Sanders v. Judson Center, Inc

Filing 22

ORDER Granting Defendant's 15 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sandra Sanders,
Plaintiff,
v.

Case No. 13-cv-12090
Hon. Judith E. Levy
Mag. Judge Paul J. Konives

Judson Center, Inc.,
Defendant.
________________________________/
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [15]
This is an employment discrimination case. Pending is defendant
Judson Center, Inc.’s motion for summary judgment under Fed. R. Civ.
P. 56. (Dkt. 15.)
I.

Background
Defendant is a nonprofit human service agency providing services

to disabled individuals identified as “consumers”.

Plaintiff was

employed as a Job Coach beginning in May 2008. Her duties included
monitoring, assisting, and training consumers in job tasks, tending to

and monitoring consumers at all times, and assisting with the transport
of consumers as needed.
A. Plaintiff’s Alleged Disability
On December 1, 2009, plaintiff had a heart attack, and was
hospitalized through December 4, 2009. Plaintiff was in the hospital
twice more for heart-related conditions in January and March of 2010.
As a result of her heart condition, plaintiff was prescribed several
medications.

In late 2009, plaintiff was prescribed Lisinopril, an ace

inhibitor used to rid the body of fluid, and in October 2011, plaintiff was
prescribed hydrochlorothiazide, which is used to treat high blood
pressure. This medication causes the kidneys to eliminate unneeded
water and salt from the body through urination.
Plaintiff alleges she is disabled based on this medical history, and
that her disability is a mix of her heart condition and the side effects of
the medications she is required to take that cause her to urinate on a
frequent and sometimes urgent basis.
B. Plaintiff’s Job Duties
On May 28, 2008, plaintiff acknowledged her Job Coach
Responsibilities, which stated in relevant part that “[y]ou are to remain
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with your consumer for the entire work shift” and “[i]f you must leave
the consumer for any reason, you must make sure that the consumer is
supervised by someone who knows the consumer and does not have
other consumers that may take their attention from your one-on-one
assignment.” (Dkt. 15-5, at 2.)
On May 23, 2012, following an incident where another Judson
Center employee left a consumer at a job site, defendant instituted new,
stricter standards setting forth the level of supervision each consumer
required. Plaintiff attended the meeting where these standards were
announced. There, she acknowledged that the consumers at her job site
required “line of sight” supervision.

During that meeting, plaintiff

informed her supervisor that she was on prescription medication that
requires her to “go to the bathroom,” and her supervisor responded that
she was permitted to use the bathroom during her shift. Plaintiff had
another conversation concerning her medication with management
earlier in 2012; the earlier conversation mirrored the May 23rd
conversation.

Those are the only times plaintiff discussed this

particular topic with her employer, and plaintiff’s description of her

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condition focused on frequent urination and made no mention of her to
need to urinate suddenly or without notice.
In response to plaintiff and other employees who asked the same
question, defendant explained what employees should do when they
need to use the restroom while supervising line-of-sight consumers.
Employees were instructed to ask another person at a defendantaffiliated site to watch the consumer temporarily, or the employee was
to bring the consumer into the restroom.
C. The May 29, 2012 Incident and Subsequent Termination
On the night of May 29, 2012, plaintiff was transporting two
consumers who required line-of-sight supervision home from a job site
in a van. Plaintiff states she was overcome with an urgent need to
urinate, and stopped the van at a gas station in Southfield, Michigan to
use the restroom.

While plaintiff used the restroom, one of the

consumers exited the van, entered the gas station, and attempted to go
grocery shopping. Plaintiff was able to intervene and get the consumer
back on the van, and thereafter she drove both consumers to the Judson
Center.

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On May 31, 2012, plaintiff filed an incident report, which she
submitted to her supervisors at the Judson Center. In that report, she
stated that she urgently needed to use the restroom and that one of the
consumers got off of the van while she was in the restroom. She then
stated that upon exiting the restroom, she found the consumer carrying
merchandise inside the gas station.
Latacha Shelton, an Employment Specialist at the Judson Center,
received the report that day. Shelton discussed the report with the
second consumer on the van. That consumer stated that plaintiff asked
both consumers to stay in the van, and that she had followed directions
and remained on the van listening to the van’s radio.
Based on plaintiff’s report and Shelton’s discussion with the other
consumer, Dan Robin, Judson’s Manager of Supported Employment,
completed a Notice of Disciplinary Action later the same day. Robin
reviewed the Notice with plaintiff and Shelton, and then terminated
plaintiff for violating the line of sight rule.
On June 8, 2012, plaintiff sent defendant a letter contesting her
termination. The letter set forth the employer’s stance on using the
bathroom during the workday, and provided a recitation of the events
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consistent with plaintiff’s May 31st incident report. She then stated
that Robin may have been confused about the nature of his instructions
to her when she asked about using the restroom on shift, and that
plaintiff was actually inquiring about what to do if she needed to relieve
herself while transporting consumers.
On June 11, 2012, Sheri Smith, the Human Resources Manager
for the Judson Center, discussed the situation with plaintiff, including
the contents of her June 8th letter.

