Pride v. National Huntington Bank

Filing 26

Opinion & Order signed by Judge James S. Gwin on 8/17/18. The Court, for the reasons set forth in this order, grants defendant's motion for summary judgment. Plaintiff's claims are therefore dismissed with prejudice. The Court als o strikes as improper plaintiff's sur-reply and the supporting evidence submitted with that sur-reply. To the extent the list of discovery disputes plaintiff submitted 8/6/18 was intended as a renewed motion to compel, it is denied as moot. (Related Docs. 15 , 24 , and 25 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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RONALD V. PRIDE, JR.,
Plaintiff,
vs.
HUNTINGTON NATIONAL BANK,
Defendant.

CASE NO. 1:17-cv-2610

OPINION & ORDER
[Resolving Docs. 15, 24, 25]

---------------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Ronald V. Pride, Jr. sues his former employer, Huntington National Bank, claiming
that Huntington fired him because of his disability. Pride suffers from Attention Deficit Hyperactivity
Disorder (ADHD) and alleges that Huntington both denied him a reasonable accommodation and
fired him because of his disability.
Plaintiff Pride brings claims for disability discrimination under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 12112(a) and (b)(5)(A); for retaliation and
coercion under 42 U.S.C. § 12203; and for creation of a hostile work environment under the ADA
and Title VII of the Civil Rights Act of 1964.1
Defendant moves for summary judgment.2 Plaintiff opposes.3 For the following reasons, the
Court GRANTS Defendant’s motion for summary judgment.
I. BACKGROUND
Huntington hired Plaintiff Pride on December 22, 2014.4 Huntington transferred Pride to the
Willoughby Hills Giant Eagle bank branch on September 20, 2015.5 At the time of his termination,

1

Doc. 1.
Doc. 15.
3
Doc. 20. Defendant replies. Doc. 22.
4
Doc. 15-1 at ¶ 4.
5
Id. at ¶ 5.
2

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Gwin, J.
Jeanetta Price supervised Plaintiff Pride.6 Pride has submitted evidence that he had received a
satisfactory performance evaluation from a different supervisor in March 2015.7
Pride suffers from ADHD.8 His medical records reveal that his condition makes it difficult for
him to read, concentrate, remember, and respond appropriately to stressful situations including those
where “he feels frustrated or underappreciated.”9
In February 2016, Huntington disciplined Pride for failing to follow bank procedures.10 He
was disciplined again in October 2016 for failing to follow bank procedures by not properly closing
out the bank branch on August 24 and September 30, 2016.11 Nevertheless, he again failed to
properly close the bank branch on November 15, 2016; in particular, he failed to send a required
email.12 Then, he asked his supervisor to perform that task for him.13 When his supervisor refused,
Pride responded via text message: “I think ur [sic] being petty. Just copy and paste.”14
On December 18, 2016, Pride emailed Jennifer Bandenieks, an Employee Relations
Consultant at the bank, a Department of Veterans Affairs medical memorandum.15 In this memo, a
Dr. Amal Rubai explained that Pride was being treated for ADHD and that he “has certain limitations
regarding social interaction/coping with stress and anxiety, etc.”16 Dr. Rubai continued: “In order,
[sic] to help alleviate these symptoms it is imperative to maintain a calm non-judgmental approach
and an environment which is supportive to alleviating any undue stress.”17
Bandenieks emailed Pride the next day to acknowledge that he received the medical

6

Id. at ¶ 6.

7

Doc. 19-1 at 1–8; Doc. 15-1 at ¶ 6.
Doc. 20-7 at 5.
9
Id. at 12–14, 26–27; Doc. 20-8.
10
Doc. 15-4 at 1; Doc. 14 at 2.
11
Doc. 15-5 at 1; Doc. 14 at 2–3.
12
Id. at 3.
13
Id. at 3–4.
14
Id.; Doc. 15-7 at 1–2.
15
Doc. 15-1 at ¶ 9; Doc. 20-8 at 1.
16
Doc. 15-1 at ¶ 9; Doc. 20-8 at 1.
17
Doc. 15-1 at ¶ 9; Doc. 20-8 at 1.
8

