Selecki v. General Motors et al

Filing 29

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#27] AND CANCELLING HEARING. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDALL SELECKI,
Civil Action No.13-CV-11300
HON. GERSHWIN A. DRAIN

Plaintiff,
v.
GENERAL MOTORS, et al.,
Defendants.
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [#27] AND CANCELLING HEARING
I.

INTRODUCTION
On March 25, 2013, Plaintiff filed the instant action pursuant to the Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq. He brings his claims against his
former employer and supervisor, Defendants General Motors, LLC (“GM”) and Matt
Hespenburger. Presently before the Court is Defendants’ Motion for Summary
Judgment, filed on July 16, 2014.1 This matter is fully briefed and the Court finds that

1

In April of 2014, this Court referred the action to the Pro Bono Panel
because Plaintiff is proceeding pro se. See Dkt. No. 15. However, the Panel was
unable to find counsel willing to represent Plaintiff. Thus, in December of 2014,
the Court rescinded the Order Referring Action to Pro Bono Panel and ordered
Plaintiff to file a Response to Defendants’ present motion. See Dkt. No. 22.
Plaintiff filed three separate responses. See Dkt. Nos. 24, 25 and 26. Docket
entries 25 and 26 are duplicates.
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resolution of the instant motion does not require oral argument. As such, the Court
will cancel the May 4, 2015 hearing and will determine the motion on the briefs
submitted. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the Court will
grant Defendants’ Motion for Summary Judgment.
II.

FACTUAL BACKGROUND
Plaintiff began working for GM at its Toledo, Ohio transmission facility as a

quality operator in 1994. Plaintiff was a member of the Automobile, Aerospace and
Agricultural Implement Workers of America (“UAW”) and his employment terms
were governed by a collectively bargained GM-UAW Agreement. As a quality
operator, Plaintiff’s job duties rotated based on the plant’s needs and typically
involved working on the assembly line, packing and preparing parts for the line,
unloading trucks and driving a forklift.
GM and the UAW have developed a process known as Accommodating
Disabled People in Transition or ADAPT to place hourly employees with physical
impairments in available jobs within their restrictions.

Throughout Plaintiff’s

employment with GM, he was placed in various jobs through the ADAPT program for
various physical restrictions.
On March 29, 2011, Plaintiff was working in a position at the end of the
assembly line that required him to use a forklift to stack empty pods on the line that
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were to be filled with assembled transmissions. Plaintiff would then remove the
transmission pods from the line and feed them through a bander that secures the pods
for shipping. According to Plaintiff, the bander stopped working and he stepped off
of the forklift. This caused the production line to go down.
Defendant Hettmansperger spoke with Plaintiff to determine why the line had
stopped. Hettmansperger smelled alcohol on Plaintiff’s breathe. Plaintiff stated he
was leaving and walked away. Hettmansperger instructed Plaintiff to stop, however
Plaintiff retorted with threatening language. Plaintiff denies getting physical with
Hettmansperger, however he admits that when Hettmansperger’s phone fell to the
ground, Plaintiff picked it up and walked away with it.
When security arrived, Hettmansperger reported that Plaintiff had charged him,
punched and shoved him into a bank of lockers causing him to drop his cellular phone.
Security noted that Hettmansperger had a visible mark on his right forearm and he
received treatment from the plant medical department for his arm and swelling in his
jaw and knee.
Management investigated the incident, reviewed Hettmansperger’s medical
report, written statements obtained by security and security’s final report. When
Plaintiff returned to work, a disciplinary interview was conducted by Labor Relations
Manager George Williams and Manager Chris Koviak. A UAW representative was
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also present. When the interview was complete, Plaintiff signed Williams’s interview
notes to affirm the written notes were “accurate and true.” Following the interview,
GM terminated Plaintiff based on its findings from the investigation. Plaintiff
believes Mr. Williams and Mr. Koviak made the decision to terminate his
employment. He does not know if they were aware of his medical condition.
On December 19, 2011, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging his termination was because of his race
and disability. Plaintiff did not identify his disability in the EEOC claim. On January
18, 2012, the EEOC dismissed the charge and advised Plaintiff that he had ninety days
to file any lawsuit.2
Plaintiff initiated a union grievance challenging his discharge, and he was
reinstated on March 12, 2012 as a result of a negotiated resolution to his grievance.
In exchange for reinstatement, Plaintiff signed a last chance agreement in which he
agreed to several conditions. Specifically, he agreed to be placed on probation for
twenty-four months, to refrain from initiating any contact with Hettmansperger and
to release all claims against GM regarding discipline, discharge or other employment
policies. Plaintiff further agreed that his disciplinary record would be set at the last

2

Plaintiff filed a second charge of discrimination on March 6, 2012,
however this was administratively closed as duplicative of his first charge.
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step of the progressive discipline process.

