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Stinson v. Nissan North America, Inc.

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

November 20, 2019

DWAYNE STINSON, Plaintiff,
v.
NISSAN NORTH AMERICA, INC., Defendant.

          MEMORANDUM OPINION

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendant's Motion for Summary Judgment (Doc. No. 30) and Plaintiff's Motion for Summary Judgment (Doc. No. 38). The parties have filed respective responses and replies to these cross-motions.

         BACKGROUND [1]

         Plaintiff was hired as a production technician at Defendant's Smyrna, Tennessee plant in 2003. Plaintiff reported a work injury to his shoulder in 2007 and had rotator cuff surgery to repair it. Plaintiff was released by his physician to return to work in October 2007 with the following recommendations: “I would recommend placing him on permanent restrictions limiting to occasional overhead or outstretched arm use involving the right upper extremity. He is in agreement with this plan. He is on a 16 lb lifting restriction with the right upper extremity overhead occasionally.” (Doc. No. 33-1).

         Plaintiff's physician recommended “placing him on permanent restrictions limiting to occasional overhead or outstretched arm use involving the right upper extremity.” (Doc. No. 33-1). The parties dispute whether Plaintiff's job involved frequent outstretched arm use and, thus, involved tasks outside his restrictions. Doc. No. 48 at ¶¶ 4 and 5). Defendant asserts that Plaintiff's job on the assembly line involved frequent outstretched use of his arms to attach parts to vehicles as they traveled down the line. Plaintiff denies this fact and states “The job on the assembly line requires frequent use of his hands, but not frequent outstretched reaching.” (Id. at ¶ 4) (emphasis in original). Defendant also claims that despite his physician's recommended restrictions, Plaintiff continued to regularly perform activities that involved the outstretched use of his arms. Plaintiff denies this fact as well and stated “Mr. Stinson's job does not require regular “outstretched” reaching. (Id. at ¶ 5).

         Plaintiff contends that he continued his usual and customary job as a production assistant from 2007 through December of 2016 with no change in his shoulder restrictions, no discomfort or pain in his shoulder, no complaints to Defendant about his shoulder, and no complaints from Defendant about the execution, production, or quality of Plaintiff's work. (Doc. No. 45 at ¶¶ 8-9). During that nine-year period after his shoulder injury, Plaintiff was never given a job he was physically unable to do, and he never asked for an accommodation. (Id. at ¶ 11). Plaintiff has denied having a disability that interferes with major life activities. (Id. at ¶ 13)[2]

         In late 2016, Plaintiff sought a transfer from the night shift to the day shift. (Doc. No. 48 at ¶ 7). Defendant asserts that, in connection with that request, it (through a third party, Progressive Health) evaluated positions relative to Plaintiff's physician's recommended work restrictions and determined that both the position to which Plaintiff wanted to transfer and Plaintiff's then-current position required outstretched use of his arms beyond what his physician recommended. (Doc. No. 48 at ¶¶ 8-9). Plaintiff disputes both the impetus for this evaluation and the credibility of the Progressive Health report. (Id.) Based on that report, Defendant determined that no other production positions were available within Plaintiff's restrictions. (Id. at ¶ 10). Plaintiff disputes this conclusion as well. (Id.).

         Plaintiff testified that he was out from work on worker's compensation leave because of a different injury (a broken elbow) from December 2016 through July 2017. (Doc. No. 48 at ¶ 11). While on leave, Plaintiff returned to his physician, [3] who determined to leave the permanent work restrictions in place because they had been “accomplishing their goals.” (Doc. No. 33-2 at 1). Based upon his discussion with Plaintiff, the physician stated that Plaintiff had worked without incident under the permanent restrictions, with no pain, injury, or discomfort, and had been able to be productive and work regularly. (Id.).

         Plaintiff disagrees with his physician's recommendation to avoid the outstretched use of his arms. (Doc. No. 48 at ¶ 13). Plaintiff contends that he is not physically limited and does not need to restrict his activities. (Id. at ¶ 14). Plaintiff claims that he can perform his job duties without modification. (Id. at ¶ 15). The parties dispute whether Plaintiff remains on approved leave or has quit (or resigned) his employment (Id. at ¶¶ 17-18). In any event, Plaintiff has not worked at Nissan since December 2016. (Doc. No. 45 at ¶ 20).

         On November 1, 2017, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that Defendant discriminated and retaliated against him based upon disability. That Charge states:

On December 19, 2016, Plant Manager, Mark LaCroix, told me to get my restrictions from a workplace injury lifted, or I would be terminated. On July 9, 2017, when I tried to return to work after another injury, I was told “they had not done a work evaluation, and that they did not have anything I could do so I was told to go home.” I did not[4] request reasonable accommodation. Due to my work restrictions, I was not able[5] to perform my job duties that I had been doing since 2007. On June 23, 2017, I was discharged.

Doc. No. 47-1. Plaintiff's EEOC Charge filed with the Court also includes an Amendment, but there is no indication when the Amendment was added. The Amendment states:

William Stinson sustained an admitted injury to his shoulder on or about 2007. Following the injury, he was returned to work with restrictions. He proceeded to work from 2007 through December 20, 2016, when a door fell on his elbow. During that time, he had no further problems with his shoulder, and was able to complete his usual and customary job. However, when returned to work from his elbow injury (with no additional restrictions), Mr. Stinson was not allowed to return to work because of the ten year old work restriction.
Nissan has discriminated against an injured worker for a work restriction that interferes with activities of daily living. They have failed to follow the interactive process in good faith and to accommodate the work restriction, when claiming his sole remedy is to have the disability lifted. The shoulder restrictions do not interfere with any essential functions of his job on the door line, as he has been able and/or allowed to do said job without incident for ten years.

