Lovell v. Champion Car Wash, LLC et al

Filing 71

MEMORANDUM signed by District Judge Kevin H. Sharp on 9/3/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DONALD R. LOVELL,
Plaintiff,

v.
CHAMPION CAR WASH, LLC, and
TIM JONES, individually,
Defendants.

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No: 3:12-00254
Judge Sharp

MEMORANDUM

Plaintiff Donald R. Lovell sued Defendants Champion Car Wash, LLC and Tim Jones,
claiming that he was terminated from employment in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., the Tennessee Disability Act, Tenn. Code Ann. § 8–50–103, and the
Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. He also claims that he was
retaliated against for engaging in protected activity.
Pending before the Court are fully briefed Cross-Motions for Summary Judgment (Docket
Nos. 34 & 37). For the reasons that follow, the Court will grant summary judgment in Plaintiff’s
favor on his disability discrimination claim under the ADA, but deny the remainder of the summary
judgment motions.
I. FACTUAL BACKGROUND
Champion operates five car washes in the Nashville and Gallatin, Tennessee area. It is owned
by Tim Jones, who also serves as its President. Bennie Lay is the Operations Manager.
All five car washes have two shifts. The morning shift runs from 7:30 a.m. to 1:00 or 2:00

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p.m., and the evening shift runs from 1:00 or 2:00 p.m. to 8:00 p.m.
Plaintiff began working for Champion in October 2007, having previously worked as a
manager at National Car Wash, which was owned by Jones’ father. At the time of his discharge on
June 19, 2011, Jones worked as an evening shift site attendant at the Champion car wash located at
6303 Charlotte Pike. That facility has no air conditioning.
In early June 2011, Plaintiff requested a transfer to an available morning shift job at
Defendants’ Bellevue location, which has air conditioning in the “dog wash bay.” Plaintiff claims
that the request was made as a reasonable accommodation for his medical conditions, but
Defendants assert that the request was made solely because Plaintiff wanted to work the first shift.
Jones denied Lovell’s request for the morning shift job at Bellevue on June 10, 2011. That
same day, Plaintiff was given a “Constructive Advice Form,” which counseled Plaintiff about being
rude to customers.
Page Drake, a non-disabled, less senior employee was given the morning shift job at the
Bellevue location. In his deposition, Jones conceded that he was concerned about Plaintiff being
physically able to do the job because that position is more physically demanding, and Plaintiff did
not perform well when he had worked at that location in the past.
Jones was aware that Lovell has had a heart condition his entire adult life, and that he had
multiple surgeries on his hip and total hip replacement surgery during his employment with
Defendant. In his deposition, Jones testified:
I know that he had when he was 18 he had a problem with a staph infection getting
in his heart and he had to have a valve replaced. And I know he’s been on Coumadin
and other blood thinners to keep his blood thin. And I know that his hip condition
flared up on him in 2009, and he had to have that hip replaced. Upon his last surgery
that he had in December of 2010, I know that he developed some heart problems
while he was in the hospital.
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(Docket No. 40-1, Jones Depo. at 54). Jones also knew that Plaintiff suffered pain and was seeing
both a cardiologist and an orthopedic surgeon.
During his employment, Plaintiff took several medical leaves. In 2008 he had hip surgery,
was absent from work for weeks, and Defendant held his position open. In 2009, Plaintiff had two
additional surgeries that kept him out of work for weeks, but again he returned to work at Champion.
Then, in 2010, he had yet another surgery that kept him out of work for several weeks but, again,
he went back to work for Defendants. It was agreed at that time that Plaintiff would work at the
Charlotte Pike car wash for $12 per hour.
On June 17, 2011, Plaintiff gave Jones a note from his physician that stated: “Due to
cardiomyopathy he should avoid heat of day due to risk of dehydration.” (Docket No. 40-2 at 21).
According to Jones, the statement “heat of day” as used in the doctor’s note was “not very clear.”
(Docket No. 40-1, Jones Depo. at 82). He did not, however, seek any further clarification, or advise
Plaintiff that he needed additional information from him.1 Rather, he interpreted the doctor’s note
to mean that Plaintiff could not perform his job “during any heat that may exist at any point during
the day.” (Id. at 92).2
Jones made the decision to terminate Plaintiff on June 17, 2011. The following day, he
drafted a letter setting forth his reasons and presented the same to Plaintiff on June 19, 2011. The
letter stated in part:
I take health issues seriously, particularly heart related issues. Since I now have a

