Moore v. Defender Home Security Company

Filing 34

OPINION AND ORDER DENYING 22 Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW MOORE,
Plaintiff,
v.

CIV. NO. 15-10997
HON. TERRENCE G. BERG

DEFENDER HOME SECURITY
COMPANY,
Defendant.
________________________________/
OPINION AND ORDER DENYING DEFEDANT’S
MOTION FOR SUMMARY JUDGMENT (DKT. 22)
This is an employment discrimination case, brought under the Family and
Medical Leave Act, the American’s with Disabilities Act, and Michigan’s Persons
with Disabilities Civil Rights Act. Plaintiff Matthew Moore (“Plaintiff”) generally
alleges that Defendant Defender Home Security Company (“Defendant”)
constructively discharged him by demoting him in response to his request for
medical leave needed to address a serious back injury, and also discriminated
against him because of a disability. Defendant filed a motion for summary
judgment (Dkt. 22)
For the reasons set forth below, the Court finds that genuine issues of
material fact exist in this case. Thus, Defendant’s motion for summary judgment
(Dkt. 22) is DENIED.

I. BACKGROUND
Defendant markets, sells and installs residential and small business security
systems. On February 3, 2007, Plaintiff was hired by Defendant as a Security
Technician (Dkt. 22, Ex. A, Plaintiff’s Depo. at 77-78). Plaintiff was later promoted
to Installation Manager and, on January 5, 2011, promoted again to Regional
Director of Operations – Northeast (Id. at 117). Plaintiff’s job title later changed to
Regional Manager overseeing the “Great Lakes” region (Id.).
The events that gave rise to this litigation began when, according to
Defendant, Plaintiff’s job performance began to decline in early 2014. On February
13, 2014, Plaintiff’s new supervisor Chris Evers1 (Regional Director of Field
Services) emailed all the Regional Managers under his supervision, including
Plaintiff, the following message:
There is a lot of concern around the snapshot rate and the increasing number
of regions missing primary and minimum. I am new to the party, so I am still
trying to dig into this. We all know that install rate is the most important
KPI over everything else, so there is valid cause for concern. See attachment
for more info.
How has this number slipped away? Have we focused on Pulse, TP, and
Cameras so much that we have taken our attention off of install rate? The
increased profits we realize from Pulse and TP have been neutralized by the
decline in snapshot. At this rate, we stand to lose almost 2800 installs and $3
million in profit this year by not achieving primary snapshot.
Pat wants to discuss this on the call tomorrow, so I would like each of you to
email me and let me know what you are doing in your region to address this
issue before tomorrow morning so I can review first thing in the morning. We

1

Evers began supervising Plaintiff in February 2014 (Dkt. 22; Ex. H, Evers Dep. at 151).

