LaFata v. Dearborn Heights School District No. 7

Filing 23

OPINION AND ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADAM LAFATA,
Plaintiff,
v.

Civil Case No. 13-cv-10755
Honorable Patrick J. Duggan

DEARBORN HEIGHTS SCHOOL
DISTRICT NO. 7,
Defendant.
___________________________/
OPINION AND ORDER (1) DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND (2) GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
Plaintiff Adam LaFata (“Plaintiff”) filed this lawsuit against Defendant
Dearborn Heights School District No. 7 (“School District”) when the School
District revoked a conditional job offer after learning the results of Plaintiff’s
preemployment physical examination. Plaintiff alleges that the School District’s
conduct violated the Americans with Disabilities Act (“ADA”), Title II of the
Genetic Information Non-Discrimination Act of 2008 (“GINA”), and Michigan’s
Persons With Disabilities Civil Rights Act (“PWDCRA”).1 Currently pending
before the Court are the parties’ cross-motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56. The Court held a hearing with respect to the
1

As set forth infra, Plaintiff no longer is pursuing his claim under GINA.

motions on December 5, 2013. For the reasons that follow, the Court concludes
that summary judgment should be entered in favor of Plaintiff and against the
School District. As such, the Court grants Plaintiff’s motion and denies the School
District’s motion.
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “if 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 central inquiry 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.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 2512 (1986). After adequate time for discovery and
upon motion, Rule 56 mandates summary judgment against a party who fails to
establish the existence of an element essential to that party’s case and on which
that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this
burden, the “nonmoving party must come forward with specific facts showing that
2

there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (internal quotation marks
and citation omitted). To demonstrate a genuine issue, the nonmoving party must
present sufficient evidence upon which a jury could reasonably find for that party;
a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S.
Ct. at 2512.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255, 106 S. Ct. at 2513.
A court reviewing cross-motions for summary judgment, must evaluate each
motion on its own, applying the above standard. Westfield Ins. Co., 336 F.3d at
506 (citing Taft Broad Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).
II.

Factual and Procedural Background
On July 26, 2010, Plaintiff submitted an application for the position of Plant

Engineer with the School District. Plaintiff’s application reflected that he had
3

worked as a building supervisor at the Lincoln Park Community Center for the last
ten years. (ECF No. 15 Ex. 3.) In that position, as also reflected on his
application, Plaintiff was responsible for complete maintenance of the inside and
outside of the building, HVAC, minor plumbing and electrical work, roof repairs,
maintenance of refrigeration equipment for the ice rink, set up and care of the
community pool, closing the pool, set up and resurfacing of the ice rink, operating
and repairing the Zamboni, set up and tear down for ice shows and events, and
selling and scheduling ice time. (Id.) Plaintiff regularly used ladders and carried
objects weighing more than forty pounds in the building supervisor position. (Id.
Ex. 18 at 9-12.)
The School District’s Director of Operations, John Nicholls, interviewed
Plaintiff for the Plant Engineer position on August 26 and 30, 2010. Mr. Nicholls
described the duties of the position during the interview, including that it required
physical labor such as climbing ladders and lifting more than fifty-five pounds.
(ECF No. 15 Ex. 5 at 33-35, 63-64, 67-68.) According to Mr. Nicholls, when
asked if he would have any problem with the “physical labor” required, Plaintiff
answered: “No problem.” (Id. at 57.)
Following the second interview, Mr. Nicholls extended a conditional offer of
employment to Plaintiff. As conditions of employment in the public schools,
4

School District Board Policy and state law require every applicant to: (1) be
fingerprinted and pass a criminal history check; (2) successfully pass a drug test;
and (3) pass a physical reflecting that they are able to perform the essential
functions of the position. The School District contracts with Midwest Health
Systems (“Midwest”) to perform the required physical examination.
Dr. Joel Perlson, who works for Midwest, conducted Plaintiff’s examination
on September 7, 2010. According to Dr. Perlson’s testimony during his deposition
in this case, he tested Plaintiff for squatting, standing, stooping, and balance. (ECF
No. 15 Ex. 15 at 17.) Plaintiff performed “adequately” for squatting, standing, and
stooping (id. at 17-18); however, Dr. Perlson had concerns about Plaintiff’s
balance based on the manner in which he climbed onto the examination table. (Id.
at 19-20.) Dr. Perlson explained that Plaintiff “climbed onto the table very slowly,
moving one limb at a time, balancing himself as he went along, slowly turning
around and then sitting down on the table.” (Id. at 19.)
After observing the way Plaintiff climbed onto the table, Dr. Perlson left the
examination room and had someone from Midwest request a job description from
the School District for the position Plaintiff was seeking. (Id. at 20.) Dr. Perlson
then returned to the exam room and asked Plaintiff to pull up the legs of his pants
to above his knees. (Id. at 21.) Dr. Perlson noted that Plaintiff had muscle atrophy
5

