Hann v. Nestle USA, Incorporated et al

Filing 16

ORDER Granting Defendants' Motion to Dismiss the Complaint Pursuant to Rule 12(B)(6) [#10]. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NEAL A. HANN, JR.,
Plaintiff,
V.

Case No. 13-CV-11934
Honorable Denise Page Hood

NESTLE USA, INC., a foreign corporation,
And DREYER’S GRAND ICE CREAM
COMPANY, d/b/a NESTLE DSD CO., a
foreign corporation,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS THE
COMPLAINT PURSUANT TO RULE 12(B)(6) [#10] AND
DISMISSING ACTION
This matter comes before the Court pursuant to Defendants’ Motion to
Dismiss the Complaint Pursuant to Rule 12(b)(6). [Docket No. 10, filed June 14,
2013] For the reasons stated below, Defendants’ motion is GRANTED.
I.

BACKGROUND
On April 30, 2013, Plaintiff Neal A. Hann, Jr. filed a complaint against

Defendants Nestle USA, Inc. and Nestle Dreyer’s Ice Cream Company (hereinafter
“Defendants”) alleging (1) failure to accommodate and (2) termination in violation
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of the Persons with Disabilities Civil Rights Act (the “Act”), Mich. Comp. Laws
37.1201.

Plaintiff states that on October 22, 2011, he was involved in an

automobile accident which resulted in hospitalization. [Compl. ¶ 5] While in the
hospital, Plaintiff learned that he had a medical condition, hypertrophic
cardiomyopathy, a condition in which the heart muscle is abnormally large
excessively thick. [Compl. ¶ 5-6] Due to this condition, Plaintiff was advised to
avoid excessive lifting, pulling, or pushing and to avoid any physical activity that
would lead him to the point of exhaustion. [Compl. ¶ 7] Plaintiff was approved
for leave from employment under the Family Medical Leave Act up until January
13, 2012 and on April 10, 2012, Plaintiff informed Defendants that he was
physically able to return to work, though he would have to work with restrictions
per doctor’s orders. [Compl. ¶ 8-9]
On May 25, 2012, Defendants received a completed Fitness-for-Duty Return
to Work Release form from Plaintiff’s physician which indicated that Plaintiff
could not list over 15 pounds nor push or pull more than 50 pounds. [Compl. ¶
10]

In pertinent part, Plaintiff’s job description states that a Pre-Sales

Representative should be able to constantly life and/or carry 1-5 pounds and
occasionally lift and/or carry (15%) up to 25 pounds. [Def. Ex. at 5] The Pre-

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Sales Representative should also occasionally be able to push and/or pull up to 1535 pounds and seldom 35-75 pounds. [Def. Ex. at 5] However, Plaintiff’s doctor
limited Plaintiff’s lifting to 15 pounds and pushing and/or pulling to occasionally
be 20 pounds and seldom 50 pounds. [Def. Ex. at 2-3] Plaintiff requested
Defendants to allow him to return to work in an accommodated manner.
On June 13, 2012, Defendants rejected Plaintiff’s request indicating that his
requested accommodations were not in line with the requirements of his job as
stated in his job description. [Compl. ¶ 12] Specifically, Defendants told Plaintiff
that they “may not be able to accommodate the restriction given by [his] physician
in [his] position or any other position within DSD.”

On August 1, 2013,

Defendants contacted Plaintiff again and advised him that after “exhaust[ing] all
possible options,” they determined that the Company could not “reasonable
accommodate [Plaintiff’s] restrictions.”

Plaintiff was also informed that his

employment would be terminated as of August 17, 2013. In a letter dated August
7, 2013, Plaintiff’s counsel requested again that Defendants attempt to provide
“reasonable accommodation due to [Plaintiff’s] condition of which [they] were
aware” and notified Defendants that they were “many devices . . . available which
would aid an employee to lift/push/pull heavy object, including powerized
handcarts and lifts . . . .” Plaintiff also noted that another employee could be used
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in those “minimal occasions” where Plaintiff would have to life, push, or pull
object in excess of his restrictions. Plaintiff, through counsel, requested that the
accommodations he suggested be provided and told Defendants that if they failed
to do so and terminated Plaintiff “without fully engaging in the interactive process
required under the American with Disabilities Act, litigation [would] follow.” In
response, Defendants told Plaintiff that they would be “looking into [the] matter as
quickly as possible and no employment action [would] be taken during [that]
time.”

Following cooperative efforts between Plaintiff and Defendants,

Defendants rejected Plaintiff’s request.