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Gwin, J.
memorandum and say that she looked forward to discussing his request for accommodation. 18 She
also mentioned that she would be on vacation for the remainder of the year.19
Pride did not follow up with any further explanation of his accommodation request.20 Instead,
he simply said he was going to talk to a district manager and that he wanted “some stuff on the record
. . . for the future and as reference.”21
Pride and his new supervisor, Jeanetta Price, had an adversarial relationship. He had spoken
to Bandenieks about Price on several occasions prior to December 18, 2016.22 And one of his coworkers testified at a deposition that Price said that Pride was a problem “from the beginning.”23 The
co-worker also testified that she was hired in June or July 2016 and witnessed Price commenting on
Pride’s disability in a joking or sarcastic way on at least four occasions.24
On January 5, 2017, Pride and Price got into a dispute over the location of a money-counting
machine.25 Price moved the money counter to the back room, ostensibly for security reasons.26 Pride
thought it should remain in the front of the branch, apparently because he thought moving the
counter to the back would make it more difficult for him to perform his job.27 According to the coworker, someone moved the money counter back to the front on January 5, prompting Price to call
Pride into her office and yell at him.28
At some point during this altercation, Supervisor Price told Plaintiff Pride to leave her office.29
Pride did not leave immediately.30 Instead, he “collected [his] thoughts” for an unspecified duration

18

Doc. 15-1 at ¶ 10; Doc. 15-11 at 1.
Doc. 15-1 at ¶ 10; Doc. 15-11 at 1.
20
Doc. 15-1 at ¶ 11.
21
Id.; Doc. 15-11 at 1.
22
Id. at ¶ 12.
23
Doc. 19-10 at 9.
24
Id. at 5, 11.
25
See id. at 11–12.
26
Doc. 14 at 4.
19

27

Id.

28

Doc. 19-10 at 12.
See Doc. 14 at 5–6.
30
Doc. 1 at 2. While statements in a complaint cannot be used to defeat summary judgment, Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), “[a] statement in a complaint . . . is a judicial admission,” Am.
29

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of time and then asked Price to call Human Resources so that they could hear the “screaming and
disrespect” she was directing at him.31 Pride eventually left the office.32
Pride was terminated later that same day.33
Plaintiff Pride brings claims against Defendant Huntington for disability discrimination under
the ADA; retaliation and coercion under 42 U.S.C. § 12203; and creation of a hostile work
environment under the ADA and Title VII.34 Huntington now moves for summary judgment.35
II. SUPPORTING MATERIALS
The Court would ordinarily proceed directly to its summary judgment analysis. But in this
case, the parties both seem to misunderstand the sorts of evidence they may rely upon at the summary
judgment stage. The Court therefore begins by sorting through the parties’ summary judgment
materials to exclude those that cannot be considered to support or oppose summary judgment.
A. Defendant Huntington’s Improper Evidence
To begin with, Rule 56 of the Federal Rules of Civil Procedure requires that “[a]n affidavit or
declaration used to support or oppose a motion must be made on personal knowledge.”36 Likewise,
hearsay statements in an affidavit cannot be considered for purposes of summary judgment.37
Defendant Huntington runs afoul of this rule by relying heavily on the affidavit of Employee
Relations Consultant Bandenieks.38 Although Bandenieks purports to have “firsthand knowledge” of
everything she describes in her affidavit,39 it is plain that she does not.
For instance, her descriptions of Pride’s disciplinary history at Huntington and his text
message exchange with his supervisor, Jeanetta Price, are transparently summaries of other

Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (6th Cir. 1988). And “[f]actual assertions in pleadings and pretrial orders,
unless amended, are considered judicial admissions conclusively binding on the party who made them.” Id.
31

Doc. 14 at 6; Doc. 1 at 2.
Doc. 14 at 6.
33
Doc. 19-10 at 11–12; see Doc. 15-1 at ¶¶ 17–18.
34
Doc. 1.
35
Doc. 15. Plaintiff Pride opposes. Doc. 20. Defendant replies. Doc. 22.
36
Fed. R. Civ. P. 56(c)(4).
37
See Dole v. Elliot Travel & Tours, Inc., 942 F.2d 962, 968–69 (6th Cir. 1991).
38
Doc. 15-1 at ¶ 1.
32

39

Id.