in his legs. (Id. at 22.) Dr. Perlson then asked Plaintiff if he could walk on his
heels or toes, which Plaintiff could not do. (Id.)
Dr. Perlson asked Plaintiff if he wears leg braces and Plaintiff responded that
he sometimes did, but that he had not worn them that day. (Id.) Dr. Perlson then
asked Plaintiff to remove his shirt so he could examine his shoulder girdle, arms,
wrists, hands, and ankles. (Id.) Dr. Perlson noticed only muscle atrophy in
Plaintiff’s hands. (Id.) To determine whether Plaintiff had any resulting weakness,
Dr. Perlson asked Plaintiff to squeeze his fingers. (Id.) According to Dr. Perlson,
Plaintiff’s strength “seemed adequate.” (Id. at 23.)
Based on his observations, Dr. Perlson opined that Plaintiff had Charcot
Marie Tooth syndrome, a genetic disorder that causes muscle deterioration and
gradual loss of strength. (Id. at 23, 30.) Dr. Perlson shared his diagnosis with
Plaintiff, but did not ask him if he had any physical symptoms or limitations. (Id.
at 24.) During the examination, Dr. Perlson also did not ask Plaintiff any questions
concerning his current employment duties or employment history. (Ex. 15 at 16.)
As Dr. Perlson explained during his deposition, he does not find that information
relevant in determining whether a prospective employee can physically do the job
for which he or she is applying. (Id.) At the conclusion of the examination, Dr.
Perlson provided Plaintiff with a note to take to his family doctor reflecting his
6

findings and requesting certain information. (Id. at 34; see also id. Ex. 12.)
Plaintiff took the note to Dr. Nancy Sabal, who examined Plaintiff on or
about September 9, 2010. (Id. Ex. 12.) Dr. Sabal indicated on the note that she too
diagnosed Plaintiff with Charcot Marie Tooth syndrome; however, she concluded
that Plaintiff’s strength was “more than adequate for his job and daily activities.”
(Id.) Dr. Sabal wrote that Plaintiff was “suitable” for the job. (Id.) Plaintiff
provided Dr. Sabal’s report to Dr. Perlson. (Id. Ex. 15 at 34-35.)
At some point after examining Plaintiff, Dr. Perlson received and reviewed
the job description for the Plant Engineer position that Helen O’Brien from the
School District faxed to Midwest. (Id. at 20-21; Ex. 16.) Ms. O’Brien was the
Assistant to Assistant Superintendent Charlene Coulson, Ph.D, who was in charge
of human resources for the School District at that time. The document Ms. O’Brien
faxed to Midwest was the website posting for the Plant Engineer position, which
provided a very general description of the job duties.2 (Id. Ex. 16.) Dr. Perlson

2

The job duties were described most specifically in the “Job Goal” and
“Performance Responsibilities” sections, which stated:
Job Goal:
To perform essential maintenance tasks and coordinate activities with
custodial staff to ensure that the building and grounds are a safe,
attractive, clean and efficient place in which to learn and work.
(continued...)

7

testified during his deposition that, based on his examination, he concluded that
Plaintiff could do only ground level work and should be restricted from climbing
ladders and lifting more than forty pounds. (Id. Ex. 15 at 44.) Dr. Perlson’s
“concerns were that [Plaintiff] did not have the ability to purposely dorsi-flex his
foot up or down as he might have to maneuver while climbing on a ladder” and
that he therefore could lose his balance and fall. (Id.) Dr. Perlson testified that he
thought a forty pound weight-lifting restriction “was a fair number” based on his
estimation of Plaintiff’s strength in his upper extremities, which he assessed by
watching Plaintiff climb onto the examination table. (Id. at 45.) It is somewhat
unclear from the record, however, whether Dr. Perlson believed these restrictions