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have to get back to the mentality that every job goes in! (Dkt. 22; Ex. D,
2/13/14 Email Thread, pp. 1-2).
Plaintiff responded to this email as follows:
Currently I am working hard to hold my guys accountable to the daily SM
notes required for all cancels and reschedules. This includes following up
with SM's on installs that I believe we should have saved . . . furthermore, we
embrace the 5 points of contact as process and I’m also making sure that all
new PIP's properly address failing snapshot as well. I’m also communicating
sales coaching opportunities to our leadership team whenever possible. I’m
sure there is more I can do to help this metric and am looking forward to
hearing some of the best practices shared through this upcoming discussion.
(Dkt. 22; Ex. D).
Then, Evers replied to Plaintiff:
Thanks Matt, that’s a little too vague for me.
By 10 am tomorrow I would like you to send me the branches in your region
that have concerning snapshot rates and what you are specifically going to
work on with each of those SMs. For example — Pittsburgh and Cleveland
are tanking this month. What is causing this and how are you addressing it?
(Dkt. 22; Ex. D).
Defendant claims that Plaintiff responded to this email at 10:04 a.m. the following
day.
Defendant claims that Plaintiff’s performance continued to be problematic
through May 2014. On May 6, 2014, Evers emailed Plaintiff and noted: “Currently
63% of your SAs are missing on at least 2 (or all 3) metrics and 20% are hitting
primary or better on at least 2 (or all 3) metrics. As a follow up to our discussion
earlier today, I want to give you this as a tool to help you identify the biggest
opportunities” (Dkt. 22; Ex. F, 5/6/2014 Email from Evers). Plaintiff disputes that
this email reflected negatively on his performance, and testified that – in
conjunction with this email – he and Evers discussed options, but that Evers “didn’t
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want to pursue [a Performance Improvement Plan (PIP)] at that time. He [Evers]
wanted to see how I performed in that month before we considered that route [i.e., a
PIP]” (Dkt. 22, Ex. 1 at 22).
On May 13, 2014, Evers emailed Plaintiff asking what happened when his
region again had poor performance, and Plaintiff responded: “I have a gut feeling I
have to investigate in Cleveland. I have to gather some data and conduct a
scheduled meeting with Chad tomorrow at 11 am. I’ll send you an update on my
findings tomorrow afternoon!" (Dkt. 22; Ex. G, 5/13/2014 Email Thread). Evers
responded: “That doesn't answer what happened yesterday. You lost 15 jobs and I’d
expect a better answer than that considering I asked the question 10 hours ago”
(Dkt. 22; Ex. G).
Plaintiff testified that he and Evers also discussed Plaintiff’s performance in
May 2014 on the telephone:
The beginning of May, I got a phone call from Mr. Evers concerning my — my
performance. It was with — I was in Cleveland with my manager Chad
Householder, and Mr. Evers called me and what amounted to approximately
20, 30 minute conversation where we dove deep into his concerns in my
performance...
. . . And this was the first time Chris had pointed out to me, and had actually
on that phone call threatened me with a performance improvement plan —
well, if I recall properly, it was something to the tune of, Mr. Moore, do you
know you’re eligible for a performance improvement plan? And after
reviewing that with him, I agreed, yeah, okay, I am (Dkt. 22; Ex. A at 22).
Plaintiff disputes that his performance was deficient, especially as compared
to similarly situated Regional Managers. Plaintiff contends that his peers (the
other Regional Managers supervised by Evers) actually had worse performance

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records on the sales metrics that Evers claimed were important than Plaintiff did.
Specifically, Plaintiff points to the data for Evers’ entire “Green Territory” (Dkt. 25;
Ex. 5). Plaintiff controlled Great Lakes, which he contends outpaced other regions
on various “Key Indicators” in February, March, April, and May 2014 (every month
Evers oversaw him). For example, in March 2014, Plaintiff’s Great Lakes region did
better than the North Texas and Northern California regions on 3 out of 4 metrics
(Id.). As will be seen, the Regional Managers in those two territories were retained
and coached, while Plaintiff was demoted.
Plaintiff has produced evidence that other Regional Managers received
written coaching by Evers (Dkt. 25; Exs. 6-8). However, Evers testified that he, “did
not issue any coaching or disciplinary documents” to Moore before removing him
from his position (Dkt. 25; Ex. 9) (Dkt. 22; Ex. A at 72, 341, 342). Plaintiff likewise
said that Evers did not deliver “a single, document, a single write-up, a single
verbal warning a single written warning or anything of the sort in writing saying
my performance was a concern.” Id. Indeed, other than Plaintiff, Defendant cannot
identify a single Regional Manager who was removed from his or her position
without first being given the opportunity to complete a Performance Improvement
Plan (PIP) (Dkt. 22; Ex. H, Evers Dep. at 102).
Plaintiff testified that he has suffered from “back issues” since 2008 (Dkt. 22;
Ex. 1 at 29). In April 2014, Evers permitted Plaintiff to work from home when his
back pain unexpectedly flared (Dkt. 22; Ex. A at 230). Plaintiff stated that he first
advised Defendant he would need back surgery and extended leave on May 29,