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At the time, Champion had no written reasonable accommodation or anti-disability discrimination
policies in place.
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Jones testified that, when Plaintiff gave him the doctor’s note, he (Jones) “was worried, scared”
and, “I was just scared because I had an employee that had given me this note. And I’m going, oh, my
goodness, what if he keels over? What am I going to do?” (Id. at 122 &124).

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doctor’s note in my possession, liability for your heart issue is now passed along to
me. If you got overheated while working at Champion Car Wash, and it caused
further damage or injury to your heart, I would be liable and open to a lawsuit.
Frankly, I do not have any jobs available that would preclude you from working in
the heat of the day. In the summertime, as recently demonstrated, temperatures can
easily reach 90+ degrees as early as 9-10 am and last until late in the evening. Those
words from your doctor “he should avoid the heat of the day . . .” prevent you from
performing your job duties during any heat that may exist at any point during the
day. For personal and legal reasons, I must take your doctor’s note seriously.
Since you cannot perform your job duties as needed, I am going to have to release
you, for medical reasons, from employment at Champion Car Wash. . . .
(Docket No. 40-2 at 33). In his deposition, Jones testified that he believed Plaintiff could not
physically perform the job duties at the Charlotte Pike car wash because there were no jobs there
where one could work and avoid the heat.
In accordance with the letter, Plaintiff was terminated from employment on June 19, 2011.
The parties agree that, at that time, Plaintiff could perform his job at the Charlotte Pike Car Wash
with or without accommodation.
Plaintiff did not disclose to his doctor, or to Defendants, that he kept cold bottled water with
him on the job site. Plaintiff never suffered from dehydration while working at the Charlotte Pike
car wash. However, his breathing was impacted on three to four occasions in June 2011.3
On June 21, 2011, Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission and the Tennessee Human Rights Commission, claiming disability
discrimination and retaliation. In the charge, Plaintiff wrote:
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Defendants assert that “the only life activity impacted by Lovell’s medical problem is his
breathing,” and that “his breathing problems occur very infrequently [and] only in extreme heat and, thus,
are neither severe nor permanent enough to constitute a disability[.]” In support of that positions, Defendants
point to Plaintiff’s medical records from March to April 2011, which generally show that his respiration was
“non-labored” upon examination, and that his “breath sounds” were “clear throughout and wheezes absent.”
(Docket No. 59-1 at 1-11).

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I am an individual with a disability. On June 10, 2011, I requested a reasonable
accommodation of relocating to another site where there was a position available on
day shift rather than evening shift. I provided a note from my doctor. My request
was denied. I informed my employer that I would be filing an EEOC complaint.
The next day I received a write-up, a demotion, and a cut in pay. Approximately 5
days later, I was terminated.
(Docket No. 40-2 at 42).
On July 1, 2011, and in response to an unemployment claim, Operations Manager Lay wrote
out a handwritten statement in which he stated that Plaintiff “was released because of a medical
condition,” and to avoid a lawsuit. Lay also wrote, however, that, notwithstanding a prior “Doctor’s
note,” Plaintiff continued to sit out in the direct sunlight, that Plaintiff was told by Lay not to do so,
but that, in defiance of those instructions, Plaintiff continued to sit out in the sun. (Docket No. 40-2
at 32).
In August 2011, Plaintiff filed for social security disability benefits, having previously told
Jones back in December 2010 that he was considering filing for those benefits. His claim initially
was denied and he challenged that determination in both December 2011 and February 2012,
claiming that he was “disabled and cannot work.” (Docket No. 60-1 at 2 & 4).
II. APPLICATION OF LAW
As indicated, the parties have filed Cross-Motions for Summary Judgment. Because the
standards governing motions for summary judgment are well known, the Court will not reiterate
them here other than to say that “[t]he standard of review for cross-motions for summary judgment
does not differ from the standard applied when a motion is filed by only one party to the litigation.”
Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949 (6th Cir. 2009).

