David NEELY, Plaintiff-Appellant, v. BENCHMARK FAMILY SERVICES, Defendant-Appellee.
No. 15-3550.
United States Court of Appeals, Sixth Circuit.
Jan. 26, 2016.
429
OPINION
McKEAGUE, Circuit Judge.
David Neely appeals from the district court‘s grant of summary judgment to defendant Benchmark Financial Services on his state and federal disability discrimination and retaliation claims, as well as a state law claim for intentional infliction of emotional distress. Because Neely has neither shown that he is qualified as disabled under the Americans with Disabilities Act, nor shown that he engaged in a “protected activity,” we affirm the grant of summary judgment.
I
Plaintiff David Neely claims to have long suffered from sleeping problems, sometimes getting only two to three hours of restful sleep each night. R. 26-1, Neely Aff. at 1, PID 262. From 2002 to 2005, Neely apparently sought treatment for his sleeping problems from Dr. Shah, his family physician. Id. From 2009 to 2012, Neely sought treatment from Dr. Janette Froelich, M.D., another family physician. According to Neely‘s affidavit, Dr. Froelich prescribed Concerta partially in response to his sleeping difficulties. Dr. Froelich also prescribed Synthroid for hypothyroidism and to enhance Neely‘s energy level. Id.
Neither Dr. Shah nor Dr. Froelich ever diagnosed Neely with sleep apnea or any related sleeping disorder. However, in 2010, Froelich referred Neely to Dr. George Burton, M.D., a specialist at Kettering Medical Center who treats patients with sleeping issues. Id. Dr. Burton evaluated Neely and wrote to Dr. Froelich, stating that Neely “has absolutely horrible sleep hygiene, sleeping basically when he feels like it, but usually going to bed around 3 a.m. and sleeping through until 1 p.m.” R. 23-9, Burton Letter at 1, PID 218. His letter continued, “It is clear that [Neely] is poorly disciplined in both his sleep hygiene, and his taking of medication, as well as in his food consumption.” Id. at 220. Declining to make a diagnosis without additional testing, Dr. Burton noted that his “preliminary impressions” were that Neely “has poor sleep hygiene, insufficient sleep syndrome, and probable obstructive sleep apnea.” Id. at 222. Dr. Burton then recommended a “free T4 and TSH study, as well as a polysomnogram, and [maintaining] a sleep log.” Id. The record indicates that Neely declined Dr. Burton‘s recommended tests, preventing the doctor‘s “preliminary impressions” from maturing into a diagnosis.
Nearly twenty months later, in December of 2011, Benchmark Family Services (“Benchmark“) hired Neely as a Support Specialist. R. 26-1, Neely Aff. at 2, PID 263. Neely was apparently treating his sleeping problems by taking undisclosed supplements “and drinking lots of coffee daily.” Id. Within two weeks, Neely was promoted to Support Administrator where his job duties included “manag[ing] support operations and support specialist[s]” and reporting directly to the Chief Information Officer. Id. His transition to Support Administrator did not include an increase in compensation or benefits. Id.
Shortly after naming Neely a Support Administrator, Benchmark began to take serious issue with Neely‘s performance in the office and on the job. R. 23-15, Hanrahan Aff. at 2, PID 236. His supervisor noted that he was struggling with techni-
Benchmark also was disappointed with Neely‘s “almost daily falling asleep at work.” R. 23-15, Hanrahan Aff. at 2, PID 236. Neely mentioned to his supervisors that he had a “sleeping disorder which caused [him] to suffer fatigue and experience micro sleeps.”1 R. 26-1, Neely Aff. at 2, PID 263. One supervisor suggested Neely take supplements “so it‘s not an issue.” Id. After Neely explained that he was trying to treat his sleeping problems himself, the supervisor responded, “Well, try to hurry up with that.” Id. Over the course of several months, Neely‘s supervisors discussed these issues with him “numerous times,” but Neely never sought medical treatment for his sleep problems during his entire employment with Benchmark. Id.; R. 23-10, Answer to Admission Request, PID 224.
