United States District Court, E.D. Tennessee
WENFORD T. HURST, Plaintiff,
THE LILLY COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
civil action is before the Court on plaintiff Wenford T.
Hurst's Motion to Reconsider [Doc. 28]. In this motion
and the accompanying memorandum in support [Doc. 29],
plaintiff moves the Court to reconsider its July 26, 2017,
order [Doc. 24] granting summary judgment to defendant The
Lilly Company on all of the claims in plaintiff's amended
complaint [Doc. 8]. Defendant responded in opposition [Doc.
30]. Plaintiff's motion is therefore fully briefed and
ready for disposition. E.D. Tenn. L.R. 7.2. After carefully
considering the matter, the Court will deny plaintiff's
case concerns allegations of disability and age
discrimination in violation of: the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq.; the Tennessee Disability Act
(“TDA”), Tenn. Code Ann. § 8-50-103 et
seq.; the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.;
and the Tennessee Human Rights Act (“THRA”),
Tenn. Code Ann. § 4-21-101 et seq. The Court
previously outlined the undisputed facts underlying this
action in the memorandum opinion [Doc. 23] accompanying its
order granting summary judgment [Doc. 24]. As such, the Court
here provides only a limited summary of the factual and
procedural history of this case.
worked as a forklift service technician for defendant from
August 1978 until his termination in late 2014 [Doc. 21-1 p.
This position required plaintiff to lift sixty- to
seventy-pound tanks on a daily basis, to occasionally lean
over and place twenty-to thirty-pound parts in engine spaces,
and to generally bend, reach, and crawl under the forklifts
[Doc. 19-1 pp. 15-16, 19-20]. Plaintiff began experiencing
back pain in 2011 [id. at 38], and on June 24, 2014,
he underwent a discectomy to remove a herniated disk [Doc.
19-34 p. 15]. Plaintiff's doctor, Patrick Bolt, indicated
that five to six months of recovery would be necessary for
significant improvement, though he also noted that this
timetable was an “extremely variable” estimate
[Id. at 12-14]. Plaintiff then requested, and
defendant approved, leave until September 30, 2014 [Doc. 19
p. 3; Doc. 19-2].
plaintiff returned to his doctor with increased pain, he
underwent a second surgery that restarted the clock on his
estimated recovery time [Doc. 19-34 pp. 18-21]. Then, on
October 8-approximately one week after plaintiff's
approved leave ended, but without having resumed
work-plaintiff returned to Dr. Bolt's office and met with
nurse practitioner Ashley Self [Doc. 19-35 p. 13]. After a
follow-up call that same day, Nurse Self provided plaintiff
with a note indicating that he needed additional time off
work and stating, “Off work until [follow-up] apt on
11/19/14 & will be determined at that time”
[Id.; Doc. 19-2]. Plaintiff provided this note to
his supervisor, Chris Oxendine, but defendant terminated his
employment the next day, October 9 [Doc. 21-1 p. 28].
met with Nurse Self again on November 19, and she released
him to return to work [Doc. 19-17 p. 1]. But when plaintiff
spoke with Oxendine that same day, Oxedine informed him that
his position was no longer available [Doc. 21-1 p. 3].
Plaintiff reported continued pain to Nurse Self the next day,
and after another MRI on November 26, Nurse Self recommended
that plaintiff alternate sitting and standing and refrain
from lifting over twenty pounds until she could reevaluate
his condition [Doc. 19-35 pp. 20-21]. Finally, in December
2014, plaintiff spoke with defendant's operations
manager, Wally Painter, about returning to his position [Doc.
21-1 p. 22]. Painter told plaintiff, “[W]ith your age,
you just need to go ahead and try to get your
brought this action on October 8, 2015, seeking monetary
relief for defendant's alleged age and disability
discrimination in violation of state and federal law [Doc.
1]. Plaintiff later filed an amended complaint under Federal
Rule of Civil Procedure 15(a)(1)(B) [Doc. 8]. On May 15,
2017, defendant filed a motion for summary judgment on all of
plaintiff's claims [Doc. 18]. Plaintiff responded in
opposition [Doc. 21], to which defendant replied [Doc. 22].
Then, on July 26, 2017, the Court entered an order granting
defendant summary judgment on all claims in the amended
complaint [Doc. 24].
the Court held that plaintiff could not sustain his ADA
disability discrimination claim-whether premised on his
termination or defendant's failure to engage in the
interactive process-because plaintiff could not show that he
was “otherwise qualified” to perform the
essential functions of his position, “with or without
reasonable accommodation.” Maat v. County of
Ottawa, 657 F. App'x 404, 411 (6th Cir. 2016)
(quoting 42 U.S.C. § 12111(8)). Second, plaintiff's
TDA disability discrimination claim failed because the TDA
does not require employers to provide reasonable
accommodation and because plaintiff was indisputably not
qualified to perform the duties of his position. See
Jones v. Sharp Elecs. Corp., No. W2013-01817-COA-R3-CV,
2014 WL 806131, at *3 (Tenn. Ct. App. Feb. 28, 2014). Third,
summary judgment was proper with respect to plaintiff's
age discrimination claims because he could not establish that
he was “qualified” for his position under the
ADEA and THRA, for the same reasons warranting dismissal of
his ADA and TDA claims. See Rowan v. Lockheed Martin
Energy Sys., 360 F.3d 544, 547 (6th Cir. 2004).