On December 28, 2012, Defendants

contacted Plaintiff and told him, “We are not able to feasibly accommodate
[Plaintiff’s] pushing, pulling, lifting and carrying restrictions.”

Defendants

decided not to allow Plaintiff to return to work and terminated his employment.
II.

ANALYSIS
Defendants brings this motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), which tests the legal sufficiency of the plaintiff’s complaint.
Accepting all factual allegations as true, the Court reviews the complaint in the
light most favorable to the plaintiff. Eidson v. Tennessee Dep’t of Children's
Servs, 510 F.3d 631, 634 (6th Cir. 2007). To survive a motion to dismiss, the
complaint must state sufficient “facts to state a claim to relief that is plausible on
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its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The

complaint must demonstrate more than a sheer possibility that the defendant’s
conduct was unlawful. Id. at 556. Claims comprised of “labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. at
555. Rather, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949 (2009).
To establish a prima facie case of discrimination under the PWDCRA,
Plaintiff must show the following three elements: “(1) []he is ‘disabled’ as defined
by the statute, (2) the disability is unrelated to the plaintiff's ability to perform the
duties of a particular job, and (3) the plaintiff has been discriminated against in one
of the ways set forth in the statute.” Donahoo v. Master Data Ctr., 282 F. Supp. 2d
540, 548 (E.D. Mich. 2003) (citing Chiles v. Machine Shop, Inc., 238 Mich. App.
462, 606 N.W.2d 398, 405 (1999)). The Act states that
[i]n an action brought pursuant to this article for a failure
to accommodate, the person with a disability shall bear
the burden of proof. If the person with a disability
proves a prima facie case, the person shall bear the
burden of producing evidence that an accommodation
would impose an undue hardship on that person. If the
person produces evidence that an accommodation would
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impose an undue hardship on that person, the person with
a disability shall bear the burden of proving by a
preponderance of the evidence that an accommodation
would not impose an undue hardship on that person.
Mich. Comp. Laws § 37.1210, § 210(1).
Before this Court can address Plaintiff’s ability to perform his job, “plaintiff
must establish that he is the type of person to which the statute was meant to
pertain—a person with a ‘disability.’” Chiles, 238 Mich. App. at 473. Here,
Plaintiff states that he is substantially limited by a diagnoses of hypertrophic
cardiomyopathy and doctor’s instructions to “avoid excessive lifting, pushing, or
pulling and to avoid physical activity to the point of exhaustion.” Defendant
contends that Plaintiff’s complaint should be dismissed because Plaintiff “cannot
legally demonstrate that his alleged lifting/pushing/pulling limitations constitute a
disability as defined under the Act.” The Court agrees that Plaintiff’s lifting,
pushing, and pulling limitations fail to constitute a “disability” under the Act.
The Act defines “disability” as
(i) A determinable physical or mental characteristic of an
individual which may result from disease, injury,
congenital conditions of birth, or functional disorder, if
the characteristic:
(A) . . . substantially limits 1 or more of the major life
activities of that individual and is unrelated to the
individual's ability to perform the duties of a particular
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job or position or substantially limits 1 or more of the
major life activities of that individual and is unrelated to
the individual's qualifications for employment or
promotion.
Mich. Comp. Laws § 37.1103(d)(i)(A). “[The Michigan Court of Appeals] and
Michigan Supreme Court note that the federal Americans with Disabilities Act
(“ADA”), 42 U.S.C. 12101 et. seq., and the PWDCRA share the same purpose and
use similar definitions and analyses.” Chiles, 238 Mich. App. at 472. “[B]oth
courts have relied on the ADA in interpreting the PWDCRA.” Id. To determine
whether a plaintiff has a disability, this Court follows the state’s adoption and
analyzes the PWDCRA claims under the three-step test created by the ADA to
determine whether Plaintiff has a disability:
First, we consider whether [plaintiff]’s [complaint] was a
physical impairment. Second, we identify the life
activity upon which [plaintiff] relies . . . and determine
whether it constitutes a major life activity under the
ADA. Third, tying the two statutory phrases together, we
ask whether the impairment substantially limited the
major life activity.
Donahoo, 282 F. Supp. 2d at 548 (quoting Bragdon v. Abbott, 524 U.S. 624, 631
(1998)). Major life activities have been defined as “functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working.” Hawkins v. Genesys Health Sys., 704 F. Supp. 2d 688,
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701(E.D. Mich. 2010) (quoting Chiles, 238 Mich. App. at 477 (internal citation
and quotation marks omitted)). “Thus, any ‘substantial limitation’ suffered by an
allegedly disabled individual must [be perceived to] relate to one of these
activities.” Id. at 702 (citation omitted). The “substantial limitation” prong of the
test has been said to be the most significant factor in limiting the applicability of
the PWDCRA to its intended beneficiaries and “[it] is not enough for an
impairment to [be perceived to] affect a major life activity, but rather the plaintiff
must proffer evidence from which a reasonable inference can be drawn that such
activity is [perceived to be] substantially limited.”
quotation marks omitted).

