Hoeft v. Ford Motor Company

Filing 25

ORDER Granting in Part Defendant's #12 MOTION for Summary Judgment, ( Final Pretrial Conference set for 6/6/2017 02:00 PM before District Judge Denise Page Hood, Jury Trial set for 7/11/2017 09:00 AM before District Judge Denise Page Hood) Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN HOEFT,
Plaintiff,

CASE NO. 14-13970
HON. DENISE PAGE HOOD

v.
FORD MOTOR COMPANY,
Defendant.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [#12]

I.

BACKGROUND
On October 15, 2014, Plaintiff Stephen Hoeft (“Hoeft”) filed a Complaint

against Defendant Ford Motor Company (“Ford”) alleging Violations of the
American With Disabilities Act (“ADA”) and the Michigan Persons with
Disabilities Civil Rights Act (“PWDCRA”) (Count I), and Retaliation in Violation
of Michigan’s Worker’s Disability Compensation Act (“WDCA”) (Count II).
(Doc # 1) Ford filed a Motion for Summary Judgment on June 22, 2015. (Doc #
12) The Motion was fully briefed. (Docs # 14-21) The Court held a hearing on
November 18, 2015. For the reasons set forth below, the Court GRANTS IN
PART AND DENIES IN PART Ford’s Motion.

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Hoeft began working for Ford as an assembler, hi-lo driver, and repairman at
the Saline plant in 1994. In 2002, Hoeft sustained a back injury requiring two
surgeries in 2002 and 2004. Each time he had a surgery he filed for worker’s
compensation. In 2008, Hoeft was transferred to the Dearborn truck plant to work
as a floor associate. On November 5, 2008, Hoeft sustained another back injury
while on the job, requiring him to go on medical leave from November 2008
through May 2010. On May 24, 2010, Hoeft returned to work with the following
restrictions: “no prolonged bending and twisting, no lifting over 25 pounds, and a
sit and stand option.” (Doc # 14)
Due to his restrictions, Hoeft was unable to perform his job as a floor
associate, and he was given a plant greeter position.

The greeter position

accommodated Hoeft’s restrictions, and he continued to receive his regular hourly
rate of pay and maintained his “floor associate” classification. In early 2011, Hoeft
took approximately nine months of medical leave for various reasons. The greeter
position was eliminated in 2011. Hoeft was then assigned a job in the Human
Resources (“HR”) department as a clerk doing data entry, filing, making copies,
and assisting with mail delivery and supplies. The clerical position accommodated
Hoeft’s restrictions, and he continued to receive his regular hourly rate of pay and
maintained his “floor associate” classification. Ford claims that this position was
created specifically to accommodate Hoeft.
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According to a Declaration of Steve Wilcox (“Wilcox”), Labor Relations
Manager at the Dearborn plant, and the deposition testimony of Jenny Torony
(“Torony”), HR Manager at the Dearborn plant, in 2013, Ford’s finance
department instructed the Dearborn plant to remove 167 positions, two of which
had to be removed from the HR department, as part of a budgetary rebalancing
task. (Doc # 12-3, Pg ID 250; Doc # 17, Pg ID 347-48) Wilcox and Torony assert
that they decided to eliminate two light-duty clerical positions that had been
created to allow employees who could not perform their regular duties to work and
earn a full paycheck because these positions were not necessary to the functioning
of the HR department. (Doc # 12-3, Pg ID 251)
Wilcox and Torony decided to eliminate Hoeft’s position and T.G.’s
position. T.G. was an hourly employee with restrictions that were not due to a
work-related injury.

Id.

There was another light-duty position that was not

eliminated, which was occupied by P.R.. Id. P.R. was an hourly employee who
had been injured in a fall at work and also had work restrictions. Id. P.R. had been
working in this position since 2010, and Ford maintains that the duties that P.R.
was performing provided more value to Ford than the duties that Hoeft and T.G.
were performing. Id. at 251-52. Ford claims that Wilcox and Torony made the
decision to eliminate these two positions in the first quarter or early in the second