August 23, 2017, plaintiff moved the Court, pursuant to
Federal Rule of Civil Procedure 59(e), to reconsider its
order granting defendant summary judgment [Doc. 28].
Specifically, plaintiff requests that the Court reconsider
the following four questions:
 Whether Plaintiff was a “qualified
individual” for purposes of his disability
discrimination claim, his interactive process claim, and his
age discrimination claim;  Whether Plaintiff proposed a
“reasonable accommodation” in light of the
undisputed testimony that his termination was temporary and
that he would be returned to work when he was released to
full-duty by his doctor;  Whether Defendant failed to
engage in the interactive process in light of . . . the
undisputed testimony that his termination was
“temporary” and that he would be returned to work
when he was released to full-duty by his doctor; and 
Whether Defendant violated the ADA [by] requiring Plaintiff
to be “100% healed” before considering returning
him to work.
[Doc. 28 pp. 2-3 (citation omitted)]. Defendant responded in
opposition, asserting that: (1) plaintiff waived any argument
regarding a “100% healed” rule by failing to
raise it in response to defendant's summary judgment
motion; (2) plaintiff's other arguments are mere
reassertions of the same positions it took in its summary
judgment briefs, and thus are not a proper basis for Rule
59(e) relief; and (3) even if these arguments were properly
raised, the Court correctly decided the merits of
defendant's summary judgment motion [Doc. 30]. Plaintiff
did not file a reply to defendant's response brief, and
the time in which to do so has now passed. See E.D.
Tenn. L.R. 7.1(a).
Standard of Review
Rule of Civil Procedure 59(e) permits courts to entertain a
motion to alter or amend a final judgment. The Sixth Circuit
has held, however, that “[t]he circumstances under
which a district court may grant a Rule 59(e) motion are
limited.” Robbins v. Saturn Corp., 532 F.
App'x 623, 632 (6th Cir. 2013). Relief under this rule is
proper only if the movant shows one of the following:
“(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.”
Henderson v. Walled Lake Consol. Sch., 469 F.3d 479,
496 (6th Cir. 2006) (quoting Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005));
accord Ogden v. Fortress Grp. USA, 550 F. App'x
283, 284 (6th Cir. 2014); Alliance Tax Credit Fund 31-A,
Ltd. v. Murphy, 494 F. App'x 461, 568 (6th Cir.
59(e) motion “is not an opportunity to re-argue a
case.” Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Such
motions “should not be utilized to submit evidence
which could have been previously submitted in the exercise of
reasonable diligence[, ] and are not the proper vehicle to
attempt to obtain a reversal of a judgment by offering the
same arguments previously presented.” Kenneth Henes
Special Projects Procurement v. Cont'l Biomass
Indus., 86 F.Supp.2d 721, 726 (E.D. Mich. 2000) (quoting
Nagle Indus. v. Ford Motor Co., 175 F.R.D. 251, 254
(E.D. Mich. 1997)). Moreover, “parties cannot use a
motion for reconsideration to raise new legal arguments that
could have been raised before a judgment was issued.”
Roger Miller Music, Inc. v. Sony/ATV Publ'g, 477
F.3d 383, 395 (6th Cir. 2007). Indeed, the Sixth Circuit has
“found issues to be waived when they are raised for the
first time in motions requesting reconsideration.”
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553
(6th Cir. 2008); see also Am. Meat Inst. v.
Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984) (finding an
issue raised for the first time in a motion for
reconsideration “effectively waived”).
Court will first discuss plaintiff's argument that the
Court failed to consider all pertinent evidence in
determining that he was not a “qualified
individual” for purposes of the ADA, TDA, ADEA, and
THRA [Doc. 29 pp. 2-8]. The Court will next address
plaintiff's argument that he established a prima facie
case of defendant's failure to engage in the ADA
interactive process [Id. at 9-12]. Finally, the
Court will consider plaintiff's argument that
defendant's alleged “100% healed” rule
violates the ADA [Id. at 8-9]. For the reasons
explained below, the Court finds each of these arguments
unpersuasive and thus will not reverse its decision to grant
summary judgment in defendant's favor.
Plaintiff's Status as a Qualified Individual
plaintiff argues that the Court overlooked relevant evidence
in holding that plaintiff's request for additional
medical leave was objectively unreasonable, and thus that
plaintiff was not a qualified individual under the ADA.
prohibits discrimination against a “qualified
individual” on the basis of disability with regard to,
among other things, “the hiring, advancement, or
discharge of employees.” See 42 U.S.C. §
12112(a). The statute defines discrimination to include
“not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual . . ., unless [the employer] can demonstrate that
the accommodation would impose an undue hardship on the
operation of [its] business.” § 12112(b)(5)(A).
And an individual is “otherwise qualified” under
the ADA if the employee, “with or without reasonable
accommodation, can perform the essential functions of the
employment position.” § 12111(8). Moreover,
although courts apply the familiar burden-shifting analysis
of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) when the plaintiff seeks to prove disability
discrimination indirectly, that framework is unnecessary
where a plaintiff asserts direct evidence of such
discrimination. Kleiber v. Honda of Am. Mfg., Inc.,
485 F.3d 862, 869 (6th Cir. 2007). ...