Hibler v. ABC Technologies, Inc.

Filing 29

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 4/16/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONALD G. HIBLER
v.
ABC TECHNOLOGIES, INC.

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NO. 3:14-0210
JUDGE CAMPBELL

MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 15).
For the reasons stated herein, Defendant’s Motion is GRANTED.
FACTS
Plaintiff is a former employee of Defendant who brings this lawsuit pursuant to the
Americans with Disabilities Act (“ADA”), as amended, and the Family and Medical Leave Act
(“FMLA”). Plaintiff’s Complaint alleges that Defendant is a company which engages in the design,
manufacture and assembly of blow molded parts for the automotive industry. Plaintiff contends that
he injured his shoulder at work in February of 2012 and, about a week later, was placed on work
restrictions by his physician, Dr. Motz. On March 27, 2012, Plaintiff had surgery on his shoulder.
At the time of his injury, Plaintiff was a “Set Up” team member. The Set Up employees changed
out and set up the necessary molds prior to each day’s production run.
Plaintiff does not dispute that, after his surgery, he received restrictions from his doctor and
was placed in various light-duty jobs to accommodate those restrictions. For example, in August
of 2012, approximately four months after his surgery, Plaintiff was placed in a light-duty position,
repairing plastic containers. Plaintiff claims that this new position was easier on his shoulder and
that he understood his placement in this position to be permanent. Plaintiff contends that he advised

Dr. Motz of his new position and, based on that new position, Dr. Motz released Plaintiff to work
with no restrictions.
Plaintiff alleges that three days after he was released by Dr. Motz, Defendant moved Plaintiff
from the new position back to “Set-Up.” Defendant avers that it returned Plaintiff to his regular
position because Plaintiff presented Defendant with a doctor’s note fully releasing him from his
restrictions.
Plaintiff avers that he was fired in October 19, 2012, allegedly for violation of Defendant’s
attendance policy; in other words, for absenteeism. Plaintiff argues that the real reason for his firing
was discrimination in violation of the ADA and the FMLA. (Plaintiff has represented that he is not
pursuing a retaliation claim under either statute.)
Defendant has moved for summary judgment, asserting that Plaintiff was not disabled or
regarded as disabled during his employment with Defendant; that Plaintiff was reasonably
accommodated when he was on light duty restrictions; that when Plaintiff was released from those
restrictions, he was placed back into his regular job; that Plaintiff was fired for a legitimate,
nondiscriminatory reason, violation of Defendant’s attendance policy; and that Plaintiff was not
eligible for FMLA leave.
SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material

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facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence
has been presented to make the issue of fact a proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive
summary judgment; rather, there must be evidence on which the jury could reasonably find for the
nonmoving party. Rodgers, 344 F.3d at 595.
AMERICANS WITH DISABILITIES ACT
Discrimination
The ADA prohibits employment discrimination "against a qualified individual with a
disability." 42 U.S.C. § 12112(a). In order to establish a violation of the ADA, a person must
establish that: (1) he has a disability, as defined in the ADA; (2) he is qualified to perform the
essential functions of the position, with or without reasonable accommodation; and (3) he suffered
an adverse employment action because of his disability. Demyanovich Cadon Plating & Coatings,
LLC, 747 F.3d 419, 433 (6th Cir. 2014). The ADA bars discrimination “because of” an employee’s
disability, meaning that it prohibits discrimination that is a “but-for” cause of the adverse
employment action. Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 314 (6th Cir. 2012).

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Thus, in order to proceed with his claims under the ADA, Plaintiff must meet the threshold
burden of showing that he is a "disabled" individual within the meaning of the ADA. If Plaintiff has
no "disability," then Defendant cannot be liable for discrimination or failure to accommodate
because of it.
Under the ADA, a "disability" is defined in three ways: (A) a physical or mental impairment
that substantially limits one or more of the major life activities of an individual; (B) a record of such
an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(1). For
purposes of this definition, "major life activities" include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42
U.S.C. § 12102(2).
The 2008 Amendments to the ADA broadened the scope of impairments that qualify as
disabilities, but not every impairment, illness or injury will constitute a disability. Under the
Amendments, the definition of “disability” must be construed in favor of broad coverage of
individuals under the ADA. Nonetheless, “[t]he ADA is not a general protection for medically
afflicted persons.” Evola v. City of Franklin, Tenn., 18 F.Supp.3d 935, 945 (M.D. Tenn. 2014).
Plaintiff’s Complaint alleges that Plaintiff is an individual with a disability who, with
reasonable accommodation, could have performed the essential functions of his job. The Complaint
also alleges that Defendant regarded Plaintiff as having a disability. Defendant argues that Plaintiff
was neither disabled, as that term is defined in the ADA, nor regarded as disabled by his employer.
Defendant acknowledges that Plaintiff suffered a physical impairment temporarily as a result of his

