Booth v. Nissan North America, Inc.

Filing 40

MEMORANDUM Signed by District Judge William L. Campbell, Jr on 8/17/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
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MICHAEL ADAM BOOTH,
Plaintiff,
v.
NISSAN NORTH AMERICA, INC.,
Defendant.

NO. 3:17-cv-00755
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY

MEMORANDUM
I. Introduction
Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 25).
For the reasons set forth below, Defendant’s Motion for Summary Judgment (Doc. No. 25) is
GRANTED, and this action is DISMISSED.
II. Factual and Procedural Background
Plaintiff Michael Adam Booth, an employee of Defendant Nissan North America, Inc.
(“Nissan”), has brought this action asserting claims for violations of the Americans With
Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), and for workers’ compensation retaliation
under state law. (Doc No. 1). Plaintiff injured his neck at work in 2004, resulting in work
restrictions Plaintiff acknowledges were accommodated by Nissan until the events giving rise to
this lawsuit. (Id. ¶ 12; Plaintiff’s Response to Statement of Material Facts in Support of
Defendant’s Motion for Summary Judgment ¶¶ 8, 9 (Doc. No. 32) (hereinafter “Plaintiff’s
Response to Facts”)).
In 2014, Plaintiff transferred to a “zone” on the “Door Line,” a part of Nissan’s vehicleproduction process. (Id. ¶ 3). In September or October, 2015, Plaintiff requested a transfer to a
vacant position in “Material Handling.” (Id. ¶¶ 10-13; Plaintiff’s Deposition, at 16-17, 34 (Doc.

No. 25-1)). Defendant denied the request in November, 2015, advising Plaintiff the new job was
beyond his work restrictions. (Id.).
In September, 2016, Randy Wiseman became the supervisor of the Door Line and began
implementing Nissan’s transition of the zone where Plaintiff worked from a two-job rotation to a
four-job rotation. (Declaration of Randy Wiseman, ¶¶ 2-3 (Doc. No. 28)). When he was told
Defendant would be implementing a four-job rotation for his zone, Plaintiff became concerned
that the two new jobs Defendant intended to add would be outside his work restrictions.
(Plaintiff’s Deposition, at 34-35, 136; Plaintiff’s Response to Facts ¶ 14). Given Plaintiff’s
concern, Defendant asked its third-party medical provider, Progressive Health, to analyze the
functions of the jobs on the Door Line to see if any four-job rotations would be compatible with
Plaintiff’s original 2005 work restrictions. (Plaintiff’s Response to Facts ¶¶ 17-19).

In a

September, 2016 report, Progressive Health concluded there were no four-job rotations on the
Door Line compatible with Plaintiff’s original 2005 restrictions. (Id.; Doc. No. 28-1).
Given the results of the report, Plaintiff’s supervisors requested that Plaintiff have a
physician determine whether the restrictions imposed 10 years earlier remained applicable.
(Plaintiff’s Deposition, at 57-58, 99-101). For approximately three-to-four months in late 2016 to
early 2017, Plaintiff’s supervisors asked him at various times about the status of his restrictions
and whether they had been reviewed by a physician. (Id., at 98, 201-02, 203, 212-15, 220-21,
288). According to Plaintiff, his supervisors repeatedly pressured him to arrange for the removal
of his work restrictions in order to keep his job, and this pressure amounted to harassment. (Id.,
at 125-26). Plaintiff contends the harassment was triggered by his earlier request to transfer to
Material Handling, which, according to Plaintiff, would have “bumped out” relatives of Nissan’s
“managers and HR people.” (Id., at 231-24, 245, 313).
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In January, 2017, Plaintiff’s physician revised his work restrictions and approved him for
a full four-job rotation. (Id., at 136-37; Doc. No. 25-4, at 11; Doc. No. 31-5, at 4). Plaintiff
continues to work within his restrictions, currently performing a three-job rotation on the Door
Line. (Plaintiff’s Response to Facts ¶¶ 1, 2, 25-26; Plaintiff’s Deposition, at 128-29, 137).
III. Analysis
A. The Standards Governing Motions For Summary Judgment
Summary judgment should be granted "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The Supreme Court has construed Rule 56 to “mandate[] the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, a court must draw all reasonable
inferences in favor of the nonmoving party. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp.,475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Shreve v. Franklin
County, Ohio, 743 F.3d 126, 132 (6th Cir. 2014). The court does not, however, make credibility
determinations, weigh the evidence, or determine the truth of the matter. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In order to defeat the motion, the nonmoving party must provide evidence, beyond the
pleadings, upon which a reasonable jury could return a verdict in its favor. Celotex Corp., 477
U.S. at 324; Shreve, 743 F.3d at 132. Ultimately, the court is to determine “whether the evidence