As for the Motions themselves, Plaintiff seeks partial summary judgment only on his
disability claim under the ADA. Defendants seek summary judgment on all of Plaintiff’s claims,
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which include both disability and retaliation claims under the ADA, TDA, and the THRA.4
A. Disability Discrimination Under the ADA
The ADA prohibits covered employers from discriminating against a “qualified individual
on the basis of disability” with regard to hiring, advancement, training, termination, and “other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff may seek to
prove such a claim either through direct or indirect evidence.
“To make out a prima facie case of employment discrimination through indirect evidence
under [the ADA], a plaintiff must show that ‘1) he or she is disabled; 2) otherwise qualified for the
position, with or without reasonable accommodation; 3) suffered an adverse employment decision;
4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the position
remained open while the employer sought other applicants or the disabled individual was replaced.’”
Whitfield v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011). (quoting, Macy v. Hopkins Cnty. Sch.
Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007)). “Once a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory
reason’ for its actions.” Talley v. Family Dollar Stores of Ohio, Inc. , 542 F.3d 1099, 1105 (6th Cir.
2008) (quoting, Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). “If the defendant can
satisfy its burden, the plaintiff must show by a preponderance of the evidence that the proffered
explanation is a pretext for discrimination.” Id.

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The same general elements apply whether the claim is under the ADA or the TDA, although the
TDA does not require a reasonable accommodation. Cadenas–Meade v. Pfizer, Inc., 510 Fed. Appx. 367,
369 & fn. 3 (6th Cir. Jan. 4, 2013). Plaintiff’s THRA claims are duplicative of his TDA claims because the
latter “embodies the definitions and remedies provided by the [THRA].” Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 705 (Tenn. 2000).

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Alternatively, a plaintiff may prove a disability discrimination case based upon direct
evidence. “Where the ADA claim is based on direct evidence of discrimination, the initial burden
is on the plaintiff to show that []he (1) has a disability, and (2) is ‘otherwise qualified’ for the
position, either ‘(a) without accommodation from the employer; (b) with an alleged essential job
requirement eliminated; or (c) with a proposed reasonable accommodation.’” Kempter v. Michigan
Bell Telephone Co., 2013 WL 4504760 at *3 (6th Cir. Aug. 26, 2013) (quoting, Kleiber v. Honda
of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007)). “After the prima facie case is made, the
burden shifts to the employer to prove that the ‘challenged job criterion is essential’ (defeating the
employee's showing in (b)) or that the proposed accommodation will impose an undue hardship
upon the employer.” Id.
In this case, Plaintiff seeks to prove his disability claim based upon direct evidence, while
Defendants argue that Plaintiff cannot establish his ADA claim under the indirect, burden-shifting
paradigm. However, “‘[t]he direct evidence and circumstantial evidence paths are mutually
exclusive; a plaintiff need only prove one or the other, not both.’” Hedrick v. Western Reserve Care
Sys., 355 F.3d 444, 453 (6th Cir. 2004) (citation omitted). Thus, “[i]f a plaintiff can produce direct
evidence of discrimination then the McDonnell Douglas-Burdine paradigm is of no consequence.”
Id.
The Court finds as a matter of law that Plaintiff has provided direct evidence of an ADA
violation. “Direct evidence is evidence that proves the existence of a fact without requiring any
inferences.” Rowan v. Lockeed Martin Energy Sys. Inc., 260 F.3d 544, 548 (6th Cir. 2004). That
is, “‘direct evidence of discrimination does not require a factfinder to draw any inferences in order
to conclude that the challenged employment action was motivated at least in part by prejudice