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shoulder injury. Defendant contends, however, that Plaintiff has not shown that his impairment
substantially limited the major life activity of working.
After the 2008 Amendments to the ADA, a “substantial limitation” need not prevent or
severely restrict an individual from performing a major life activity. Sapp v. Western Express, Inc.
2014 WL 7357379 at * 6 (M.D. Tenn. Dec. 23, 2014) (citing 29 C.F.R. § 16390.2(j)). However, not
every impairment constitutes a disability within the meaning of the ADA - the Amendments retained
the requirement that the “substantially limits” standard demands a marked functional limitation
compared to most people in the general population. Id.
Plaintiff argues that he was disabled as a result of the work-related injury to his shoulder. He
asserts that the inability to lift his right arm without being in excruciating pain substantially limited
a major life activity, all manual tasks. Plaintiff also contends that he was “a qualified individual”
because he could perform the essential functions of his job with a reasonable accommodation.
Defendant argues that Plaintiff has offered no evidence that he was unable to work with
temporary restrictions. After Plaintiff came back to work following his surgery, he was placed into
light-duty jobs, with restrictions, and, in August, into a job in which he could work without
limitation. Moreover, although his physician issued specific restrictions for Plaintiff’s work at
various times after his shoulder injury, Dr. Motz never said that Plaintiff could not work at all.
Even if the Court assumes, under the expansion definition of “disability,” that Plaintiff was
disabled, the ultimate burden of persuading the trier of fact that Defendant intentionally
discriminated against him remains at all times with Plaintiff. If Plaintiff establishes his prima facie
case, then the burden shifts to the Defendant to offer a legitimate, nondiscriminatory reason for its
adverse action. Sjostrand v. Ohio State University, 750 F.3d 596, 599 (6th Cir. 2014). If the

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Defendant makes this showing, which is a burden of production, not persuasion, the Plaintiff must
then present evidence allowing a jury to find that the Defendant’s explanation is a pretext for
unlawful discrimination. Id.
Defendant has articulated a legitimate, nondiscriminatory reason for its action in firing
Plaintiff: absenteeism in violation of Defendant’s attendance policy. Under Defendant’s attendance
policy, employees are issued “points” for tardiness, early departure, and unexcused absences from
work. The only excused absences are absences related to a work injury, jury duty, funeral leave,
military leave, court subpoena, approved vacation, and approved FMLA leave. Employees are
required to provide supporting documentation in order for the absence to be excused. If an employee
accumulates 8 or more points in a 12-month period, he or she is fired. Plaintiff does not dispute that
by October 2012, he had accumulated at least 8.5 points under Defendant’s no-fault attendance
policy over the previous 12-month period.
Plaintiff has admitted that supporting documentation is necessary for all excused absences
and yet he states that he was not aware that he needed a doctor’s note to receive an excused absence
due to a work-related injury. Plaintiff does not dispute that he remained out of work from March 27
to April 23, following his surgery, and that he provided notes from Dr. Motz for those days and did
not receive any points for those absences. Plaintiff further admits that Defendant granted Plaintiff
this time off without incurring any points and returned him to work consistent with his restrictions
after he was released to work. Docket No. 26, ¶¶ 32-33. Plaintiff also admits there were additional
times when he was absent or tardy without a doctor’s note.
Plaintiff argues that Defendant inconsistently applied its point system under the attendance
policy and should have afforded him leniency. Yet he has admitted that the way in which Defendant

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counted points against Plaintiff for tardiness and absences was the same way Defendant counted
points against its other employees. Docket No. 26, ¶ 45. He has admitted that he is not aware of any
other of Defendant’s employees who was afforded the leniency he is requesting. Id., ¶ 46. Plaintiff
does not dispute that he had a total of 53 days off work which were considered excused absences
because of his shoulder injury.
Plaintiff argues that there is a “possibility” that some of the points applied to him were
erroneously applied. A plaintiff cannot establish pretext so long as the employer made a reasonably
informed and considered decision before taking the adverse employment action. Foster v. Spring
Meadows Healthcare Center, LLC, 2013 WL 829363 at * 10 (M.D. Tenn. March 6, 2013) (citing
Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). Where the employer can demonstrate
an honest belief in its proffered reason, an inference of pretext is not warranted. Seeger v. Cincinnati
Bell Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012). An employer’s proffered reason is
considered honestly held where the employer can establish it reasonably relied upon the
particularized facts that were before it at the time the decision was made. Id. A plaintiff is required
to show more than a dispute over the facts upon which the decision was based. Id.
Defendant is not required to suspend its disciplinary procedures for absences just for Plaintiff
or to allow Plaintiff to be absent more often than other employees are allowed to be absent. Joyner
v. BellSouth Telecommunications, LLC, 2015 WL 328206 at * 7 (M.D. Tenn. Jan. 23, 2015). It is
not illegal to fire someone because of his absences, unless that firing otherwise violates the law.
Plaintiff has admitted he was given written warning of his accumulating absences five months before
he was fired. Plaintiff has not shown that Defendant’s decision to fire him was not reasonably
informed and considered. The Court finds that Plaintiff has not shown that Defendant’s legitimate,