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documents in the record that describe events Bandenieks herself did not witness. Since those
documents are admissible as business records, this is not particularly problematic for Huntington.
Bandeniek’s testimony is essentially a certification that those documents are Huntington’s business
records.
But Huntington also relies on Bandenieks to describe Plaintiff Pride’s final confrontation with
Price. In that confrontation, Huntington claims that, for ten minutes, Pride staged a sit-in in Price’s
office after arguing with her about the proper placement of a money-counting machine.40 As another
paragraph of the affidavit makes clear, Bandenieks was not present for that altercation—indeed Price
instant-messaged her to see if she could call into the meeting.41 Nor does Bandenieks have personal
knowledge of the motivations of the individual who ultimately decided to fire Pride. As a result, she
has no personal knowledge of what happened during that meeting or leading up to it. And the Court
cannot consider those portions of her affidavit.
That said, Bandenieks did have some direct interaction with Plaintiff Pride and the Court sees
no reason why she would not have knowledge of when Pride was hired, when he was fired, what
branches he worked at, who his supervisors were, etc. The Court will therefore consider paragraphs
1 through 6, 9 through 13, 15, and 18 of Bandeniek’s affidavit as statements of fact, and paragraph 7
as a certification of various employment documents, but no others.
B. Plaintiff Pride’s Improper Evidence
Pride, too, attempts to rely on improper evidence.
Pride submits, along with his brief in opposition, a host of documents that he purportedly
sent or gave to Huntington’s Human Resources Department or other managers that relate his various
grievances with management, his suggestions for improvement, and his version of his final altercation

40
41

Id. at ¶¶ 14, 16–17.
Id. at ¶ 15.

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with Supervisor Price.42 The problem is that none of these documents are sworn statements: they
are neither affidavits given under oath nor are they subscribed under penalty of perjury as permitted
by 18 U.S.C. § 1746. As a result, they cannot be considered at the summary judgment stage.43 That
Pride may have sent these documents to Huntington officials before filing this lawsuit does not
change this fact.
Pride has attempted to remedy this deficiency by filing a sur-reply that includes additional
evidence and an affidavit that, among other things, attests to the accuracy of some of the evidence
he submitted before.44 But that is improper.
For one thing, the Court’s rules generally do not permit a party to file a sur-reply without first
requesting leave from the Court.45 Pride did not do so.
More importantly, however, there is no reason Pride could not have provided this evidence
earlier. While he may only have received some of this evidence from Huntington recently, that is
largely because he has apparently procrastinated in seeking discovery.46 The Court will not allow
Pride to sandbag the opposing party merely because he has not been diligent in pursuing evidence
to support his claims.47 For that reason, the Court STRIKES Pride’s sur-reply and all of the supporting
documentation filed with it.
III. SUMMARY JUDGMENT ANALYSIS
Having disregarded or stricken the parties’ improper evidence, the Court now considers
whether Defendant Huntington is entitled to summary judgment. The Court concludes that it is.

42

Doc. 20-10; Doc. 20-11; Doc. 20-14; Doc. 20-15.
Worthy v. Mich. Bell Tel. Co., 472 F. App’x 342, 343–45 (6th Cir. 2012); Little v. BP Exploration & Oil Co.,
265 F.3d 357, 363 n.3 (6th Cir. 2001); Dole, 942 F.3d at 968–69.
44
See generally Doc. 24 and attachments.
45
Eberhard v. Chi. Title Ins. Co., No. 1:11-cv-834, 2014 WL 12756822, at *2 (N.D. Ohio Jan. 8, 2014).
46
Doc. 21 at 3–4.
47
Cf. Wike v. Vertrue, Inc., No. 3:06-0204, 2007 WL 869724, at *8 (M.D. Tenn. Mar. 20, 2007) (“[T]he Court
will not allow Vertrue to sandbag the Plaintiff by presenting . . . evidence [with a reply brief].”).
43

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Case No. 1:17-cv-2610
Gwin, J.
A. Legal Standard
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment 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.’”48
The moving party must first demonstrate that there is no genuine dispute as to a material fact entitling
it to judgment.49 Once the moving party has done so, the non-moving party must set forth specific
facts in the record—not its allegations or denials in pleadings—showing a triable issue.50 The nonmoving party must show more than some doubt as to the material facts in order to defeat a motion
for summary judgment.51 But the Court views the facts and all reasonable inferences from those facts
in favor of the non-moving party.52
When parties present competing versions of the facts on summary judgment, a district court
adopts the non-movant’s version of the facts unless incontrovertible evidence in the record directly
contradicts that version.53 Otherwise, a district court does not weigh competing evidence or make
credibility determinations.54
B. ADA Discrimination Claim
In order to establish a claim for discrimination under the ADA, a plaintiff may “either
[introduce] direct evidence of discrimination or [prove] inferential and [indirect] evidence which
would support an inference of discrimination . . . The direct evidence and [indirect] evidence paths
are mutually exclusive; a plaintiff need only prove one or the other, not both.” 55 Based on the
circumstances of Plaintiff’s case, the Court will discuss each of these in turn.

Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
50
See Matsushita Elec. Indus. Co., 475 U.S. at 587.
51
Id. at 586.
52
Killion, 761 F.3d at 580 (internal citations omitted).
53
See Scott v. Harris, 550 U.S. 372, 380 (2007).
54
Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037 (N.D. Ohio 2012) (citing V & M Star Steel v. Centimark
48
49

Corp., 678 F.3d 459, 470 (6th Cir. 2012)).
55
Cf. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348-49 (6th Cir. 1997); see also Hendrick v. W. Reserve Care
Sys., 355 F.3d 444, 452–54 (6th Cir. 2004).

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1. Direct Evidence
“Direct evidence is evidence that ‘if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor’ in the adverse employment action.”56 In the realm of
employment discrimination, the Sixth Circuit found that “statements that suggest that the decisionmaker relied on impermissible stereotypes to assess an employee’s ability to perform can constitute
direct evidence.”57 Additionally:
The context in which the comments are made is also critical. Discriminatory remarks
made while implementing an adverse employment action are likely to reveal animus.
In contrast, occasional disparaging remarks made during the regular course of
business about . . . protected characteristics are much more likely to be considered
the kind of ‘isolated and ambiguous’ comments that do not trigger employer liability.58
For example, an employer’s statement to an employee that he was “too old to carry the mail”
made while terminating the employee was sufficiently direct evidence to create a genuine dispute of
material fact as to whether the employee was terminated for discriminatory reasons.59 However, an
employer’s comments about an employee’s age and memory loss made six and a half months before
the employee was terminated were “too isolated and ambiguous” to support a finding of
discrimination, where there was no evidence that the employer “subsequently communicated any
discriminatory animus” to the employee when he terminated him.60 And a supervisor’s reference to
an employee as “the mentally ill guy on Prozac that’s going to shoot the place up” (referring to an
employee with Attention Deficit Disorder) on one occasion was also too “isolated and ambiguous”
to be direct evidence of discrimination.61
Here, Plaintiff Pride has—at best—shown that his supervisor made derogatory comments

Erwin v. Potter, 79 F. App’x 893, 896 (6th Cir. 2003) (quoting Bartlik v. U.S. Dep’t of Labor, 73 F.3d 100, 103
n.5 (6th Cir. 1996)).
57
Erwin, 79 F. App’x at 897.
58
Id. at 898 (internal citations omitted) (quoting Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993)).
59
Id. at 897.
60
Rosso v. A.I. Root Co., 97 F. App’x 517, 518–20 (6th Cir. 2004).
61
Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 657, 660-61 (6th Cir. 1999).
56

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about his disability four times between October 2016 (when Price became his supervisor62) and his
termination on January 5, 2017.63 Four comments in around three months, unrelated to the time of
his termination, are simply too “isolated and ambiguous” to provide direct evidence that Pride was
discriminated against because of his ADHD.64
2. Indirect Evidence
To present a prima facie case of disability discrimination using indirect evidence, Plaintiff
must establish that (1) he is disabled; (2) he is otherwise qualified for his position, with or without
reasonable accommodation; (3) he suffered an adverse employment decision or action; (4)
Huntington knew or had reason to know of his disability; and (5) his position remained open or he
was replaced.65 If Plaintiff is successful, then the burden shifts to Defendant to provide a legitimate,
non-discriminatory reason for Plaintiff’s termination, and if Defendant does so, then the burden shifts
back to Plaintiff to show that that explanation was pretextual.66
The ADA prohibits discrimination that is a “but-for” cause of an employer’s adverse
employment action.67 An employee is not required to show that his disability was the sole reason
for his termination.68 Plaintiff must create a genuine dispute of material fact as to both the prima facie
case and pretext to survive summary judgment.69
In this case, even assuming that Plaintiff Pride could establish a prima facie case of