Benchmark‘s dissatisfaction with Neely‘s performance resulted in a verbal reprimand on May 25, 2012. The reprimand contained various performance issues already voiced by his supervisors, noting again that Neely had the longest average response time of the entire IT team and that he “continually [fell] asleep during the workday, trainings and meetings.” R. 23-6, Verbal Reprimand at 2, PID 211. The reprimand also informed Neely that he was being returned to the Support Specialist position.
The following week, Neely spoke to his supervisor Jason Hanrahan about the verbal reprimand and demotion to Support Specialist. R. 26-1, Neely Aff. at 3, PID 264. Neely expressed his disappointment with the reprimand, stating he did not “feel it was fair to use [his] sleeping issues against [him] like that.” Id. He alleges that Hanrahan “rolled his eyes” and agreed with the contents of the verbal reprimand. The week following his demotion, Neely‘s coworkers described his attitude as poor with regard to his supervisors and other staff members. On June 1, 2012, Benchmark terminated Neely‘s employment. Neely filed a complaint with the EEOC and received a right to sue letter on September 18, 2013.
Neely then initiated this lawsuit, bringing state and federal claims of disability discrimination and retaliation, and also asserting state law claims for wrongful discharge and intentional infliction of emotional distress. Analyzing his state and federal claims together, the district court concluded that Neely was not “disabled” within the meaning of the ADA and failed to establish a prima facie case for retaliation. The district court then granted Benchmark‘s motion for summary judgment on all of Neely‘s claims. Neely appeals his summary dismissal of discriminatory discharge, retaliation, and intentional infliction of emotional distress claims.
We review a grant of summary judgment de novo. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
III
Neely‘s claims of discriminatory discharge arise under the Americans with Disabilities Act (ADA), 104 Stat. 327,
The ADA provides that no covered entity shall discriminate against a qualified individual on the basis of a disability.
The ADA defines “disability” as: (1) “a physical or mental impairment that substantially limits one or more major life activities of such individual,”2 (2) “a record of such an impairment,” or (3) “being regarded as having such an impairment.”
A. Physical or Mental Impairment that Substantially Limits One or More Major Life Activities.
Under the first prong of the ADA‘s definition of “disability,” Neely must show not only that he was disabled—i.e. suffered “a physical or mental impairment“—but also that such an “impairment [] substantially limit[ed] one or more major life activities.”
The second mention of sleep apnea is recorded in a letter from Dr. Burton (the sleep specialist) to Dr. Froelich. Dr. Burton did not diagnose Neely with sleep apnea, but rather determined that Neely was “poorly disciplined in both his sleep hygiene, and his taking of medication, as well as in his food consumption.” R. 23-9, Burton Letter, PID 220. Dr. Burton remarked that Neely “is usually in bed around 3 a.m. and he sleeps through until 1 p.m.,” again characterizing Neely as having “absolutely horrible sleep hygiene, sleeping basically when he feels like it.” Id. at 218. He then proceeded to exclude numerous physiological causes of Neely‘s sleep issues, including orthopnea, paroxysmal nocturnal dyspnea, insomnia, parasomnia, restless leg syndrome, and narcolepsy, among others. Id. at 218, 220. Dr. Burton did not foreclose a future diagnosis of sleep apnea, concluding his letter with the “preliminary impressions” that Neely‘s sleep problems were caused by “poor sleep hygiene, insufficient sleep syndrome, and probable obstructive sleep apnea.”3 Id. at 222. But, crucially, Dr. Burton did not diagnose Neely with sleep apnea. He merely ordered free additional tests, writing to Dr. Froelich that “[w]e will get this all together and I will be back to you again soon.” Id. Tellingly, Neely declined to follow up with Dr. Burton‘s recommended additional testing and no other evidence in the record substantiates his claim that he was ever diagnosed with sleep apnea.
