White v. A.J.M. Packaging Corporation
REPORT AND RECOMMENDATION RECOMMENDING GRANTING DEFENDANT'S 27 MOTION for Summary Judgment filed by A.J.M. Packaging Corporation AND RESOLVING PLAINTIFF'S 54 MOTION to take Judicial Notice filed by Tytus White, RESOLVI NG 55 MOTION to take Judicial Notice filed by Tytus White, RESOLVING 58 MOTION for the Court to take Judicial notice filed by Tytus White, RESOLVING 63 MOTION to Amend/Correct 1 Complaint filed by Tytus White, RESOLVING 56 MOT ION filed by Tytus White, RESOLVING 62 MOTION to Amend/Correct 1 Complaint filed by Tytus White, RESOLVING 61 MOTION for the Court to take Judicial Notice filed by Tytus White, AND RESOLVING 60 MOTION for the Court to take Judicial Notice filed by Tytus White - Signed by Magistrate Judge Kimberly G. Altman. (CCie)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:21-cv-11848
District Judge Laurie J. Michelson
Magistrate Judge Kimberly G. Altman
A.J.M. PACKING CORPORATION,
REPORT AND RECOMMENDATION TO GRANT
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 27)
ORDER RESOLVING PLAINTIFF’S PENDING MOTIONS
(ECF Nos. 54, 55, 56, 58, 60, 61, 62, 63)1
This is an employment case. Plaintiff Tytus White (White) is suing
Defendant A.J.M. Packing Corporation (AJM) alleging that his termination
constituted unlawful disability discrimination under the Americans with
Disabilities Act (ADA). See ECF No. 12. Under 28 U.S.C. § 636(b)(1), all
pretrial matters were referred to the undersigned. (ECF No. 6).
Before the Court are AJM’s motion for summary judgment, (ECF No. 27),
Upon review of the parties’ papers, the undersigned deems these matters
appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D.
Mich. LR 7.1(f)(2).
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as well as numerous motions filed by White, (ECF Nos. 54, 55, 56, 58, 60, 61, 62,
63),2 asking the Court to take judicial notice and/or requesting to amend his
complaint. AJM’s motion is fully briefed. (ECF Nos. 43, 51, 57). 3 For the
reasons set forth below, it is RECOMMENDED that AJM’s motion for summary
judgment be GRANTED and the case be DISMISSED.
This lawsuit arises out of White’s brief period of employment with AJM.
The material facts as gleaned from the parties’ papers follow.
AJM manufactures “paper plates, cups, bowls, and bags for commercial and
retail customers.” (Guy Miele Sworn Statement, ECF No. 27-1, PageID.129). It
does so at “several production facilities across the country, including in Southfield,
Michigan.” (Id.). White was hired as a Packer in the Plate Department at this
facility. (Id.). Someone in this position must “gather plates from a conveyor belt
and then package and seal the plates securely.” (Id.). The individual then stacks
As will be explained, a few of these motions are substantively the same. It
appears that some motions were filed more than once because White e-filed them
as well as submitting them in other ways to the Clerk.
White’s attorney withdrew around the same time as AJM’s motion for summary
judgment was filed, which lead to some confusion regarding the briefing as was
explained in a December 7, 2022 order. (ECF No. 35). For the purposes of this
Report and Recommendation, the undersigned focused on the filings docketed as
entries 27, 43, 51, and 57 as well as White’s pending motions, which are docketed
as entries 54, 55, 56, 58, 60, 61, 62, and 63.
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the plates in preparation for delivery. (Id.). A Packer must be able to lift “up to 25
pounds” and perform all of his job duties “on a repetitive basis.” (Id.).
Additionally, a Packer must “continually use hands to finger, handle, and grab; and
reach with hands and arms.” (Pack Job Description, ECF No. 27-2, PageID.136).
Guy Miele (Miele), AJM’s long-serving Director of Human Resources (HR),
stated in a sworn statement that White’s first day of work was Thursday, March 12,
2020. (ECF No. 27-1, PageID.129-130; White Deposition, ECF No. 27-8,
PageID.175). On that date, White “completed new employee paperwork and
began orientation.” (ECF No. 27-1, PageID.130). HR employee Ciara Voran née
Antowiak (Voran) oversaw White’s orientation and her responsibilities included
“explaining what people were signing and how to fill out new hire forms.” (Voran
Deposition, ECF No. 27-5, PageID.144). The orientation was a group orientation
for approximately a half dozen new AJM employees. (Id.).
During orientation, the group “was shown several training films.” (ECF No.