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quarter of 2013, and that they set an approximate date of April 15, 2013 for Hoeft’s
position to be eliminated. Id. at 252.
Torony became Hoeft’s supervisor in mid-January 2013. Hoeft filed for
medical leave due to depression in April 2013. Ford contested whether his
depression was work-related. As a result of the dispute, Hoeft hired an attorney
and filed a worker’s compensation claim in June 2013. From April 2013 to August
2013, Hoeft was on leave. In August 2013, Hoeft attempted to return to work, at
which time Torony informed him that there was no work available for him in the
HR department. Hoeft claims that Torony told him on August 6, 2013 that she had
no work for him because he made a false worker’s compensation claim against her
that he got hurt in HR. (Doc # 16, Pg ID 329)
Hoeft was placed back on leave on August 7, 2013, which is what his doctor
had ordered prior to him attempting to return to work. Hoeft is currently on
medical leave, has continued to receive worker’s compensation benefits, and is
eligible to return to work at Ford if there is a job available that meets his
restrictions.
Hoeft claims that Ford violated the ADA and PWDCRA when it eliminated
his clerical position despite the fact that he had been cleared to work after Ford
ordered him to undergo an independent medical evaluation in August 2013. Hoeft

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further claims that Ford retaliated against him in violation of the WDCA for hiring
an attorney and filing a worker’s compensation claim in June 2013.
Ford argues that it did not violate the ADA or PWDCRA because it created
Hoeft’s clerical position to temporarily accommodate Hoeft’s restrictions,
something not required under the ADA or PWDCRA. Ford further argues that it
did not violate the WDCA because the decision to eliminate Hoeft’s position was
made at least a month before Hoeft hired an attorney to help him with his worker’s
compensation claim. Ford maintains that it has reasonably accommodated Hoeft
since 2008, that it had a legitimate reason for eliminating his clerical position, and
that there is no evidence of discriminatory or retaliatory animus against Hoeft.
II.

STANDARD OF REVIEW
The Court will grant summary judgment 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); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-57 (1986). A fact is material if it could affect the outcome of the case
based on the governing substantive law. Id. at 248. A dispute about a material fact
is genuine if on review of the evidence, a reasonable jury could find in favor of the
nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
5

If the movant meets this burden, the nonmoving party must “go beyond the
pleadings and . . . designate specific facts showing that there is a genuine issue for
trial.” Id. at 324. The Court may grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing
sufficient to establish the existence of an element that is essential to that party’s
case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870,
873 (6th Cir. 2003). “The mere existence of a scintilla of evidence in support of
the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252.

“Conclusory allegations do not create a genuine issue of material fact which
precludes summary judgment.” Johari v. Big Easy Restaurants, Inc., 78 Fed.
App’x 546, 548 (6th Cir. 2003).
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court’s function at
the summary judgment stage “is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
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III.

ANALYSIS
A.

Failure to Accommodate Claim

Hoeft argues that Ford failed to reasonably accommodate him by not
maintaining him in a light-duty clerical position. Hoeft claims that his clerical
position was permanent and not temporary.

He further claims that this

accommodation was still possible in August 2013 and would not have created an
undue burden for Ford.
Ford argues that it reasonably accommodated Hoeft for years, granting him
medical leave totaling nearly five years since November 2008, as well as providing
him with light-duty work that comported with his medical restrictions when such
work was available. Ford further argues that Hoeft’s clerical position was lightduty “make work” created especially for Hoeft in order to accommodate his
restrictions, and Ford was not obligated to continue this accommodation
indefinitely when such an accommodation would not have been required under the
ADA or PWDCRA in the first place.
The ADA and PWDCRA “share the same purpose and use similar
definitions and analyses,” and Michigan courts “have relied on the ADA in
interpreting the PWDCRA.” Chiles v. Mach. Shop, Inc., 238 Mich. App. 462, 472
(1999). For purposes of this Motion, the analysis under each is the same.

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“[C]laims premised upon an employer’s failure to offer a reasonable
accommodation necessarily involve direct evidence (the failure to accommodate)
of discrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.
2007). When the plaintiff bases his claim upon direct evidence, the Sixth Circuit
analyzes the claim under the following framework:
(1) The plaintiff bears the burden of establishing that he or she is
disabled. (2) The plaintiff bears the burden of establishing that he or
she is “otherwise qualified” for the position despite his or her
disability: (a) without accommodation from the employer; (b) with an
alleged “essential” job requirement eliminated; or (c) with a proposed
reasonable accommodation. (3) The employer will bear the burden of
proving that a challenged job criterion is essential, and therefore a
business necessity, or that a proposed accommodation will impose an
undue hardship upon the employer.
Id. at 869. “In performing a reasonable-accommodation analysis under the ADA,
it is the plaintiff’s duty to propose an accommodation that is objectively reasonable
to employers generally, and then the burden shifts to the employer to show that the
accommodation would impose an undue burden with regard to the specific
situation.” Wardia v. Justice & Pub. Safety Cabinet Dep’t of Juvenile Justice, 509
Fed. App’x 527, 531 (6th Cir. 2013).
A “reasonable accommodation” under the ADA may include “reassignment
to a vacant position.” See 42 U.S.C. § 12111(9)(B) (emphasis added). However,
the ADA does not require an employer to displace a co-worker in order to
accommodate a disabled worker. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634
8

(6th Cir. 1998).