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nondiscriminatory reason for its decision - - Plaintiff’s attendance record - - - was pretext for
disability discrimination.
Failure to Accommodate
Plaintiff also contends that Defendant violated the ADA by failing reasonably to
accommodate his disability. Because many disabled individuals require accommodations to perform
their jobs, the ADA requires employers to make “reasonable accommodations” to the known
limitations of an otherwise qualified individual with a disability where such an accommodation does
not cause the employer “undue hardship.” 42 U.S.C. § 12112(b)(5); Equal Employment Opportunity
Comm’n v. Ford Motor Co., __ F.3d __, 2015 WL 1600305 (6th Cir. April 10, 2015). To be
“qualified” under the ADA, a person must be able to perform the essential functions of his job with
or without reasonable accommodation. Id.
Plaintiff is not arguing that it would have been a reasonable accommodation to excuse his
attendance points. Plaintiff claims he needed light-duty work because of his work-related injury and
work limitations from his doctor. There is no dispute that Defendant granted Plaintiff time off
following his surgery and returned him to work consistent with his restrictions after he was released
to work.
Plaintiff has agreed that Defendant complied with his doctor’s restrictions except when he
had to change a ceiling tile, which required him to work overhead, and when he had to weld, which
required two hands. (Plaintiff testified, however, that he does not recall doing any welding while he
was on restrictions not to use his right arm.) Plaintiff does not dispute that he was placed in lightduty jobs between the time of his surgery and the date Dr. Motz released him to return to work with
no restrictions. Plaintiff complains, however, that Defendant moved him back to his original Set Up

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position once Dr. Motz had released him to full duty with no restrictions. Plaintiff does not dispute
that Defendant relied on the doctor’s note releasing him to full duty and that he accepted the return
to Set Up and did not tell any manager that he did not want to return to that job. Docket No. 26, ¶¶
6-7.
Plaintiff argues that Dr. Motz’s release was based upon Plaintiff’s working in the plastic
container, light-duty job. But Dr. Motz’s note contained no such restriction or condition. In light
of this note, which stated that Plaintiff could return to full duty without restriction, Defendant was
obligated under the ADA to treat Plaintiff as any other employee with no restrictions.
For these reasons, the Court finds that Defendant provided reasonable accommodations for
Plaintiff’s injury for so long as Plaintiff’s doctor restricted Plaintiff’s ability to work. Accordingly,
Defendant’s Motion for Summary Judgment with regard to Plaintiff’s ADA claims is granted, and
those claims are dismissed.
FAMILY AND MEDICAL LEAVE ACT
The FMLA entitles eligible employees to take up to twelve weeks of leave during any twelve
month period because of a “serious health condition” that makes the employee unable to perform
the functions of his job. 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is an illness,
injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital,
hospice or residential medical care facility; or (B) continuing treatment by a health care provider.
29 U.S.C. § 2611(11). The FMLA recognizes two types of claims: interference claims, in which
employers burden or outright deny substantive statutory rights to which their employees are entitled;
and retaliation claims, in which employers initiate adverse employment actions against employees

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for exercising their FMLA rights to take leave. Romans v. Michigan Dept. of Human Servs., 668
F.3d 826, 840 (6th Cir. 2012).
Thus, an employer violates the FMLA when it interferes with, restrains, or denies the
exercise of an employee’s FMLA rights or the employee’s attempt to exercise such rights.
Demyanovich, 747 F.3d at 427. To establish a prima facie case of FMLA interference, Plaintiff must
show that (1) he was an eligible employee; (2) Defendant was a covered employer; (3) he was
entitled to take leave under the FMLA; (4) he notified Defendant of his intent to take leave; and (5)
Defendant denied him the benefits or rights to which he was entitled under the FMLA.
Demyanovich, 747 F.3d at 427. Interference with an employee’s FMLA rights does not constitute
a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for
engaging in the challenged conduct. Id. at 431.
Count Two of Plaintiff’s Complaint, for violations of the Family and Medical Leave Act,
states simply: “Plaintiff alleges that the intentional acts and omissions as described herein by the
Defendant constitute violations of the Family Medical Leave Act.” In response to Defendant’s
Motion, Plaintiff argues that he was entitled to FMLA leave on the days he had unexcused absences
and that he was never formally offered FMLA.
Defendant contends that Plaintiff has not shown that his “serious health condition” made him
unable to perform the functions of his job. 29 U.S.C. § 2612(a)(1)(D). Indeed, Dr. Motz placed
restrictions on Plaintiff’s ability to do his job, but he never said that Plaintiff was unable to perform
the functions of his job. In fact, Plaintiff’s Complaint clearly states that “Plaintiff is an individual
with a disability who, with reasonable accommodation, could have performed the essential functions
of his former position with Defendant employer.”

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Therefore, Plaintiff has not shown that he was entitled to leave under the FMLA.
Defendant’s Motion for Summary Judgment on Plaintiff’s FMLA claim is granted, and that claim
is dismissed.
CONCLUSION
For all these reasons, Defendant’s Motion for Summary Judgment (Docket No. 15) is
GRANTED, and this action is DISMISSED.
IT IS SO ORDERED.

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TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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