Introduction
This mаtter is before the Court on Defendant’s Motion for Summary Judgment (Doc. No. 20), Plaintiffs Opposition (Doe. No. 23), and Defendant’s Reply (Doc. No. 29). 1 This case involves alleged violations of the Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), Age Discrimination in Employment Act (“ADEA”), and Employee Retirement Income Security Act (“ERISA”).
Prior to deciding Defendant’s Motion for Summary Judgment, the Court must address two preliminary matters. Pending are Plaintiffs Motion to Strike portions of Amber Brandeberry’s (“Brandeberry”) affidavit (Doc. No. 22), Defendant’s Opposition (Doc. No. 27), and Plaintiffs Reply (Doc. No. 30), as well as Defendant’s Motion to Strike portions of Plaintiffs affidavit (Doc. No. 28), Plaintiffs Opposition (Doc. No. 31), and Defendant’s Reply (Doc. No. 32).
For the reasons below, Defendant’s Motion for Summary Judgment is granted in part and denied-in part, Plaintiffs. Motion to Strike is denied, and Defendant’s Motion to Strike is grantеd in part and denied in part.
Background
After employing Plaintiff for a year as a temporary worker, Defendant hired Plaintiff as a full-time balancer in 1998. At that time, Plaintiff became a member of the United Auto Workers’ Union (“UAW” or “Union”), subject to the Collective Bargaining Agreement (“CBA”).
The CBA entitles an employee with seniority who is unable to work due to injury or illness to sick leave not to exceed six months without renewal. The CBA requires the employee to substantiate his leave by providing “satisfactory evidence of [his] condition” within seven days of his absence 2 (Doc. No. 20., Ex. 1). If an employee “fails to procure an approved leave” within seven days, the CBA presumes that he “voluntarily quit” unless the employer finds the delay to be for “good and sufficient reasons” 3 (id.).
The CBA also addresses Defendant’s FMLA policy
4
which does not modify the
For an employee to take leave under Defendant’s Short Term Disability (“STD”) plan, the employee’s physician must complete an STD form. Employees procure this form by downloading it from the Internet or contacting the Dana Employee Service Center (“DESC”), which then faxes the form to the employee’s physician. Although Defendant’s local Human Resources (“HR”) Department previously faxed forms directly to an employee’s physician, it no longer does so and instead relies on the DESC.
Plaintiff has a degenerative hereditary condition called familial spastic paraparesis. Plaintiff has had this condition since birth, but began experiencing symptoms about ten or fifteen years ago. His symptoms include leg shakes, jerks, spasms, cramps, and back pain. Plaintiff has an altered gait, bowed legs, and pigeon toes. He cannot walk quickly or for long distances without difficulty. Although Plaintiff initially controlled his symptoms with muscle relaxers, he stopped using them due to their unpleasant side effects and now only uses Advil to treat the condition.
Plaintiffs condition has not restricted his ability to work as a balancer, except by requiring him to take short-term medical leave when his symptoms worsened.
On April 27-28, 2006, Plaintiff failed to report to work. On May 2, 2006, he contacted Defendant’s HR Department and requested that it fax STD forms to his physician, Dr. Rao. (At that time, Defendant’s HR Department faxed STD forms directly to an employee’s physician.) On May 13, 2006, Dr. Rao submitted Plaintiffs STD forms noting that Plaintiff was unable to work from April 26, 2006 to May 8, 2006. 5
Despite Plaintiffs failure to provide medical certification within seven days, Defendant approved his leave. According to Defendant, it did so because Plaintiff had advised Defendant’s HR Department that he was seeking short-term leave within seven days of his absence and explained the reason for providing his forms in an untimely manner.
Plaintiff applied for another leave from June 27, 2006 through July 24, 2006. After he notified Defendant’s HR Department that he was seeking leave and obtained the necessary STD forms from DESC, Defendant approved his leave.