2

(...continued)

***
Performance Responsibilities:
• Report to work on time and on a regular basis.
• Notifies AESOP and Director of Operations when unable to report
to work.
• Performs minor and major maintenance repairs.
• Maintains all power equipment, including boiler, tractor, etc.
• Uses personal automobile for errands that from time to time become
necessary.
• Use of work order system.
• Perform such other duties as directed by the Building
Principal/Director of Operations.
(ECF No. 15 Ex. 16.)
8

were necessary at the time or in the future.
During his deposition, Dr. Perlson made statements conveying that the
restrictions should be in place at the time of his examination; however, he also
made statements suggesting that he believed Plaintiff could then do the job without
restrictions, but might begin experiencing difficulty and require restrictions in one
to two years (or later depending on the rate of his muscle deterioration). (See id. at
26-30.) Ms. O’Brien, the School District employee who first spoke with Dr.
Perlson regarding his evaluation of Plaintiff, prepared a summary of her September
10, 2010 conversation with Dr. Perlson based on the notes she took during the call.
Ms. O’Brien’s notes also raise a question as to when Dr. Perlson believed the
recommended restrictions were required:
Healthy at 24 yrs old - indicating that for now, he was healthy
genetic syndrome of muscle wasting - I asked what this was and he
said it was M.S. (Multiple Sclerosis) of sorts
can deteriorate - indicating that over time, his muscles would weaken
He is the best he can be right now - indicating that his condition
would probably never improve.
Rehab MD: concurs, can deteriorate - Dr. said he had consulted with a
fellow MD in the Rehab area and had read him his findings and that
the rehab doctor said based on what Dr. Perlson was reporting that he
concurred with his findings.
Dr Perlson also mentioned that the Rehab doctor said that without his
own examination of Adam, he could not put anything in writing.
cannot flex toes- Dr. said that this was the first indication to him that
there was something more to his physical limitations.
Hire- but would not
9

1-2 yrs - OK
2-3 yrs
-he said that we could hire Adam with the knowledge that he would
probably be able to work without health issues for 1-2 years but
that he thinks that after 2-3 years, he could become a candidate for
worker’s comp or disability.
ground level work only
40 lb weight limit
cannot climb ladders - Dr. Perlson concluded that he would report that
Adam would have these three restrictions.
(ECF No. 15 Ex. 11 at 1-2, emphasis added.)
Ms. O’Brien shared the information she received from Dr. Perlson with Dr.
Coulson and Mr. Nicholls. (Id. Ex. 17 at 57-58.) Dr. Coulson and Mr. Nicholls
then met on September 10, 2010 to decide whether to hire Plaintiff. (Id.; Ex. 13 at
27, 31-33.) According to Ms. O’Brien’s notes, she also spoke with Plaintiff on
September 10 and was told that his family doctor cleared him to work without
restrictions. (ECF No. 15 Ex. 10 at 2; Ex. 11 at 1.)
Based on Dr. Perlson’s recommended restrictions, Dr. Coulson and Mr.
Nicholls determined that he could not perform the essential functions of the
Building Engineer position. (Id. at 33-34.) Mr. Nicholls testified during his
deposition that it was a somewhat automatic decision to not hire Plaintiff based on
the two restrictions Dr. Perlson imposed:
Q. Okay. Before you gave that recommendation [to not offer
employment to Plaintiff] to Char [Dr. Coulson], did you go through it
10

in your head and say hey, when I interviewed the guy and when he
wrote in his application he said no problem to all these things and he’s
doing some of them in his current job, did you weigh that into the
balance?
A. No, I did not.
Q. Okay. Why not?
A. Well, it’s the same thing, if someone was a felon and their
fingerprints came back that they were a felon, I wouldn’t say hey, how
bad a felon was he? I use all three components . . . that’s how we hire.
We’ve hired everyone the same way.
Q. So the information that comes from the doctor, if it restricts them,
that is as automatic as information about a felony record or a
fingerprint record?
A. Well, from my standpoint is [sic], as recommendation goes, I
would not recommend that person to Char. As far as from HR, that’s
up to them.
(ECF No. 15 Ex. 5 at 84-86.) According to Mr. Nicholls, he was told nothing else
about Plaintiff’s physical examination and Dr. Perlson’s findings other than that
Dr. Perlson recommended the weight lifting and ladder work restrictions. (Id. at
75.)
Dr. Coulson recalled having the same limited information concerning Dr.
Perlson’s findings when she and Mr. Nicholls met. (Id. Ex. 13 at 27.) Dr. Coulson
testified that she neither spoke with Dr. Perlson nor read his report until later. (Id.
Ex. 13 at 18, 25.) According to Dr. Coulson, when she and Mr. Nicholls made
11