27-1, PageID.130; ECF No. 27-8, PageID.175). Voran testified that while
watching the last film, White pulled her aside to let her know “that he was having
some cramps in his hand and wanted to take a break.” (ECF No. 27-1,
PageID.130; ECF No. 27-5, PageID.144-145). Voran permitted White to take a
break and notified HR Manager Lisa Collum (Collum) about White’s comments.
(ECF No. 27-1, PageID.130; Collum Deposition, ECF No. 27-6, PageID.154).
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Collum recalled Voran telling her that White said “that his hand had fallen asleep
and that he brought up that that happens sometimes, that he had a hand that would
go numb if he was in any type of repetitive motion job or work[.]” (ECF No. 27-6,
PageID.154). Voran also reported that White asked her about the job’s lifting
White, however, testified that he never initiated a conversation with Voran
or talked to her about his hand at all. (ECF No. 27-8, PageID.176). He explained
that he told a fellow orientation attendee that “[his] hand fell asleep because [he]
was leaning on it,” and that Voran appeared to have overheard this remark. (Id.).
After hearing White mention his hand falling asleep, Voran left the room and when
she returned, Collum was with her. (Id.).
Collum then held a meeting in her office attended by her, Plant Manager
Robert Conchola (Conchola), and White, where she asked White about his alleged
comments to Voran. (Id., PageID.176-177; ECF No. 27-1, PageID.130).
According to Collum, White explained “that his hand sometimes goes numb in
repetitive motion situations” requiring him to take a break. (ECF No. 27-1,
PageID.130; ECF No. 27-6, PageID.155). He “also asked about the lifting
requirements of the Packer position.” (ECF No. 27-1, PageID.130; ECF No. 27-6,
PageID.156). “Collum reminded [White] that the job of Packer required repetitive
motion and some heavy lifting, and stated that she wanted to make sure the Packer
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position was the right one for him.” (ECF No. 27-1, PageID.130; ECF No. 27-6,
Collum testified that at first, White attempted to reassure her that his hand
would not be an issue, but about 15 minutes into the meeting appeared to change
his mind. (ECF No. 27-6, PageID.155). In the end, Collum told White that he
may need to have his hand evaluated by a doctor to make sure “he could perform
the essential functions of the Packer position with or without accommodations, or
if a different job would be a better fit.” (ECF No. 27-1, PageID.130; ECF No. 276, PageID.156). Collum also reassured White numerous times that he was not
being fired. (ECF No. 27-6, PageID.156).
White’s account of the meeting differs significantly from Collum’s. (ECF
No. 27-8, PageID.177). White testified that Collum questioned him about a prior
hand surgery. (Id.). He told her that he had cut himself cooking two years prior,
but that there was currently “nothing wrong with [his] hand.” (Id.). Conchola then
said, “We can’t allow you to work here.” (Id.). Collum repeated this statement
back to White. (Id.). At no point did White mention his hand bothering him
during periods of repetitive motion. (Id.). Neither Conchola nor Collum
mentioned “that the job was very repetitive and required heavy lifting[.]” (Id.).
After the meeting, White was advised by his roommate to call an attorney
about experiencing discrimination. (Id., PageID.178). White called a few
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attorneys. (Id.). White does not remember the names of any of the attorneys he
called. (Id.). One of the attorneys “told [White] that [he] had been discriminated
against.” (Id.). He suggested that White call AJM and say he would file a
complaint if he was not allowed to work there. (Id.).
On Friday, March 13, 2020, the day after White’s orientation and his
meeting with Collum and Conchola, he called Miele to complain. 4 (ECF No. 27-1,
PageID.131; PageID.27-8, PageID.179). White told Miele that he was being
discriminated against because AJM employees perceived him to have a disability
and that he had been scheduled for an illegal medical examination. (ECF No. 27-1,
PageID.131; PageID.27-8, PageID.179-180, 192). He also told Miele that he had
to discuss his hand in a meeting with Collum and a “chunky Mexican,” which
Miele presumed to be a reference to Conchola.5 (ECF No. 27-1, PageID.131;
PageID.27-8, PageID.179). Miele, who had previously been unaware of the
developing situation regarding White, said that he told White, he “would look into
the situation,” (ECF No. 27-1, PageID.131), while White said that Miele told him,
“that’s not how we do things” and that he would call Collum, (ECF No. 27-8,
White testified that he placed around 30 calls to various AJM employees on
March 13, 2020, because he was having a hard time finding an employee who
could help him and “people kept telling [him] that they were going to call [him]
back.” (ECF No. 27-8, PageID.179).
White testified that he said Conchola “was Mexican and he was a little chunky[,]”
rather than calling him a “chunky Mexican.” (ECF No. 27-8, PageID.176).