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against members of the protected group.’” Martinez v. Cracker Barrel Old Country Store, Inc., 703
F.3d 911, 915 (6th Cir. 2013) (quoting, Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003)).
Thus, by way of examples, courts have found that (1) a supervisor’s alleged statement that she chose
a particular candidate in order “to maintain racial balance” constituted direct evidence of
discriminatory intent, Taylor v. Board of Educ. of Memphis City Schools, 240 Fed. Appx. 717, 720
(6th Cir. 2012); (2) a supervisor’s alleged statement that an Italian-American probationary employee
was a “dirty wop” and that there were too many “dirty wops” working at the facility constituted
direct evidence of national origin discrimination, and the supervisor’s alleged statement that a 46
year old employee was “no spring chicken” and he would never be a supervisor because of his age
was direct evidence of age discrimination, DiCarlo v. Potter, 358 F.3d 408, 471 & 418 (6th Cir.
2004); and (3) providing an employee who intended to return from medical leave with a letter which
stated that“given [that] you are unable to perform the tasks of your job, we have found it necessary
to hire someone to fill the vacancy created by your need to take long term disability” and that “[d]ue
to your long term disability we must terminate your employment” constituted direct evidence of
disability discrimination under the ADA, Coffman v. Robert J. Young Co., Inc., 871 F.Supp.2d 703,
709 & 713 (M.D. Tenn. 2012).
Here, Jones’ June 18, 2011, letter is direct evidence of disability discrimination, and
Operation Manager Lay’s August 1, 2011 handwritten statement may be as well. In both, the
authors specifically state that Plaintiff is being terminated for medical reasons, and that his medical
needs cannot be accommodated at the car wash.
In response to Plaintiff’s Motion for Summary Judgment (and in support of its own Motion),
Defendants do not challenge Plaintiff’s characterization of the letter as being direct evidence.

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Rather, they argue that Plaintiff has not established that he is disabled, that the only impairment he
has is in breathing but that condition is not disabling, and that Jones is entitled to the “same actor”
inference.5
In regard to disability, Defendants wholly ignore that the ADA prohibits discrimination
against those regarded (or perceived) as being disabled. Specifically, under the ADA Amendments
Act of 2008, which became effective January 2, 2009, a disability means
(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 (as described in paragraph (3)).
42 U.S.C. § 12102 (1). Paragraph 3, in turn, provides in relevant part that “[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 this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is perceived to
limit a major life activity.’” 42 U.S.C. § 12102(3). Thus, through the 2008 Amendments, “Congress
expressly rejected” the idea that to be “regarded as” having a disability, the employer must perceive
the individual to be substantially limited in a major life activity. Brown v. City of Jacksonville, 711
F.3d 883, 889 (8th Cir. 2013); see, Dulaney v. Miami-Dade County, 481 Fed. Appx. 486, 489 n.3
(11th Cir. 2012).
In this case, there is no question that Jones’ perceived or regarded Plaintiff as being disabled.

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Fully one-third of Defendants’ opening brief is devoted to arguing that Plaintiff is not entitled to
back pay because he allegedly failed to mitigate his damages and that, by filing a claim for Social Security
Disability in which he claimed he was unable to work, he has acted inconsistently with his assertion in this
case that he could perform his duties at the car wash. Leaving aside that the request for disability was filed
almost six months after his termination, whether Plaintiff’s damages should be reduced does not go to the
question of liability.

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He knew of Plaintiff’s numerous medical issues and, more pertinently, he terminated Plaintiff
because of his “heart issues” and “health issues.” Furthermore, based solely upon his understanding
of those “issues,” Jones concluded that Plaintiff simply could not work at any of his car washes.
Jones’ blanket statement that Plaintiff could not work at Champion suggests yet another
violation of the ADA. The ADA requires employers to engage in an interactive process, a duty
which “is mandatory and ‘requires communication and good-faith exploration of possible
accommodations.’”

