Verhoff v. Time Warner Cable, Inc.Verhoff v. Time Warner Cable, Inc.
- Reporters:
- Before:
- Boyce F. Martin Jr., Rogers, Sutton
Dennis Verhoff appeals the district court‘s decision to grant defendant Time Warner Cable, Inc.‘s motion for summary judgment on his claim for disability-discrimination under the Americans with Disabilities Act.
I.
Verhoff suffers from eczema—also known as atopic dermatitis—which is a chronic skin condition marked by visible, irritating skin rashes. From 2000 to 2004, Verhoff worked for Time Warner performing cable installations and personal computer support. Verhoff claims that, due to his condition, he cannot work more than forty hours a week. Throughout his employment, Time Warner has required its installers to work overtime on a “standby” basis, where the employee handles after-hours service calls. During his first couple of years with the company, Time Warner informally accommodated Verhoff‘s inability to work more than forty hours by allowing him to give some of his standby shifts to others.
But in March 2004, when Verhoff gave his supervisor a doctor‘s note which formally restricted him to forty hours of work per week, his manager told him that working overtime was an essential aspect of his job. That same day, a Time Warner agent cleaned out Verhoff‘s company vehicle and sent him home. And two days later, his manager told him that, unless he obtained a full release from his doctor stating that he could work overtime, he could not work in his current position. Verhoff then submitted a formal FMLA request form, but instead of checking the box for intermittent or reduced work schedule leave, he checked the box for block leave, which Time Warner granted. Upon his return,
Verhoff sued, alleging: (1) disability-discrimination in violation of the Americans with Disabilities Act,
II.
The standard of review for summary judgment is de novo. Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 450 (6th Cir.2005). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.”
III.
We first address whether Verhoff was “disabled” under the ADA. The ADA prohibits employers from discriminating against a “qualified individual” because of their disability.
To establish a prima facie case for ADA disability-discrimination, a plaintiff must prove that “(1) he or she is disabled; (2) otherwise qualified for the position with or without reasonable accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason to know of plaintiff‘s disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.” Timm v. Wright State Univ., 375 F.3d 418, 423 (6th Cir.2004). The first element—whether Verhoff‘s eczema rendered him “disabled” under the ADA—is the issue upon which the district court granted Time Warner‘s motion.
The ADA defines a “disability” as “a physical or mental impairment that sub
A. Sleep
We think that sleep is a major life activity. Boerst v. General Mills Operations, 25 Fed.App‘x. 403, 406 (6th Cir.2002); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999); see also Swanson v. Univ. of Cincinnati, 268 F.3d 307, 314 (6th Cir.2001) (assuming, without deciding, that sleep is a major life activity). Verhoff argues that his eczema substantially limits the amount of sleep he can get, and the district court found that Verhoff‘s eczema limits him to roughly five hours of sleep per evening. But our cases have held that this does not amount to a substantial limit. In Swanson, 268 F.3d at 316, we stated that “[w]hile less than five hours sleep is not optimal, it is not significantly restricted in comparison to the average person in the general population.” Verhoff also argues that, regardless of the amount of sleep he actually gets, his sleep is not restful. Yet, as the district court found, Verhoff has medication to treat this sleep difficulty—which we must take into account under Sutton v. United Air Lines, 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)—and thus we agree with the district court that Verhoff‘s sleep is not substantially limited.3
Caring for oneself is a major life activity. Cehrs v. Northeast Ohio Alzheimer‘s Research Center, 155 F.3d 775, 781 (6th Cir.1998);
Yet in Cehrs we said more than that. Cehrs‘s disease was “life-threatening,” and the medication she took to treat it “sometimes cause[d] her to lose her hair and fingernails.” Id. Verhoff‘s condition is not nearly so severe. And, although not binding, our unpublished cases have set a similarly high standard. For example, in one case the fact that a plaintiff‘s allergies affected him to such a degree that his wife had to fasten his pants for him was insufficient as a matter of law to prove that the impairment created a substantial limit on his ability to care for himself. Cantrell v. Nashville Electronic Serv., 1999 WL 68571, at *3 (6th Cir.1999). We thus agree with the district court that Verhoff made an insufficient showing that his ability to care for himself was substantially limited.