The events underlying this lawsuit began on September 6, 2006, when Plaintiffs symptoms worsened once again. According to Plaintiffs affidavit: “I called the employee call in line at Dana and left a message identifying myself and stating that I would need short term medical leave because I was unable to come to work” (Harrigan Aff. ¶ 10). On September 11, 2006 and September 12, 2006, Plaintiff contacted DESC to request STD forms but could not get through due to DESC’s technical difficulties.
On September 13, 2006, Plaintiff reached a DESC representative and asked that STD forms be faxed to his physician, Dr. Sanders. The STD forms never arrived, so on September 15, 2006, Plaintiff contacted DESC again and repeated his request. On September 20, 2006, Plaintiff faxed his completed medical certification to Defendant. During Plaintiffs absence, Defendant never contacted him to inquire about the status of his absence from work.
Meanwhile, by September 18, 2006, twelve days after Plaintiffs initial tele
On September 19, 2006, Brandeberry sent Plaintiff a letter advising him his employment was terminated. However, Brandeberry sent this letter to the wrong address, so Plaintiff only learned of his termination when he tried to return to work on September 25.
At the time of his termination, Plaintiff was forty-two years old.
The Union filed a grievance complaining of Plaintiffs termination, but Defendant denied the grievance due to Plaintiffs failure to follow up his first telephone message with an explanation for his absence. The Union declined to pursue Plaintiffs grievance to arbitration, and Plaintiff next filed charges of discrimination based on age and disability with the Equal Employment Opportunity Commission (“EEOC”) against Defendant and the UAW. The EEOC dismissed both charges. This lawsuit followed.
Preliminary Matters
Plaintiffs Motion to Strike Based on Hearsay
The Court may consider an affidavit on a motion for summary judgment if, among other requirements, it “set[s] forth such facts as would be admissible in evidence” at the time of trial. Fed. R. Civ. P. 56(e). The Court cannot consider statements in an affidavit if thеy are inadmissible hearsay.
North Am. Specialty Ins. Co. v. Myers,
Plaintiff contends that two statements in Brandeberry’s affidavit constitute inadmissible hearsay which the Court must strike.
See Reddy v. Good Samaritan Hosp. & Health Ctr.,
First, Plaintiff moves to strike Brandeberry’s statement: “The Union Steward told me he thought Mr. Harrigan had quit. The Union Steward told me that they tried to call Harrigan about the notice but could not reach him” (Brandeberry Aff. ¶ 10).
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evtd. 801(c). Here, Defendant does not offer the union steward’s statement to prove the truth of the matter asserted; namely, that Plaintiff quit or the UAW could not reach him. Instead, it offers his statement to prove Brandeberry’s motive and state of mind: specifically, that Brandeberry did not know that Plaintiff was seeking STD leave. Regardless of its truth, the statement supports Defеndant’s claim that Brandeberry did not know the reason for Plaintiffs absence. Therefore, the statement is admissible.
Therefore, the Court denies Plaintiffs Motion, as neither challenged statement constitutes inadmissible hearsay.
Defendant’s Motion to Strike Based on Conflicting Testimony
A post-deposition affidavit is inadmissible if it directly contradicts the non-moving party’s prior sworn testimony.
Aerel, S.R.L. v. PCC Airfoils, L.L.C.,
Defendant asks the Court to strike Paragraphs 4, 10, and 23 of Plaintiffs affidavit, claiming that these statements contradict Plaintiffs previous sworn deposition testimony. Because Parаgraphs 4 and 10 of Plaintiffs affidavit do not directly contradict his deposition, the Court denies Defendant’s Motion as to these statements. However, Defendant’s Motion is granted as to Paragraph 23.