Keith v. County of Oakland, 703 F.3d 918, 929 (6th Cir. 2013) (citation

omitted). “The purpose of this process is to ‘identify the precise limitations resulting from the
disability and potential reasonable accommodations that could overcome those limitations.’”
Klieber, 485 F.3d at 871. As the name suggests, the process involves communication among all
concerned, yet it appears that Defendants did not engage in any such dialogue with Plaintiff. See,
Jones v. Nissan No. Amer., Inc., 438 Fed. Appx. 338, 401 (6th Cir. 2011) (employee was entitled to
judgment as a matter of law where, among other thing, the “record reflect[ed] a complete lack of
evidence that [the employer] took any steps to ascertain [the employee’s] medical condition”); 29
C.F.R. § 1630.2o(3) (“To determine the appropriate reasonable accommodation it may be necessary
for the covered entity to initiate an informal, interactive process with the individual with a disability
in need of the accommodation.”).6

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Whether the employer’s failure to engage in the interactive process constitutes an independent
ground to support an ADA violation appears to be an open question in the Sixth Circuit. Compare, Wariad
v. Justice and Pub. Safety Cabinet, 509 Fed. Appx. 527, 532 n.1 (6th Cir. 2013) (“an interactive-process
argument simply does not create an independent ground to support an ADA violation beyond standard
reasonable-accommodation analysis”) with Keith, 703 F.3d at 929 (district court’s statement that “‘[t]he Sixth
Circuit follows the view that a failure to engage in the interactive process is not an independent violation of
the ADA,’” and that if an employee fails to propose a reasonable accommodation the employer’s failure “to
engage in the interactive process [does] not constitute a violation of the ADA . . . is erroneous because it rests
upon an incorrect premise.”).

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The “same actor” inference relied upon by Defendants does not preclude summary judgment
in Plaintiffs’ favor. That inference was adopted by the Sixth Circuit in Buhrmaster v. Overnite
Trans. Co., 61 F.3d 461, 464 (6th Cir. 1995) and allows a court “to infer a lack of discrimination from
the fact that the same individual both hired and fired the employee.” Id. at 463. Later, in Wexler
v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003), the Sixth Circuit, en banc, canvassed
the law in the area and joined those circuits which had “minimized the importance of the same-actor
inference, emphasizing that although a court may infer an absence of discrimination where the same
individual hired and fired the plaintiff, such an inference is not required.” Id. at 573. Thus, the
inference “is by no means a mandatory one, and it may be weakened by other evidence.” Id.
Here, whatever inference of non-discrimination that may be derived from the fact that Jones
both hired and fired Plaintiff is eviscerated by the fact that, according to the letter, he fired Plaintiff
because of his medical conditions and, based upon his perception of those medical issues,
unilaterally determined that Plaintiff was unable to work.
The Sixth Circuit has stated that “[w]hen a plaintiff offers direct evidence of discrimination,
‘the case should proceed as an ordinary civil matter[,]’” Wharton v. Gorman-Rupp Co., 309 Fed.
Appx. 990, 996 (6th Cir. 2009) (citation omitted), and that “[w]here the plaintiff presents direct
evidence that his disability was a factor in an adverse employment decision, . . .the burden then
shifts to the employer to establish the business necessity of its decision, or to show that it was
justified by wholly legitimate concerns.” Beery v. Associated Hygienic Products, LLC, 243 Fed.
Appx. 129, 133 (6th Cir. 2007) (citation omitted). Defendant argues that it was justified in
terminating Plaintiff’s employment because he had been counseled for being rude to customers and
he failed to heed instructions not to sit out in the sun.

