*1 it staking grant around instead of down. district court s of a preliminary moved in- addition, presumably, junction, In so Apx. 159-61. even on abuse of re- discretion rat on a cart or a long placed as the was view. that cart
wagon provided the or the during moved about the dem- wagon was C. Conclusion onstration, City object not the would its I City’s Because believe that the ordi- presence apply. as the ordinance would not time, permissible nance is a place, and if I am incorrect and the inflatable Even restriction, manner that that fact means used, rat could not be itself Union unlikely the Union is to succeed on signs pictures could still make of rats case, the merits of its I and because do not them, pass out smaller rat balloons to point clearly believe the other factors many or passers-by, use other methods direction, I one believe that it message. Ample communicate its alterna- abuse of discretion for the district court to channels of communication are avail- tive grant preliminary injunction. I would Therefore, I able here. because believe reverse the grant pre- district court’s of a as-applied the ordinance to the rat liminary injunction and remand for further time, tests, I passes place, and manner proceedings. unlikely that the Union is to suc- believe ceed on the merits of its case.
B. factors Other I do not believe that
Given merits, likely
Union is to succeed on the I that it irrepa-
do not believe would suffer injunction granted.
rable harm if the is not Furthermore, given that the Union has MOORER, William T. Plaintiff- ample alternative channels of communica- Appellee/Cross-Appellant, it, any tion I available believe harm v. it would suffer would be minimal. There- BAPTIST MEMORIAL HEALTH fore, factor, best, weigh this does not SYSTEM; Baptist CARE Memorial party, may weigh favor of either and it (03— Corporation Health Care injunction. favor not Fi- granting 5855/5965); Cathy Hill; M. John N. nally, although majority believes that (03-5855), Defendants-Appel Robbins public “the factor this interest case lants/Cross-Appellees. weighs in dearly protecting favor of rights First Amendment of the Union’s 03-5855, No. 03-5965. (citation omitted) (emphasis members[.]” Appeals, United States Court mine), I believe that this interest must be Sixth Circuit. public balanced with the interest in local governments being legislate able to Argued: Sept. 2004. governments enforce laws that those deem Decided and Filed: Feb. Therefore, necessary. I not do believe clearly factor favor either party even if the constitutional issues do way. Finally,
tilt the balance one while injunction
granting likely will not harm
others, that factor alone cannot save the *3 Gordon, Tennessee, Covington, Houston
J. Appellee. CLAY, BOGGS, Judge; Before: Chief HAYNES, Judge; Judge.* District Circuit CLAY, J., opinion of the delivered HAYNES, D.J., court, joined. in which 490-91), BOGGS, (pp. J. delivered concurring part separate opinion dissenting part.
CLAY, Judge. Circuit Health Baptist Defendants Memorial System Baptist and Memorial Health Care (collectively “Baptist”) Corporation Care 3, judgment of the appeal the June court in favor of Plaintiff William district claim “Tate” Moorer on his for discrimina- tory discharge in violation of the Ameri- Act of cans with Disabilities (“ADA”). Baptist §§ 12101-12117 U.S.C. in the district court erred asserts finding regarded it Moorer as dis- it discharged abled and that Moorer be- perceived disability. Baptist cause of his challenges the district court’s award also $250,000 compensatory to Moorer damages for emotional distress. Moorer the district court’s earlier cross-appeals grant summary judgment favor of Family Baptist on his claim under Act, § Leave 2601-2654 Medial U.S.C. (“FMLA”). follow, For the reasons AFFIRM in favor of judgment we Prather, E. Kiesewetter ARGUED: Paul claim, ADA Moorer on his but REVERSE Prather, & Mem- Kaplan Wise Schwimmer granting summary judgment in the order Tennessee, phis, Appellants. for Justin S. Baptist favor of on Moorer’s FMLA claim. Gilbert, Firm, Jackson, Ten- the Gilbert nessee, Appellee. for ON BRIEF: Paul E. I. Prather, Tanja Thompson, L. Kiesewetter Background Prather, Kaplan & Mem-
Wise Schwimmer A. Facts Substantive Tennessee, Appellants. for Justin S. phis, Gilbert, Firm, Jackson, Plaintiff worked Ten- William “Tate” Moorer Gilbert Gordon, nessee, Baptist Memorial Health J. Houston Law Office of for Defendants * Jr., Tennessee, sitting by designation. Haynes, The Honorable William J. United Judge for the Middle District of States District System Baptist Care Memorial Health Mansfield told Hill that Moorer had made areas, Corporation years prior progress others, Care for 17 to his in some but not years, termination in 1997. Over the should up follow on those areas of enjoyed promotions, continuing a series of concern. culminating Baptist when promot- On June Hill met with Moorer him to ed Administrator and Chief Finan- January discussed the per- Tipton County cial