Neely‘s bare assertions of sleep apnea, without any supporting medical evidence, cannot establish a “physical or mental impairment” within the meaning of the ADA. See Simpson, 359 Fed.Appx. at 567. Perhaps realizing as much, Neely attempts to side-step our precedent by relying on Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (overturned by
Substantially Limits A Major Life Activity. Even if Neely were physically or mentally impaired, he fails to show that his sleep problems substantially limited a major life activity. Before the district court, Neely never asserted exactly which major life activity was substantially limited by his sleep problems. His reply brief, however, does mention that his “sleep apnea substantially affect[s] ... sleeping and breathing.” Neely Reply Br. at 1. Our circuit precedent has consistently held that sleeping problems like Neely‘s—“getting only 2 to 3 hours of restful sleep per night, falling into micro sleeps during the day ... snoring, and extreme difficulty breathing while sleeping,” Neely Br. at 14—fail to constitute a substantial limitation on a major life activity. See Simpson, 359 Fed.Appx. at 567 (holding that the plaintiff‘s testimony that “he was sleeping three or fewer hours five days per week” did not constitute a substantial limitation); Boerst v. Gen. Mills Operations, 25 Fed.Appx. 403, 407 (6th Cir. 2002) (holding that sleeping between two and four hours per night, “while inconvenient, simply lacks the kind of severity we require of an ailment before we will say that the ailment qualifies as a substantial limitation“); see also Jones v. AKKO Fastener, Inc., No. 1:09-CV-286, 2010 WL 3365940, at *11 (S.D.Ohio Aug. 23, 2010) (accepting that the plaintiff suffered from sleep apnea, but noting that he “has evidently been able to function with sleep apnea since 1998. While sleep apnea may well constitute a disability for some individuals, [the plaintiff‘s] descriptions of the effects of his condition are insufficient to establish the level of severity required to qualify as a ‘substantial limitation’ on major life activities“).4
Recognizing that his showing of a sleep disability does not measure up under our existing precedent, Neely tries to skirt these cases by emphasizing the relaxed standard for “substantial limitation” in the ADA Amendments Act of 2008 (“2008 Amendments“).
Neely does not articulate why the reasoning in Simpson and Boerst should not survive the 2008 Amendments, nor does he suggest that the plaintiffs in those cases (who appear to have comparable or even more severe sleeping issues) would have established “substantial limitations” under the relaxed standard. Though the 2008 Amendments undoubtedly eased the burden required for plaintiffs to establish disability, we note that Congress expressly
B. Record of Impairment
Neely also claims that he is disabled under the “record of impairment” prong of the ADA‘s definition.
Neely has failed to establish a “record of impairment.” As discussed above, Neely‘s uncorroborated statements to Dr. Froelich and Dr. Burton‘s “preliminary impressions” are insufficient to establish “a history of ... a mental or physical impairment that substantially limits one or more major life activities.” Id. As Neely did not show that he is disabled, his claim that he has a record of impairment—without any additional evidentiary basis—is without merit. We again note that Neely chose not to follow up with Dr. Burton‘s additional tests that could conceivably have contributed to a “record of impairment.”
C. Regarded as Having an Impairment
Neely finally contends that he is disabled under the third prong of the ADA because he was “regarded as having [] an impairment” by his employer.