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Forgetting that these purported justifications were raised after the fact and “[s]hifting
justifications over time calls the credibility of those justifications into question,” Cicero v.
Borg–Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002), the only explanation offered for
Plaintiff’s termination at the time the decision was made was that he was fired due to medical
reasons. This is significant because to establish an ADA disability claim, Plaintiff is not required
to show that his disability (or perceived disability) was the sole reason for his termination. Lewis
v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 317 (6th Cir. 2012). Rather, he is required to
prove that he was terminated “because of” a disability (or perceived disability); that is, his disability
(or perceived disability) was a “‘but-for’ cause of the employer’s adverse decision.’” Id. at 321
(quoting, Gross v. FBL Finan. Serv., Inc., 577 U.S. 167, 176 (2009)). In light of Jones’ June 18,
2011, letter, any reasonable jury would have no choice but to conclude that Plaintiff was terminated
because of his perceived disability and that, “but for” that perception, Plaintiff would not have been
terminated on June 19, 2011.
Accordingly, Plaintiff is entitled to summary judgment on his ADA claim.7 In light of this
finding on liability, the Court will set a status conference to address how the parties wish to go
forward on Plaintiff’s damages claim under the ADA.
B. Retaliation Claim8
7

The Court notes that nothing in the record suggests that Defendants acted with ill-will or malice,
Rather, it suggests that they acted out of ignorance of the requirements of the ADA.
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It is unclear whether Plaintiff intends to pursue his retaliation claim in light of the fact that the
Court finds liability in his favor on the ADA claim. This matter, too, will be addressed at the status
conference.
Additionally, the parties focus exclusively on Plaintiff’s ADA retaliation claim. To the extent that
Plaintiff intends to pursue a retaliation claim under the TDA, that claim likely fails because he alleges that
he was retaliated against after requesting a reasonable accommodation. Requesting a reasonable
accommodation under the TDA is not a protected activity, and does not support a retaliation claim. Burress
v. City of Franklin, 809 F. Supp.2d 795, 818 (M.D. Tenn. 2011). The Court will address this issue at the

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The ADA prohibits retaliation against an employee who opposes practices made unlawful
by the Act. 42 U.S.C. § 12203. Where, as here, there is no direct evidence of retaliation,9 a plaintiff
must establish a prima face case by showing that “(1) []he engaged in a protected activity; (2) []he
suffered an adverse employment action; and (3) there is a causal link between the protected activity
and the adverse employment action.” Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007).
“If a plaintiff presents indirect evidence to establish her prima facie case . . . the burden-shifting
framework of McDonnell Douglas Corp. . . . applies,” meaning that “the defendant must produce
evidence of a legitimate, non-discriminatory reason for its adverse action, after which the plaintiff
must show by a preponderance of the evidence that the proffered legitimate reason was not the true
reason for the adverse employment action, but merely a pretext for retaliation.” White v. Standard
Ins. Co., 2013 WL 3242297 at * 3 (6th Cir. June 28, 2013) (internal citation to McDonnell Douglas
omitted).
In both his EEOC charge and in his Complaint, Plaintiff claims that he was retaliated against
after he requested that he be moved to the Bellevue car wash to accommodate his medical
conditions. There are obvious question of fact which preclude summary judgment on this claim.
As a preliminary matter, there is a dispute as to whether Plaintiff asked to be moved to
Bellevue to accommodate his medical needs, or whether he asked to be moved so that he could work
the morning shift. There is also a factual dispute as to the reason why Plaintiff was not moved: was
it because he had requested an accommodation, or because the Bellevue job was more demanding,
Plaintiff had not performed well there in the past, and customer complaints had been leveled against

conference as well.
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Jones’ letter says nothing about Plaintiff having engaged in protected activity or making any
request for an accommodation.

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Plaintiff at about this same time? This inquiry necessarily segues into the ultimate question of
whether the reason proffered for the failure to transfer was but a pretext for retaliating against him
for requesting an accommodation. As such, summary judgment will not be granted on Plaintiff’s
retaliation claim.
III. CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for Summary Judgment on his claim for
liability under the ADA will be granted, and Defendants’ Motion for Summary Judgment on all of
Plaintiff’s claims will be denied. The Court will set a status conference to (1) hear from Plaintiff as
to whether he intends to pursue his remaining claims in light of the liability ruling on his ADA claim,
and (2) discuss the future proceedings that may be necessary relating to Plaintiff’s claim for damages.
An appropriate Order will be entered.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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