their decision, they simply looked at Dr. Perlson’s restrictions, determined whether
the job position required lifting more than forty pounds and climbing ladders, and
if it did, concluded that they could not hire Plaintiff. (Id. at 34-36.) As she
explained:
Discussions with John [Nicholls] are very short usually. I think it was
just a matter of we looked at each other, we said it appears as though
this gentleman can only lift 40 pounds and cannot climb a ladder. Can
we use someone in the capacity of engineer and he’s telling me at the
same time as I’m asking him this kind of position really requires a lot
of lifting and climbing of a ladder and, therefore, I don’t think that
this person is going to be able to do the job. . . .
(Id. at 34.)
Dr. Coulson testified that she did not believe she was capable of
contradicting Dr. Perlson:
We send staff for physical examinations to determine their physical
capabilities. Again, I believe that because the physician is a
professional he would give us the professional opinion as to the man’s
ability and I didn’t feel– believe that I was capable of contradicting
him.
(Id. at 36.). As a result, neither Dr. Coulson nor Mr. Nicholls considered contrary
evidence, such as Plaintiff’s ability to perform the duties of his current position or
Plaintiff’s assertion during his interview with Mr. Nicholls that he could handle the
physical requirements of the Building Engineer position. (Id. at 35; Ex. 5 at 85.)
Additionally, Dr. Coulson and Mr. Nicholls did not consider or discuss
12

whether there were reasonable accommodations that would allow Plaintiff to
adequately fulfill the responsibilities of the job. Plaintiff’s counsel asked Dr.
Coulson during her deposition: “Was there any discussion before the revocation
letter was sent to Mr. LaFata revoking the conditional job offer as to whether there
was a reasonable accommodation that would have allowed him to adequately fulfill
the responsibility of the job?” (Id. Ex. 13 at 19.) Dr. Coulson answered: “The
simple answer to that is no.” (Id.)
After meeting with Mr. Nicholls on September 10, Dr. Coulson prepared a
letter to Plaintiff dated September 13, 2010, informing Plaintiff of the decision not
to hire him. (Id.) Dr. Coulson wrote in part:
We appreciate your interest in a custodial position with Dearborn
Heights District #7 Schools, but after your physical last week, the
doctor determined that you would only be able to work with some
major restrictions. Considering the type of position that you are
seeking, it is not possible for us to employ you with restrictions that
indicate you can only work at ground level and cannot lift anything
over 40 pounds.
(ECF No. 15 Ex. 14.) At her deposition, Dr. Coulson could not recall whether she
had seen Dr. Perlson’s report prior to writing this letter. (Id. Ex. 13 at 25).
However she testified that even if she had seen it, the only portion she could read
was the recommended restrictions; the remaining portions of the written report
were illegible. (Id. at 26.)
13

On or before September 22, though, Dr. Coulson did receive Dr. Perlson’s
report and, because it was illegible, Ms. O’Brien called Midwest to inquire about a
transcription. (See ECF No. 15 Ex. 11 at 2.) During the call, Ms. O’Brien was
informed that Dr. Perlson wanted to speak with the School District again. (Id.)
Ms. O’Brien and Dr. Coulson then spoke with Dr. Perlson via speaker phone, at
which time he read the details of the report and indicated that he would get a
transcription to them. (Id.) The transcription was received on some date after
October 5, 2010 (as Ms. O’Brien noted that she called Midwest on that date to
again inquire about its status). (See id. Ex. 10 at 5.)
In response to the School District’s decision not to hire him, Plaintiff filed
this lawsuit on February 22, 2013. Plaintiff filed an Amended Complaint on
February 25, 2013, in which he alleges three claims against the School District: (I)
disability discrimination in violation of the ADA; (II) discrimination in violation of
Title II of GINA; and (III) disability discrimination and genetic information and/or
genetic testing discrimination in violation of Michigan’s PWDCRA.
On September 11, 2013, the School District filed its pending motion for
summary judgment. (ECF No. 13.) Plaintiff filed a response to the motion on
October 2, 2013. (ECF No. 18.). Plaintiff filed his pending motion for summary
judgment on September 15, 2013. (ECF No. 15.) The School District filed a
14

