Cook v. Warren Screw Products, Inc.

Filing 22

OPINION and ORDER re 16 MOTION for Summary Judgment Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL E. COOK,
Plaintiff,

Case No. 22-11494

v.

Honorable Nancy G. Edmunds

WARREN SCREW PRODUCTS, INC.,
Defendant.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [16]
This is an employment discrimination case in which Plaintiff Paul E. Cook brings
discrimination, failure to accommodate, and retaliation claims under the Americans with
Disabilities Act (“ADA”) against his former employer, Warren Screw Products, Inc.
(“Defendant”). The matter is before the Court on Defendant’s motion for summary
judgment.1 (ECF No. 16.) Plaintiff opposes the motion. (ECF No. 19.) Defendant has filed
a reply. (ECF No. 21.) Pursuant to Eastern District of Michigan Local Rule 7.1(f)(2),
Defendant’s motion will be decided on the briefs and without oral argument. For the
reasons below, the Court GRANTS Defendant’s motion for summary judgment.
I.

Background
Plaintiff began his employment with Defendant on September 20, 2021, as a

delivery truck driver. (ECF No. 16-3, PageID.154.) During his fourth day on the job, a
Thursday, he became sick. (Id. at PageID.159.) He testified that he walked into the office

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Plaintiff initially brought state law claims along with the ADA claims, but the Court
declined to exercise supplemental jurisdiction over those claims and dismissed them
without prejudice. (ECF No. 3.) Thus, the Court will not address the state law claims
despite the parties doing so in their briefing.
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of Tom Shelton, Defendant’s materials manager, and told him that he wasn’t feeling well
due to stomach issues. He did not ask to leave work. He further testified that he was “in
and out of the bathroom the rest of the day” due to diarrhea and stomach cramps. (Id. at
PageID.159-60.) He continued to work that day as well as the next day despite continuing
to have stomach issues. Plaintiff did not have any further discussions with Mr. Shelton
regarding his health on those days. Near the end of the workday on Friday, Mr. Shelton
told Plaintiff that he expected him to come into work the next day. That conversation
revealed a schism between the two with Plaintiff indicating that he thought he would only
have to work on Saturdays occasionally and Mr. Shelton informing him that he had to
work every Saturday. (Id. at PageID.164.) Despite this, Plaintiff worked that Saturday,
although the diarrhea made it “rough.” (Id. at PageID.167-68.)
Plaintiff did not come into work on Monday, September 27. He testified that he had
an accident with diarrhea on his way to work, so he called and left a voicemail saying he
was not coming in that day. (Id. at PageID.169.) He sent text messages to Mr. Shelton
that day and the next day, stating he was still having stomach issues and would not be
coming to work. (ECF No. 16-13.)
Plaintiff visited his doctor on Wednesday, September 29, and was prescribed
antibiotics. (ECF No. 16-3, PageID.170.) Plaintiff testified that his doctor thought he had
some kind of stomach bug or stomach virus. Plaintiff texted Mr. Shelton, who told him to
maintain all further communications with Ciara Kane, Defendant’s human resources
manager. (ECF No. 16-13.) Plaintiff emailed Ms. Kane a doctor’s note stating that he was
seen on September 29, 2021, may return to work on October 6, 2021, and will be out of

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work from September 27, 2021, to October 5, 2021. (ECF No. 16-7.) The note did not
contain any information regarding his health condition.
On the morning of October 4th, Plaintiff sent an email to Ms. Kane stating, “I have
a Dr. Appt. today at 2:30. I will inform you of my visit when I get out.” (ECF No. 16-8.)
Plaintiff testified that he went back to see his doctor because he still was not feeling well.
(ECF No. 16-3, PageID.190.) Plaintiff’s doctor told him to keep taking antibiotics. (Id. at
PageID.246.) Plaintiff was given another doctor’s note during that visit, which stated that
he had been seen on October 4, 2021, may return to work on October 11, 2021, and will
be out of work from September 27, 2021, to October 10, 2021. (ECF No. 16-9.) Again,
the note did not contain any detail about Plaintiff’s medical condition. Plaintiff emailed
pictures of the note to Ms. Kane that evening with the subject line “Work” and a message,
“Please let me know if you get this. Thank you.” (ECF No. 16-8.)
After receiving the second note, Ms. Kane called Plaintiff and asked if he could
work a limited schedule to complete mandatory deliveries, because Defendant had been
utilizing expeditors and other services to make those deliveries, which was very costly.
(ECF No. 16-10, PageID.315.) Ms. Kane testified that Plaintiff rejected this idea and
stated that he could not work “unless there’s a toilet in the truck.” (Id.)
On October 5, Ms. Kane responded to Plaintiff’s email as follows: “Thank you for
providing the attached note, it has been received. We do need the company truck keys
and gas card back ASAP. We can not hold off on the position job duties until 10/10/2021.
When are you able to drop those off?” (ECF No. 16-8.) Plaintiff responded by asking, “I’m
assuming I’m fired?” (ECF No. 16-11.) Ms. Kane responded by stating, “We are working
to determine how to move forward now. A final decision has not been made regarding