Defendant seeks to strike Paragraph 4 of Plaintiffs affidavit, where he states: “[D]ue to the hard concrete floors at Dana, I requested a rubber mat to stand on while I worked at my machine” (Harrigan Aff. ¶4). Defendant contends that this directly contradicts the following deposition testimony (Harrigan Dep., pp. 27-28):
Q. Was there anytime during your employment at Dana that you asked for any changes in the way you did your job?
A. No. No.
Q. Did you ever ask for any kind of an accommodation?
A. A rubber mat.
Q. Okay. Is that something you asked for or is it just something they had?
A. They supplied that.
Although it is not entirely clear whether Defendant always provided rubber mats or whether it did so to accommodate Plaintiff, Plaintiffs affidavit does not contradict his deposition. In both forms of testimony, Plaintiff statеs that he requested a rubber mat. As such, the Court will not strike Paragraph 4 of his affidavit.
Next, Defendant attacks Paragraph 10 of the affidavit which states: “I called the employee call in line at Dana and left a message identifying myself and stating that I would need short term medical leave because I was unable to come to work” (Harrigan Aff. ¶ 10). Defendant asserts that this statement directly contradicts earlier deposition testimony (Harrigan Dep., p. 55):
Q. Who’d you call at work?
A. You get the recording. I got to leave a message.
Q. Okay, and what message did you leave?
A. Short term I think I said.
Q. What do you specifically recall about what you—
A. Do I specifically recall? I don’t remember.
When a plaintiff claims a complete loss of memory during his deposition, but later describes significant details in his affidavit, courts often strike the affidavit as conflicting testimony.
See Reid v. Sears, Roebuck & Co.,
Unlike Reid and Smith, Plaintiff here does not claim a complete lack of knowledge or recollection during his deposition, while subsequently providing a definitive affidavit with new information. In his deposition, Plaintiff recalled that he said “[s]hort term I think,” which includes the essence of the information in his affidavit. Although Plaintiffs deposition testimony is not as artfully expressed as his affidavit, such a discrepancy is not a contradiction, but rather goes to weight, not admissibility-
Finаlly, Defendant moves to strike Paragraph 23 of Plaintiffs affidavit, which states: “I am aware of substantially younger, less qualified employees who were either hired by Dana or reassigned to my position after I was terminated. I was also involved in training substantially younger employees to perform my job duties prior to my termination” (Harrigan Aff. ¶ 23). During Plaintiffs deposition, the following exchange took place (Harrigan Dep., pp. 75-76):
Q. You’ve also alleged that you were terminated because of your age. Do you believe that?
A. Yeah but no — yeah. I don’t know. Yeah.
Q. Okay. WTiy do you think that you were terminated?
A. I don’t know. Why do I think it? Just — -I don’t know.
Q. Do you contend that people younger than you were treated differently?
A. I don’t know.
By stating in his affidavit that Defendant prefers younger and less qualified employees, Plaintiff makes a self-serving conclusion directly contradicting his deposition testimony. Plaintiffs detailed affidavit, explaining his own training of younger employees, directly сontradicts his deposition when he failed to support his claim of age discrimination.
See Smith,
Discussion
Standard of Review
Pursuant to Federal Civil Rule 56(c), summary judgment is appropriate where there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” When considering a motion for summary judgment, the Court must draw all inferences from the record in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
FMLA
FMLA permits an eligible employee to take up to twelve weeks of unpaid leave during a twelve-month period if the employee has a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1). It is unlawful “for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” Id.
Plaintiff claims Defendant violated two distinct theories under FMLA: “(1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the ‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).”
Hoge v. Honda of Am. Mfg., Inc.,
FMLA Interference
To establish a claim for FMLA interference, Plaintiff must show that: (1) he was eligible for FMLA protection; (2) his employer was covered by FMLA; (3) he was entitled to leave under FMLA; (4) he provided sufficient notice of his intent to take leave; and (5) his employer denied him an FMLA benefit to which hе was entitled.
See, e.g., Cavin v. Honda of Am. Mfg., Inc.,
The parties do not dispute that Plaintiff was an eligible employee, Defendant was a covered employer, or, for the purposes of this Motion, Plaintiff had a serious health condition in September 2006 and was entitled to take leave. Further, by terminating Plaintiff, Defendant interfered with his rights under the FMLA.