On July 5, 2012, Smith sent

plaintiff a letter reaffirming the results of defendant’s investigation,
and reaffirming plaintiff’s termination.

The stated reason for the

termination was plaintiff leaving two line-of-sight consumers in a van
alone. Defendant reasoned that plaintiff left the keys in the van as
well, based on the second consumer’s statement that she listened to the
radio while plaintiff was inside the gas station.
Plaintiff filed suit on May 10, 2013, alleging violations of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”),
M.C.L. § 37.1101 et seq.

In her deposition testimony and summary

judgment briefing, plaintiff additionally contends that 1) she took the
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van keys with her when she went into the gas station; 2) she asked the
gas station attendant to keep an eye on the consumers while she used
the bathroom; and 3) she kept the bathroom door open while she was
inside the gas station so she could observe the consumers.

Oral

argument was held on this motion on July 11, 2014, and this motion is
now ready for decision.
II.

Standard
Summary judgment is proper where “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). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248. 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) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).

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III.

Analysis

Plaintiff claims that defendant violated both the ADA and the
PWDCRA by discriminating against her on the basis of her disability.
The PWDCRA “substantially mirrors the ADA, and resolution of a
plaintiff's ADA claim will generally, though not always, resolve the
plaintiff's PWDCRA claim.” Cotter v. Ajilon Servs., Inc., 287 F.3d 593,
597 (6th Cir. 2002).
The first step in assessing both claims is to begin with the general
framework for determining whether plaintiff has stated a claim under
the ADA. See Id. at 598; Donald v. Sybra, Inc., 667 F.3d 757, 764.
Plaintiff has provided no direct evidence of intentional discrimination
based on disability, so she must first establish a prima facie case of
discrimination based on circumstantial evidence.

See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); Talley v. Family
Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). To
establish her case, plaintiff must make five showings: “she was
disabled; she was otherwise qualified to perform the essential functions
of her job; she suffered an adverse employment action; her employer
knew or had reason to know of her disability; and either the position
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remained open or a non-disabled person replaced her.”

Gecewicz v.

Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012).1
“Disability” under the ADA is defined as: “(A) a physical or mental
impairment that substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment[.]” 42 U.S.C. § 12101(1). The
inquiry into whether a person is disabled under the ADA is thus a twopart inquiry: first, whether an impairment exists; second, if the
impairment exists, whether it substantially limits one or more major
life activities.
A physical impairment consists of “[a]ny physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or
more body systems, such as neurological, musculoskeletal, special sense
organs,

respiratory

(including

speech

organs),

cardiovascular,

There has been “confusion in this circuit concerning the proper test for
establishing a prima facie case of employment discrimination under the
ADA.” Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). Some
courts have applied a three-step test requiring only 1) a showing of a
disability; 2) a showing that the plaintiff was otherwise qualified to
perform a job’s requirements with or without an accommodation; and 3)
discharge solely by reason of the disability. Id. The Sixth Circuit has
clarified that the five-step test above is the proper one where a plaintiff
does not have direct evidence of disability discrimination. Id.

1

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reproductive, digestive, genitourinary, immune, circulatory, hemic,
lymphatic, skin, and endocrine[.]” 29 C.F.R. § 1630.2(h)(1).
Plaintiff contends that her impairment consists of her heart
condition, and is evidenced by her multiple hospitalizations for heart
attacks and related cardiovascular events. Plaintiff further argues that
the heart condition requires her to take medication which causes her to
experience sudden or urgent urination.

For the purposes of her

employment discrimination claim, plaintiff claims that the relevant
impairment is the heart condition itself, and she implies that she is
substantially limited in the major life activity of urination caused by
medication. In the alternative, plaintiff appears to argue that frequent
urination caused by medication is her impairment.
Courts have addressed the question of whether the effects of a
treatment for a condition may constitute an impairment, even if the
underlying condition is not itself an impairment.

See Sulima v.

Tobyhanna Army Depot, 602 F.3d 177, 186-87 (3rd Cir. 2010) (citing
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052 (7th Cir.
1997)); see also Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894
(8th Cir.1999); Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 912 (11th
10

Cir.1996).

The plaintiff must show that “(1) the treatment is required

in the prudent judgment of the medical profession, (2) the treatment is
not just an attractive option, and (3) that the treatment is not required
solely in anticipation of an impairment resulting from the plaintiff's
voluntary choices.” Sulima, 602 F.3d at 186 (citing Christian, 117 F.3d
at 1052) (internal quote marks omitted).