Doc. No. 47-1 at 2.[6] The EEOC issued a Right to Sue letter to Plaintiff on January 24, 2018 (Doc. No. 1-1).

         Plaintiff filed this action on February 13, 2018, alleging (Count 1) failure to accommodate[7]under the Americans with Disabilities Act (“ADA”); (Count 2) failure to engage in the interactive process; and (Count 3) other discrimination under the ADA. (Doc. No. 1). Plaintiff also asserted (Count 4) a claim for retaliation for filing a worker's compensation claim.

         Plaintiff moved for summary judgment on all of his claims. In turn, Defendant moved for summary judgment on all of Plaintiff's claims.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See Id. at 248. On the other hand, “summary judgment will not lie if the dispute about a material fact is ‘genuine[.]'” Id.

         A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018). The party bringing the summary judgment motion has the initial burden of identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018). If the summary judgment movant meets that burden, then in response the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 628.

         A party asserting that a fact cannot be or genuinely is disputed-i.e., a party seeking summary judgment and a party opposing summary judgment, respectively-must support the assertion by citing to materials in the record, including, but not limited to, depositions, documents, affidavits or declarations. Fed.R.Civ.P. 56(c)(1)(A). The court should view the facts and draw all reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence upon which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

         The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation. New Century Found. v. Robertson, F.Supp.3d, 2019 WL 4276989, at * 2 (M.D. Tenn. Sept. 10, 2019). Summary judgment in favor of either party is not proper if disputes remain as to material facts. Id. When there are cross-motions for summary judgment, the court must evaluate each party's motion on its merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Id.; Richardson v. Astec, Inc., 366 F.Supp.3d 983, 991 (E.D. Tenn. 2019).

         AMERICANS WITH DISABILITIES ACT

         The ADA forbids discrimination against a “qualified individual on the basis of disability” in regard to job application procedures; the hiring, advancement or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a).

         The ADA specifically defines one aspect of discrimination to include failure to accommodate the known physical or mental limitations of an otherwise-qualified individual with a disability. 42 U.S.C. § 12112(b)(5)(A)). As part of its responsibilities under the ADA, an employer must engage in an “informal, interactive process” with the employee to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 840 (6th Cir. 2018). For employees seeking accommodations, “the interactive process is mandatory, and both parties have a duty to participate in good faith.” Id.

         Plaintiff alleges violations of the ADA in three ways: failure to accommodate his alleged disability; failure to engage in the interactive process; and discrimination based upon his disability (other than failure to accommodate).

         “Disability”

         In order to recover for violation of the ADA under any of Plaintiff's theories, he must first show that he has a “disability, ” as that term is defined by the statute. “Disability” means (A) a physical or mental impairment that substantially limits one or more major life activities;[8] (B) record of such impairment;[9] or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(1). The definition of disability “shall be construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A).

         “Major life activities” under the ADA include working. 42 U.S.C. § 12102(2). Working is an example of a major life activity, but simply being unable to perform a discrete task or specific job does not automatically render one as having a disability. Booth v. Nissan North Am., Inc., 927 F.3d 387, 394 (6th Cir. 2019), petition for cert. docketed, (U.S. Aug. 26, 2019) (No. 19-252). Even though Congress has instructed the courts to construe the definition of disability in favor of broad coverage, it did not modify the definition of “major life activity, ” and a plaintiff who alleges a work-related disability is still required to show that his impairment limits his ability to “perform a class of jobs or broad range of jobs.” Id.

         Defendant argues that Plaintiff cannot show that he is a person with a disability for purposes of the ADA. Plaintiff has sent decidedly mixed signals concerning whether he claims to have an actual disability. Essentially, Plaintiff alleges that his work restrictions did not in any way limit his ability to do his job for ten years, but that Defendant suddenly became aware of (or took notice of) those restrictions and then, citing the restrictions, would not allow Plaintiff to do his job.[10] In his Motion for Summary Judgment, however, Plaintiff asserts only that he was “regarded as” having a disability, not that he had an actual disability. (Doc. No. 32 at 7). Therefore, the Court finds that Plaintiff has not sufficiently carried his burden to show that he has an actual disability, and Defendant is entitled to summary judgment on any claim to the extent based on the theory that Plaintiff has an actual disability.

         Plaintiff asserts that Defendant “regarded him” as having a disability. (Doc. Nos. 30, 32). An individual will qualify as “regarded as” having a disability if the individual “establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment, whether or not the perceived impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). The statute, as amended in 2008 under the so-called ADAAA, clarifies that an individual making a “regarded as” claim need not show that an employer perceived an impairment that is substantially limiting as to a major life activity. Equal Emp. Opportunity Comm'n v. M.G.H. Family Health Center, 230 F.Supp.3d 796, 806 (W.D. Mich. 2017); Thus, the 2008 amendments codified in the ADAAA made the ADA's definition of being ‘regarded as' having an impairment substantially broader than that definition had been..[11] Under 42 U.S.C. § 12102(3)(A), implemented by the 2008 amendments, a plaintiff can qualify as having a “disability” by virtue of being regarded as having an impairment less severe than an actual disability; i.e., regarded as having an impairment even if the perceived impairment is not regarded as limiting one or more major life activities.[12]

         Therefore, a plaintiff alleging that his employer regarded him as disabled under the ADA needs to plead and prove only that he was regarded as having a physical or mental impairment. Donaldson v. Trae-Fuels, LLC, Civil Action No. 3:18CV00097, 2019 WL 2193858, at * 4 (W.D. Va. May 21, 2019). Such a plaintiff need not plead or prove that the perceived impairment substantially limited one or more major life activities. Id.[13] ...


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