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presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
B. Denial of Transfer to Material Handling
Plaintiff claims Defendant violated the ADA when it denied his request to transfer from
the Door Line to a job in Material Handling. The ADA prohibits discrimination against “a
qualified individual on the basis of disability” with regard to hiring, compensation, discharge,
and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). A “qualified
individual” is “an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §
12111(8). In order to establish a prima facie case of discrimination under the ADA, a plaintiff
must show: (1) he is disabled; (2) he is otherwise qualified to perform the essential functions of a
position, with or without accommodation; and (3) he suffered an adverse employment action
because of his disability. Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433
(6th Cir. 2014); Perry v. American Red Cross Blood Services, 651 Fed. Appx. 317 (6th Cir.
2016).
Defendant argues Plaintiff cannot establish the first and third elements. Regarding the
fourth element, Defendant argues denial of Plaintiff’s request for the Material Handling job did
not constitute an “adverse employment action” because transfer to that job would have been a
lateral transfer rather than a promotion. An “adverse employment action” is one that results in “a
materially adverse change in the terms and conditions of [a plaintiff’s] employment.” Spees v.
James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010). Adverse employment actions “are
typically marked by a ‘significant change in employment status,’ including ‘hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
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significant change in benefits.’” Id. With regard to denial of requests to transfer, a plaintiff
generally must show the transfer he was denied involved a change in wages or salary, a less
distinguished title, a material loss of benefits, or significantly diminished material
responsibilities. Momah v. Dominguez, 230 Fed. Appx. 114, 123 (6th Cir. 2007). “[A] purely
lateral transfer or denial of the same, which by definition results in no decrease in title, pay or
benefits, is not an adverse employment for discrimination purposes.” Id. The plaintiff’s
“‘subjective impressions as to the desirability of one position over another are not relevant’ in
determining whether the employee suffered an adverse employment action.” Id. (quoting
Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002)).
Plaintiff admits the Material Handling job had the same rate of pay, but argues it was not
a lateral transfer because: (1) job openings in Material Handling are rare and require a level of
seniority; and (2) Material Handling jobs, in Plaintiff’s opinion, involve less stress on one’s
body. (Plaintiff’s Response to Facts ¶ 10). The scarcity of job openings, and Plaintiff’s subjective
impressions about the desirability of the job, however, are insufficient to show a transfer from
the Door Line to Material Handling was other than a purely lateral transfer. Plaintiff has not
alleged or presented any evidence indicating the Material Handling job involved a change in pay
or benefits, or other change usually associated with a promotion.1 Therefore, Plaintiff has failed
to make a showing sufficient to withstand summary judgment as to this essential element of his