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White testified that he only spoke to Miele once that day, (id.), however,
Miele testified that they spoke twice, (ECF No. 27-1, PageID.131). During their
second conversation, Miele told White that he had investigated the matter and
learned that White “was not being discriminated against but that, because of his
comments regarding being unable to work when his hand cramped up, he was
being scheduled for a medical examination to determine whether he could perform
the essential functions of the Packer position with or without accommodation.”
White testified that at some point on March 13, 2020, Collum called him to
ask if he would be willing to undergo a physical examination. (ECF No. 27-8,
PageID.178, 192). She apologized for what occurred during their meeting and
expressed “that it was a misunderstanding on all of our parts.” (Id.).
Although Collum could not recall whether it occurred on March 13 or March
16, 2020, she stated that White called her to ask for more detail regarding what
would occur during the medical examination. (ECF No. 27-6, PageID.157). White
was upset and said that they “were discriminating against him.” (Id., PageID.158).
Collum reexplained why AJM was requiring him to undergo a medical
examination and that its decision was “based on the conversations that he had had
with [AJM employees].” (Id.). At some point, White also emailed “several copies
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of something he pulled from the internet about discrimination and orientation and
Collum emailed White on both March 13 and March 16, 2020, with details
for the medical examination that she had scheduled for him. (Emails, ECF No. 273, PageID.138; ECF No. 27-7, PageID.168-169). In her March 16, 2020 email,
Collum explained that the purpose of the examination was
to determine if you are able to perform the essential functions of the
Packer position with or without an accommodation. This was in
response to your comments, both in orientation, and the subsequent
meeting in my office, about feeling pain and/or discomfort with your
right hand/wrist area, in longer-term repetitive motion situations.
(ECF No. 27-3, PageID.138; ECF No. 27-7, PageID.168).
Miele testified that after the weekend, on Monday, March 16, 2020, White
called him to say that he had spoken to both the Equal Employment Opportunity
Commission (EEOC) and an attorney regarding the discrimination he was facing.
(ECF No. 27-1, PageID.132). Miele reiterated that White was not being
discriminated against. (Id.). Over the course of the day, White called Miele
approximately a dozen times. (Id.). Miele noted that White was becoming
“increasingly more aggressive and confrontational.” (Id.). Miele instructed White
to stop calling him and told him that he need to report for his medical examination
the following day. (Id.).
For his part, White testified that he called Miele to tell him that Collum’s
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March 16, 2020 email falsely said that White had complained about his hand to
her. (ECF No. 27-8, PageID.181-182). White told Miele that he should not have
to undergo a physical examination because of Collum’s false statements. (Id.).
Miele became upset and accused White of “trying to file a complaint,” and told
him not to call him again. (Id., PageID.181-182, 184-185). White immediately
tried to call Miele back to explain that he was not trying to file a complaint, but
Miele hung up on him. (Id., PageID.182-183, 185). White estimated that he called
Miele approximately a half dozen times between March 13 and March 16, 2020.
(Id., PageID.184). During the Michigan Department of Civil Rights (MDCR)
investigation, White submitted his phone records which showed that he called
AJM’s corporate office, where Miele worked, approximately a dozen times on
March 16, 2020, alone. (MDCR Notice of Disposition and Order of Dismissal,
ECF No. 27-11, PageID.249).
According to Miele, White did not stop calling him even after being
instructed to stop. (ECF No. 27-1, PageID.132). As a result of White’s behavior,
Miele decided to terminate his employment for “insubordinate conduct.” (Id.).
Collum was informed of Miele’s decision, and she then prepared a termination
report. (ECF No. 27-6, PageID.157). She believed that White was being
terminated because he refused to undergo a medical examination and to stop
contacting AJM employees despite Miele’s request. (Id., PageID.158).
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The termination report listed March 12, 2020, as White’s last day worked
and March 13, 2020, as his termination date. (Id., PageID.157). Collum’s
understanding of the situation was that AJM was “rescinding the [job] offer”
seemingly because, even though White was technically employed by AJM, he had
not yet started in his role as a Packer. (Id., PageID.157-158). Miele, however,
viewed the situation as AJM firing an existing employee. (ECF No. 27-1,
PageID.132). Miele acknowledged there was some confusion because in the email
sent to White it was “inaccurately stated that [his] ‘job offer’ was being rescinded.”
(Id.). White responded to the email, expressing “that he felt that [AJM] had
discriminated against him.” (ECF No. 27-6, PageID.159; ECF No. 27-8,
Following White’s termination, AJM paid him for “his employment with
AJM and training.” (ECF No. 27-1, PageID.132; Paycheck, ECF No. 27-4,
PageID.140). Miele stated that AJM “did not regard [White] as being disabled.”
(ECF No. 27-1, PageID.133).
