United States District Court, E.D. Tennessee
WENDFORD T. HURST, Plaintiff,
THE LILLY COMPANY, Defendant.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
civil action is before the Court on defendant's Motion
for Summary Judgment [Doc. 18] to which plaintiff responded
[Doc. 21] and defendant replied [Doc. 22]. For the reasons
discussed herein, the Court will grant defendant's motion
cases arises from defendant's decision to terminate
sixty-one-year-old plaintiff's employment. Plaintiff
began his employment as a forklift service technician
(“forklift mechanic”) on August 28, 1978 [Doc.
21-1 p. 16]. In his capacity as a forklift mechanic,
plaintiff was required on a daily basis to lift sixty to
seventy pound LP tanks and place them onto fork lifts [Doc.
19-1 pp. 15-16]. In addition, plaintiff was sometimes
required to lean over and place twenty to thirty pound parts
in engine spaces [Id. at 19-20]. Plaintiff admits
that his position involved a lot of “bending
over” and “reaching for things, ” and he
also states that he sometimes had to crawl underneath the
began having issues with his back in 2011 [Id. at
38]. At that time plaintiff began experiencing back pain such
that his back “hurt all the time” [Id.].
In early 2012 plaintiff saw a doctor and received shots into
his back, which alleviated the pain for approximately one
year [Id. at 41-42]. In 2013, plaintiff returned to
the doctor and again received shots into his back
[Id.]. This time, the shots only alleviated
plaintiff's pain for approximately one month
24, 2014, plaintiff underwent a discectomy to remove a
herniation in his L4-L5 disk [Doc. 19-34 p. 15]. On a medical
form for plaintiff's disability benefits, plaintiff's
Doctor, Dr. Patrick Bolt, indicated that it would be five to
six months before plaintiff could expect significant
improvement in his medical condition after the surgery
[Id. at 13]. Dr. Bolt, provides however, that this
timeline was just an estimate, and that the timeframe for
recovery with respect to this type of surgery is
“extremely variable” [Id. at 12-14]. Dr.
Bolt did not believe at that time, however, that plaintiff
would require any additional surgery [Doc. 21-1 p. 7]. On
June 27, 2014, plaintiff submitted to defendant a request for
Family Medical Leave Act (the “FMLA”) leave, in
which he requested leave from June 16, 2014, to September 30,
2014 [See Doc. 19-2]. Although plaintiff's
position was not covered by the FMLA, and even though the
requested leave was for a longer period of time than that
required by the FMLA, defendant approved the leave request
[See id.; Doc. 19 p. 3].
11, 2014, and again on August 8, 2014, plaintiff returned to
Dr. Bolt claiming that he was having increased pain [Doc.
19-34 p. 18]. Dr. Bolt ordered an MRI, and the results of the
MRI necessitated that plaintiff undergo a second surgical
procedure on August 26, 2014 [Id. at 20]. Dr. Bolt
provides that the second surgery restarted the clock on
plaintiff's estimated recovery time [Id. at 21].
Dr. Bolt states, however, that the time at which plaintiff
would be able to return to work would ultimately depend on
his symptoms [Id.].
October 8, 2014, approximately one week after his leave had
ended and not having returned to work, plaintiff returned to
Dr. Bolt's office and met with Ashley Self, Dr.
Bolt's nurse practitioner [Doc. 19-35 p. 13]. After the
appointment, plaintiff called Dr. Bolt's office,
indicating that he was in “terrible pain” and
needed a note for his employer giving him additional time off
of work in order to recover from the second surgery
[Id.]. Nurse Self then provided plaintiff with such
a note [See Doc. 19-12]. In the section of the note
indicating at what point plaintiff could return to work,
Nurse Self wrote the following: “Off work until
[follow-up] apt on 11/19/14 & will be determined at that
time” [Id.]. That day, plaintiff provided
Nurse Self's note to his supervisor, Chris Oxendine [Doc.
21-1 p. 28]. The next day, October 9, 2014, defendant
terminated plaintiff's employment [See id.].
November 19, 2014, plaintiff had his follow-up appointment
with Nurse Self [See Doc. 19-17]. At this
appointment, Nurse Self stated that plaintiff was
“ready to be released to work at full duty”
[Id. at 1]. Nurse Self provides that a key factor in
her determination that plaintiff was able to return to work
full time was the extent to which plaintiff could tolerate
any remaining pain [Doc. 19-35 p. 16]. That day, plaintiff
spoke to Oxendine, who advised plaintiff that he would not be
allowed to return to work [See Doc. 21-1 p. 3].
next day, on November 20, 2014, plaintiff called Dr.
Bolt's office to speak with Nurse Self [Doc. 19-35 p.
19]. Later that day, plaintiff called CIGNA, defendant's
long-term disability benefits provider, and CIGNA provides
that plaintiff stated that his foot was numb and that he had
back pain [See Doc. 19-19]. CIGNA further provides
that plaintiff told it that his employer had terminated him
and that Dr. Bolt was still keeping him off of work
[Id.]. Plaintiff submits that what he actually told
Dr. Bolt, Nurse Self, and CIGNA, is that his employer
considered him unable to perform his job [Doc. 21-1 p. 4].
Nurse Self subsequently ordered another MRI on plaintiff,
which was performed on November 26, 2014 [Doc. 19-35 p. 20].
Based on the results of the MRI, Nurse Self indicates that
she would recommend that plaintiff alternate sitting and
standing, and not lift over twenty pounds [Id. at
20-21]. Nurse Self provides that these limitations would
continue until she had a chance to reevaluate plaintiff
December 2014, plaintiff spoke with Wally Painter,
defendant's operations manager, about the possibility of
getting his position back [Doc. 21-1 p. 22]. During that
conversation, Painter told plaintiff, “with your age,
you just need to go ahead and try to get your
subsequently initiated this suit, alleging disability and age
discrimination under both federal and state law [See
Doc. 1]. Defendant moves for summary judgment as to all of
Standard of Review
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “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 moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v.
Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993).
All facts and all inferences to be drawn therefrom must be
viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301
F.3d 937, 942 (6th Cir. 2002).
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F.Supp.
1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477
U.S. at 317). The plaintiff must offer “concrete
evidence from which a reasonable juror could return a verdict
in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). “[M]ere conclusory
and unsupported allegations, rooted in speculation, do not
meet that burden.” Bell v. Ohio State Univ.,
351 F.3d 240, 253 (6th Cir. 2003) (citation omitted). Summary
judgment may not be defeated “based on rumors,
conclusory allegations, or subjective beliefs.”
Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th
Cir. 2000). To establish a genuine issue as to the existence
of a particular element, the non-moving party must point to
evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson, 477 U.S. at 248.
The genuine issue must also be material; that is, it must
involve facts that might affect the outcome of the suit under
the governing law. Hein, 232 F.3d at 488.
Court's function at the point of summary judgment is
limited to determining whether sufficient evidence has been
presented to make the issue of fact a proper question for the
factfinder. Anderson, 477 U.S. at 250. The Court
does not weigh the evidence or determine the truth of the
matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine
issue of material fact.” Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus,
“the inquiry performed is the threshold inquiry of
determining whether there is a need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250.
brings claims for disability discrimination under the
Americans with Disabilities Act (the “ADA”) and
the Tennessee Disability Act (the “TDA”). He also
brings claims for age discrimination under the Age
Discrimination in Employment Act (the “ADEA”) and
the Tennessee Human Rights Act (the “THRA”).
Defendant has moved for summary judgment with respect to all
of these claims. The Court will first discuss the disability
discriminations claims, and then turn to the age