62

Huntington noted this fact in its December 13, 2016 response to the discrimination charge that Plaintiff Pride
filed with the EEOC. See Doc. 19-1 at 25-26 & n.3.
63
Pride also asserts in his response to Defendant Huntington’s requests for admissions that “Jeanetta Price teased
me because of my disability whenever she was within ear distance of me.” Doc. 14 at 6. But that statement is neither
sworn, properly declared under penalty of perjury nor an admission of Pride’s own conduct or an adverse factual condition.
As a result, the Court cannot consider it.
64
See Erwin, 79 F. App’x at 898.
65
Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012); Whitfield v. Tennessee, 639 F.3d
253, 258-59 (6th Cir. 2011); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996), abrogated on other
grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012) (en banc).
66
McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-04 (1973); Whitfield, 639 F.3d at 259; Daugherty v.
Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008); Monette, 90 F.3d at 1185-86.
67
Lewis, 681 F.3d at 321; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
68
Lewis, 681 F.3d at 315-17.
69
Whitfield, 639 F.3d at 260.

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discrimination, Plaintiff Pride does not show that Huntington’s stated reasons for terminating him
were pretextual. Huntington says it fired Pride for insubordination. Plaintiff Pride admits that he
failed to leave Price’s office when asked,70 instead sitting in her office for an indeterminate period of
time after Price asked him to leave. Plaintiff Pride then asked Supervisor Price to call human
resources. This conduct was insubordination. So Pride’s ADA discrimination claim fails.
C. ADA Retaliation
The lack of any direct evidence of discrimination71 and the presence of non-pretextual
explanation for Pride’s termination72 also defeats Plaintiff Pride’s ADA retaliation claim.
D. Failure to Accommodate
To present a prima facie case for failure to accommodate a disability under the ADA, Plaintiff
must establish that: (1) he is disabled; (2) he is otherwise qualified for his position, with or without
reasonable accommodation; (3) Huntington knew or had reason to know about his disability; (4) he
requested an accommodation; and (5) Huntington failed to provide the requested accommodation.73
If Plaintiff establishes this, then “the burden shifts to the employer to demonstrate that any particular
accommodation would impose an undue hardship on the employer.”74
The Court will assume for purposes of summary judgment that Plaintiff is disabled, that he is
otherwise qualified for his position, and that Huntington knew about his disability.
An employee “bears the burden of proposing reasonable accommodations; an employee’s
claim must be dismissed if [he] fails to identify and request such reasonable accommodations.”75 The
proposed accommodations must be “objectively reasonable.”76 The Sixth Circuit found that:

70

Doc. 1 at 2.

See Rorrer v. City of Stow, 743 F.3d 1025, 1047 (6th Cir. 2014).
See EEOC v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015).
73
Mosby-Meacham v. Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018); Johnson v. Cleveland
City Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011).
74
Johnson, 443 F. App’x at 983.
75
Id.; see also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th Cir. 1998) (finding that the initial
71
72

burden of requesting an accommodation is placed on the employee).
76
Cassidy v. Detroit Edison Co., 138 F.3d 629, 633-34 (6th Cir. 1998); Monette, 90 F.3d at 1183.

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Our case law establishes no bright-line test for when the form of an employee’s
request is sufficiently clear to constitute a request for an accommodation. On one
hand, we have held that the ADA does not require employees to use the magic words
‘accommodation’ or even ‘disability.’ On the other hand, [t]he employer is not
required to speculate as to the extent of the employee’s disability or the employee’s
need or desire for an accommodation. The employee must also make it clear that the
request is being made because of the employee’s disability.77
Plaintiff Pride emailed his doctor’s note to Bandenieks on December 18, 2016. Although
Plaintiff does not appear to request any specific accommodations in the email itself, the note stated
that “to help alleviate [Plaintiff Pride’s] symptoms it is imperative to maintain a calm non-judgmental
approach and an environment which is supportive to alleviating any undue stress.”78 In her response,
Bandenieks said that she “look[ed] forward to speaking with [Pride] further regarding [his]
accommodation request.”79 For purposes of summary judgment, the Court will find that Plaintiff
requested an accommodation from Huntington regarding his ADHD.80
Plaintiff must then establish that Huntington failed to provide his requested accommodation.
“Once the employee requests an accommodation, the employer has a duty to engage in an
‘interactive process’ to ‘identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.’”81 “[T]he interactive process is
mandatory, and both parties have a duty to participate in good faith.”82
The Court finds that Bandenieks at least attempted to engage in the required interactive
process with Plaintiff through her email exchange with Plaintiff regarding his doctor’s note. As
Plaintiff did not request any specific accommodations other than a general suggestion of a low-stress
environment in his email exchange with Bandenieks, the Court cannot find that Huntington failed to