Motion for Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, “[t]he court shall 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). A fact is material if it might affect the outcome of the case under governing
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law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “views
the evidence, all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley
Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004).
“The moving party has the initial burden of proving that no genuine issue of
material fact exists. . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486
(6th Cir. 2011) (internal quotation marks omitted); cf. Fed. R. Civ. P. 56(e)(2)
(providing that if a party “fails to properly address another party’s assertion of
fact,” the court may “consider the fact undisputed for purposes of the motion”).
“Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving
party to set forth specific facts showing a triable issue.’ ” Wrench LLC v. Taco
Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The fact that White is now pro se does not reduce his obligations under Rule
56. Rather, “liberal treatment of pro se pleadings does not require lenient
treatment of substantive law.” Durante v. Fairlane Town Ctr., 201 F. App’x 338,
344 (6th Cir. 2006). Additionally, “once a case has progressed to the summary
judgment stage, as is true here, the liberal pleading standards under the Federal
Rules are inapplicable.” J.H. v. Williamson Cnty., 951 F.3d 709, 722 (6th Cir.
2020) (quoting Tucker v. Union of Needletrades, Indus., & Textile Employees, 407
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F.3d 784, 788 (6th Cir. 2005)) (cleaned up).
In his amended complaint, White alleges three counts under the ADA:
• Count I — Disability Discrimination
• Count II — Requiring an Impermissible Medical Examination
• Count III — Retaliation
(ECF No. 12, PageID.51-59). The undersigned will consider Count II first, Count
I second, and Count III third.
White’s Pending Motions
As stated above, White has filed numerous motions since AJM filed its
motion for summary judgment. The Court has ruled on some of these motions
already, but eight are still pending. These motions are docketed as entries 54, 55,
56, 58, 60, 61, 62, and 63. Each motion will be briefly described in turn below.
• ECF No. 54 — Motion to take Judicial Notice
White asks the Court to take judicial notice of inconsistencies and/or
misleading statements in Miele’s sworn statement as well as Collum’s and
Voran’s depositions. White says that when he interviewed for the Packer
position, the interviewer expressed that a gap in White’s work history may
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be an issue for AJM. White also references “EXHIBIT A” to the motion,
but it appears he failed to submit the exhibit.
• ECF No. 55 — Motion to take Judicial Notice
This motion is substantively the same as ECF No. 54. The only difference is
that White attached the missing exhibit to this version of the motion. The
exhibit is a partially completed form for new AJM hires that asks the new
hire to initial various statements indicating that they understand them. (New
Hire Form, ECF No. 55, PageID.460). The statements are related to the
terms and conditions of employment with AJM. (Id.).
• ECF No. 56 — Motion to take Judicial Notice
White essentially says that he was in the pre-employment stage at AJM. He
alleges that while he had been offered a job with AJM, he had not yet started
working nor completed orientation. He believes that his job offer was
rescinded by Collum during the meeting her office and that he never
received a new job offer. White says that AJM inaccurately describes the
March 16, 2020 email as a termination email even though it was actually an
email rescinding White’s job offer again. White also directs the Court’s
attention to various statements made by Miele, Collum, and Voran that he
describes as lies.
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• ECF No. 58 — Motion for Judicial Notice
Again, White says he was not an employee at the time he was asked to have
a medical examination. White explains that the orientation he attended was
actually a “pre-employment orientation,” meaning that the attendees were
not yet AJM employees at the time of the orientation. White also attaches an
exhibit titled “Orientation Check List – Hourly Employees,” which lists
various items that orientation attendees needed to complete or provide.
(Orientation Check List, ECF No. 58, PageID.488). Items include a drug
screen, tax forms, and health insurance enrollment forms. (Id.). White
emphasizes that a medical examination was not one of the items on the list.
• ECF No. 60 — Motion for Judicial Notice
This motion appears to be substantively the same as ECF No. 58.
• ECF No. 61 — Motion for Judicial Notice
White “request[s] that the Court order Judicial Notice of more key details
the defense counsel continues to overlook,” such as evidence suggesting that
he was retaliated against for “opposing the discrimination that [he] endured
at the hands of [AJM].” White also explains that his theory of the case has
only changed as he has learned new information throughout the discovery
process. Attached to the motion as Exhibit A is an email from a Concentra
representative indicating that White was not seen for any employment
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related medical examinations during March 2020. (Concentra Email, ECF
No. 61, PageID.514-515). Exhibit B appears to be a printed cellphone
screenshot of outgoing calls made on March 16, 2020. (Phone Call
Screenshot, ECF No. 61, PageID.517-518). Exhibit D (there is no Exhibit
C) is part of the charge of discrimination that White filed with the MDCR.
(MDCR Charge of Discrimination, ECF No. 61, PageID.520).