Officer of Hos- formance evaluation. She asked Moorer pital (“BMH-Tipton”) and Lauderdale for regarding “his feedback that memo and (“BMH-Lauderdale”). Baptist Hospital was, where he where he saw himself only Moorer was administrator identified,” relation to those issues and she system responsibilities who had plan asked for “his for corrective action.” hospitals. responsibilities two His includ- Hill told put Moorer to feedback the day-to-day operation hospi- ed of the written form and that it would be for tals; physical safety condition and eyes only.” “[her] On June care; hospitals; quality patient Hill, requested faxed the memo to staff; development of medical the annual which Hill acknowledged receiving. *5 results; budgetary process and financial 9, Hill and July Moorer met on 1997 to leasing space physicians to col- and 16, discuss Moorer’s June 1997 memoran- them; lecting rent from and legal compli- Hill promised dum. provide Moorer Starting ance. in reported Moorer with a of goals list that he was to accom- Mansfield, directly to Steve Chief Execu- plish, and agreed Moorer to meet those for Baptist’s regional hospitals. tive Officer 21, 1997, goals. July On prepared Hill a 27, 1997, January On Mansfield and his draft memorandum containing perform- Robbins, supervisor, Baptist’s direct John goals, gave ance but never it to Moorer. President, Executive Vice met with Moor- That acknowledged memorandum that er to a performance discuss list of con- Moorer had made efforts to correct certain deficiencies, cerns set forth in a performance performance evaluation but added that January Approximately improve job dated 1997. he his overall per- .needed later, formance responded orally two weeks Moorer and failure to do so September might with a in “plan of action” to address the result his concerns, termination. and Mansfield and Robbins agreed to it. July 22, 1997, On Hill a attending meeting of the West Tennessee April
In Mansfield assumed a new Board, Health Services a Group meeting Baptist East, role as the CEO of hospital that Moorer also attended. Hill was Memphis, job Tennessee. His duties corridor, standing in a outside of the meet- among were divided people, several each of room, greeted when she Moorer and whom assumed the new title of “mar- thought perceived she the smell of alcohol May ket leader.” Cathy On Hill trial, on his breath. At Hill described the became the market leader for all of the interaction as follows: hospitals and physician practices in the market, Quite West Tennessee and frankly, thought assumed re- as I had about sponsibility this, know, supervising for Moorer. In you Mr. Moorer had told me transferring his West Tennessee duties his—in his letter that he sent me that Hill, Hill gave sleepless nights Mansfield met with her he worrying had about January performance evalua- performance some of these So issues. tion that he prepared particular night,... had for Moorer. at I felt up had shown .too and knew— mentioned Moorer was smart
Mr. long to know meeting too with alcohol on his breath. had worked to a than to come know better that —to 6,1997, Hill an e-mail August On sent per- if the I sure meeting, but wasn’t Braughton concerning Moor- Robbins causing an alcohol issues were formance follow-up to the conference the er' as perform- alcohol or if there was an [sic] stated, part: week. The e-mail previous issue, I ance didn’t know. recommended, I have made contact meeting, During the Hill observed giv- confidential and was had discussions on his his chair his chin slump following en the recommendation: and be chest, straighten up and then Swiftly... agrees 1. Our Act resource1 also no- fidgety” his seat. She “rather high likely with our assessment of hood ruddy. complexion appeared his ticed that pivot good incident2 [sic] drinking had been Moorer denies he broader, lon[g] term indicator issue. that, alcohol, after explains and instead as performance 2. Discuss issues and his smoking cigarettes, he had washed concern, part of that make man- just prior to the SIDE out with Listerine mouth fatigue agement giving and his referral individual small meeting. He attributed his tropical to the vacation of time decision ruddy complexion amount make recently had returned. from which he interview. use the observa- first Do not ago emphasis. 2 weeks primary tion not confront Moorer about her did breath, of alcohol but perception Plan on weeks minimum of 3-4 instead, later, days about two told Robbins leave for the individual. *6 that, About a after the incident. week 4. Plan to if refuses to act terminate on Robbins, Hill, Larry Braughton, and Sen- management recommendation. Resources, Human ior President of Vice up “[b]ack The e-mail concluded with a Braughton the issue. recom- discussed plan[]” during to cover for Moorer “CONCERN,” Hill contact mended get long leave “until we a better idea of Baptist’s Assistance Employee