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your employment status. We are requesting the company property in order to continue
business operations while we come to a decision.” (Id.) Plaintiff’s response was: “The
keys are in the grey desk with the scale. The gas card is in the truck.” (Id.) Ms. Kane
questioned why the items were left in those locations and Plaintiff stated that Mr. Shelton
told him to put them there. (Id.) Mr. Shelton denied telling Plaintiff to leave the keys in the
desk and testified that he asked Ms. Kane to contact Plaintiff about the keys when he
could not find them. (ECF No. 16-12, Page.372-74.) Mr. Shelton stated that he would not
have the truck keys placed near the entrance where employees come in and out and that
drivers usually keep the keys with them. (Id.)
On Friday, October 8, Plaintiff went to the facility to pick up his paycheck. (ECF
No. 16-3, PageID.200.) He told Ms. Kane that he was feeling better and would be coming
to work the following Monday, but Ms. Kane told him, “we don’t need you anymore.” (Id.
at PageID.201.) Ms. Kane testified that Plaintiff was terminated because by leaving the
keys and card onsite, he was indicating that he did not want to return to work. (ECF No.
16-10, PageID.309, 331.)
Plaintiff now alleges that his termination was unlawful disability discrimination and
retaliation. Plaintiff also claims that Defendant failed to accommodate him by not giving
him a modified responsibility list or honoring his return-to-work date.
II.

Summary Judgment Standard
Summary judgment under Federal Rule of Civil Procedure 56(a) is proper when

“there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” When reviewing the record, “‘the court must view the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in its

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favor.’” United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir.
2013) (quoting Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)).
Furthermore, the “‘substantive law will identify which facts are material,’ and ‘summary
judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 327
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party
bears the initial burden “of establishing the ‘absence of evidence to support the
nonmoving party’s case.’” Spurlock v. Whitley, 79 F. App’x 837, 839 (6th Cir. 2003)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “Once the moving party has
met its burden, the nonmoving party ‘must present affirmative evidence on critical issues
sufficient to allow a jury to return a verdict in its favor.’” Id. at 839 (quoting Guarino v.
Brookfield Twp. Trs., 980 F.2d 399, 403 (6th Cir. 1992)).
III.

Analysis
The ADA prohibits discrimination against a qualified individual based on disability.

42 U.S.C. § 12112(a). Disability discrimination includes a failure to make reasonable
accommodations. § 12112(b)(5)(A). The ADA also prohibits retaliation. § 12203(a). The
Court addresses each of Plaintiff’s claims in turn.
A.

Discrimination

When there is no direct evidence of discrimination, claims are analyzed under the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). See Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 319-20
(6th Cir. 2019). The plaintiff must first establish a prima facie case of discrimination by
showing that (1) he was disabled, (2) he was otherwise qualified for the position, with or

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without reasonable accommodation, (3) he suffered an adverse employment decision,
(4) the employer knew or had reason to know of the disability, and (5) he was replaced
or the position remained open. See id. at 320 (citation omitted). The burden of proof then
shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions.
McDonnell Douglas, 411 U.S. at 802. Once the employer articulates such a reason, the
burden of proof returns to the plaintiff to rebut the proffered reason by showing it was a
pretext for discrimination. Id. at 804.
The term “disability” is defined in the ADA as: “(A) a physical or mental impairment
that substantially limits one or more major life activities of [an] individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). Plaintiff argues that a reasonable jury could find that he was disabled under
the first or third definitions. The Court disagrees.
Plaintiff attempts to draw an analogy between this case and Shields v. Credit One
Bank, N.A., 32 F.4th 1218, 1225 (9th Cir. 2022), where the court held that a temporary
impairment can satisfy the first definition of disability, known as “actual disability.” But that
holding did not alter the requirement that such an impairment substantially limit one or
more major life activities. See id. “[M]ajor life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” § 12102(2)(A). “[A] major life activity also includes the
operation of a major bodily function, including but not limited to, functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.” § 12102(2)(B). Here, Plaintiff does not

