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Roan v. United Parcel Service

United States District Court, M.D. Tennessee, Nashville Division

May 20, 2019

PATRICK ROAN, Plaintiff,
UNITED PARCEL SERVICE et al., Defendants.



         Pro se plaintiff Patrick Roan brings claims against defendants United Parcel Service (“UPS”) and supervisor Kim Mitchell under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Now before the court are the plaintiff's Objections (Doc. No. 65) to the magistrate judge's Report and Recommendation (“R&R”) (Doc. No. 63), recommending that the defendants' Motion for Summary Judgment (Doc. No. 47) be granted and that this action be dismissed. For the reasons set forth herein, the court will overrule the objections, grant the Motion for Summary Judgment, and dismiss this case.

         I. Procedural Background

         The plaintiff filed suit on August 22, 2017, alleging racial and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. The case was referred to the magistrate judge to enter a scheduling order for the management of the case and to dispose or recommend disposition of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 5.) The magistrate judge directed the filing of an amended complaint to clarify certain aspects of the original Complaint. (Order, Doc. No. 17.) The plaintiff submitted a “Response” to the Order, which the magistrate judge construed as an amendment to the Complaint. In this Response, the plaintiff clarified that the only two defendants against whom he brought suit were his supervisor, Kim Mitchell, and his employer, UPS. He also clarified that his lawsuit was brought solely under the ADA. (Id.)

         The plaintiff was employed by UPS during the summer of 2016 when the events giving rise to this lawsuit occurred. On July 12, 2016, he sought medical treatment at St. Thomas West Hospital, complaining of abdominal pain and nausea. He was released without a specific plan of care and given an order for five days off from work. He returned to work on July 18, 2016 but immediately informed Kim Mitchell that he required additional medical treatment. He went to Concentra Medical Centers (“Concentra”), UPS's worker's compensation provider, complaining of right hip pain. He was diagnosed with a right hip strain but released to return to work with no restrictions. (Doc. No. 53, at 45.) He claims he went home instead. (Id.) He went back to Concentra complaining of hip pain on July 21, 2016 and was diagnosed again with a right hip “strain of muscle, facia and tendon.” (Doc. No. 43, at 35.) He was given an injection (id. at 41) and returned to work the same day with restrictions of lifting no more than 40 pounds on a frequent basis (up to six hours per day) (id. at 35). He was also prescribed six physical therapy sessions. After a follow-up appointment on July 28, 2016, he was returned to work with a 50-pound lifting restriction. (Id. at 36.) On August 3, 2016, he was released from care and returned to work with no restrictions. (Id. at 37.)

         The plaintiff's primary complaints are that he was not offered a temporary alternate work (“TAW”) agreement by UPS after his injury and while he was on medical restrictions. Instead, he was required to work his normal job as a sorter, which sometimes required him to exceed the lifting restrictions on which he had been placed and caused him to suffer pain. (Doc. No. 1, at 3.) He also contends that Mitchell was “hateful” and “nasty” to him while he was injured. (Id.) As set forth in the amendment to his Complaint, he complains that he was not reimbursed for his gas mileage for traveling to and from physical therapy because he was not on a TAW, and he was not allowed to take FMLA leave. (Doc. No. 19, at 1-2.) Generally, he alleges that he was treated unfairly and was exposed to the risk of serious injury by being required to work beyond his restrictions. (Id. at 2.)

         The defendants' Motion for Summary Judgment and supporting Memorandum (Doc. Nos. 47, 48) assert that Mitchell is not an “employer” subject to liability under the ADA and that UPS is not liable because: (1) the plaintiff has not shown that he is disabled within the meaning of the ADA; (2) the undisputed facts show that the plaintiff never requested a reasonable accommodation for his alleged injury; and (3) the plaintiff has not shown that he would not have been reasonably accommodated if he had made such a request. The defendants also filed a Statement of Material Facts Not in Dispute (Doc. No. 49), along with excerpts from the plaintiff's deposition transcript, various witness declarations, UPS time records for the plaintiff, and medical records from St. Thomas and Concentra. (Doc. No. 51.) The plaintiff did not respond to the Statement of Material Facts, and his Response to the Motion for Summary Judgment (Doc. No. 53) consists of a single page in which he denies knowledge of the truth of Kim Mitchell's statements in her declaration, objects to the defendants' failure to provide him with a complete copy of his deposition transcript, and disputes the “misleading” paperwork submitted by the defendants. He submitted 40 pages of additional paperwork, but none of it authenticated and, according to the defendants, much of it was not produced during discovery. (See Doc. No. 53, at 4-47.) The defendants filed a Reply (Doc. No. 54), pointing out these deficiencies. The court permitted the plaintiff to file a sur-reply, denominated as a second “Response” (Doc. No. 55), in which he continues to complain about not receiving his complete deposition transcript and not being offered a TAW. He also takes issue with the defendants' argument that he has not shown that he is disabled. He claims: “Titles I and V of the [ADA] Sec. 12101 major life activities include walking, standing, bending, lifting, which I Plaintiff had these problems while on restrictions with doctors orders. But wasn't give a ‘FAIR' chance to heal by TAW choice.” (Doc. No. 55, at 2.)

         The R&R recommends that the defendants' Motion for Summary Judgment be granted on the grounds that (1) Mitchell is not an “employer” within the meaning of the ADA; and (2) the undisputed facts do not show that the plaintiff is or was “disabled” within the meaning of the ADA, for purposes of establishing a prima facie disability discrimination claim. The R&R notified the parties that any objections to the R&R “must state with particularity the specific portions of [the R&R] to which objection is made.” (Doc. No. 63, at 10 (citing Fed.R.Civ.P. 72(b)(2)).)

         The plaintiff filed timely Objections to the R&R. (Doc. No. 65.) These Objections state in full as follows:

Responding to Recommendation with Objections Filed on 4-14-19 Document 63 - Judge I will be showing where United Parcel Service and Kim Mitchell didn't honor the Essential Job Functions under the ADA rules. Documents and facts are attach.

(Doc. No. 65, at 1.) Attached to the Objections are various documents excerpted from medical records and previous filings, all of which appear already to have been taken into consideration by the magistrate judge.

         II. Standard of Review

         Within fourteen days after being served with a report and recommendation any “party may serve and file specific written objections to [a magistrate judge's] proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis added). The district court must review de novo any portion of the report and recommendation “that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In conducting its review, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         The district court is not required to review-under a de novo or any other standard- those aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge's findings and rulings to which no specific objection is filed. Id. at 151. “The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Cole v. Yukins, 7 Fed.Appx. 354, 356 (6th Cir. 2001) (see also Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (issues raised in a “perfunctory manner, unaccompanied by some effort at developed argumentation, ” are waived (quoting Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000))). Likewise, “[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Finally, arguments made in an ...

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