response brief on September 30, 2013; and Plaintiff filed a reply brief on October
3, 2013.
On or about October 7, 2013, the parties submitted a stipulated order in
which they agreed to the dismissal of Plaintiff’s GINA claim (Count II) in its
entirety and Plaintiff’s PWDCRA claim (Count III) to the extent that Plaintiff
alleges a violation in the form of genetic information and/or genetic testing
discrimination. The Court signed and filed the stipulated order on October 7,
2013. (ECF No. 21.) Thus only Plaintiff’s disability discrimination claims under
the ADA and PWDCRA remain pending.
III.

Applicable Law and Analysis
The ADA prohibits covered employers from discriminating against a

“qualified individual on the basis of disability” with regard to hiring, advancement,
training, termination, and “other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). A “qualified individual with a disability” is “an individual
with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). The Sixth Circuit has held that Michigan’s
PWDCRA “substantially mirrors the ADA, and resolution of a plaintiff’s ADA
claim will generally, though not always, resolve the plaintiff’s PWDCRA claim.”
15

Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 597 (6th Cir.2002) (citing Cassidy v.
Detroit Edison Co., 138 F.3d 629, 634 n. 3 (6th Cir.1998); Chiles v. Machine Shop,
Inc., 238 Mich. App. 462, 606 N.W.2d 398, 405 (1999)), abrogated on other
grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir.
2012) (en banc). In this case, the claims and underlying facts regarding both the
ADA and the PWDCRA are essentially the same.
Thus to prevail on his claim of disability discrimination under the ADA or
PWDCRA, Plaintiff must demonstrate that he: (i) is an individual with a disability;
(ii) is otherwise qualified to perform the job requirements, with or without
reasonable accommodations; and (iii) suffered an adverse employment action
“because of” his disability. Holiday v. City of Chattanooga, 206 F.3d 637, 642
(6th Cir. 2000) (citing 42 U.S.C. § 12112(a); Monette v. Elec. Data Sys. Corp., 90
F.3d 1173, 1178 (6th Cir. 1996)). Prior to the motion hearing on December 5,
2013, there appeared to be no dispute that Plaintiff has a disability and that the
School District revoked its conditional offer of employment because of this
disability. The School District’s only argument in support of its summary
judgment motion and in response to Plaintiff’s motion, was that Plaintiff cannot
prove the second element of his disability discrimination claims– i.e., that he was
physically qualified to perform the job requirements, with or without reasonable
16

accommodations. The School District argued that because the ADA permits
employers to require applicants to undergo pre-employment physical examinations,
see 29 C.F.R. § 1630.14, it had the right to rely on Dr. Perlson’s expert medical
opinion when it decided to withdraw Plaintiff’s job offer that he was not able to
engage in two activities that were essential to the Building Engineer position:
working above ground level and lifting more than forty pounds.
At the motion hearing, however, counsel for the School District focused his
argument on whether Plaintiff suffers from a disability. For the first time, the
School District asserted that Plaintiff cannot show that he is disabled, as defined
under the ADA, because he was working in a similar job before he applied for the
building engineer position and after the conditional offer was revoked. In support
of its argument, the School District also pointed to Plaintiff’s testimony that he is
able to perform the essential functions of the job for which he applied.
Generally, courts will not consider theories or arguments raised for the first
time at oral argument. See, e.g., Roberts v. Principi, 283 F. App’x 325, 332 n. 3
(6th Cir. 2008) (“Because counsel raised the issue only at oral argument, however,
we decline to review it.”) (citing Vaughn v. Lawrenceburg Power Sys., 269 F.3d
703, 714 (6th Cir. 2001)); Lane v. LaFollette, Tenn., 490 F.3d 410, 420 (6th Cir.
2007) (“For the first time at oral argument, Defendants argued that . . . Defendants
17