• ECF No. 62 — Motion to take Judicial Notice and to Amend
White moves to amend his first amended complaint to change any phrasing
suggesting that he was an employee rather than a job applicant during the
relevant events. White explains, “I don’t think I was terminated I think I
was denied hire.”
• ECF No. 63 — Motion to take Judicial Notice and to Amend
This motion appears to be substantively the same as ECF No. 62.
The undersigned has reviewed and considered each of these motions including
all of White’s arguments and exhibits. To the extent that consideration of these
motions is the relief sought, it is GRANTED.
White contends that it was illegal under the ADA for AJM to require him to
undergo a medical examination.
Over the last few months, White has filed contradictory motions regarding
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what stage of employment he believes he was in at the time he was told that he
needed to undergo a medical examination. This confusion was caused in no small
part by the language AJM HR employees used during the relevant events. Even
though both Miele and Collum state that they considered White to be an AJM
employee at the time of his termination, the email communicating the news of the
termination to White referred to his job offer being rescinded rather than his
employment being terminated.
Most recently, White argues in his motions for judicial notice that he was
actually in the pre-offer stage of employment when he was asked to undergo a
medical examination. White explains that he was in the pre-offer stage because he
was terminated by Collum during his meeting with her and Conchola and was
never extended a new job offer. However, this understanding of the events is not
supported by the evidence, including White’s deposition.
At his deposition, White testified that on March 13, 2020, Collum called him
and asked him to undergo a medical examination and “revoke the termination.”
(ECF No. 27-8, PageID.198). Additionally, it is uncontested that White attended
orientation on March 12, 2020, for which he was paid as an employee.
Accordingly, even when considering the evidence in the light most favorable to
White, the contention that he was in the pre-offer stage of employment when he
was asked to undergo a medical examination is untenable. White has failed to
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demonstrate that there is a genuine issue of fact on this issue. See EEOC v. Ford
Motor Co., 782 F.3d 753, 769 (6th Cir. 2015) (“Harris’s testimony thus fails to
create a genuine dispute of fact because it is ‘so utterly discredited by the record
that no reasonable jury’ could believe it.”) (quoting Scott v. Harris, 550 U.S. 372,
In light of the above, the undersigned will consider whether AJM could
legally require White, as a current employee, to undergo a medical examination.
Under the ADA, employers are prohibited from “discriminat[ing] against a
qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). However, when plaintiffs “bring a claim
under § 12112(d), [they] are not required to allege that they suffer from a disability
as defined by the ADA or that they were discriminated against because of a
disability.” Garlitz v. Alpena Reg’l Med. Ctr., 834 F. Supp. 2d 668, 677 (E.D.
Mich. 2011); see also Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir.
2011) (“A plaintiff need not prove that he or she has a disability in order to contest
an allegedly improper medical inquiry under 42 U.S.C. § 12112(d).”).
A judge in this district recently summarized the statutory and regulatory
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framework regarding the legality of medical inquiries and examinations as follows:
[T]he [ADA] prohibits employers from “discriminat[ing] against a
qualified individual with a disability because of the disability of such
individual.” 42 U.S.C. § 12112(a). To advance this goal, the statute
restricts employers from requiring medical inquiries and examinations
during the hiring process. 42 U.S.C. § 12112(d). These restrictions
vary in degree – from most restrictive to least restrictive – among three
categories: (1) pre-offer job applicants, (2) post-offer candidates, and
(3) current employees. 42 U.S.C. § 12112(d)(2)-(4).
Pre-Offer Job Applicants. The type of inquiries prospective employers
may pose to pre-offer job applicants are the most limited. Employers
may not (1) compel pre-offer job applicants to undergo medical
examinations, (2) ask them whether they have a disability, or (3) inquire
into “the nature or severity of such disability.” 42 U.S.C. §
12112(d)(2)(A); see also 29 C.F.R. § 1630.13(a). But employers may
ask about an applicant's ability “to perform job-related functions.” 42
U.S.C. § 12112(d)(2)(B); see also 29 C.F.R. § 1630.14(a). And they
may ask applicants to “describe or to demonstrate how, with or without
reasonable accommodation, the applicant will be able to perform jobrelated functions.” 29 C.F.R. § 1630.14(a).
Prospective employers are moderately
restricted when imposing conditions of employment on post-offer
candidates. Employers may require post-offer candidates to undergo
medical examinations before starting a job – “and may condition an
offer of employment on the results” of those examinations – so long as
“all entering employees are subjected to such an examination regardless
of disability.” 42 U.S.C. § 12112(d)(3)(A); see also 29 C.F.R. §
Employees. Finally, employers are least restricted when obtaining
information from employees. Employers may require “a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity.” 29 C.F.R, § 1630.14(c); see also
42 U.S.C. § 12112(d)(4)(A). They may also ask about the “ability of
an employee to perform job-related functions.” 29 C.F.R, § 1630.14(c);
see also 42 U.S.C. § 12112(d)(4)(B).