See Killian v. Yorozu Auto. Tennessee, Inc.,
1. Notice
Under FMLA, an employee must provide his employer with timely and substantively sufficient notice of his intent to take leave. For unforeseeable leave, the employee must notify his employer “as soon as practicable under the fаcts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). “[E]xcept in extraordinary circumstances where notice is not feasible,” this translates to “no more than one or two working days of learning of the need for leave.” Id.
When determining whether an' employee’s notice was substantively sufficient, “the critical question is whether the information imparted to the employer was sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.”
Brohm v. JH Props., Inc.,
The Sixth Circuit has declined to provide categorical rules determining what constitutes notice. Instead, “what is practicable, both in terms of the timing of the notice and its content, will depend upon
Here, Plaintiff left Defendant a telephone message on September 6, 2006, the first day of his absence, rendering his notification timely. Whether the message provided “substantively sufficient” notice is a close call, but the message did, at the very least, include the phrase “short term” which allows the inference Plaintiff was not merely sick, but had a condition that necessitated a longer absence.
Cf Walton,
Moreover, Plaintiff took STD leave on two other occasions within six months of his September 2006 absence. Thus, by invoking the phrase “short term,” a reasonable jury could conclude that Plaintiff linked his current need for leave to his impairment for which he previously took STD leave. The fact that Defendant knew of Plaintiffs previous leave and his impairment adds support for denying summary judgmеnt.
Fritz v. Phillips Serv. Indus., Inc.,
Unlike May 2006, when Plaintiff complied with Defendant’s protocol for requesting STD leave by contacting Defendant’s HR Department and explaining his delay in providing medical certification, by September 2006 Defendant had modified its policy to now require requests be made through DESC instead of the HR Department. Plaintiffs September telephone call raises a genuine issue of material fact as to whether he provided adequate notice of his need for FMLA leave.
See Brown v. Ohio Youth Advocate Program, Inc.,
No. 2:04-CV-122,
2. Unlawfully Stringent Policy
There is also аn issue of fact as to whether Defendant imposed a requirement more stringent than FMLA and then terminated Plaintiff for failing to meet this requirement. If so, Defendant’s action “would constitute impermissible interference with Plaintiffs exercise of [his] rights under the FMLA.”
McClain v. Detroit Entm’t., L.L.C.,
Although federal regulations enable employers to “require an employee to comply with [its] usual and customary notice and procedural requirements for requesting leave,” 29 C.F.R. § 825.302(d), the Sixth Circuit has held that “FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.”
Cavin,
Here, Defendant’s policy requires employees to submit medical documentation within seven days of an absence whereas FMLA allows up to at least fif
Plaintiff submitted his medical documentation on September 20, 2006, fourteen days after his September 6, 2006 absence, thereby complying with the FMLA-established timeframe. To the extent Defendant’s policy conflicts with 29 C.F.R. § 825.305, it is unlawful.
See Killian,
FMLA Retaliation
Plaintiff also claims that Defendant retaliated against him for exercising his FMLA rights. Tо establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in an activity protected by the FMLA; (2) Defendant knew that Plaintiff engaged in this activity; (3) Defendant, thereafter, took an employment action adverse to Plaintiff; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action.
Killian,
If Plaintiff establishes a prima facie case, “the burden shifts to [Defendant] to offer evidence of a legitimate, non-discriminatory reason for the adverse employment action. If [Defendant] succeeds, the burden shifts back to [Plaintiff] to show that [Defendant’s] proffered reason is a pretext for unlawful discrimination.”
Bryson v. Regis Corp.,
1. Prima Facie Case
Plaintiff satisfies three of the required elements for a prima facie case of FMLA retaliation (protected activity, adverse aсtion, and causal connection); and raises' an issue of fact on the fourth element (whether Defendant knew that Plaintiff engaged in protected activity).