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identify how any physical impairments he had impacted one or more of his major life
activities. To the extent Plaintiff suggests he was unable to make deliveries due to his
need to use the bathroom, a plaintiff is not considered disabled simply because he is
“unable to perform a discrete task or a specific job.” See Booth v. Nissan N. Am., Inc.,
927 F.3d 387, 394 (6th Cir. 2019) (citation omitted). Instead, a plaintiff must show that his
impairment limits his ability “to perform a class of jobs or a broad range of jobs.” Id. Plaintiff
has not even attempted to make this showing. And to the extent Plaintiff’s health problem
affected his digestive or bowel functions, Plaintiff does not argue that it substantially
limited those functions. Moreover, “the duration of an impairment” remains a relevant
factor in determining whether it substantially limits a major life activity. See 29 C.F.R. Pt.
1630, App’x, § 1630.2(j)(1)(ix) (noting that “[i]mpairments that last only for a short period
of time are typically not covered [by the first prong of the definition of disability], although
they may be covered if sufficiently severe”) (internal quotation marks and citation omitted).
Plaintiff’s impairments admittedly lasted a short period of time, and as discussed above,
were not sufficiently severe. Thus, a reasonable jury could not conclude that Plaintiff had
an actual disability as defined in the ADA.
With regard to the third definition, “[a]n individual meets the requirement of ‘being
regarded as having such an impairment’ if the individual establishes that he or she has
been subjected to an action prohibited under [the ADA] 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.” § 12102(3)(A). This provision does “not apply to impairments that
are transitory and minor. A transitory impairment is an impairment with an actual or
expected duration of 6 months or less.” § 12102(3)(B).

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Plaintiff characterizes the fact that Defendant called and asked him to come back
to work on a reduced schedule prior to the date on his doctor’s note as a “subpar ‘attempt’
to accommodate him” and argues that this shows he was regarded-as-disabled. (See
ECF No. 19, PageID.458.) But the fact that Defendant asked him to come back to work
actually cuts against his argument, since the regarded-as-disabled prong is meant “to
allow individuals to be judged according to their actual capacities, rather than through a
scrim of myths, fears, and stereotypes accruing around a perceived impairment.”2 See
Neely v. Benchmark Family Servs., 640 F. App’x 429, 436 (6th Cir. 2016) (internal
quotation marks and citation omitted). Moreover, as Defendant notes, any impairments
associated with Plaintiff’s health condition were “transitory and minor.” See § 12102(3)(B).
At least one other court has found a virus that may give rise to diarrhea analogous to the
flu, which falls within the “transitory and minor” exception. See Lewis v. Fla. Default Law
Grp., P.L., No. 8:10-cv-1182, 2011 U.S. Dist. LEXIS 105238, at *21-25 (M.D. Fla. Sept.
16, 2011) (citing to the 2008 House Judiciary Committee Report, p. 18, which explained
that “absent this exception, the third prong of the definition would have covered individuals
who are regarded as having common ailments like the cold or flu, and this exception
responds to concerns raised by members of the business community regarding potential
abuse of this provision and misapplication of resources on individuals with minor ailments
that last only a short period of time”). Thus, Plaintiff cannot establish that he was
regarded-as-disabled.

2

This intention was expressed by Congress when it passed the original ADA.
When passing the ADA Amendments Act of 2008, Congress indicated it continued to hold
that view. See 29 C.F.R. Pt. 1630, App’x, § 1630.2(l) (citation omitted).
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Because Plaintiff has not shown that there is a genuine issue of material fact as to
whether he had a disability, he cannot establish a prima facie case of disability
discrimination.3 Defendant is therefore entitled to summary judgment on this claim.
B.