Id. (internal citation and

In determining whether or not an impairment is

“substantial,” the Court considers: (1) the nature and severity of the impairment,
(2) the duration or expected duration of the impairment, and (3) the permanent or
expected permanent or long-term effect. Id. The Court notes that it is satisfied that
Plaintiff’s condition, hypertrophic cardiomyopathy, constitutes a “physical
impairment.” Defendant argues that Plaintiff cannot demonstrate that his specific
medical restrictions “substantially limit any major life activity.” Notwithstanding
the court’s determination that Plaintiff’s condition is a “physical impairment,” the
Court is not persuaded by the information Plaintiff has proffered that it is one that

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substantially limits a major life activity. The Court concludes that Plaintiff is not
disabled within the meaning of the Act.
Plaintiff is Not Disabled Within the Meaning of the Act
As previously stated, to make a showing of “disability” within the meaning
of the act, Plaintiff must demonstrate that his impairment substantially limits one
or more major life activities. Faithful application of a state’s law requires federal
courts to “anticipate how the relevant state’s highest court would rule in the case,”
and in doing so we are “bound by controlling decisions of that court.” In re Dow
Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005). Where the Michigan Supreme
Court has not directly addressed an issue, “we must predict how the court would
rule by looking to all the available data.” Allstate Ins. Co. v. Thrifty Rent-A-Car
Sys. Inc., 249 F.3d 450, 454 (6th Cir. 2001). Decisions by the Michigan Court of
Appeals are binding authority where the Michigan Supreme Court has never
addressed the issue. See Morrison v. B. Braun Med. Inc., 663 F.3d 251, 257 n.1
(6th Cir. 2011).

Here, though the Michigan Supreme Court has addressed

PWDCRA claims generally, see, e.g., Peden v. City of Detroit, 470 Mich. 195
(2004) (holding that a police officer who was placed on involuntary disability
retirement could not move forward with his PWDCRA claim unless he could
perform the functions of his job duties, with or without accommodations), neither
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Plaintiff nor Defendants have cited to any case in which the Michigan Supreme
Court dealt with the PWDCRA in terms of lifting, pulling, or pushing restrictions
as the claimed disability and the Court is unaware of any. The Court is also aware
that it should “extremely cautious about adopting ‘substantive innovation’ in state
law.” Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir.2004). The Court looks
to Michigan case law on the issue.
In Kolpas v. G D Searle & Co., 959 F. Supp. 525, 529 (N.D. Ill. 1997),
though not binding authority on this Court1, a plaintiff alleged that her heart
condition was a disability under the Act because she could only work a “normal
forty-hour week to avoid stress.” Kolpas, 959 F. Supp. at 529. However, the court
held that because the Plaintiff failed to “demonstrate[] that [the] condition left her
impaired to the point that she was substantially limited in one or more major life
activities,” Plaintiff did not have a “disability” as defined by the Act, affording her
no relief. Id. at 529. Further, the court determined that “the analysis of plaintiff’s
ability to work must focus on her general capability to function in the general work
force.” Id. at 530. Because Plaintiff admitted that her heart condition did not
interfere with her overall ability to work or hold a job, Id., the court determined
1

The Court finds this case persuasive as the relevant facts are closely analogous
to those in this case.
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that Plaintiff was not “disabled.” Likewise, in Ayer v. Hare Express, Inc., 2004
WL 385047 (Jan. 15, 2004) (unpublished), the Michigan Court of Appeals
determined that a Plaintiff with a heart condition which limited his ability to
comply with the lifting requirement at his job—much like the Plaintiff in the
instant case—did not have a “disability” because his lifting restriction of 10
pounds did not “impose substantial limitations on his ability to perform the normal
activities of daily living.” Ayer, 2004 WL 385047, *3.
The Court is also persuaded by the case on which Plaintiff chiefly relies,
Michigan Court of Appeals case, Lown v. JJ Eaton Place, 235 Mich. App. 721,
732 (1999), but not for the proposition that Plaintiff urges. In Lown, a plaintiff
underwent surgery after her diagnoses of endometriosis. Following the surgery,
the plaintiff was directed by her doctor to not do any heavy lifting or bending until
after her one month post-operative check-up.