Thus, if he engaged in further

insubordination, threatening or intimidating conduct or abusive language, he would
be terminated.
Plaintiff was assigned to a different shift, department and supervisor upon his
return to work. Plaintiff did not have any medical restrictions and he was cleared to
return to work by the plant’s medical department. When he was asked by the medical
department personnel if there was any reason he was unable to work, Plaintiff reported
that he has high blood pressure that was controlled with medication. He did not
identify any other physical impediments to working.
In June of 2012, Plaintiff was scheduled to have surgery on his hand. Plaintiff’s
doctor issued a short-term restriction for Plaintiff. Specifically, Plaintiff was limited
to total use by his right hand. Plaintiff presented his restriction for a one-handed job
to GM and it was reviewed by the plant’s medical department and an ADAPT
representative. However, there were no available jobs at that time within Plaintiff’s
restriction. Therefore, GM placed Plaintiff on paid sick leave from June 5, 2012 until
his restriction expired on July 3, 2012.
On August 10, 2012, a quality analyst was assigned to clean out a break room
refrigerator because the power was scheduled to be shut down over the weekend.
Plaintiff placed his lunch in the refrigerator, with his cellular phone and glasses
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packed inside, even though he noticed the sign posted on the refrigerator. Near the
end of the second shift, the quality analyst cleaned out the refrigerator and threw out
any unlabeled items, including Plaintiff’s lunch. When Plaintiff realized his lunch had
been thrown out, he confronted the quality analyst and a verbal altercation ensued.
The incident was immediately investigated. Statements were taken from the
quality analyst, as well as other employees who witnessed the incident. The witness
statements corroborated the quality analyst’s statement, including Plaintiff’s use of
profanity in a loud, threatening tone. Plaintiff was also interviewed in the presence
of his union representative. Plaintiff admitted the incident occurred and that he called
the quality analyst an inappropriate name.
Based on the investigation, GM concluded that Plaintiff violated GM policy and
Shop Rule No. 31 in violation of his last chance agreement. Plaintiff was terminated
on August 16, 2012. Plaintiff has no knowledge as to who made the decision to
terminate his employment and whether anyone with decision making authority knew
of his previous EEOC charge. Neither Plaintiff nor the UAW initiated a grievance
contesting Plaintiff’s second discharge. Plaintiff filed a third EEOC charge on
September 5, 2012 alleging disability discrimination and retaliation. Plaintiff again
failed to identify his disability in the charge. The EEOC dismissed Plaintiff’s charge
on February 27, 2013.
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III.

LAW & ANALYSIS
A.

Standard of Review

Federal Rule of Civil Procedure 56(a) 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 Dept. 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
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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).

B.

Disability Discrimination

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In order to establish disability discrimination,3 Plaintiff must first establish a
prima facie case by showing: (1) he is disabled, (2) otherwise qualified for the
position held or sought, with or without reasonable accommodation; (3) he suffered
an adverse employment action; (4) his employer knew or had reason to know of
Plaintiff’s disability; and (5) Plaintiff was replaced. Hedrick v. Western Reserve Care
Sys., 355 F.3d 444, 453 (6th Cir. 2004). Once Plaintiff establishes his prima facie
case, the burden shifts to GM to offer a legitimate, non-discriminatory explanation for
its action. Id. When GM satisfies its burden of production, the burden then shifts to
Plaintiff to show GM’s proffered explanation is pretextual. Id.
Assuming without deciding that Plaintiff is disabled within the meaning of the
Act and that he was otherwise qualified for the position, his prima facie case still fails
because he cannot show GM management was aware of his disabilities. Plaintiff
admits he has no evidence suggesting that Mr. Williams, Mr. Koviak or any other
members of management with decision making authority regarding his termination
knew of his medical condition. Plaintiff cannot rely on his first EEOC charge to
establish knowledge on the part of management because he never identified any

3

Because Plaintiff has no direct evidence of discrimination, the burden
shifting approach developed for Title VII cases in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1972) is applicable. See Hedrick v. Western Reserve Care
Sys., 355 F.3d 444, 453 (6th Cir. 2004).
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disability in his charge.
Moreover, even if Plaintiff could establish a prima facie case of disability
discrimination, GM has come forward with a legitimate, non-discriminatory
explanation for Plaintiff’s termination and Plaintiff has failed to demonstrate that
GM’s explanation is pretext for disability discrimination. Plaintiff repeatedly violated
GM rules by using physical force on his supervisor, as well as by using profanity and
threatening language during the incident with the quality analyst. Additionally, the
fact that GM agreed to rehire Plaintiff after the incident with Hettmansperger belies
any legitimate inference of disability discrimination.
Plaintiff filed two Responses to Defendants’ Motion for Summary Judgment.
Plaintiff offers no evidence to demonstrate a genuine issue for trial exists as to his
disability discrimination claim. Rather, he asserts conclusory and unsubstantiated
arguments that fail to meet his burden under Rule 56. Mere allegations or denials in
the Plaintiff’s responsive briefs do not meet his burden to show a genuine issue for
trial exists. Anderson, 477 U.S. at 248, 252. Therefore, GM is entitled to judgment
in its favor on Plaintiff’s disability discrimination claim.
C.