The Court adopts this

standard in assessing plaintiff’s claims.
The record shows that plaintiff’s medication is required by her
doctor in order to treat her underlying heart condition. There is no
indication that plaintiff has chosen this medication as an attractive
option in alternative to some other treatment that would not result in
urination issues.

Likewise, there is no indication that plaintiff’s

treatment is required solely in anticipation of an impairment resulting
from her voluntary choices; it is instead required to treat a condition
already in existence.

Taking the facts alleged in the light most

favorable to plaintiff as the non-moving party, plaintiff has raised a
genuine issue of material fact regarding whether she has a physical
impairment consisting of her sudden need to urinate, caused by her
medication, as required by the ADA.
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Next, plaintiff must show that due to the impairment, she is
substantially limited in a major life activity. Plaintiff argues that she is
limited in “walking, standing, and such activities,” and offers as
evidence a September 2011 return to work letter from her treating
physician. (Dkt. 16-7, at 2.) At oral argument, plaintiff also argued
that she was impaired in the major life activity of thinking. Walking,
standing, and thinking are undeniably major life activities under the
ADA.

See 29 C.F.R. § 1630.2 (i)(1)(i).

The Court must determine

whether plaintiff has raised a material question of fact related to
whether she is substantially limited in these major life activities “as
compared to most people in the general population.”

29 C.F.R. §

1630.2(j)(ii).
“[T]he plaintiff's evidence that his or her impairment is
substantially limiting must derive from his or her own experience.”
McPherson v. Fed. Express Corp., 241 F. App'x 277, 282 (6th Cir. 2007)
(citing Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 198
(2002)).

Deposition testimony from the plaintiff or a medical

professional as to the limitations is sufficient to survive summary
judgment. See Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996)
12

(holding that there was a genuine issue of material fact as to
substantial limitation where plaintiff and plaintiff’s doctor described
such limitations at depositions).
Here, the only evidence plaintiff provides of any substantial
limitation on the major life activities of walking and standing is a
return to work letter, dated September 6, 2011, which restricts plaintiff
from working more than nine hours per day. The letter says nothing
concerning any limitation on plaintiff’s ability to walk or stand at that
time. Plaintiff does not explain why she was at the clinic that day, or
the health issue for which she sought treatment. The three-sentence
letter does not tie the work-hour limitation to any impairment alleged
in

her

complaint.

Moreover,

plaintiff

did

not

begin

taking

hydrochlorothiazide, the medication that caused the need for urination,
until October 2011, a month after the note was written. Whatever
limitation plaintiff wishes the Court to infer from the note could not
have applied to any side effect of that drug.2

Plaintiff provides an FMLA form dated April 21, 2011, which states
that plaintiff was “unable to stand or walk for prolonged periods.” (Dkt.
16-6, at 13.)
However, those limitations are related to “severe
uncontrolled knee pain,” (Id.), and the form does not indicate that the
knee pain has any connection to plaintiff’s heart or medication issues.

2

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The only evidence plaintiff provides of a substantial limitation on
the major life activity of thinking is her deposition testimony, in which
she states that on the night at issue, “[b]ecause my urge to use the
restroom was so extreme, I could not even hardly focus.” (Dkt. 16-11 at
9.) This testimony is insufficient to raise a genuine issue of material
fact that plaintiff was substantially limited in thinking.

Plaintiff’s

testimony states only that on the night in question, she considered her
thinking to be impaired during the time she urgently needed to use the
restroom. Plaintiff does not state that this limitation was a regular or
even sporadic occurrence, and has therefore failed to raise a genuine
issue of material fact as to whether she is substantially limited in this
major life activity.
The Court cannot infer from the evidence provided that plaintiff is
substantially limited in either of the major life activities alleged.
Because plaintiff has demonstrated no substantial limitation in a major
life activity, she has failed to make a prima facie case that she is
disabled within the meaning of the ADA and PWDCRA.3

If the Court looks at plaintiff’s underlying heart condition as the
relevant impairment and frequent urination as the alleged substantial
limitation on a major life activity, the above analysis still holds.

3

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IV.

Conclusion

For the reasons set forth above, plaintiff has not demonstrated
that she is entitled to relief under either the ADA or the PWDCRA, as
she has not shown that she is disabled. Accordingly, it is ordered that:
Defendant Judson Center, Inc.’s motion for summary judgment is
GRANTED; and
Plaintiff’s complaint is DISMISSED.
IT IS SO ORDERED.
Dated: August 6, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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 August 6, 2014.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

Plaintiff has not raised a question of material fact as to whether she is
substantially limited in the major life activity of urination through her
testimony or medical records.
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