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McBratnie v. McDonough, No. 20-cv-12952, 2023 WL 3318029, at *3-4 (E.D.
Mich. May 9, 2023) (internal footnote omitted).
As stated above, White was an AJM employee when he was required to
undergo a medical examination. Requiring such an examination is legal so long as
it “is job-related and consistent with business necessity.” 29 C.F.R, § 1630.14(c);
see also 42 U.S.C. § 12112(d)(4)(A).
“An employer’s request for a medical examination is job-related and
consistent with business necessity when: (1) the employee requests an
accommodation; (2) the employee’s ability to perform the essential functions of the
job is impaired; or (3) the employee poses a direct threat to himself or others.”
Denman v. Davey Tree Expert Co., 266 F. App’x 377, 379 (6th Cir. 2007).
“[H]ealth problems that significantly affect an employee’s performance of essential
job functions justify ordering a physical examination.” Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 812 (6th Cir. 1999). “[F]or an employer’s request for an
exam to be upheld, there must be significant evidence that could cause a
reasonable person to inquire as to whether an employee is still capable of
performing his job.” Id. at 811. Moreover, “any examination ordered by the
employer must be restricted to discovering whether the employee can continue to
fulfill the essential functions of the job.” Id. at 811-812.
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.554 Filed 05/18/23 Page 20 of 30
The Packer position indisputably required an individual to use his hands to
repetitively grab plates off a conveyor belt, stack them, and package them. The
position also required an individual to be able to lift up to 25 pounds. While the
exact statements White made about his hand are disputed, it is not disputed that
whether White enjoyed full use of his hand was placed in doubt during orientation.
White said during orientation that his hand was either cramping or numb, and then
further discussed his hand with Collum. During that conversation, White, at the
very least, disclosed that he had injured his hand during a kitchen accident that led
to him requiring surgery. A relatively recent hand surgery combined with White’s
statement during orientation that his hand was either numb or cramping could
cause a reasonable person to question whether White would be able to perform the
job, which required the constant use of his hands in a repetitive manner. Thus,
AJM did not violate the ADA when it required White to undergo a medical
examination before letting him return to work.
White argues that his termination was unlawful both because it constituted
disability discrimination and because it constituted retaliation. Each argument will
be addressed in turn below.
White first argues that AJM fired him because it perceived him to have a
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.555 Filed 05/18/23 Page 21 of 30
Under the ADA, an employer cannot discharge a qualified employee “on the
basis of [a] disability.” 42 U.S.C. § 12112(a). To prevail on his claim, White must
first “establish a prima facie case” of disability discrimination. Talley v. Family
Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). If he does so,
“the burden shifts to [AJM] to articulate some legitimate, nondiscriminatory reason
for its actions.” Id. (internal quotation marks and citations omitted). If AJM
articulates such a reason, then White “must show by a preponderance of the
evidence that the proffered explanation is a pretext for discrimination.” Id.
Prima Facie Case
“To establish a prima facie case of discrimination under the ADA, a plaintiff
must show ‘(1) that she or he is an individual with a disability, (2) who was
otherwise qualified to perform a job’s requirements, with or without reasonable
accommodation; and (3) who was discriminated against solely because of the
disability.’ ” Talley, 542 F.3d at 1105 (quoting Mahon v. Crowell, 295 F.3d 585,
589 (6th Cir. 2002)). “Furthermore, the disability must be a ‘but for’ cause of the
adverse employment action.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292,
306 (6th Cir. 2016).
A disability, for the purposes of the ADA, is “(A) a physical or mental
impairment that substantially limits one or more of the major life activities of [an]
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.556 Filed 05/18/23 Page 22 of 30
individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(2). “An 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(3)(A). “[A]n individual may fall into the definition of one
regarded as having a disability if an employer ascribes to that individual an
inability to perform the functions of a job because of a medical condition when, in
fact, the individual is perfectly able to meet the job’s duties.” Ross v. Campbell
Soup Co., 237 F.3d 701, 706 (6th Cir. 2001).
Even though AJM argues that White has failed to establish the first element,
for the purposes of considering the instant motion for summary judgment, the
undersigned will assume without deciding that he has. The record demonstrates
that multiple AJM employees were concerned about White’s hand, which had been
injured in a cooking accident approximately two years before he was hired by
AJM. The injury required surgical intervention and left a visible scar.