which is term situation.” suggestion Hill followed this Program. Hill testified that Minderman “Mr. had Minderman, Di- and contacted Patrick given specific us the recommendations CONCERN, during the first rector of how to Mr. regarding handle Minder- August 1997. told week She trial, however, At situation.” Minderman was adminis- high man that “there a level telling Hill that Moorer had an denied Baptist system in the that' she [ sic] trator problem making alcohol or a recommen- about of his work was concerned because that Moorer to be ter- might dation need performance problems.” Hill called Min- n telling minated. He also did not recall again, or two la- possibly derman a week July 22 ter, Hill that incident which indicating she was still concerned Hill smelled alcohol on Moorer’s breath employee provided and more about call, “good broader, awas indicator of During [a] detailed information. she issue”; name, denied telling long-term identified Moorer Minder- he further good an incident indica- having per- man that Moorer had been such would be broader, problems year- longer-term formance and of a issue. In for the last tor "pivot phrase was refers to The "resource” mentioned in the e-mail 2. The incident” perceived July Hill 1997 incident in which Minderman. of alcohol breath. a smell on Moorer’s fact, “full Minderman had no assessment of clarification of issues and recommen- of August Moorer’s condition as 1997. dations” from the fitness assessment. It telling Hill that flatly He denied Moorer also set out “additional action plans- and on placed should be leave for treatment goals” for Moorer and warned that “[f]ail- plan or that Hill should leave for him. ure to successfully 100% to adhere or com- plete” them would “a be basis for immedi- Hill, Robbins, August On and ate disciplinary additional up actions Braughton August discussed Hill’s including and Contrary termination.” agreed appropriate to it as the e-mail instruction, however, the no-contact some plan Collectively, they of action. decided goals required of these hospi- contact with pro- to refer Moorer to the CONCERN personnel, tal including revising the BMH- gram duty for a fitness for evaluation. Tipton’s strategic plan, give which would Robbins, input Braughton, With Moorer “the opportunity personally in- counsel, Hill legal prepared letter teract with all levels of staff.” Id. The alleged performance Moorer that outlined strategic plan required was to be submit- goals deficiencies and 27,1997. by August ted expected to meet. The a revi- letter was n prepared of the draft letter Hill had sion Hill Robbins and met with Moorer on July gave 1997 but never to him. August 1997 and presented Moorer noted, in I part, The letter “While find that letter, During meeting, with the you have efforts to made correct the noted family told Moorer that she history had improve- deficiencies and have made some of alcoholism and told Hill she areas, ments some there is a lack of thought he was alcoholic. Hill and progress substantial toward elimination of Robbins then assured Moorer that he thus, improve- root causes and limited job would have a when he returned from in your performance ments overall alcohol rehabilitation. operations the desired outcomes termination, agreed To avoid you the two facilities administer.” These *7 an morning have evaluation the next with purported deficiencies included inconsis- John Houlihan of CONCERN. He met tent financial reporting; due accounts past Houlihan, with who diagnosed Moore with receivable; improper management of a “chemical and abuse” recommended treat- contract; physician’s lack of effort to edu- Hospital/Talbott ment at the Anchor Re- regarding budget cate his staff revised 22, 1997, covery August Center. On issues; processes; customer satisfaction recovery in At- Moorer flew to the center symptoms and of drunkenness exhibited at lanta. He was scheduled for five of weeks 22, July meeting. the The letter stayed treatment and the full five weeks. continued, management “I have made a Concern, EAP, referral to for fitness as- 28, 1997, August On while Moorer was any sessment and resulting plan of action. center, recovery at telephoned the Hill mandatory your This is action and failure said, Moorer’s wife at home and “I know am, participate cooperate by to and an awful lot about alcoholism and alcohol- 20, August your 1997will result in immedi- ics.” She told Mrs. Moorer her father termination.” ate alcoholic, brother, an as was her who that “al- had killed himself. She also said letter further instructed Moorer “to your refrain from with ANY coholism is an incurable disease and ANY contact hos- cured, pital personnel” until and Hill had husband will never be and it is a Robbins Second, Hill sating hospital. received deadly disease.”3 at complaints employees BMH-Tip- 1997, Cannon, Dr. Jesse August On employee ton about certain relations is- BMH-Tipton, at of Staff Chief the Medical sues, accusation that including an Baptist, President of sent to the letter especially did not respect employees, wom- Moorer, and as well as to Hill copies en, survey showing and of a