1

Plaintiff cites Deleon v. Kalamazoo County Road Com’n, 739 F.3d 914, 919 (6th Cir. 2014)
for the proposition that a plaintiff may show a transfer constitutes an “adverse employment
action” even in the absence of a demotion or pay decrease if the particular circumstances of the
new job rise to some level of “objective intolerability.” This proposition does not support
Plaintiff’s claim, however, because he has not suggested his position on the Door Line was
objectively intolerable.
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claim.2 Accordingly, Defendant is entitled to summary judgment on Plaintiff’s failure to promote
claim.
Plaintiff also appears to argue Nissan failed to “accommodate” his disability through a
transfer to the Material Handling job. Discrimination, under the ADA, includes the failure to
make “reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless . . . the accommodation would impose an undue
hardship on the operation of the business of the covered entity.” 42 U.S.C. § 12112(b)(5)(A). A
“reasonable accommodation” includes “job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment or devices . . . [or]
other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).
The plaintiff bears the initial burden of proposing an accommodation and showing it is
objectively reasonable. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1108 (6th
Cir. 2008). The employer then bears the burden of persuasion to show the accommodation
would impose an undue hardship. Id. An employee “cannot force her employer to provide a
specific accommodation if the employer offers another reasonable accommodation.” Id. If an
employee rejects a reasonable accommodation, “the individual is no longer a ‘qualified
individual with a disability.’” Id.
Plaintiff admits the position he held at the time he requested transfer was a reasonable
accommodation of his work restrictions by Nissan. (Plaintiff’s Response to Facts, at ¶ 9;
Complaint, at ¶ 12 (Doc. No. 1)).

Therefore, Plaintiff cannot show Defendant failed to

reasonably accommodate his disability. As the Sixth Circuit has explained, Plaintiff cannot insist
on a specific accommodation – a job in Material Handling – when his current job is itself a

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Consequently, the Court need not consider whether Plaintiff meets the first element.
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reasonable accommodation of his disability. See, e.g., Hedrick v. W. Reserve Care Sys., 355 F.3d
444, 457 (6th Cir. 2004) (“. . . an employee cannot make his employer provide a specific
accommodation if another reasonable accommodation is instead provided.”); Bush v. Compass
Grp. USA, Inc., 683 Fed. Appx. 440, 450 (6th Cir. 2017). Thus, Defendant is entitled to
summary judgment on Plaintiff’s failure to accommodate claim.
C. Reevaluation of Job Duties
Plaintiff alleges that, for several months, Nissan engaged in a campaign of harassment,
creating a hostile work environment, by pressuring him to eliminate his work restrictions in order
to keep his job. To establish a claim of hostile work environment based on disability, a plaintiff
must demonstrate: (1) he was disabled; (2) he was subject to unwelcome harassment; (3) the
harassment was based on his disability; (4) the harassment unreasonably interfered with his work
performance; and (5) the defendant either knew or should have known about the harassment and
failed to take corrective measures. Trepka v. Bd. of Educ., 28 Fed. Appx. 455, 461 (6th Cir.
2002).

To establish a hostile work environment, the plaintiff “must show conduct that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and [to]
create an abusive working environment.’” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S.
17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993)). “The standard has both an objective and a
subjective component: the environment must be one ‘that a reasonable person would find hostile
or abusive,’ and the plaintiff must ‘subjectively perceive the environment to be abusive.’” Goller
v. Ohio Dep't of Rehab. & Correction, 285 Fed. Appx. 250, 259 (6th Cir. 2008) (quoting Harris,
510 U.S. at 21–22)). Conduct that is “merely offensive” will not suffice to support a hostile work
environment claim. Id.

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Defendant argues it did not “harass” Plaintiff by requesting he update his 2005 work
restrictions to determine whether he could continue performing his current job, which was
transitioning from a two-job rotation to a four-job rotation. In that regard, the ADA permits an
employer to “make inquiries into the ability of an employee to perform job-related functions.” 42
U.S.C. § 12112(d)(4)(B); see also 42 U.S.C. § 12112(d)(4)(A) (an employer “shall not require a
medical examination and shall not make inquiries of an employee as to whether such employee
is an individual with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business necessity.”);
Templeton v. Neodata Services, Inc., 162 F.3d 617, 619 (10th Cir. 1998) (employer’s request for
updated medical information was reasonable in light of doctor’s earlier letter questioning
employee’s ability to return to work).