Plaintiff engaged in a protected activity; as previously explained, Plaintiffs September 6, 2006 telephone message constituted a request for leave. Further, Plaintiff suffered an adverse employment action because Defendant terminated his employment.
See Kocsis v. Multi-Care Mgmt., Inc.,
■ Plaintiff also establishes a causal connection between his ■ protected activity and adverse employment action because only two weeks elapsed between Plaintiffs telephone message on September 6, 2006 and his termination on September 19, 2006.
See Bryson,
2. Burden Shifting
Nоnetheless, even if Plaintiff successfully establishes a prima facie case for retaliation, his claim would still fail because Defendant articulates a nondiscriminatory explanation for terminating Plaintiff, which Plaintiff cannot show to be pretextual.
Defendant meets its burden of proffering a nondiscriminatory explanation; it terminated Plaintiff for failing to comply with its internal leave policy which required employees to substantiate their leave within seven calendar days of an absence. See, e.g., Hout v. City of Mansfield, 550 F.Supp.2d 701, 735 (N.D.Ohio 2008) (finding that violating a company policy constitutes a legitimate nondiscriminatory reason for disciplining an employee). There is no evidence that Defendant implemented this policy to discharge Plaintiff for seeking leave, as Defendant’s policy applied to all employees.
This Court’s finding that Defendant’s policy imposed an impermissible strict requirement does not invalidate Defendant’s proffered explanation.
See McClain,
Here, although Defendant’s reliance on its policy was mistaken and unlawful, it is still a nondiscriminatory explanation. See id. (“[I]t is one thing to conclude that an employer’s policy violates the substantive provisions of the FMLA, and another to say that the employer has applied this policy for an impermissible retaliatory purpose.”).
Thus, the burden shifts to Plaintiff to prove Defendant’s stated reason is mere pretext. To establish pretext, Plaintiff must show that Defendant’s proffered reason: (1) had no basis in fact; (2) did not actually motivate the adverse employment decision; or (3) was insufficient to motivate the adverse employment decision.
Manzer v. Diamond Shamrock Chem. Co.,
Defendant’s proffered explanation has a basis in fact. It is clear that Plaintiff did not substantiate his leave with medical certification within seven days of his absence or speak to Defendant’s HR Department during this time. As such, Plaintiff cannot establish pretext under this theory.
Next, Plaintiff asserts that his failure to follow company policy did not actually motivate his termination. Plaintiff points to the fact that Defendant approved his leave in April and May, despite his failure to comply strictly with Defendant’s seven-day deadline. Such argument is unpersuasive, as it fails to take into account Plaintiffs proactive telephone call
For the same reasons, Plaintiffs reliance on
Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
Unlike Cehrs, Defendant here did not “routinely” allow individuals to take leave without following its company policy. Although Defendant extended its deadlinе to submit medical certification on some occasions, it did this only if the employee contacted the HR Department to explain the reason for the delay. In fact, during Plaintiffs previous medical leaves, Plaintiff contacted the HR Department, notified it of his absence, and sought an extension to return his STD forms. Because of Plaintiffs continuous communication, Defendant permitted Plaintiff to submit the forms after the seven-day deadline. In September 2006, Plaintiff never sought an extension to submit his medical forms. He had no communication with Defendant after his message on September 6, 2006.
Plaintiff also argues that his delay was due largely to technical difficulties at the DESC and doctor’s office. This argument, too, is unpersuasive. As the employee requesting leave, Plaintiff bears the burden of ensuring that his forms are submitted in a timely manner, or at the very least contacting Defendant’s HR Department to explain the delay.
Moreover, Defendant’s reliance on an unlawful policy does not render its actions pretextual. As recently explained in a Sixth Circuit opinion, so “long as an employer has an honest belief in its proffered nondiscriminatory reason . for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect.”
Sybrandt v. Home Depot, U.S.A., Inc.,
“The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.”