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2014, during a telephone call he made to Evers from his doctor’s office (Id. at 364365 [the “purpose of the call was to let [Evers] know that I was going to be needing
a leave”], 365 [advised Evers that leave was “needed and necessary”]). Plaintiff
testified that he called Evers to tell him that back surgery “was going to take me
out of the game for a while” (Id. at 21).
On June 2, 2014, Plaintiff followed up this phone conversation with an email
to Evers, which stated the following:
Concerning our recent discussion last week around my up and coming
surgery and scheduling my epidural appointment. The pain management
doctor seemed to only have availability on days I’m out of town (go figure).
His secretary is working on moving a couple things around to try and squeeze
me in on Friday (I'll (sic) trying to make sure she stays away from our
scheduled meetings if possible. I'll let you know.)
Also, even though my doctor seemed certain that I should have my
vertebrae’s fused together; I am seeking a second opinion on the necessity of
undergoing massive surgery. I want to be sure I'm not eligible for a less
invasive procedure that could help, without the lengthy recovery time. (Cross
your fingers for me :-) (Dkt. 22; Ex. L)
On June 3, 2014, Misty Watson, Defendant’s Employee Relations Manager emailed
Evers and noted that Plaintiff failed to timely provide feedback regarding a
customer complaint, despite her having e-mailed him, and asked Evers “[h]as he
been demoted at this point?” (Dkt. 22; Ex. M, 6/3/2014 Email between Watson and
Evers). In response to Watson’s email, Evers noted: “I am giving him the option of
resignation or demotion on Monday. Still, this should have been completed by now.
I will follow up.” (Id.).
The following Monday, June 9, 2014, Evers gave Plaintiff the option of
resignation with severance pay or demotion to Branch Manager of the Madison
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Heights, Michigan branch with a conditional PIP with stairstep goals for 30, 60 and
90 days in that branch (Dkt. 22; Ex. H at 129-130) (Dkt. 22; Ex. N, Plaintiff’s PIP).
Explaining his decision, Evers testified that the situation in Plaintiff’s region
eventually got to the point where it was “beyond repair by [Plaintiff]” (Dkt. 22; Ex.
H, Evers' Dep. at 110). As a result, Evers, Patrick Goffinet (then Vice President of
Field Services), and Ryan Michalowski (then Vice President of Human Resources)
made the decision to remove Plaintiff from his Regional Manager position, either by
demotion or resignation. More specifically, Evers testified that:
We had several branches without managers that had left or had been taken
out of their position while Matt was there. Performance was trending down.
Performance was consistently below company averages and . . . We didn’t feel
a sense of urgency from Matt to get it turned around and get it fixed, and we
did not feel that putting him on a PIP and going another 90 days at that
current rate was going to be good for the business. You know, these are
multimillion-dollar regions that our regional managers are responsible for
(Dkt. 22; Ex. H at 110).
Defendant chose not to place Plaintiff on a PIP as a Regional Manager. Rather,
Defendant demoted Plaintiff to managing a single branch office, and immediately
placed him on a PIP for his new, lesser, position. The PIP specifically provided:
“The Madison Heights branch has been below the company minimum thorough
Protection goal of $525 five out of the last six months (ending 5/31/14). The Branch
has also been below the company minimum Pulse Conversation Rate goal of 49%
every month for the last six months (ending 5/31/14)” (Dkt. 22; Ex. N, p. 1).
Plaintiff testified that when he was offered the option of demotion or
resignation, he asked Evers how the Company could take that action when he had a
clear record and no previous issues (Dkt. 22; Ex. A at 185). According to Plaintiff,
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Evers responded: “Do you know what your MPVs were[?]... That’s why” (Dkt. 22; Ex.
A at 185). Plaintiff testified that “MPVs” was an acronym that Defendant used that
meant “goals” and “stands for minimum, primary, visionary” (Dkt. 22; Ex. A at 185).
Rather than resigning, Plaintiff accepted the demotion to the Branch Manager
position (Dkt. 22; Ex. A at 193, 231-233). In this new position, instead of overseeing
Michigan, parts of Ohio and Pennsylvania, Plaintiff now managed a single branch
office, and received lower pay (Dkt. 22; Ex. A at 297).
On June 25, 2014, Evers sent Plaintiff an email recapping his performance as
branch manager in his first week in that position (Dkt. 22; Ex. O, 6/25/14 Email
from Evers). Evers wrote that Plaintiff’s “[r]esults were great” and also noted that
Plaintiff needed to “[f]ocus on health — Matt is currently dealing with a spinal
herniation and needs to get some relief in order to be in the field as much as he
should. . .” (Dkt. 22; Ex. O).
Shortly thereafter, on June 27, 2014, Plaintiff advised Human Resources that
he had an unexpected increase in his back pain and as a result had to leave the
office early (Dkt. 22; Ex. P, 6/27/14 Email from Plaintiff). Three days later, on June
30, 2014, Plaintiff formally requested FMLA leave (Dkt. 22; Ex. Q, FMLA Leave
Request).
Plaintiff’s request for FMLA leave was granted and Plaintiff was provided
with 12 weeks of FMLA leave (Dkt. 22; Ex. A, at 217, 223). On September 30, 2014,
after his 12 weeks of leave time had expired, Defendant’s benefits administrator,
The Hartford, contacted Plaintiff and stated:

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As you have exhausted the maximum time available to you, absences beyond
09/30/2014 will not be approved under FMLA and/or state leave, and you will
have no more job protected leave available.
Defender Security will be notified of the status of your leave. Please contact
your Human Resources department to discuss options available to you if you
are unable to return to work (Dkt. 22; Ex. S, 9/30/2014 Letter to Plaintiff).
Subsequently, Plaintiff was granted an extension of his leave (Dkt. 22; Ex. A at 325)
(Dkt. 22; Ex. T, 1/21/2015 Letter to Plaintiff).
On January 21, 2015, after Plaintiff exhausted 26 weeks of leave coverage,
Defendant contacted Plaintiff and stated:
Per ou[r] phone conversation on 1/6/2015, our records indicated you will
exhaust your additional 26 [weeks of] leave coverage on 1/6/2015. This
estimate is based upon all of the leave information provided to Defender as of
the date of this letter. Once you have exhausted your remaining time,
absences beyond that date will not be approved by the Defender Leave
Extension Policy. You will need to reach out to Lindsey Sexton by 1/23/2015
to discuss your return to work options as you have exhausted all leave
options available. We will need documentation to support a leave extension if
you are unable to return to work. . . if you do not contact Lindsey Sexton by
1/23/2015 . . . we will assume you have resigned from your position at
Defender Security Company (Dkt. 22; Ex. T).
Defendant did not receive documentation from Plaintiff supporting an
additional leave extension, or any notification that Plaintiff was going to return to
his position. As a result, Defendant terminated Plaintiff’s employment (Dkt. 22; Ex.
T, 2/27/2015 Termination Form).
II. ANALYSIS
A. The Standard for Summary Judgment
Summary judgment is proper “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
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of law.” See Fed. R. Civ. P. 56(a). A fact is material only if it might affect the
outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). On a motion for summary judgment, the Court must view
the evidence, and any reasonable inferences drawn from the evidence, in the light
most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Redding v. St. Edward,
241 F.3d 530, 531 (6th Cir. 2001).
The moving party has the initial burden of demonstrating an absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If the moving party carries this burden, the party opposing the motion
“must come forward with specific facts showing that there is a genuine issue for
trial.” Matsushita, 475 U.S. at 587. The Court must determine whether the
evidence presents a sufficient factual disagreement to require submission of the
challenged claims to a jury or whether the moving party must prevail as a matter of
law. See Anderson, 477 U.S. at 252 (“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”).
Moreover, the trial court is not required to “search the entire record to
establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Rather, the “nonmoving party has
an affirmative duty to direct the court’s attention to those specific portions of the

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record upon which it seeks to rely to create a genuine issue of material fact.” In re
Morris, 260 F.3d 654, 655 (6th Cir. 2001).
B. There Are Genuine Issues of Fact Concerning Plaintiff’s FMLA
Retaliation Claim
To establish a prima facie case of FMLA retaliation, a plaintiff must show
that (1) he or she engaged in an activity protected by the FMLA; (2) the employer
knew that he or she was exercising FMLA rights; (3) he or she suffered an adverse
employment action; and (4) there was a causal connection between the protected
FMLA activity and the adverse employment action. See Seeger v. Cincinnati Bell
Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012). An FMLA retaliation claim
accordingly centers around “whether the employer took the adverse action because
of a prohibited reason or for a legitimate nondiscriminatory reason,” and “[t]he
employer’s motive is relevant because retaliation claims impose liability on
employers that act against employees specifically because those employees invoked
their FMLA rights.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)
(citation and internal quotation marks omitted).
“The burden of proof at the prima facie stage is minimal; all the plaintiff
must do is put forth some credible evidence that enables the court to deduce that
there is a causal connection between the retaliatory action and the protected
activity.” Seeger, 681 F.3d at 283 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th
Cir. 2007)); see also EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.
1997) (noting that plaintiff's burden of establishing a prima facie case is not an
onerous one). The Sixth Circuit has held that “acutely” close temporal proximity
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between the protected activity and the adverse employment action “is deemed
indirect evidence such as to permit an inference of retaliation[.]” Id. at 283–84
(quoting DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004)).
The McDonnell Douglas burden-shifting framework apples to FMLA
retaliation claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus, after the plaintiff establishes a prima facie
case of FMLA retaliation, the burden shifts to the defendant to establish a
legitimate, nondiscriminatory reason for its action. Id. If the defendant sets forth a
legitimate, nondiscriminatory reason for the adverse employment action, the
burden then shifts back to the plaintiff to establish pretext by showing that the
employer’s proffered reasons (1) have no basis in fact, (2) did not actually motivate
the action, or (3) were insufficient to warrant the action. See Seeger, 681 F.3d at
285 (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). The plaintiff
“bears the burden of producing sufficient evidence from which the jury could
reasonably reject [the defendant’s] explanation and infer that the defendant [ ]
intentionally discriminated against him.” Id. (quoting Clark v. Walgreen Co., 424
Fed. App’x. 467, 474 (6th Cir. 2011)). Despite the fact that temporal proximity may
be sufficiently close to establish a causal connection in the prima facie case,
“temporal proximity cannot be the sole basis for finding pretext.” Seeger, 681 F.3d at
285 (quoting Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012)). “Suspicious
timing,” however, may be “a strong indicator of pretext when accompanied by some