Indeed, an employer is required to engage in an

“interactive process” with an employee to identify the precise limitations resulting from a
disability and potential reasonable accommodations that could overcome those limitations. See,
e.g., Rorrer v. City of Stow, 743 F.3d 1025, 1040 (6th Cir. 2014). If this process fails to lead to a
reasonable accommodation of the employee’s limitations, responsibility lies with the party that
caused the breakdown. Id.
To support his hostile work environment claim, Plaintiff relies on his own testimony that
his supervisors “pressured” him to get his work restrictions changed so he would be able to
continue working. (Id., at 125-26, 152-53, 160, 183). Plaintiff testified he felt harassed because
his supervisors asked him once a week, and sometimes more than once a week, over a three-tofour month period, from October, 2016 to January, 2017, if he had seen a physician to obtain a
current assessment of his work restrictions. (Id.) In addition, Plaintiff testified he felt he was
being harassed because a temporary supervisor “constantly” watched him perform his work in
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January 2018. (Plaintiff’s Deposition, at 25-27, 224-26)).3

Plaintiff also cites an exhibit

containing four emails exchanged by Senior Manager Marc LaCroix with other employees
relating to Plaintiff’s work restrictions. (Plaintiff’s Exhibit Eight (Doc. No. 31-5, at 9-11)). The
emails essentially document conversations with Plaintiff regarding the need to review his current
work restrictions to determine whether he would be medically cleared to perform his current job
or other jobs in the plant. (Id.) 4

3

Plaintiff also testified he was never written up or verbally counseled or disciplined by this
supervisor, and understood that watching to see if technicians perform their jobs correctly is part
of a supervisor’s job. (Id.).
4

The first email in the exhibit is dated November 2, 2016, and was sent to Trish Howerton at
Premise Health, and Debbie Nelson, Manager of Medical Management at Nissan. In it, Mr.
LaCroix states:
Adam Booth met with me today and informed me that his prior workman’s
comp doctor is no longer in practice. Due to his permanent restrictions not
clearing him to run any jobs in the plant he was advised of the steps he would
need to take in order to possibly improve his current standings in regards to his
restrictions. He was advised to visit Medical and speak with a case manager about
his medical records and setting up and [sic] appointment with his attending
physician. With his original Dr. no longer in practice how do we proceed with
getting him set up to be seen by another Dr. and evaluated?
(Doc. No. 31-5, at 11). The second email is Ms. Nelson’s response to Mr. LaCroix, sent the
same day:
It was my understanding he was informed that he could:
1. See his PCP, under group health, if PCP was willing;
2. Ask Dr. Hazlewood, who is treating him for an open WC case, if he
will see him, under his group health plan, to review/address the
permanent restrictions.
Additionally I understand he was told he should come to medical, sign a
waiver/consent form, and request his medical records to take to whatever MD apt.
he might schedule.
(Id., at 10).
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Assuming Plaintiff could prove the other elements required to establish a claim for
hostile work environment based on disability, Plaintiff’s allegations of harassment fall far short
of satisfying the second and fourth elements. The conduct Plaintiff cites to support his claim was
not objectively harassing or even unreasonable. Rather, contrary to Plaintiff’s characterization of
the evidence, the documents show a reasonable attempt by Nissan to ensure Plaintiff would
retain his employment after a change in the production process in the zone where he worked.5