77
Judge v. Landscape Forms, Inc., 592 F. App’x 403, 407 (6th Cir. 2014) (internal quotation marks and citations
omitted) (alteration in original).
78
Doc. 15-10 at 1.
79
Doc. 15-11 at 1.
80
The Court recognizes Defendant’s argument that Plaintiff sent the note to Bandenieks merely “for informational
purposes.” Doc. 15 at 16. However, it is reasonable to infer that Plaintiff was also requesting an accommodation for his
disability with this note, albeit not in the most direct manner, especially given that Bandenieks appeared to understand it
as a request for an accommodation.
81
Melange v. City of Center Line, 482 F. App’x 81, 84 (6th Cir. 2012) (quoting Kleiber v. Honda of Am. Mfg.,
Inc., 485 F.3d 862, 871 (6th Cir. 2007)); see also 29 C.F.R. § 1630.2(o)(3).
82
Kleiber, 485 F.3d at 871.

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provide Plaintiff with a requested accommodation based on that conversation.
Likewise, Price’s refusal to allow the money-counting machine to remain in the front of the
branch cannot be viewed as a failure to accommodate Pride’s disability. This is because Pride has
not timely presented any cognizable evidence to show why having the money counter in the back
of the room prevented him from performing his job effectively with ADHD. His concentration and
focus issues might make the availability of the machine a reasonable accommodation, but it is unclear
why it would matter that the machine was in a back room rather than at the customer service counter.
Huntington claims (and Pride admits83) that Pride did not leave Price’s office after Price told
Plaintiff Pride to leave Price’s Office. If true, Pride was more responsible for increasing the stress
level.
E. ADA Coercion Claim
Courts have either used the ADA retaliation framework84 or the Fair Housing Act (FHA)
interference framework to evaluate interference, coercion, and intimidation claims under the ADA.85
Plaintiff cannot establish a prima facie case under either framework. The Court has already
found that Plaintiff Pride’s ADA retaliation claim cannot survive a motion for summary judgment.
In order to establish a prima facie case using the FHA interference framework, Plaintiff must
demonstrate that: “(1) [he] engaged in activity statutorily protected by the ADA; (2) [he] was engaged
in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the
defendants coerced, threatened, intimidated, or interfered on account of [his] protected activity; and
(4) the defendants were motivated by an intent to discriminate.”86
Assuming for purposes of this analysis that Plaintiff Pride requested an accommodation under
the ADA and therefore fulfills the first two elements, he has not presented any evidence that

83

Doc. 1 at 2.
See, e.g., Valtchev v. City of New York, 400 F. App’x 586, 589 (2d Cir. 2010); Selenke v. Med. Imaging of
Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999).
85
See, e.g., Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550-51 (7th Cir. 2017); Brown v. City of Tucson,
336 F.3d 1181, 1192 (9th Cir. 2003).
86
Frakes, 872 F.3d at 550-51.
84

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Defendant Huntington coerced him as a result of his asking for an accommodation or intended to
discriminate against him. As explained above, Huntington fired Pride for other, non-disability and
protected activity related reasons. And there is no cognizable evidence that the money counter was
moved in an effort to coerce, threaten, or intimidate Pride. There is no cognizable evidence that
Pride’s insubordination did not cause his firing.
F. Hostile Work Environment
A hostile work environment occurs “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.”87
objectively and subjectively abusive to be actionable.88

Conduct must be both

A court must consider “the work

environment as a whole,”89 “includ[ing] the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”90

“[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.”91
To present a claim for a hostile work environment under the ADA, Plaintiff must establish
that: (1) he is disabled; (2) he was subjected to unwanted harassment; (3) this harassment was based
on his disability; (4) the harassment unreasonably interfered with his work performance; and (5)
Defendant either knew or should have known about the harassment and failed to take corrective

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted).
See Harris, 510 U.S. at 21-22; Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).
89
See Bowman, 220 F.3d at 463.
90
See Harris, 510 U.S. at 23.
91
See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotation marks omitted).
87
88

The Court noted the need to “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional teasing.” Id. (internal quotation marks omitted). See also
Hibbler v. Reg’l Med. Ctr., 12 F. App’x 336, 339 (6th Cir. 2001); Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999).