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other, independent evidence.” Id. (quoting Bell v. Prefix, Inc., 321 Fed. App’x. 423,
431 (6th Cir. 2009)).
The Court finds that Plaintiff has met his minimal burden of proof to
establish a prima facie case of FMLA retaliation. Plaintiff testified that on May 29,
2014, he telephoned his supervisor (Evers) from his doctor’s office and informed him
that he would likely need back surgery and leave time to recover. Plaintiff then
followed up this phone conversation with an email to Evers on June 2, 2014. On
June 9, 2014 (a week later), Evers gave Plaintiff the option of resigning or accepting
a demotion to managing a single branch office. Viewing this evidence in a light
most favorable to Plaintiff, the proximity of Plaintiff’s invocation of his leave rights
and his supervisor’s decision to demote him establish a prima facie case of
retaliation. “[C]lose temporal proximity between protected conduct and an adverse
action may be sufficient on its own to raise an inference of causation.” Benison v.
Ross, 765 F.3d 649, 661 (6th Cir. 2014); Mickey v. Zeidler Tool & Die Co., 516 F.3d
516, 525 (6th Cir. 2008) (close temporal proximity “is significant enough to
constitute evidence of a causal connection for the purposes of satisfying a prima
facie case of retaliation”); Blosser v. AK Steel Corp., 520 Fed. App’x. 359, 363-64 (6th
Cir. 2013). Defendant argues that Plaintiff’s phone call to Evers from his doctor’s
office and follow-up email did not say enough to invoke his FMLA protections.
Specifically, Defendant asserts that Plaintiff simply flagged his “potential” need for
leave in the future, not his immediate need for medical leave. Viewing the evidence
in the light most favorable to Plaintiff, Defendant’s position is not tenable. Plaintiff

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testified that he told Evers that he needed to take actual leave (Dkt. 22, Ex. A,
Moore Dep. 365 Line 13) (advised leave was “needed and necessary”). While
Plaintiff may not have requested FMLA leave by name, an “employee need not
expressly assert rights under the FMLA or even mention the FMLA,” 29 C.F.R. §
825.303(b) it is sufficient to give “the employer enough information for the employer
to reasonably conclude that an event described in FMLA § [2612(a)(1)(D)] has
occurred.” Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999). The
facts here were sufficient to give Defendant enough information to conclude that
Plaintiff sought FMLA leave.
Having established a prima facie case, the burden accordingly shifts to
Defendant to show a legitimate nondiscriminatory reason for Plaintiff’s demotion.
Here, Defendant contends that Plaintiff’s poor performance was a legitimate reason
for his demotion. However, viewing the evidence again in the light most favorable
to Plaintiff, it is sufficient to give rise to an inference of retaliation. First, the
timing of Plaintiff's demotion—a week after he informed his supervisor that he
likely needed leave to have major back surgery—is highly suggestive of a causal
relationship. The close temporal proximity suggests that Plaintiff’s leave request,
not his performance, was the reason his demotion. This is some evidence of pretext.
Temporal proximity, however, is not the only evidence in the record showing
pretext; there is also evidence of disparate treatment compared with similarly
situated employees. Plaintiff has adduced evidence showing that he was singled out
for removal from his position even though he performed better on several metrics