. . . have waived this argument by not including it in their brief.”) (citing Dillery v.
City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005)); Probst v. Cent. Ohio Youth
Ctr., 511 F. Supp. 2d 862, 871 (S.D. Ohio 2007) (“It is well established that a
moving party may not raise an issue for the first time in its reply brief or at oral
argument.”); Van Sickle v. Automatic Data Processing, Inc., 952 F. Supp. 1213,
1221 (E.D. Mich. 1997) (holding summary judgment inappropriate on an issue
raised for the first time at a hearing, because the opposing party did not have an
opportunity to respond). Perhaps the School District did not raise the argument
previously because, as Plaintiff’s counsel pointed out at the motion hearing, it
contradicts the arguments the School District did raise in its briefs: before the
motion hearing, the School District argued that Plaintiff is too disabled to perform
the building engineer position; now its argument is that he is not disabled.
Regardless, the argument lacks merit.
Under the ADA, a person is considered “disabled” if he: (1) has “a physical
or mental impairment that substantially limits one or more of the major life
activities of such individual;” (2) has “a record of such impairment;” or (3) is
“regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life
activities” include “working.” 29 C.F.R. § 1630.2(i)(1)(i). To be substantially
limited in the major life activity of working, the plaintiff must be unable to work in
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“a broad range of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92,
119 S. Ct. 2139, 2151 (1999), superseded by statute, ADA Amendments Act of
2008, Pub. L. 110-325, 112 Stat. 3353 (2008).3 The 2008 Amendments to the
ADA, however, expanded the definition of “major life activity” to include “the
operation of a major bodily function.” 42 U.S.C. § 12102(2)(B). According to the
regulations, this includes musculoskeletal functions, which would seem to cover
the muscle wasting apparently caused by Plaintiff’s disease. 29 C.F.R.
§ 1630.2(i)(1)(ii). But even if Plaintiff is not “substantially limited” in his ability
to work or musculoskeletal functions, he can demonstrate the first prong of his
prima facie case by showing that he was “regarded as” disabled by the School
District.
Prior to the 2008 Amendments, a plaintiff could not establish that he or she
was “regarded as” disabled by the employer unless the employer believed the
plaintiff satisfied the definition of “disabled” under the ADA (i.e., that the plaintiff

3

Congress amended the ADA in 2008 to respond, in part, to the Supreme
Court’s interpretation of the statute. Specifically, the ADA Amendments Act of
2008 expressly states that both the “severely restricts” and the “significantly
restricts” standards of defining substantial limitation were too stringent, and that
“the definition of disability in this Act shall be construed in favor of broad
coverage of individuals under this Act.” ADA Amendments Act of 2008, Pub. L.
No. 110–325, 122 Stat 3553 (codified at 42 U.S.C. § 12102(4)(A)). The
Amendments took effect on January 1, 2009, and therefore are applicable to
Plaintiff’s lawsuit as the action complained of occurred in 2010.
19

was believed to have an impairment that substantially limited a major life activity).
See Sutton v. United Air Lines, Inc., 527 U.S. at 489, 119 S. Ct. at 2149 (1999); 29
C.F.R. § 1630.2(l) (2007). Under the Amendments, however, “[a]n individual
meets the requirement of ‘being regarded as having such an impairment’ if the
individual establishes that he or she has been subjected to an action prohibited
under this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102 (emphasis added); see also 29 C.F.R. § 1630.2(l)(1) (2008).
Based on Dr. Perlson’s assessment, the School District undoubtedly regarded
Plaintiff as having a physical impairment. Thus the Court’s inquiry returns to the
School District’s original argument: that it had a right to rely on Dr. Perlson’s
expert medical opinion when it decided to withdraw Plaintiff’s job offer.
The Court rejects the School District’s argument for two reasons. First, the
School District lacked sufficient information to assess whether Dr. Perlson’s
opinion was reasonable. Second, even if Dr. Perlson’s recommended restrictions
were reasonable, neither he nor the School District engaged in any analysis to
determine whether a reasonable accommodation would enable Plaintiff to perform