Failure to Accommodate

To establish a prima facie failure to accommodate claim, the plaintiff must show
that (1) he was disabled within the meaning of the ADA; (2) he was otherwise qualified
for the position, with or without reasonable accommodation; (3) the employer knew or had
reason to know about his disability; (4) he requested an accommodation; and (5) the
employer failed to provide the necessary accommodation. Brumley v. United Parcel Serv.,
Inc., 909 F.3d 834, 839 (6th Cir. 2018) (citations omitted). Once the plaintiff establishes
his prima facie case, the burden shifts to the employer to prove that a proposed
accommodation would impose an undue hardship on the employer. See id.
As discussed above, there is no evidence that Plaintiff was disabled or regardedas-disabled within the meaning of the ADA. Moreover, to the extent Plaintiff argues he
was regarded-as-disabled, such a finding would necessarily defeat his failure to
accommodate claim. See Baker v. Windsor Republic Doors, 414 F. App’x 764, 774-76
(6th Cir. 2011) (affirming the district court’s reliance on Workman v. Frito-Lay, Inc., 165
F.3d 460, 467 (6th Cir. 1999), to hold “that binding Sixth Circuit precedent mandate[s]
‘that a regarded-as disability finding would obviate the employer’s obligation to reasonably
accommodate the plaintiff’” (quoting Baker v. Windsor Republic Doors, No. 1:06-cv01137, 2009 U.S. Dist. LEXIS 37176, at *30 (W.D. Tenn. May 1, 2009))). Thus, Plaintiff

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Due to this finding, the Court need not address the parties’ arguments regarding
the second and fourth elements of Plaintiff’s prima facie case or the issue of whether
Defendant’s proffered reason for the termination was a pretext for discrimination.
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cannot establish a prima facie failure to accommodate case,4 and Defendant is entitled
to judgment as a matter of law on this claim as well.
C.

Retaliation

To prove retaliation under the ADA, the plaintiff need not prove that he had a
disability. See Baker, 414 F. App’x at 777 n.8. Instead, he must show that 1) he engaged
in protected activity, 2) he suffered an adverse employment action; and 3) there was a
causal connection between the protected activity and the adverse action. Penny v. United
Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997). When there is no direct evidence of
retaliation, a plaintiff’s claim is analyzed under the burden-shifting framework articulated
in McDonnell Douglas Corp., 411 U.S. at 802-04, which is described above.
Plaintiff argues that the submission of his doctor’s notes constituted protected
activity. While the Sixth Circuit has held “that requests for accommodation are protected
acts,” see A.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013), the
question

is

whether

Plaintiff

made

“a

‘good-faith

request

for

reasonable

accommodations,’” see id. at 698 (quoting Baker, 414 F. App’x at 777 n.8). “‘[M]edical
leave can constitute a reasonable accommodation’ under certain circumstances.” King v.
Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 561 (6th Cir. 2022) (quoting Williams

4

Because Plaintiff cannot meet the first prong of his prima facie case, the Court
need not address the remaining elements. The Court notes, however, that to the extent
Plaintiff now argues he could have been given a modified responsibility list, there is no
evidence in the record to suggest that he requested such an accommodation. It is the
employee who bears the burden of proposing reasonable accommodations. Johnson v.
Cleveland City Sch. Dist., 443 F. App’x 974, 983 (6th Cir. 2011). And when Defendant
asked Plaintiff if he could work a reduced schedule prior to the return date on his doctor’s
note, he dismissed this possibility. Thus, he did not engage in the interactive process with
his employer. See Brumley, 909 F.3d at 839-41 (finding that the plaintiff did not state a
prima facie failure to accommodate claim because she voluntarily abandoned the
interactive process with her employer).
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v. AT&T Mobility Servs. LLC, 847 F.3d 384, 394 (6th Cir. 2017)). To assess
reasonableness, courts consider “(1) the amount of leave sought; (2) whether the
requested leave generally complies with the employer’s leave policies; and (3) the nature
of the employee’s prognosis, treatment, and likelihood of recovery.” Id. at 562.
Here, Plaintiff submitted two bare-bones doctor’s notes with no accompanying
explanation regarding his health condition. Thus, the record does not give rise to an
inference that Plaintiff made a good faith request for a reasonable accommodation. Cf.
Hopper v. Bernstein Allergy Grp., Inc., No. 1:18-cv-671, 2020 U.S. Dist. LEXIS 86688, at
*28 (S.D. Ohio May 18, 2020) (finding that a reasonable jury could conclude that a request
for time off constituted a good-faith request for a reasonable accommodation when the
plaintiff told her supervisors that she was unable to return to work because she had been
admitted to the hospital for chest pain, her stress test result was abnormal, and she was
going to undergo further testing; her doctors would provide her with a release to return to
work narrative; and she could provide additional medical documentation). Because
Plaintiff did not engage in protected activity, he cannot establish a prima facie ADA
retaliation case.5 Defendant is therefore entitled to summary judgment as to this claim.
IV.

Conclusion
For the reasons above, Defendant’s motion for summary judgment is GRANTED.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

Dated: February 5, 2024

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Due to this finding, the Court need not address the issues of causation and

pretext.
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I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 5, 2024, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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