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than a number of his peers. For example, another regional manager, Sabrina
Anderson, was not demoted until November 2014, and only after receiving the
opportunity to complete a warning PIP but failing to deliver on it (Dkt. 25; Ex. 11).
Plaintiff was demoted without being first placed on a PIP. Furthermore, Plaintiff
has presented some evidence suggesting that the Great Lakes region he managed
was outperforming peer regions (North Texas, Northern California), while the
Regional Managers for those territories were not removed from their positions. In
addition, when Evers did take action regarding those Regional Managers, he used
PIPs (Dkt. 24, Exs. 11, 12) and coached them (Dkt. 24, Exs. 6-8). Evers admitted
during his deposition that regarding Plaintiff, unlike with the other managers, he
“did not issue any coaching or disciplinary documents” before removing him from
his position (Ex. 9). This evidence allows an inference that Defendant was imposing
a higher standard on Plaintiff than on the other Regional Managers.
This record reveals the presence of genuine issues of material fact. Plaintiff
has presented sufficient evidence to permit his FMLA claim to go to a jury.
Defendant’s motion for summary judgment is denied as to Plaintiff’s FMLA claim.
C. There Are Genuine Issues of Fact Concerning Plaintiff’s ADA
Claim
The ADA prohibits discrimination because of disability against “a qualified
individual with a disability,” 42 U.S.C. § 12112(a), and defines “discrimination” to
include “not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability,” id. §
12112(b)(5)(A). The Act further defines “reasonable accommodation” to include
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(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to
a vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training materials
or policies, the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities.
Id. § 12111(9).
As with the FMLA claim discussed above, Plaintiff must first establish a
prima facie case of disability discrimination by showing that: (1) he is disabled, (2)
he was otherwise qualified for the Regional Manager position, with or without
reasonable accommodation, (3) he suffered an adverse employment decision, (4)
Defendant knew or had reason to know of his disability, and (5) the position
remained open while Defendant sought other applicants or Plaintiff was replaced.
See Ferrari v. Ford Motor Co., ___ F.3d ___, 2016 WL 3443646, at *6 (6th Cir. June
23, 2016). “Establishing a prima facie case of discrimination under the indirect
method is not onerous.” Id. (internal quotations and citations omitted). If Plaintiff
satisfies this burden, the burden shifts to Defendant to offer a legitimate
explanation for its decision to remove Plaintiff from the Regional Manager position.
If Defendant does so, the burden then shifts back to Plaintiff, who must introduce
evidence showing that the proffered explanation is pretextual. Id. (internal
quotations and citations omitted).
As with Plaintiff’s FMLA claim discussed above, the evidence set forth by
Plaintiff is sufficient to meet his minimal burden of proof to establish a prima facie
case of disability discrimination. Unquestionably, Plaintiff’s back condition was
16

disabling to him. He was otherwise qualified for the Regional Manager position, as
he successfully held that job for over three years prior to his demotion. Plaintiff’s
demotion was an adverse employment decision. Defendant certainly knew about
Plaintiff’s back condition. And, Plaintiff was replaced by another Regional
Manager. These facts establish a prima facie case of disability discrimination.
Defendant’s argument that it is entitled to summary judgment on Plaintiff’s
ADA claim closely mirrors its argument concerning Plaintiff’s FMLA claim. That is,
Defendant asserts that it had legitimate non-discriminatory reasons for demoting
Plaintiff (e.g., his allegedly poor performance) that were unrelated to his disability.
To survive a motion for summary judgment, Plaintiff need not definitively prove
that Defendant’s reason is pretextual, but rather must prove only enough to create
a genuine issue as to whether the rationale is pretextual. See Ferrari, supra, at *7.
As discussed above, there are disputed issues of fact concerning the motivations
behind Plaintiff’s demotion. Plaintiff has adduced sufficient evidence that he was
treated differently than his peer regional managers, thus creating genuine issues
that must be resolved by a fact-finder. Therefore, Defendant’s motion for summary
judgment concerning Plaintiff’s ADA claim is likewise denied.
III. CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment
(Dkt. 22) is DENIED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: June 28, 2016
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Certificate of Service
I hereby certify that this Order was electronically submitted on June 28,
2016, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager

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