C. Thinking, concentrating, and cognitive processes
The district court, in reliance on statements made in Boerst and another unpublished opinion, Hill v. Metro. Gov‘t of Nashville, 54 Fed.App‘x. 199, 201 (6th Cir.2002), held that thinking and concentrating were not major life activities. But other circuits have held that thinking is a major life activity, e.g. Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1061 (9th Cir.2005), and we agree that it seems a bit bizarre to flatly say that thinking—the very activity that makes us human—is not “major” enough. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir.1999) (“[M]ost objections about the broadness of thinking as a life activity can be captured in the analysis of when the activity is substantially limited.“). But we do not have to decide today whether thinking, concentrating, or cognitive processes generally constitute major life activities, because, even assuming they do, Verhoff‘s eczema does not substantially limit Verhoff‘s ability to engage in them.4
Here, although Verhoff argues that his cognitive processes are impaired because his ailment is so distracting, his claim significantly differs from those brought by successful plaintiffs. In those cases, the plaintiffs argued that their impairments directly affected their ability to think, learn, or concentrate. E.g., Head, 413 F.3d at 1061 (holding that plaintiff suffered a substantial impairment in his ability to think because his bipolar disorder limited his memory and ability to focus). Because Verhoff‘s eczema does not directly affect his cognitive processes, he has not shown that his eczema imposes a substantially limitation.
Second, we relied on Sutton, 527 U.S. at 482, 119 S.Ct. 2139, to find that Verhoff‘s inability to sleep well was largely ameliorated by his use of sleep medication. But Congress has explicitly rejected the Sutton Court‘s reasoning, and, the ADA, as amended, now states that the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication.”5 Pub.L. No. 110-325, § 3(4)(E)(i). Third and finally, Congress outright rejected the Supreme Court‘s directive in Toyota, 534 U.S. at 196, 122 S.Ct. 681, that the ADA‘s terms should be “interpreted strictly to create a demanding standard for qualifying as disabled.” Instead, Congress now tells us that “[t]he definition of disability in [the ADA] shall be construed in favor of broad coverage of individuals under this Act.” Pub.L. No. 110-325, § 4(4)(A).
IV.
Before we get to the merits of Verhoff‘s FMLA-interference claim, we must address two procedural matters: First, Verhoff argues that Time Warner failed to properly preserve its cross-appeal; second, Verhoff argues that Time Warner is prevented from appealing because the parties stipulated that Verhoff was the “prevailing party” in the agreed order that they signed.
A. Procedural Claims
Verhoff claims that Time Warner failed to preserve its appeal because it only appealed from the district court‘s final judgment entry rather than specifically from the district court‘s partial summary judgment ruling or the agreed order. This argument fails because “a notice of appeal that names only a post-judgment decision may extend to the judgment itself if it can be reasonably inferred from the notice of appeal that the intent of the appellant was to appeal from the final judgment and it also appears that the appellee has not been misled.” United States v. Grenier, 513 F.3d 632, 635 (6th Cir.2008) (internal quotations omitted) (citing Harris v. United States, 170 F.3d 607, 608 (6th Cir.1999)). And in determining the basis for an appeal, “courts have relied upon briefs and
Verhoff also argues that Time Warner cannot challenge the district court‘s grant of summary judgment to Verhoff on his FMLA-interference claim because it stipulated in an agreed order between the parties that Verhoff was the “prevailing party.” This argument misconstrues the effect of an agreed order: an agreed order stipulation is not automatically binding on appeal unless there is an estoppel hook to hang it on. See Teledyne Indus. v. NLRB, 911 F.2d 1214, 1217 (6th Cir.1990) (holding agreed order not binding on NLRB on appeal). Judicial estoppel bars parties from “taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding,” and its purpose is to prevent “a party from abusing the judicial process through cynical gamesmanship, [by] achieving success on one position, then arguing the opposite to suit an exigency of the moment.” Id. at 1218. The obvious problem for Verhoff then is that Time Warner did not succeed on this claim, and any “judicial acceptance” (or reliance thereon) came in the form of the district court‘s ruling in favor of Verhoff. We thus proceed to the merits.