The next email in the exhibit is from Mr. LaCroix to Debbie Nelson, Gina Baio, Bill
Slagle, and Rufus McAdoo, all Nissan employees, and is dated January 27, 2017, over two
months later. In the email, Mr. LaCroix states:
See the attached email with the most recent details for Adam’s medical review
status. We need to discuss some deadlines that he has to meet as he is continuing
to drag out his requirement to meet with the Dr. We have continued to let him
work in his current pod, but we can’t continue to do that if he doesn’t get his Perm
Restrictions modified to clear him for duty.
(Id., at 9). The final email in the exhibit is a response from Mr. Slagle to Mr. LaCroix sent later
that day:
Before the Holidays when we met with him it was clear that we were giving him
ample time to make an appointment. He did that and had an evaluation with
Hazelwood on 12/29. This follow-up appointment with Hazelwood on 1/31 in my
opinion, is still on track with what we asked him to do. I think he needs to be
refreshed on the urgency and need for the medical clinic to assess the findings of
the doctor and make a determination regarding his current restrictions.
Based on his wife’s conflicting appointment on this same day, I think it is
appropriate to give him 2 weeks from Monday 1/30 to reschedule the 1/31
appointment with Hazelwood.
(Id.)
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Plaintiff has cited no authority suggesting Nissan was prohibited by the ADA from changing
its production processes. Nor has Plaintiff cited any evidence supporting his suggestion that
Nissan’s stated intention to change its production process was a ruse to “push out the physically
disabled.” (Doc. No. 31, at 9).
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During the three-to-four month period in which Plaintiff’s supervisors waited for him to
obtain updated restrictions,6 there is no evidence Nissan eliminated his current position, or
attempted to move him to a more difficult position. There is also nothing in the emails cited by
Plaintiff (assuming their admissibility) suggesting his supervisors harassed him during this
period. As for Plaintiff’s complaints of being constantly watched by a temporary supervisor at a
later time, Plaintiff has not shown the behavior went beyond that reasonably expected of a
supervisor. Plaintiff has pointed to no evidence that he was ridiculed, insulted, intimidated, or
abused because of his disability, or otherwise. Even if the Court were to assume Nissan’s
conduct was intimidating, however, it does not rise to the level of sufficient severity to have
altered Plaintiff’s working conditions, as is required to establish a hostile work environment
claim. See, e.g., Trepka, 28 Fed. Appx. at 461 (supervisor’s contentious oral confrontation
involving yelling and stern words about plaintiff’s ability to walk and expressing skepticism
about his condition did not create a hostile work environment); Goller, 285 Fed. Appx. at 259
(supervisor’s derogatory name calling that did not interfere with her work performance held to be
insufficient to establish hostile work environment). Therefore, Plaintiff has failed to make a
showing sufficient to withstand summary judgment as to two of the essential elements of his
hostile work environment claim. Accordingly, Defendant is entitled to summary judgment on
this claim.
D. Workers’ Compensation Retaliation

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With regard to the updated restrictions, the Court notes that Plaintiff has cited no factual
support for his suggestion that the physician “went against what was best for Mr. Booth” in
changing his work restrictions. (Doc. No. 31, at 10).
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Plaintiff also claims Defendant violated Tennessee law by retaliating against him for
filing a workers’ compensation claim in 2004. In order to establish a prima facie case for
workers’ compensation retaliation, a plaintiff must show: (1) he was an employee of the
employer at the time of the injury; (2) the employee filed a workers’ compensation claim against
the employer; (3) the employer terminated the employee; and (4) the workers’ compensation
claim played a substantial role in the employer’s decision to terminate the employee. Alexander
v. Kellogg USA, Inc., 674 Fed. Appx. 496, 501 (6th Cir. 2017) (citing Yardley v. Hosp.
Housekeeping Sys., LLC, 470 S.W.3d 800, 805 (Tenn. 2015)).
Defendant argues Plaintiff cannot establish the third element – termination. Plaintiff
admits he has not been terminated and is working full days at Nissan within his restrictions.
(Plaintiff’s Response to Facts ¶ 36). Plaintiff has not cited any authority extending a workers’
compensation retaliation claim to conduct short of termination. Accordingly, Defendant is
entitled to summary judgment on Plaintiff’s workers’ compensation retaliation claim.7
IV. Conclusion
For the reasons discussed above, the Court grants summary judgment to Defendant on all
claims, and this action is dismissed.
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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Given the Court’s conclusion that Plaintiff has failed to make a sufficient showing to
withstand summary judgment on his claims, it is unnecessary to consider Defendant’s arguments
regarding the statute of limitations and other defenses to those claims.
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