Plaintiff, a prep cook, would

occasionally have to lift heavy objects such as bags of carrots or onions or large
tubs of dirty dishes and stacks of clean dishes. When plaintiff arrived to work on
March 27, 1995, she learned that she would be working in the dish room all day on
her own, having to lift more than her limit without assistance. When Plaintiff
called her boss to remind him that she was to refrain from heavy lifting, her boss
told her that she would have to remain in the dish room because several other
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employees were out sick. When plaintiff refused, her boss told her to go home and
when she returned to work several days later, plaintiff learned that she had been
fired. Plaintiff subsequently filed suit against her boss alleging violation of the
PWDCRA to which defendants were awarded summary disposition.
On appeal, Lown argued that the trial court erred in granting defendant’s
motion for summary disposition because, among other things, she suffered from a
disability within the meaning of the Act and her disability was unrelated to her
ability to perform her job. The Michigan Court of Appeals determined that though
“[f]ederal courts . . . have concluded that lifting constitutes a major life activity[,]”2
“federal courts have held that where the major life activity is lifting, a general
lifting restriction, without more, is insufficient to constitute a disability within the
meaning of the ADA.” Id. at 729-30 (citing Gutridge v. Clure, 153 F.3d 898, 901
(8th Cir. 1998); Zarzycki v. United Technologies Corp., 30 F. Supp. 2d 283, 289
(D. Conn. 1998)). The Lown Court also noted that the Fourth, Fifth, Eighth, and
Ninth Circuit Court of Appeals have all held that individuals limited to lifting less
2

In his brief opposing Defendants’ motion, Plaintiff cites to Section
1630.2(i) which the court assumes is 29 C.F.R. 1630.2(i)(1)(i), the definition of
“Major Life Activities.” “Major Life Activities” is defined to include “lifting.”
The Court appreciates Plaintiff’s referencing the definition of “Major life
activities” stated in 29 C.F.F. § 1630.2 which lists lifting as a major life activity..
The Court also notes that the ADA’s current definition of “Major life activities”
includes “lifting.”
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than twenty-five pounds were not, as a matter of law, disabled.

Id. at 730.

Because Lown failed to meet her burden to establish facts sufficient to show that
she was substantially limited in either working or nonworking activities, the Court
of Appeals determined she failed to demonstrate that she was disabled within the
meaning of the Act. Id. at 736.
Here, Plaintiff argues that he is disabled within the meaning of the act
because of the lifting, pushing, and pulling limitations required by his physician.
Plaintiff argues that his lifting restriction should qualify as a “major life activity”
and he should be granted relief under the Act. The Court notes that even assuming,
without deciding, that Plaintiff’s lifting restriction is a major life activity within the
meaning of the PWDCRA in this case, Plaintiff must also proffer evidence from
which a reasonable inference can be drawn that such activity is “substantially
limit[ing].” Donahoo, 282 F. Supp. 2d at 548. Plaintiff has cited to no cases that
lead this Court to believe that his restrictions “substantially limit” him, and, the
Court notes, Plaintiff’s pleadings seem to reflect the opposite—that Plaintiff is not
substantially limited to the point where he can no longer fulfill the requirements of
the job to which he was hired. The Court is unpersuaded that, in this specific case,
Plaintiff’s restrictions—lifting no more than 15 pounds and pushing and/or pulling
no more than 20 pounds occasionally and 50 pounds seldomly—imposed the
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“substantial limitations” on his ability to perform normal activities of daily living
required to deem them a “disability” within the meaning of the Act.
Defendants also argue that Plaintiff’s Complaint “conclusively
establishes that Plaintiff’s alleged disability is [not] related to his ability to perform
his former job duties as a PSR” and that Plaintiff’s complaint “unambiguously
requests accommodations that are legally impermissible under the Act.” However,
because Plaintiff must show all three elements: “(1) []he is ‘disabled’ as defined by
the statute, (2) the disability is unrelated to the plaintiff's ability to perform the
duties of a particular job, and (3) the plaintiff has been discriminated against in one
of the ways set forth in the statute” to establish a prima facie case of discrimination
under the PWDCRA, Donahoo, 282 F. Supp. 2d at 548 (Chiles, 238 Mich. App. At
473), and Plaintiff fails to satisfy prong one, the Court need not reach the other
prongs.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss the Complaint
Pursuant to Rule 12(b)(6) [Docket No. 10, filed June 14, 2013] is GRANTED.
IT IS FURTHER ORDERED that this matter is DISMISSED.
IT IS SO ORDERED.
S/Denise Page Hood
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Denise Page Hood
United States District Judge
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was served upon
counsel of record on March 31, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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