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Fisher v. Harvey

August 14, 2006


The opinion of the court was delivered by: Judge Curtis L. Collier


This is a case arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791, et seq. Before the Court is the second motion for summary judgment filed by Defendant Dr. Francis A. Harvey, Secretary of the Army ("Defendant") (Court File No. 67).

Defendant filed a memorandum and exhibits in support of his motion (Court File No. 68), and Plaintiff Hubert R. Fisher ("Plaintiff") filed a response and additional exhibits in opposition (Court File Nos. 69-70). The Court has considered all of the foregoing in making its decision regarding the motion for summary judgment. For the following reasons, the Court will DENY Defendant's motion for summary judgment (Court File No. 67).


Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the burden is on the moving party to conclusively show no genuine issues of material fact exist, Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003), and the Court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986). However, the nonmoving party is not entitled to a trial merely on the basis of allegations, but must come forward with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Id. at 323, 106 S.Ct. at 2552.

The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question, but does not 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, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). The standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The Court must decide "whether the evidence 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." Id. at 251-52, 106 S.Ct. at 2512. There must be some probative evidence from which the jury could reasonably find for the nonmoving party. If the Court concludes a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Id.; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).


The Court set out in detail the facts of this case in ruling on the parties' prior partial motions for summary judgment (see Court File Nos. 49, 50). The Court here will summarize only those facts necessary to decide the present motion.

Plaintiff was employed by the Department of the Army Corps of Engineers from 1974 to 2003 (Court File No. 41, Affidavit of Hubert R. Fisher ("Fisher Aff.") ¶¶ 2, 23). Plaintiff learned he was infected with hepatitis C in 1989, then became symptomatic in 1997, requiring chemotherapy treatment (id. ¶¶ 3-4). Plaintiff's supervisor, Loyce Holley, required Plaintiff to bring a physician's excuse each time he missed any part of a day of work (id. ¶ 5).

Holley would attach these doctor's notes to a form Plaintiff was required to submit entitled "Requests for Leave or Approved Absence" (id. ¶ 6). Holley would return these forms, with the doctor's note attached, to Plaintiff for his signature by leaving them on the table in the break room that was open to all employees, without any notification the documents had been placed on the table (id. ¶¶ 6-7). Sometimes days would go by before Plaintiff discovered the forms on the table, and he objected to the supervisor placing them in open view (id. ¶¶ 7-8). However, Holley continued this practice (id.).

Holley in his deposition stated he left the forms out for Plaintiff to sign (Court File No. 32, Exh. D, Deposition of Keith Holley ("Holley Depo.") pp. 52-53). Holley also admitted he stated during the administrative proceedings he left both the forms and doctors' notes on the table, but didn't "recall doing that" (id. at 54-55).

Plaintiff recovered from his illness in late 1997, and received no treatment until 2001, when he became symptomatic again (Fisher Aff. ¶¶ 9-10). On August 7, 2001, Holley informed Plaintiff he again would have to provide a physician's excuse in order to miss work, and Holley again left the paperwork, including the doctor's notes, on the break room table (id. ¶¶ 11-12; Court File No. 70, Exh. E). On October 23, 2001, Holley informed Plaintiff his excuses from physicians must include "the specific nature of your illness or injury that prevented you from reporting to work" (Fisher Aff. ¶ 14; Court File No. 70, Exh. F).

Because Plaintiff was employed by the federal government, any complaint of discrimination he wished to pursue against the government had to be filed in accordance with certain regulations that require an initial complaint of discrimination to be lodged with and processed by his government employer. See Brown v. General Serv. Administration, 425 U.S. 820, 833, 48 L.Ed. 2d 402, 96 S.Ct. 1961 (1976); 29 C.F.R. § 1614.101 et seq. Plaintiff filed a formal complaint of discrimination with Defendant's EEO program on January 30, 2002, alleging he was discriminated against on the basis of his disability, subjected to continuing harassment by his supervisor who failed to keep his medical reports private, and subjected to disparate treatment because of his disability in that he was the only employee in his work unit who did not receive a performance or bonus award in 2001 (Fisher Aff. ¶ 17; Court File No. 68, Exh. B, Declaration of Marva Morris ("Morris Decl.") ¶ 2). Plaintiff later amended his complaint on June 11, 2002 to add a charge of reprisal (Morris Decl. ¶ 3). After conducting administrative proceedings, Defendant issued a final finding of no discrimination on January 22, 2003 (id. ¶ 5) in accordance with 29 C.F.R. § 1614.110.

Plaintiff retired on March 31, 2003 with voluntary separation incentive pay ("VSIP") (Court File No. 68, Exh. A, C, Deposition of Hubert R. Fisher ("Fisher Depo.") at 46; Fisher Aff. ¶¶ 23, 24). Plaintiff appealed Defendant's finding of no discrimination to the Equal Employment Opportunity Commission ("EEOC") on February 28, 2003 (Morris Decl. ¶ 5) in accordance with 29 C.F.R. § 1614.401. The EEOC issued a decision on September 28, 2004 holding Defendant discriminated against Plaintiff by disclosing his medical records (Fisher Aff. ¶ 25). Defendant filed a motion for reconsideration, which the EEOC denied ...

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