Michael v. Caterpillar Fin. Serv. Corp.,
Here, Defendant made a reasonably informed and considered decision by speaking to UAW’s steward аnd providing the UAW with twenty-four hours written notice prior to terminating Plaintiff. Defendant also waited fourteen days from Plaintiffs first absence to terminate his employment, a week longer than the CBA required. Thus, the' Court finds that Defendant proffered a legitimate, 'nondiscriminatory reason for terminating Plaintiffs employment, and Plaintiff cannot prove it to be pretextual.
ADA
The ADA provides that “[n]o covered entity shall discriminate 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 privi
Where, as here, Plaintiff seeks to establish discrimination through indirect evidence, the Court requires Plaintiff to establish a prima facie case, followed by the
McDonnell Douglas
burden-shifting analysis.
McDonnell Douglas Corp. v. Green,
Prima Facie Case
To establish a prima facie cаse of discrimination under the ADA, Plaintiff must show that he: (1) is disabled; (2) is qualified to perform his essential job functions with or without accommodation; and (3) suffered an adverse employment action because of his disability.
McKay v. Toyota Motor Mfg., U.S.A., Inc.,
Plaintiff fails to establish a prima facie case as he cannot show that he has an ADA-defined disability or that Defendant terminated him because of such disability.
1. Disabled
Under ADA, “disability” means “a physical or mental impairment that substantially limits one or more of the major life activities,” “a record of such impairment,” or “being regarded as having such an impairment.” 42 U.S.C. § 12102(2).
Plaintiff asserts he is disabled because his familial spastic paraparesis substantially limits his ability to walk and work. He also contends that he has a record of a disability, and that Defendant regarded him as disabled. The Court disagrees with each assertion.
(a) Actually Disabled
ADA defines “disability” as a substantial limitation in at leаst one “major life activity” which, in turn, is defined illustratively in the corresponding regulations as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i).
An individual is substantially limited in a major life activity if he is “[u]nable to perform a major life activity that the average person in the general population can perform” or is “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(l)(i),(ii).
Plaintiff claims he is substantially limited in his ability to walk because of his leg shakes, cramps, jerks, and spasms. As a consequence of these symptoms, combined with his pigeon toes, bowed legs, and back pain, Plaintiff cannot walk quickly, walk for long distances, or run. However, these limitations do not render an individual disabled.
See Black v. Roadway Express, Inc.,
Moreover, Plaintiffs condition does not prevent him from helping his father with yard work, biking, fishing, golfing, shopping, or taking care of his basic needs. He can walk without assistance, and returned to work following his medical leaves without any restriction on his ability to walk. As such, Plaintiffs limitations, like others found in case law, are not substantial.
See Penny,
Plaintiff also asserts that his impairment substantially limits his ability to work. The Court disagrees. To establish a substantial limitation in working, an individual must show that he is “significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes.” 29 C.F.R. § 1630.20(3)0).
Not only has Plaintiff failed to establish that he cannot perform a broad class of jobs, he has failed to establish that he cannot perform his particular job. He testified that his impairment has never limited his ability to work or restricted his employment in any way. Because Plaintiff has not provided any evidence to support his contention that he faces substantial limitations in the major life activity of working or walking, the Court concludes that he is not disabled as a matter of law.
(b) Record of a Disability
Plaintiff contends, alternativеly, that he has raised a genuine issue of material fact as to whether he had a record of a disability. In so arguing, Plaintiff must show he has “a history of, or has been miselassified as having, a mental or physical impairment that
substantially limits
one or more major life activities.”
MX Group, Inc. v. City of Covington,
Despite having a record of an impairment, Plaintiff has not presented any evidence to suggest that his impairment substantially limited one or more major life activities. As such, Plaintiff is not covered by ADA as an individual with a record of a disability.
(c) Regarded As Disabled
In the alternative, Plaintiff asserts that Defendant regarded him as having a disability. To be disabled under the “regarded as” prong, Plaintiff must establish that Defendant regarded him as having an impairment that substantially limits a major life activity.