20

the essential functions of the job.4
As the Sixth Circuit explained in Holiday, the ADA requires “an
individualized inquiry in determining whether an employee’s disability or other
condition disqualifies him from a particular position.” 206 F.3d at 643. A
reasonable trier of fact could not find that the School District engaged in such an
individualized inquiry. Dr. Perlson’s deposition testimony reflects that his
examination of Plaintiff was neither lengthy nor comprehensive. The School
District had a duty to review Dr. Perlson’s report to assure itself that his
examination and analysis were thorough and/or reasonable. Id. at 645-46; see also
Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 31-32 (6th Cir. 2002) (“[A]n
employer cannot slavishly defer to a physician’s opinion without first pausing to
assess the objective reasonableness of the physician’s conclusions.”). “Employers
do not escape their legal obligations under the ADA by contracting out certain

4

Counsel for the School District asserted at the motion hearing that Plaintiff
cannot prevail because he failed to request an accommodation, citing Jakubowski v.
Christ Hospital, Inc., 627 F.3d 195 (6th Cir. 2010). The plaintiff in Jakubowski,
however, was alleging a violation of the ADA based on a failure to accommodate,
not to hire. The Court was not able to locate any case holding that applicants
denied a position because of their disabilities must prove that they requested an
accommodation (as opposed to proving that a reasonable accommodation was
available that would enable them to perform the essential functions of the job).
Further, it does not appear that Plaintiff even had an opportunity to make such a
request before his job offer was revoked. The Court expects that most applicants
denied a position would not have such an opportunity.
21

hiring and personal functions to third parties.” Holiday, 206 F.3d at 645.
Here, however, none of the School District personnel involved in making the
employment decision at issue had even seen Dr. Perlson’s report when they
accepted his recommended restrictions and concluded that Plaintiff therefore could
not fill the job. The information conveyed to Dr. Coulson and Mr. Nicholls by the
time they decided to revoke Plaintiff’s job offer was minimal: specifically that he
suffered from a muscle wasting disease and was restricted to ground level work
and lifting of forty pounds or less. They had no basis to evaluate whether the
restrictions were reasonably based on Plaintiff’s actual physical limitations. As
such, this case is distinguishable from Pesterfield v. Tennessee Valley Authority,
941 F.2d 437 (6th Cir. 1991), cited by the School District, where the employer
based its decision on a “detailed and lengthy” report from the plaintiff’s treating
physician. Id. at 441.
It also is distinguishable from Johnson v. Cleveland City School District,
443 F. App’x 974 (6th Cir. 2011) (unpublished opinion), and Manigan v.
Southwest Ohio RTA, 385 F. App’x 472 (6th Cir. 2010) (unpublished opinion)–
both also cited by the School District– because in those cases the recommendations
came from the plaintiff’s own treating physician(s). The School District does cite
to one case where the court held that the employer could rely on the conclusions of
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a non-treating physician who conducted only a preemployment examination of the
plaintiff: Jennings v. Dow Corning Corporation, No. 12-12227, 2013 WL
1962333, at **11-12 (E.D. Mich. May 10, 2013) (unpublished opinion). In
Jennings, however, the doctor not only conducted a physical examination of the
plaintiff, but made “an individualized inquiry based on all of [the p]laintiff’s up-todate medical information” (i.e. the medical records from the providers who had
treated the plaintiff for back pain and shoulder injuries). Id. at **2-5, 12. The
court found that this “individualized inquiry” offset the fact that the opinion did
not come from the plaintiff’s treating physician. Id. at 12.
Dr. Perlson was not Plaintiff’s treating physician and he based his
recommendations on nothing more than a cursory physical examination of
Plaintiff. To bolster Dr. Perlson’s examination, the School District states that he
“asked a second opinion from another doctor.” (See ECF No. 13 at Pg ID 81). Dr.
Perlson testified, however, that he simply made a “fast call” to this unidentified
doctor to ask him about the disease and to get his impression as to whether what
Dr. Perlson observed suggested that Plaintiff suffered from the disease. (ECF No.
15 Ex. 15 at 32-33.) The unidentified doctor never examined Plaintiff and never
offered an assessment of his then-current physical restrictions. (Id. at 32.)
Moreover, there was evidence available and known to the School District
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that contradicted Dr. Perlson’s recommendations that it did not consider. First,
Plaintiff was performing the very functions at his current position that Dr. Perlson
concluded he could not do. Second, Plaintiff specifically told Mr. Nicholls that he
would have no problem with the physical requirements of the Building Engineer