B. Merits
The FMLA provides eligible employees of a covered employer the right to take unpaid leave totaling up to twelve work weeks in any twelve-month period for, among other things, a “serious health condition.”
Time Warner makes three arguments: (1) that Verhoff has not satisfied the prima facie elements of his claim because his written notice to Time Warner was insufficient, (2) that he cannot perform an “essential function” of his job because he cannot work more than forty hours per week, and (3) that even if he can perform the “essential functions” of his job, he is nonetheless estopped from so arguing because of statements he made in his application for Social Security Disability Insurance benefits.
1. Did Verhoff provide sufficient FMLA-Notice?
To succeed on an FMLA-interference claim, Verhoff must prove that: “(1) he was an eligible employee; (2) the defen
Time Warner argues that the note from Verhoff‘s doctor failed to explain why he needed FMLA leave, as it only stated that he could not work more than forty-hours per week. But, an employee need not “expressly assert rights under the FMLA or even mention the FMLA,”
2. Can Verhoff perform the “essential functions” of his job?
After FMLA leave, employees who remain “unable to perform an essential function of the position because of a physical or mental condition [have] no right to restoration to another position under the FMLA.”
The question then is whether working more than forty-hours a week is an essential function of working as a cable technician. In defining what is an “essential function” of a job, the FMLA regulations incorporate by reference the definition of “essential function” found in the ADA‘s regulations, which in turn tell us that the “term ‘essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.”
We agree with the district court, however, that Verhoff can perform the essential functions required of him. Both parties agree that Verhoff can work at least forty-hours, and although he has not worked the standby hours required of other cable technicians, he says he could do so as long as his total hours did not exceed forty per week. Moreover, he worked with this arrangement, albeit informally, for four years prior to the current dispute, and for at least two of those years Time Warner explicitly knew of his condition. And because the FMLA expressly contemplates that employees who are otherwise capable are entitled to work their jobs either “intermittently or on a reduced leave schedule” when “medically necessary,”
3. Does Verhoff‘s receipt of SSDI benefits bar his FMLA claim?
Time Warner makes the further argument that, because of representations Verhoff made in his application for Social Security Disability Insurance benefits, he is estopped from now claiming that he is capable of performing the essential functions of his job. Specifically, an apparent incongruity arises because the Social Security Disability Insurance program provides benefits to disabled persons who are “unable to do [their] previous work” and “cannot ... engage in any other kind of substantial gainful work which exists in the national economy.”
Here, the district court reasoned that Cleveland‘s rationale extends to Verhoff‘s FMLA claim, as it found no inherent incompatibility between Verhoff‘s claim and
Finally, Time Warner argues that, if Cleveland‘s rationale extends to the FMLA context, the district court failed to properly instruct the jury that Verhoff bore a burden of explaining away the apparent inconsistency between his FMLA claim and his receipt of SSDI benefits. And Time Warner is right that the plaintiff bears some burden: in Cleveland, the Supreme Court stated that a “plaintiff bears the burden of proving” that she, “with or without reasonable accommodation, can perform the essential functions of her job,” and “cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation.” Cleveland, 526 U.S. at 806, 119 S.Ct. 1597 (citation omitted). But Time Warner reads too much into this. There is no need to require a separate jury instruction that places a unique burden on the plaintiff; indeed, such a requirement too closely tracks the very approach the Supreme Court rejected in Cleveland: the imposition of a rebuttable presumption. The record here reflects that this “apparent contradiction” was extensively discussed in the jury‘s presence, and Time Warner cannot use the mere fact that the jury returned a verdict for Verhoff as evidence that the explanation was insufficient. So the district court properly held both that Verhoff established the prima facie elements of his FMLA-interference claim and that he was neither incapable of performing the essential functions of his job nor estopped from so claiming.7
V.
For the foregoing reasons, we AFFIRM the judgment of the district court granting summary judgment to Time Warner on Verhoff‘s ADA claim, and we AFFIRM the judgment of the district court granting summary judgment to Verhoff on his FMLA-interference claim.