Failure to Accommodate

Plaintiff’s failure to accommodate claim likewise lacks any genuine issues of
material fact requiring submission to the jury. The gist of Plaintiff’s failure to
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accommodate claim is that GM failed to follow the ADAPT procedure by finding him
a one-handed job within the plant when he required surgery on his hand in June of
2012.
To establish a prima facie case for failure to accommodate a disabled employee,
a plaintiff must show that: (1) he has a disability; (2) he is qualified for the position,
with or without reasonable accommodation; (3) the employer knew or had reason to
know of plaintiff’s disability; (4) he requested an accommodation; and (5) the
employer did not provide the necessary accommodation. Johnson v. Cleveland City
Sch. Dist., 443 F. App’x 974, 982-83 (6th Cir. 2011).
Plaintiff has not come forward with any evidence showing he was qualified for
his position with or without reasonable accommodation. It is Plaintiff’s burden to
demonstrate an accommodation would allow him to perform the essential functions
of his employment, “including the existence of a vacant position for which [he] is
qualified.” Karlik v. Colvin, 15 F. Supp.3d 700, 707 (E.D. Mich. 2014) (citing
McBride v. BIC Consumer Prods., Mfg., Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009)).
Plaintiff has failed to come forward with any evidence showing the plant had an
available one-handed position when he was placed on restriction in June of 2012.
In any event, GM provided a reasonable accommodation by placing Plaintiff
on paid sick leave. It is well established that a leave of absence constitutes a
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reasonable accommodation. Tubbs v. Formica Corp., 107 F. App’x 485, 488 (6th Cir.
2004). At the time Plaintiff was placed on a one-handed restriction, the plant had no
available jobs that fit his restriction. As such, GM’s provision of providing temporary
leave in lieu of termination was a reasonable accommodation. See Black v. Wayne
Ctr., No. 99-1225, 99-1249, 2000 U.S. App. LEXIS 17567, *13 (6th Cir. Jul. 17,
2000).
Based on the foregoing, GM is entitled to judgment in its favor on Plaintiff’s
failure to accommodate claim.
D.

Retaliation

Plaintiff has likewise failed to come forward with specific facts showing there
is a genuine issue for trial on his retaliation claim. In order for Plaintiff to establish
a prima facie case of retaliation under the ADA, he must show: (1) he engaged in
protected activity; (2) the employer knew of this exercise of the plaintiff’s protected
rights; (3) the employer took an employment action adverse to the plaintiff; and (4)
there is a causal connection between the protected activity and the adverse
employment action. Blizzard v. Marion Tech. College, 698 F.3d 275, 288 (6th Cir.
2012). Similar to his discrimination claim, if Plaintiff establishes his prima facie case,
the burden shifts to GM to articulate a legitimate, non-retaliatory reason for the action.
Id. Plaintiff must then show GM’s proffered reason is pretext for retaliatory animus.
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Id.
As an initial matter, Plaintiff admits that he has no knowledge that any of the
relevant decision-makers knew of his EEOC charges. Moreover, Plaintiff cannot
show a causal connection between his protected activity and his termination. By
agreeing to the terms of the last chance agreement, Plaintiff acknowledged that he was
at the last step of the progressive discipline process and any rules violations he
committed would lead to his termination. Plaintiff’s claim that his work assignment,
a second shift assembly job, was retaliatory is belied by the last chance agreement.
Plaintiff’s job and shift placement was a condition of his reinstatement so that he
would avoid interaction with Hettmansperger.
Lastly, Plaintiff’s assertion that GM failed to follow the ADAPT procedure
when he was placed on a one-handed restriction is without merit. Plaintiff has not
shown any positions were available that could accommodate this restriction. GM is
likewise entitled to judgment in its favor on Plaintiff’s retaliation claim.
E.

Individual Liability

Lastly, while Plaintiff has failed to show any of his claims warrant submission
to the jury, Defendant Hettmansperger is also due to be dismissed because there is no
individual liability for disability discrimination under the ADA. Sullivan v. River
Valley Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999); see also Wathen v. General
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Electric Co., 115 F.3d 400, 404 (6th Cir. 1997). As such, Plaintiff’s ADA claims
against Hettmansperger fail as a matter of law.
IV.

CONCLUSION
For the reasons that follow, Defendants’ Motion for Summary Judgment [#27]

is GRANTED.
SO ORDERED.
Dated: March 20, 2015

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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