Moorer v. Baptist Mem’l Health Care Sys.,
Simply because Defendant knew of Plaintiffs condition does not mean that Defendant regarded Plaintiff as having a substantial limitation in a major life activity. The only evidence proffered by Plaintiff is that his supervisor, Chuck Smith, inquired into his condition and noted that it seemed to be getting worse. A reasonable jury could not infer from this isolated comment that Smith perceived Plaintiff to be substantially limited in any major life activities. Moreover, Smith did not participate in the HR Department’s decision to terminate Plaintiffs employment. Thus, the Court concludes that Defendant did not regard Plaintiff as disabled.
2. Termination
Even if Plaintiff had a disability, his ADA claim must fail because he provides no evidence that Defendant terminated him because of his disability. Plaintiff concedes he has had his impairment the entire time that he has worked for Defendant. Thus, Plaintiff fails to meet his burden of establishing a prima facie case of employment discrimination under ADA.
Burden Shifting
Because Plaintiff failed to establish his prima facie case, there is no need to apply the burden-shifting scheme. However, even if the Court had determined that
Failure to Accommodate
In his Opposition to Defendant’s Motion for Summary Judgment, Plaintiff claims Defendant failed to accommodate his disabilities by neglecting to provide him with medical leave. To the extent he is asserting this claim, it cannot proceed because he is not disabled under ADA.
ADEA
ADEA prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). Because Plaintiff provides no direct evidence that Defendant discriminated against him based on age, the Court employs the
McDonnell Douglas
test to evaluate his claim.
See Martin v. Toledo Cardiology Consultants, Inc.,
Prima Facie Case
To establish a prima facie case of age discrimination, Plaintiff must show that he was: (1) a member of the protected class; (2) subject to an adverse employment action; (3) qualified for the position; and (4) replaced by someone outside of the protected class.
Id.
Plaintiff can also satisfy the fourth prong by showing that he “was treated differently from similarly situated employees outside the protected class.”
Mitchell v. Vanderbilt Univ.,
Here, the fourth prong is the only one in dispute. The Court finds that Plaintiff fails to raise a genuine issue of material fact as to this requirement, and grants Defendant’s Motion for Summary Judgment on the ADEA claim.
Defendant indicates it did not replace Plaintiff with someone outside the protected class, explaining that the CBA requires Defendant to fill Plaintiffs position with the most senior bidder. Plaintiff has not rebutted this claim, and the only evidence he submits is Paragraph 23 of his affidavit, which the Court struck.
Even if the Court had not stricken this paragraph, Plaintiff still fails to raise a genuine issue of material fact as to whether Defendant replaced him with someone, or treated him differently than, similarly situated employees, outside his protected class. The stricken paragraph contains only a self-serving, unsubstantiated general averment, insufficient to create a genuine issue of material fact.
See Lujan v. Nat’l Wildlife Fed’n,
Burden Shifting
Because Plaintiff fails to establish his prima facie case, there is no need to apply the burden-shifting scheme. However, even if the Court had determined that Plаintiff establishes a prima facie case, his ADEA claim would still fail. For the same reasons discussed with regard to Plaintiffs retaliation claim under FMLA, Defendant articulated a legitimate nondiscriminatory reason for terminating Plaintiffs employment which Plaintiff fails to show was pretextual.
Interference with ERISA
Section 510 of ERISA makes it “unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for ex-
To state a claim under Section 510, Plaintiff must demonstrate that Defendant had a “specific intent to violate ERISA” through either direct evidence or through the burden-shifting approach used in employment discrimination cases.
Schweitzer v. Teamsters Local 100, 413
F.3d 533, 537 (6th Cir.2005);
Smith v. Ameritech,
Prima Facie Case
To establish a prima facie case, Plaintiff must show “the existence of (1) prohibited emрloyer conduct; (2) taken for the purpose of interfering; (3) with the attainment of any right to which the employed may be entitled.”