Legitimate Reason and Pretext
Because it is being assumed that White has established a prima facie case of
discrimination under the ADA, AJM must proffer a legitimate, nondiscriminatory
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.557 Filed 05/18/23 Page 23 of 30
reason for White’s termination. It has done so by asserting that it terminated White
for insubordination. AJM claims that White’s continued calls to Miele and other
AJM employees after Miele explicitly instructed him to stop calling constituted
insubordination. “Failure to follow instructions and insubordination are legitimate,
non-discriminatory reasons for discharging an employee.” EEOC v. St. Joseph
Paper Co., 557 F. Supp. 435, 439 (W.D. Tenn. 1983); see also Russell v. Univ. of
Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (finding that failure to follow
instructions and directions constitutes legitimate reason for discharge);
Raadschelders v. Columbus State Cmty. Coll., 377 F. Supp. 3d 844, 853, 858 (S.D.
Ohio 2019) (“The Sixth Circuit has repeatedly held that insubordination may
constitute a legitimate, nondiscriminatory reason for adverse action.”).
In order to overcome AJM’s proffered reason for termination, White “must
provide evidence ‘which tends to prove that an illegal motivation was more likely
than that offered by the defendant’ to prove that the proffered reason for
termination did not actually motivate the decision.” Kerwin v. Cmty. Action
Agency, No. 22-1510, 2023 WL 3413906, at *4 (6th Cir. May 12, 2023) (quoting
Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)
(emphasis in original), overruled on other grounds by Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167 (2009)). “Pretext, however, cannot be shown by attacking the
decision itself.” Hein v. All Am. Plywood Co., 232 F.3d 482, 490 (6th Cir. 2000)
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.558 Filed 05/18/23 Page 24 of 30
(citing Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 898 (6th Cir. 1997)).
Furthermore, “a plaintiff’s subjective interpretations or feelings are insufficient to
establish pretext.” Rosenthal v. Faygo Beverages, Inc., 701 F. App’x 472, 480 (6th
Cir. 2017); see also Tibbs v. Calvary United Methodist Church, 505 F. App’x 508,
513 (6th Cir. 2012) (“[The plaintiff’s] subjective belief that she was not
insubordinate is insufficient to rebut [the defendant’s] nondiscriminatory reason.”).
Ultimately, “[p]retext is a commonsense inquiry: did the employer fire the
employee for the stated reason or not?” Chen v. Dow Chem. Co., 580 F.3d 394,
400 n.4 (6th Cir. 2009).
White has failed to overcome AJM’s proffered reason for termination. The
record shows that even if AJM regarded White as having a disability, it wanted to
have White undergo a medical examination rather than terminate his employment.
However, White’s insubordinate behavior in regard to Miele caused AJM to
reevaluate. Even though White denied calling Miele excessively, 6 (ECF No. 27-8,
PageID.185), the MDCR found that White’s phone records undermined White’s
denial. According to the MDCR, the phone records showed that White called
Miele approximately a dozen times in one day. Moreover, even if Miele decided
to terminate White for some other nondiscriminatory reason like finding his
White testified that he called Miele approximately 6 times during the relevant
period. (ECF No. 27-8, PageID.184).
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.559 Filed 05/18/23 Page 25 of 30
repeated phone calls to be merely annoying rather than insubordinate, this is not
pretext in the employment discrimination context. See Askin v. Firestone Tire &
Rubber Co., 600 F. Supp. 751, 755 (E.D. Ky. 1985) (“But the ‘pretext’ must be a
pretext for discrimination, not a pretext of some other ill-advised or unreasonable
factor, such as a personality conflict or unreasonably high but evenly applied
standards of performance.”).
In sum, White’s claim that he was illegally terminated because AJM
perceived him to have a disability cannot survive the pretext stage of the
discrimination inquiry. Therefore, AJM is entitled to summary judgment on this
White’s final claim is that AJM terminated him in retaliation for
complaining about discrimination to Miele.
“The ADA prohibits employers from ‘discriminat[ing] against any
individual because such individual has opposed any act or practice made unlawful
by this chapter.’ ” Robinson v. MGM Grand Detroit, LLC, 821 F. App’x 522, 531
(6th Cir. 2020) (citing 42 U.S.C. § 12203(a)). “A plaintiff need not actually be
disabled to assert a claim of disability retaliation. The person, however, must have
a reasonable and good faith belief that the opposed act or practice is unlawful
under the ADA.” Barrett v. Lucent Techs., Inc., 36 F. App’x 835, 840 (6th Cir.
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.560 Filed 05/18/23 Page 26 of 30
2002) (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-580 (6th Cir.
2000)). “To establish a prima facie case of retaliation . . . , a plaintiff must show
that (1) they engaged in a protected activity; (2) the employer knew of that activity;
(3) the employer took an adverse action against the plaintiff; and (4) there was a
causal connection between the protected activity and the adverse action.”
