Pena v. City of Flushing
651 F. App'x 415
6th Cir.2016Background
- Noe Pena worked for the City of Flushing as a wastewater treatment plant operator since 2004; he complained in 2007–08 about co‑worker comments about his Mexican national origin and was later placed on paid medical leave for stress.
- In 2013 Pena again took medical leave for depression; his treating providers gave a generic return‑to‑work note and later provided records diagnosing major depression and stating he was capable of performing his job without accommodation.
- The City, citing the collective‑bargaining agreement and concerns about Pena’s demeanor and communication, required a City‑designated fitness‑for‑duty evaluation by Dr. Forsberg before returning to work; Pena refused to see Dr. Forsberg and instead provided records from his own clinicians.
- The City terminated Pena for insubordination for refusing to attend the designated fitness‑for‑duty exam.
- Pena sued, alleging (1) ADA discrimination under the "regarded as" theory and (2) Title VII retaliation for earlier complaints about national origin harassment; the district court granted summary judgment for the City and the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requiring a fitness‑for‑duty exam before return violated the ADA "regarded as" prong | Pena: City regarded him as disabled by ordering the exam and thus violated ADA (post‑2008 Amendments broaden "regarded as") | City: request was job‑related and consistent with business necessity given concerns about his demeanor, leave history, and safety; permitted by ADA §12112(d)(4)(A) | Court: Ordering the exam did not show the City regarded him as disabled; fitness‑for‑duty requests are permissible when justified and refusal can be insubordination; summary judgment for City affirmed |
| Whether termination was Title VII retaliation for prior protected complaint | Pena: His 2008 complaint about national origin harassment was protected activity and contributed to adverse action | City: The last protected complaint was in 2008 (six years before termination); no evidence of causation or that 2013 decision was retaliatory | Court: No but‑for causation; temporal gap and lack of other evidence preclude retaliation claim; affirm |
Key Cases Cited
- Kocsis v. Multi‑Care Mgmt., Inc., 97 F.3d 876 (6th Cir. 1996) (employer’s awareness of health problems and performance issues does not necessarily establish "regarded as" disability)
- Sullivan v. River Valley School Dist., 197 F.3d 804 (6th Cir. 1999) (upholding employer’s requirement of fitness‑for‑duty exams and finding such requests do not automatically prove an ADA "regarded as" claim)
- Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419 (6th Cir. 2014) (elements of prima facie ADA discrimination claim)
- Nassar v. Univ. of Texas Southwestern Med. Ctr., 133 S. Ct. 2517 (U.S. 2013) (Title VII retaliation requires but‑for causation)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard and burden allocation)