on
Stevens’s testimony that he did not know, or have any reason to believe, that Plaintiff has a
mental disability. (See 5/31/12 Opinion & Order at 12).
Finally, the Court concludes that evidence indicating that the then-Store Manager and the
Human Resources Department were expressly advised of Plaintiff’s mental impairment at the
time that Plaintiff was first hired is also relevant as to whether Stevens should have known of
Plaintiff’s disability. See, e.g. Hedberg v. Indiana Bell Tele. Co., Inc., 47 F.3d 928, 934 (7th Cir.
1995) (Explaining that, while the “ADA does not require clairvoyance,” “if an employee tells his
employer that he has a disability, the employer then knows of the disability, and the ADA’s
further requirements bind the employer.”).
The Court continues to believe that Plaintiff has submitted sufficient evidence to create
an issue of fact as to whether he can establish a prima facie case of disability discrimination.
The Court also continues to believe that Plaintiff has submitted sufficient evidence as to pretext
to survive summary judgment. Accordingly, IT IS ORDERED that Defendant’s Motion for
Reconsideration is DENIED.

Plaintiff sometimes pauses for long periods of time between questions and answers. (Stevens
Dep. at 257). In any event, such arguments are for the jury and cannot be resolved at the
summary judgment stage.
4

IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: February 7, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 7, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

5