Robinson, 821 F. App’x at 531.
The second and third elements are easily established in this case. White
complained of discrimination to Miele, who was the decisionmaker in this case for
AJM. White’s employment with AJM was terminated and “[t]ermination from
employment is an adverse employment action.” Barrett, 36 F. App’x at 843.
As to the first element, “[p]rotected activity typically refers to action taken
to protest or oppose a statutorily prohibited discrimination.” Robinson, 821 F.
App’x at 532; Barrett, 36 F. App’x at 842 (explaining that “a communication may
be protected even if it is vague or inartful,” so long as the plaintiff “articulate[s]
opposition to what she reasonably believes to be unlawful activity under the
ADA”). It is undisputed that at least some of White’s communications with Miele
were to protest what White believed to be an unlawful medical examination. For
the purposes of this motion, it will be assumed that White’s belief was reasonable.
As to the fourth element, “[t]o show a causal connection, a plaintiff must
produce sufficient evidence to infer that an employer would not have taken the
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.561 Filed 05/18/23 Page 27 of 30
adverse employment action had the plaintiff not engaged in a protected activity.”
Barrett, 36 F. App’x at 841. “A causal connection may be shown by direct
evidence or by knowledge of the complaints on the part of the employer coupled
with a closeness in time sufficient to create an inference of causation.” Id. “But
temporal proximity alone generally is not sufficient to establish causation, and
generally must be coupled with other indicia of retaliatory conduct.” Eyster v.
Metro. Nashville Airport Auth., 479 F. Supp. 3d 706, 719-720 (M.D. Tenn. 2020)
(citing Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020);
Sensabaugh v. Halliburton, 937 F.3d 621, 630 (6th Cir. 2019)). “Moreover, other
facts [can] negate any inferences that may arise from the temporal proximity
between the protected activities and [the] plaintiff’s termination.” Barrett, 36 F.
App’x at 843. Ultimately, the “[p]laintiff must establish that nothing he did, such
as poor performance or attitude, precipitated the adverse employment action.”
Samadi v. State of Ohio, Bureau of Emp’t Servs., No. C2-99-563, 2001 WL
175265, at *8 (S.D. Ohio Feb. 13, 2001).
White is unable to establish element four (causal connection) of his prima
facie case. He has not put forth evidence showing that he was terminated because
he complained to Miele about the medical examination being illegal or for any
other reason related to protected conduct. Instead, the record establishes that after
White’s first conversation with Miele, Miele investigated the matter and
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.562 Filed 05/18/23 Page 28 of 30
determined that White was appropriately scheduled for a medical examination.
It was not until White called Miele approximately a dozen times in one day
(despite being asked not to do so) that he decided to terminate White. The MDCR
reviewed White’s phone records and corroborated Miele’s assertion that White
called him these many times. Ultimately, White has not produced “ ‘sufficient
evidence from which an inference could be drawn that the adverse action would
not have been taken’ had [he] not engaged in the protected activity.” Saley v.
Caney Fork, LLC, 886 F. Supp. 2d 837, 856 (M.D. Tenn. 2012) (quoting Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). Therefore, AJM is entitled
to summary judgment on White’s retaliation claim.
For the reasons set forth above, the undersigned RECOMMENDS that
AJM’s motion for summary judgment, (ECF No. 27), be GRANTED and the case
Additionally, because the undersigned considered all of White’s pending
motions, (ECF Nos. 54, 55, 56, 58, 60, 61, 62, 63), when making this
recommendation, the motions have been resolved and the Court ORDERS that the
docket reflect the same.
Dated: May 18, 2023
s/Kimberly G. Altman
KIMBERLY G. ALTMAN
United States Magistrate Judge
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.563 Filed 05/18/23 Page 29 of 30
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and
Recommendation. Any objections must be filed within 14 days of service, as
provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d).
Failure to file specific objections constitutes a waiver of any further right of
appeal. Thomas v. Arn, 474 U.S. 140, 144 (1985); Howard v. Sec’y of Health &
Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some
issues but fail to raise others with specificity will not preserve all the objections a
party might have to this Report and Recommendation. Willis v. Sec’y of Health &
Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Under Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR
72.1(d). The response must specifically address each issue raised in the objections,
in the same order, and labeled as “Response to Objection No. 1,” “Response to
Objection No. 2,” etc. If the court determines that any objections are without
Case 2:21-cv-11848-LJM-KGA ECF No. 64, PageID.564 Filed 05/18/23 Page 30 of 30
merit, it may rule without awaiting the response.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to
their respective email or First Class U.S. mail addresses disclosed on the Notice of
Electronic Filing on May 18, 2023.
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