Schweitzer,
The Court grants Defendant’s Motion for Summary Judgment because Plaintiff cannot show that Defendant acted for the purpose of interfering with his benefits.
Plaintiff claims that because he is entitled to a greater percentage, of benefits the longer he is employed, he has demonstrated Defendant’s specific intent to interfere with his benefits. In
Schweitzer,
Plaintiff also tries, unsuccessfully, to show Defendant’s specific intent by pointing to the temporal proximity between his termination and the vesting of his benefit plans. Plaintiff contends that he will be entitled to a large life insurance policy, long-term disability benefits, and retirement under Defendant’s health and welfare plans. However, there is no indication that such benefits would vest in the near future — the fact these benefits might vest sometime in the distant future is insufficient to prove specific intent.
See Peterson v. Gen. Motors Corp.,
No. 05-CV-74862,
Without providing any evidence enabling a reasonable jury to infer otherwise, the Court finds Plaintiff failed to raise a genuine issue of material fact as to whether Defendant’s desire to interfere with Plaintiffs benefits was a motivating factor in its decision to terminate his employment.
See Washington v. Comcast Corp.,
No. 06-10143,
Burden Shifting
Because Plaintiff fails to establish his prima facie case, there is no need to apply the burden-shifting scheme. However, even if Plaintiff had successfully demonstrated his prima facie case, his ERISA claim would fail as a matter of law. As it did to rebut Plaintiffs FMLA retaliation, ADA and ADEA claims, Defendant meets
CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment is denied with respect to the FMLA interference claim; and granted with respect to the FMLA retaliation, ADA, ADEA, and ERISA claims.
IT IS SO ORDERED.
Notes
. Despite Plaintiff's failure to file a motion for summary judgment, he urges the Court to grant summary judgment in his favor, sua sponte, for his claims under the FMLA, ADA, and ERISA. The Court declines Plaintiff's invitation, as the facts presented do not warrant such a finding.
. Article 45 of the CBA states: "An employee with seniority who is unable to work because of injury or illness shall be granted a sick leave of absence with accumulated seniority for the duratiоn of the disability but not to exceed six (6) months without renewal .... A leave of absence for injury or illness must be substantiated, with satisfactory evidence of the employee's condition, as soon as possible, but no later than the seven (7) day period provided for in Article 22(5). Loss of Seniority. The Company will, however, consider extenuating circumstances, which prevent the timely submission of such evidence, on an individual basis. 1 '
. Article 22.5 of the CBA states: “If [employee] is off work for more than seven (7) calendar days and fails to procure an approved leave of absence during such seven (7) calendar days, he will be considered as having voluntarily quit, unless his failure to secure such approval is for good and sufficient reasons.”
. Article 47 of the CBA states: “The Company agrees to administer all Family and Medical Leave Requests as dirfected under the Family and Medical Leave Act of 1993 (the ‘FMLA’) as- that statute may be amended from time to time. In all instances of FMLA Leave, the employee will be required to exhaust one half of all remaining vacation time or five (5) Vacation days, whichever is less, prior to the implementation of unpaid time off under this provision. All FMLA questions should be referred to the Human Resources Department.”
. Defendant contends that Dr; Rao initially indicated that Plaintiff was unable to work from May 3, 2006 to May 8, 2006 and that Dr. Rao altered the STD form after speaking to Plaintiff. Because this issue is irrelevant to this Motion, the Court will not address it.
. Plaintiff asserts that he called Defendant's HR Department at some point between September 6, 2006 and September 13, 2006. He claims that he spoke to the person subbing for Brandeberry while she was on medical leave. However, Plaintiff's telephоne records do not show any calls to Defendant's plant between these dates, and Plaintiff does not claim he made this call from another phone. Moreover, Brandeberry was not on leave or otherwise absent in September 2006.
. There is Sixth Circuit precedent suggesting that even if Plaintiff failed to provide certification in a timely manner, Defendant's remedy was delaying Plaintiff’s leave, not termination.
See Killian,