Neely cannot establish that he was “regarded as having [ ] an impairment,” even under the relaxed standards of the 2008 Amendments. Neely‘s claim that his employers regarded him as impaired is first hampered by his own admission that his sleep issues did not affect his ability to work. See
The facts construed in a light most favorable to Neely—that Benchmark suggested he take supplements “so [his] sleep-ing problems are] not an issue,” telling Neely to “hurry up” with his self-medication for his sleep problems, and a supervisor “rolling [his] eyes when Mr. Neely tried to explain his sleep disorder,” Neely Br. at 17—indicate that Benchmark was aware of Neely‘s self-described sleep problems, but do not suggest that Benchmark regarded him as physiologically “impaired” within the meaning of the ADA. See Simpson, 359 Fed.Appx. at 568 (“The facts construed in the light most favorable to [the plaintiff] support a finding only that [defendant] knew that [plaintiff] had certain health problems, but not that [defendant] regarded him as impaired.“); see also Bailey v. Real Time Staffing Servs., Inc., 543 Fed.Appx. 520, 523 (6th Cir. 2013) (expressing “doubt,” even under the “relaxed standard” of the 2008 Amendments, that a plaintiff who merely informs an employer of a medical condition establishes a perceived impairment such that the plaintiff qualifies as “disabled” under the ADA).
Finally, we note that the “regarded as” prong “is intended to allow individuals to be judged according to their actual capacities, rather than through a scrim of ‘myths, fears, and stereotypes’ accruing around a perceived impairment.” Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002). Benchmark‘s comments about Neely‘s purported sleep disability do not reflect the myths or stereotypes regarding disabilities that the ADA is designed to combat, nor do they suggest discrimination or bias arising from a perceived disability. Accordingly, Neely‘s discriminatory discharge claim must fail as a matter of law because he is unable to present any evidence that could show he was disabled within the meaning of the ADA.
IV
The district court also granted summary judgment on Neely‘s retaliation claims. As with Neely‘s disability discrimination claims, his federal and state law retaliation claims may be analyzed together. Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 639 (6th Cir. 2009) (citing Baker v. Buschman Co., 127 Ohio App.3d 561, 713 N.E.2d 487, 491 (1998)). The ADA provides:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such indi-
vidual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
As discussed above, Neely does not qualify as disabled under the ADA. However, a “plaintiff may prevail on a disability-retaliation claim even if the underlying claim of disability fails.” Bryson, 498 F.3d at 577 (collecting cases). As the district court aptly summarized, however, the cases Bryson cites in support of an independent disability retaliation claim (without establishing disability) primarily center on “a good faith belief that [a] requested accommodation was appropriate.” Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (internal quotation marks and citations omitted); see also Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907-08 (8th Cir. 2010) (expressing skepticism that making a request for an accommodation “fits within the literal language” of
The parties do not dispute that Neely never requested an accommodation nor filed a formal charge against his supervisor before he was terminated. Instead, Neely‘s purported protected activity was “complaining to Hanrahan [his supervisor] that it was unfair to use his sleeping disorder against him.” Neely Br. at 24. Nonetheless, Neely asks us to extend Bryson to cover his circumstances—that is, permit an individual who is not disabled under the ADA, who never requested an accommodation, and who never filed a formal charge while employed to be deemed to have engaged in a “protected activity” simply for discussing his sleep issues with his employer. We decline to do so here. See E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014) (holding that because plaintiff‘s complaints regarding his left shoulder and the potential need for surgery were not a request for an accommodation, plaintiff had not engaged in a statutorily protected activity and did not establish a prima facie case of retaliation).
V
Neely‘s last argument is that the district court erred in granting summary judgment on his intentional infliction of emotional distress claim. Liability for emotional distress under Ohio law is only proper where an “actor‘s conduct was extreme and outrageous ... [and is] considered as utterly intolerable in a civilized community.” Thomas v. Progressive Cas. Ins. Co., 969 N.E.2d 1284, 1287 (Ohio Ct. App. 2011). “[A]n employee‘s termination, even if based upon discrimination, does not rise to the level of ‘extreme and outrageous conduct’ without proof of something more.” Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999). Neely offers no evidence that Benchmark engaged in conduct that could be characterized as “extreme and outrageous.” We therefore affirm the grant of summary judgment on Neely‘s emotional distress claim.
VI
For the reasons above, we AFFIRM the district court‘s grant of summary judgment.