United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE
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.
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).
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
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)
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.).
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,  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.
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).
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
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
request reasonable accommodation. Due to my work
restrictions, I was not able to perform my job duties that I
had been doing since 2007. On June 23, 2017, I was
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
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. The EEOC issued a Right to Sue letter to
Plaintiff on January 24, 2018 (Doc. No. 1-1).
filed this action on February 13, 2018, alleging (Count 1)
failure to accommodateunder 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
moved for summary judgment on all of his claims. In turn,
Defendant moved for summary judgment on all of
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.
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.
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).
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).
WITH DISABILITIES ACT
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.
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.
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).
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; (B) record of such
impairment; 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).
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.”
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. 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.
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.. 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.
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. ...