Where the plaintiff claims that he should have been

accommodated by reassignment to another position, the plaintiff must identify the
specific job he seeks and demonstrate that he is qualified for that position.
VeuCausovic v. Ford Motor Co., No. 11-15488, 2013 WL 317937, at *7 (E.D.
Mich. Jan. 28, 2013).
“The ADA does not require an employer to create a new position to
accommodate a disabled worker or . . . create a permanent light-duty post when
none previously existed.” Brown v. Chase Brass & Copper Co., 14 Fed. App’x
482, 488 (6th Cir. 2001). Employers are not obligated to convert a temporary
light-duty position created for a recuperating employee into a permanent position.
Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d 719, 730 (6th Cir. 2000); see
also Breier v. ITT Auto., Inc., 98 Fed. App’x 458, 460 (6th Cir. 2004) (finding that
employer is not required to make light-duty position it created into permanent
position); Norsworthy v. Kroger Co., 202 F.3d 269 (6th Cir. 2000) (finding that
employer is not required to keep employee in a specially-created, temporary
position indefinitely).

As the court explained in VeuCausovic,

[t]hat Defendant Ford accommodated Plaintiff . . . by first placing him
on a number of paid leaves of absence and then finding a light-duty
clerical job for him in its accounting office, which he held for eight
years, does nothing to establish Plaintiff’s current ADA claim. While
an employer should show patience when an employee first falls sick,
if an employer bends over backwards to accommodate a disabled
worker[,] it must not be punished for its generosity by being deemed
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to have conceded the reasonableness of so far-reaching an
accommodation.
VeuCausovic, 2013 WL 317937, at *6.
Hoeft has not met his burden to demonstrate a reasonable accommodation
that would have allowed him to perform the essential functions of his employment,
“including the existence of a vacant positon for which he is qualified.” Selecki v.
Gen. Motors, No. 13-CV-11300, 2015 WL 1286961, at *5 (E.D. Mich. Mar. 20,
2015) (internal quotations omitted). Even assuming, without deciding, that Hoeft’s
clerical position was permanent and not temporary “make work,” Hoeft has failed
to come forward with any evidence showing that Ford had an available clerical
position in August 2013. At his deposition, Hoeft testified that he was unaware of
any available position at Ford that he could perform, and that he hadn’t done
anything to obtain a job in a different Ford plant. (Doc # 12-2, Pg ID 160) Hoeft
points to two positions, but both were occupied by other employees, P.R. and
Team Leader Tom Buchanan. Ford was not required to displace P.R. or Buchanan
in order to further accommodate Hoeft. Torony testified that she was not aware of
any available positions in August 2013. (Doc # 21-3, Pg ID 498) She also
testified that Hoeft’s case was considered on more than one occasion at monthly
case management meetings for the purpose of attempting find work for him within
his restrictions. Id. at 500-01, 504.

10

Even viewing the evidence in the light most favorable to Hoeft, Ford
accommodated Hoeft with nearly five years of paid leave and light-duty greeter
and clerical positions when available. It is undisputed that Ford continues to
accommodate Hoeft with medical leave in lieu of termination, and Hoeft is eligible
to return to work if there is a job available that meets his restrictions. “[A] leave of
absence constitutes a reasonable accommodation.” Selecki, 2015 WL 1286961, at
*5 (citing Tubbs v. Formica Corp., 107 Fed. App’x 485, 488 (6th Cir. 2004)).
The Court grants Ford’s Motion for Summary Judgment on the failure to
accommodate claim.
B.