position after receiving a description of those requirements. Finally, Plaintiff’s
family physician, Dr. Sabel, reported that Plaintiff’s “strength [was] more than
adequate for his job & daily activities” and that he could work without any
restrictions. The above facts prevent the School District from prevailing on its
summary judgment motion. The following are what entitle Plaintiff to prevail on
his motion.
First is the undisputed fact that neither Dr. Perlson nor the School District
engaged in any analysis to determine whether reasonable accommodations were
available that could enable Plaintiff to perform the essential functions of the
position despite his disability and purported physical restrictions. Second is the
School District’s failure to rebut Plaintiff’s showing that he could performs those
functions without or, if necessary, with reasonable accommodations.
The ADA defines discrimination as “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.” Kleiber v. Honda of Am. Mfg., Inc., 485
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F.3d 862, 868 (6th Cir. 2007) (quoting 42 U.S.C. § 12112(a), (b)(5)(A)).
Employers are required under the ADA to engage in an interactive process, a duty
which “is mandatory and ‘requires communication and good-faith exploration of
possible accommodations.’” Keith v. Cnty. of Oakland, 703 F.3d 918, 929 (6th
Cir. 2013) (emphasis added) (quoting Kleiber, 485 F.3d at 871). “The purpose of
this process is to ‘identify the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those limitations.’ ”
Kleiber, 485 F.3d at 871 (quoting 29 C.F.R. § 1630.2(o)(3)). In its briefs in
support of its motion for summary judgment and in response to Plaintiff’s motion,
the School District states that “[a]fter Dr. Coulson learned about the restrictions
placed on Plaintiff’s employment by Dr. Perlson, she met with John Nicholls about
whether Plaintiff was going to be able to perform the essential functions of his job,
with or without accommodations.” (ECF No. 13 at Pg ID 76, emphasis added;
ECF No. 16 at Pg ID 479, emphasis added.) The School District’s attorney made
the same claim during oral argument. The record evidence does not support this
assertion, however.
Instead, Dr. Coulson and Mr. Nicholls were clear in their depositions that
there were no discussions during their meeting (or at any other time) as to whether
there was a reasonable accommodation that would allow Plaintiff to adequately
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fulfill the duties of the job. As such, the School District failed to engage in any
process to access whether reasonable accommodations existed and Plaintiff has
shown that they were available, if necessary (he asserts that they were not).
Specifically, in his pleadings, Plaintiff identifies several types of ladders,
platforms, tools, and carts that would enable him work at heights without having to
“dorsiflex” his feet, that would simulate standing on the floor, and/or assist him in
moving heavier loads. (See ECF No. 18 at 5 & Ex. 23; ECF No. 19.) The School
District does not argue that these accommodations would fail or that they are
unreasonable.
Plaintiff therefore is entitled to summary judgment. While the School
District claims as a defense that Plaintiff posed a “direct threat” to himself and
others as a result of his disability, this defense is doomed by the failure to engage
in an interactive process to assess the availability of reasonable accommodations.
See 42 U.S.C. § 12111(3) (defining a “direct threat” as “a significant risk to the
health or safety of others that cannot be eliminated by reasonable
accommodation.”).
IV.

Conclusion
For the above reasons, the Court concludes that the School District failed to

engage in the necessary individualized inquiry to determine whether Plaintiff’s
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actual or perceived disability disqualified him from the Building Engineer position.
The School District erred in relying on Dr. Perlson’s medical opinion where it
lacked sufficient information to determine whether it was objectively reasonable
and contradictory evidence was available. But even if Dr. Perlson’s assessment was
correct and the School District could rely on it, the School District never
considered whether reasonable accommodations were available that could enable
Plaintiff to perform the essential functions of the job he had been offered. Plaintiff
has shown that reasonable accommodations were available; an assertion the School
District has not rebutted. As a matter of law, therefore, the School District is liable
to Plaintiff for disability discrimination in violation of the ADA and PWDCRA.
The Court will schedule a final pretrial conference for a trial on damages.
Accordingly,
IT IS ORDERED, that Defendant’s motion for summary judgment is
DENIED;
IT IS FURTHER ORDERED, that Plaintiff’s motion for summary
judgment is GRANTED.
Dated: December 11, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Kevin M. Carlson, Esq.
Joseph A. Golden, Esq.
Timothy J. Mullins, Esq.
Stephen J. Hitchcock, Esq.
John L. Miller, Esq.
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