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measures.92 The Court assumes that Plaintiff is disabled and therefore fulfills the first element.
Because Plaintiff Pride “brought this claim under the ADA,” he “must . . . show that any
intimidation, ridicule[, or] insult occurred because of [his] . . . disability.”93 “Conversations between
an employee and his superiors about his work performance [do] not constitute harassment simply
because they cause the employee distress.”94
Plaintiff Pride and Branch Manager Price apparently disagreed over proper management of
the branch—including the location of the money-counting machine—and Price issued Plaintiff a
performance improvement plan based on Plaintiff’s job performance after she became his manager.95
According to co-worker Jackson, Price also commented that she viewed Plaintiff as a “problem”
because he didn’t “understand [his] place as a banker,” and that Price wanted to terminate Plaintiff.96
By itself, this would not be sufficient to survive summary judgment because it does not clearly
implicate Plaintiff Pride’s disability.97 However, Pride’s co-worker testified that she heard Price make
negative comments regarding Pride’s ADHD on “more than four occasions.”98 Price became Pride’s
manager on October 5, 2016,99 and Plaintiff was terminated on January 5, 2017.100 That means Price
made these comments at least four times over the course of three months. But Plaintiff Pride gives
no evidence that he was present when Price made these statements about Pride. Without some
showing that Pride heard Price’s comments, it is nowhere clear how those comments interfered with

Plautz v. Potter, 156 F. App’x 812, 818 (6th Cir. 2005) (setting out the elements and borrowing the Harris
standard discussed in the preceding paragraph from the Civil Rights Act context); Trepka v. Bd. of Educ. of the Cleveland
City Sch. Dist., 28 F. App’x 455, 461 (6th Cir. 2002).
93
See Waltherr-Williard v. Mariemont City Sch., 601 F. App’x 385, 388 (6th Cir. 2015).
94
Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir. 1998).
95
See Doc. 15-1 at ¶¶ 6–7; Doc. 19-1 at 13–15; Doc. 19-10 at 9.
96
Doc. 19-10 at 9.
97
See Waltherr-Williard, 601 F. App’x at 388-89 (finding that an employee presented no evidence that her
protected characteristics motivated her employer’s alleged hostility); Trepka, 28 F. App’x at 461-62 (finding that an
employee was unable to present evidence that her employer’s negative conduct towards her occurred because of her
disability).
98
Doc. 19-10 at 11.
99
Huntington noted this fact in its December 13, 2016 response to the discrimination charge that Plaintiff filed
with the EEOC. See Doc. 19-1 at 25-26 & n.3.
100
Doc. 14 at 6.
92

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Pride’s work performance. Court finds that this insufficient to fulfill the second and third elements
for purposes of summary judgment.101
Also, Plaintiff has not created a genuine issue of material fact as to whether Price’s purported
harassment unreasonably interfered with his work performance.

Pride does state that he felt

compelled to contact Human Resources only after Price became manager.102 However, none of the
proper evidence Pride submitted demonstrates that any harassment that occurred unreasonably
interfered with Plaintiff’s work performance, especially because Plaintiff admitted that he was able to
perform the essential functions of his position.103 The Court therefore finds that Plaintiff cannot fulfill
the fourth element for purposes of summary judgment. Additionally, since the Court cannot find that
Price created an actionable hostile environment, there is no basis for Defendant’s liability, and no
genuine dispute of material fact exists as to the fifth element.
G. Title VII Harassment
Lastly, because Plaintiff does not claim that he was fired based on his membership in any
class protected under Title VII, he has not established a Title VII harassment claim.104
IV. CONCLUSION
For those reasons, the Court GRANTS Defendant’s motion for summary judgment. Plaintiff
Pride’s claims are therefore DISMISSED WITH PREJUDICE.
The Court also STRIKES as improper Plaintiff Pride’s sur-reply and the supporting evidence
submitted with that sur-reply. To the extent the list of discovery disputes Pride submitted on August

101
See Trepka, 28 F. App’x at 462 (noting that “[t]o avoid summary judgment, [the plaintiff] need not prove [the
employer’s] motivation, but [he] should at least provide some evidence of discrimination”).
102
Doc. 14 at 7.
103
Id. at 4-5.
104
See 42 U.S.C. § 2000e-2 (prohibiting employment discrimination based on “race, color, religion, sex, or
national origin”).

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6, 2018,105 was intended as a renewed motion to compel, it is DENIED AS MOOT.

IT IS SO ORDERED

s/

Dated: August 17, 2018

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

105

Doc. 25.

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