Disability Discrimination Claim

Hoeft seems to also argue that the decision to eliminate his light-duty
position constituted disability discrimination. Ford responds that Hoeft cannot
establish a prima facie case of discrimination, and that even if he could, Ford had a
legitimate business reason for eliminating the position—the rebalancing task
during which two HR positions were eliminated due to budgetary constraints.
At the prima facie stage, Hoeft would have to show the following in order
for this discriminatory discharge claim to survive summary judgment: (1) that he
is disabled; (2) that he is otherwise qualified for the position with or without
reasonable accommodation; (3) that he suffered an adverse employment decision;
(4) that Ford knew or had reason to know if his disability; and (5) that either the
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position remained open, he was replaced by a non-disabled person, or similarly
situated non-disabled employees were treated more favorably. See Deister v. AAA
Auto Club of Michigan, 91 F. Supp. 3d 905, 918 (E.D. Mich. 2015), aff’d sub nom.
Deister v. Auto Club Ins. Ass’n, 647 Fed. App’x 652 (6th Cir. 2016).
Hoeft cannot establish the fifth prong of his prima facie case.

It is

undisputed that his clerical position was eliminated and did not remain open.
Hoeft was not replaced by a non-disabled person. Hoeft has failed to show that
similarly situated non-disabled employees were treated more favorably. Hoeft
points only to P.R. and claims that P.R. was treated more favorably because he was
given and allowed to remain in a clerical position similar to Hoeft’s.

P.R.,

however, is also disabled; like Hoeft, P.R. had been previously injured on the
job—a fact that Hoeft acknowledges and is undisputed.
The Court grants Ford’s Motion for Summary Judgment on any disability
discrimination claim.
C.

Retaliation Claim

Hoeft claims that Ford retaliated against him by eliminating his clerical
position and placing him on a “no work available” status after he hired an attorney
in June 2013 to help him with his worker’s compensation claim.
Ford argues that Hoeft cannot establish a prima facie case of retaliation
because the decision to eliminate his position was made at least a month before
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Hoeft allegedly hired his attorney. Ford further argues that, even if Hoeft has
established a prima facie case, Ford had a legitimate reason for eliminating the
light-duty clerical position. Ford asserts that Hoeft has presented no evidence that
this legitimate reason is a pretext.
To establish a prima facie case of retaliation under Michigan’s Worker’s
Disability Compensation Act (“WDCA”), an employee who has suffered a workrelated injury must present evidence showing that: (1) the employee asserted a
right to worker’s compensation benefits, (2) the employer knew that the employee
asserted his right to worker’s compensation benefits, (3) the employer took an
employment action adverse to the employee, and (4) there was a causal connection
between the plaintiff’s assertion of his right to worker’s compensation benefits and
the adverse employment action. Dortman v. ACO Hardware, Inc., 405 F. Supp. 2d
812, 822 (E.D. Mich. 2005); Chiles, 238 Mich. App. at 470.
When a plaintiff circumstantially establishes a rebuttable prima facie case of
retaliation, the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action. If the defendant produces a
legitimate, non-retaliatory reason for its action, the plaintiff must demonstrate that
the defendant’s reason is a pretext for retaliation. A plaintiff can establish that the
employer’s proffered reason is pretextual by demonstrating that the reason (1) had
no basis in fact; (2) was not the actual factor motivating the decision; or (3) was
13

insufficient to justify the decision. See Cuddington v. United Health Servs., Inc.,
298 Mich. App. 264, 277 (2012).
Hoeft has established a prima facie showing of retaliation under the WDCA.
Hoeft suffered from depression, which he claims is work-related, and he filed for
WDCA benefits for his leave from April 2013 to August 2013 through his attorney
in June 2013. Ford does not dispute that it knew that Hoeft engaged in this
protected conduct, or that it took an employment action adverse to Hoeft. Ford
argues instead that Hoeft cannot show that his worker’s compensation claim and
the elimination of his clerical position are causally connected.
Ford asserts that the decision to eliminate his position was made at least a
month before Hoeft allegedly hired his attorney. However, it is undisputed that
Hoeft was not informed of this decision until August 6, 2013 during the
conversation with Torony. Hoeft testified that Torony told him that she had no
work for him because he made a false worker’s compensation claim against her
that he got hurt in HR. (Doc # 16, Pg ID 329) Torony testified that she could not
recall whether she discussed Hoeft’s worker’s compensation claim during that
conversation with him; she only remembered telling him that she had no work for
him. (Doc # 17, Pg ID 352-53) Torony also testified that she remembers Hoeft
was on medical leave in April 2013 and remembers there was “some disagreement
with worker’s comp, whether it was personal or occupational.” Id. at 378-79. She
14

testified that worker’s compensation representative Michalein Robertson had
provided her with this information. Id. at 379. Torony further testified that there
exists one “rebalance document that would have the elimination of the positions,”
id. at 368, but there is nothing further in the record regarding the content or date of
this document. The Court finds that, viewing the evidence in the light most
favorable to Hoeft, there remains a question of material fact regarding when the
decision to eliminate Hoeft’s clerical position was made. The Court concludes that
Hoeft has sufficiently established a causal connection between his worker’s
compensation claim through his attorney and the elimination of his clerical
position at this stage, as well as a prima facie showing of retaliation under the
WDCA.
Ford has in turn provided a legitimate, non-discriminatory reason for
eliminating Hoeft’s position. Ford claims that the finance department ordered the
Dearborn plant to eliminate two positions in HR as part of a budgetary rebalancing
task affecting 167 positions. Ford points to a comparator, P.R., to show that it kept
another disabled worker in the HR department because his work added more value
to the company.
The Court turns to examining whether Hoeft has sufficiently established that
Ford’s proffered reason is pretextual. Hoeft argues that Torony’s statement that
she had no work for him because he made a false worker’s compensation claim
15

against her that he got hurt in HR, along with the context in which it was made,
raises a genuine issue of material fact as to Ford’s retaliatory motivation. Ford
argues that Torony’s alleged statement is at most a stray remark that does not
indicate animus for the exercise of worker’s compensation rights, but rather, for
false claims.
In discrimination cases, courts examine statements allegedly showing
employer bias by considering “whether the comments were made by a decision
maker or by an agent within the scope of his employment; whether they were
related to the decision-making process; whether they were more than merely
vague, ambiguous, or isolated remarks; and whether they were proximate in time
to the act of termination.” Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330
(6th Cir. 1994); see also Rose v. Nat’l Cash Register Corp., 703 F.2d 225, 227-28
(6th Cir. 1983), cert. denied, 464 U.S. 939 (1983), rev’d in part on other grounds
sub nom. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).
Hoeft testified that Torony told him on August 6, 2013 that she had no work
for him specifically because he made a false worker’s compensation claim against
her that he got hurt in HR. (Doc # 16, Pg ID 329) Torony testified that she was
the one who decided to eliminate Hoeft’s clerical position. (Doc # 17, Pg ID 348)
Viewing the evidence in the light most favorable to Hoeft, Torony’s alleged
comment was made by a decision maker. It was also related to the decision16

making process, since it was allegedly made in the context of Torony explaining
why she no longer had any work available for Hoeft. Hoeft does not identify any
other retaliatory statements by Torony or anyone else at Ford, so the alleged
comment was isolated. Ford claims that the alleged statement at most shows
animus toward false statements. However, the Court finds that, viewed in the light
most favorable to Hoeft, the alleged statement communicates that the reason why
there was no longer any work available for Hoeft was because he made a worker’s
compensation claim. The alleged statement was made on August 6, 2013, at the
time that Ford first communicated to Hoeft that the company no longer had work
available for him. Under these circumstances, the Court finds that a reasonable
juror could conclude that retaliation was a motive for eliminating Hoeft’s clerical
position.
The Court denies Ford’s Motion for Summary Judgment on the retaliation
claim.
D.

Failure to Engage in Interactive Process Claim and ADA
Retaliation Claim

In his Response, Hoeft raises the argument that Ford failed to engage in the
interactive process. Also in his Response, Hoeft asserts an ADA retaliation claim.
These were not claims asserted in his Complaint, and the Court declines to review
them.

Courts are not required to address allegations first raised in summary

judgment motions. See City of Columbus, Ohio v. Hotels.com, L.P., 693 F.3d 642,
17

650 (6th Cir. 2012) (“The district court did not err in declining to address [a new]
claim because it was raised for the first time in response to the [defendants’]
motion for summary judgment.”)
IV.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant Ford Motor Company’s Motion

for Summary Judgment (Doc # 12) is GRANTED IN PART AND DENIED IN
PART as to the retaliation claim under the Michigan Worker’s Disability
Compensation Act only.
IT IS FURTHER ORDERED that this matter is set for a Final Pretrial
Conference on June 6, 2017 at 2:00 p.m.. All parties with authority to settle must
appear at the conference. The Proposed Joint Final Pretrial Order under Local
Rule 16.2 must be submitted by May 30, 2017.
IT IS FURTHER ORDERED that the jury trial is set for July 11, 2017 at
9:00 a.m.
Dated: March 31, 2017

s/Denise Page Hood
Chief, U.S. District Court

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
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