the results of the Tennessee Health Anita Vantries rated the employees had administra- (“THFC”), the Care Facilities Commission national leadership tive below norms. hospitals. licensing agency state for Can- Third, Hill September on learned list problems non’s of letter forwarded high about accounts receivable balances hospital that had and deficiencies at hospitals managed, for the that Moorer light past come to over the three to five apparently bacMog due to a of claims and years complaints of other attached rate inordinately high an error in claims attributed physicians as well. Cannon Fourth, processing. during the first week management’s problems require- these September, of Hill discovered must system ment that the “decrease cost employees care certain home health problems at all included the cost.” The agency payroll actually home health were to close facili- decision of Moorer restroom working raising hospital, poten- at the building ties office the south doctor’s provides tial of fraud because Medicare hospital because a had sued the patient larger home reimbursement for health floor; poor after the wet slipping on agency care work for the workers who hospital’s maintenance of the facilities opposed hospital. to the (in- conditions; leaking ceilings unsanitary rooms); cluding a fire Between 1997 and operating August Septem- in the regular hazard in room to a lack ber Hill had operating due contact with space supplies; regarding too few Robbins Moorer. She storage recom- nurses; permitted Hill shortages supplies. mended that Moorer not be many complaints BMH-Tipton these come back confirmed to work be- . through investigation performance problems. her own and was cause Rob- required $200,000 spend to address bins took recommendation Hill’s under ad- visement, them. and later decided to terminate had lost because he confidence in Other purportedly issues came to Hill’s ability independent to run an fa- First, attention in time-frame. Hill, cility. According decision to signed could not locate the leases employment terminate Moorer’s was made physicians space in physi- for the office *8 during September prior the week cian at buildings BMH-Tipton; office she 1997. also allegedly reports learned via verbal Hunsucker, auditor, from Braughton Joe an internal Robbins and developed that physicians obtaining script were medical with the human resources depart- supplies pharmaceuticals and from the ment that Hill to follow when was termi- hospital, using nating employment. as well as labor from the con- After office, hospital’s sulting compen- business without with Houlihan CONCERN and trial, person- long cope 3. At injury that she had battle to with a brain Hill confirmed he had family experiences al that caused her to be suffered in an alcohol-related automobile ac- Hill, explained According personal expe- interested in alcoholism. She cident. her "greater insight” both and brother had alco- rience to have a her father abused enabled her hol, and her brother committed suicide after a into alcoholism. therapist, Braughton with Moorer’s deter- use of FMLA leave. The court further relay mined that it would be best to held that Moorer had no right substantive termination in person decision and that the to return to his after his leave because have, therapeutically appropriate day most his “termination does not appear to relay this information was September leave, been due to his use of FMLA but (i.e., 1997. Robbins and Hill traveled to Atlan- rather to other factors per- deficient day ta on that and met with Moorer formance according Baptist age or his Hill primary therapist. disability read primarily discrimination according to Moorer).” script. the termination Finally, Moorer re- the court denied Bap- meeting calls little from the tist’s except that motion for summary judgment as to Hill told him that his problems work were Moorer’s ADA and-ADEA finding claims by caused his genuine disease. issues of material fact for trial. After a completed Moorer the five-week bench trial on treat- Moorer’s ADA claims, ment and ADEA period, but doctors recommended the district court con- Baptist ADA, that he remain in cluded that treatment for a violated the few but not the additional weeks. Moorer ADEA. The elected leave district court found program against treatment Moorer did not medical ad- suffer an actual dis- alcoholic, ability, vice. Moorer he- an nor did admits is but he have a record of a Instead, disability. testified that he has not had a drink the court since focused on August theory Baptist regarded him as
having disability. The court cited to the History B. Procedural following support evidence to its conclusion Baptist alleged linked Moorer’s per- brought against suit Baptist, al- formance deficiencies to a belief that he leging Baptist discharged (1) alcoholic: Baptist demanded violation of the Americans with Disabilities that' Moorer duty undertake a fitness for Act §§ U.S.C. 12101-12117 (2) examination; 19, 1997, on August (“ADA”), Age Discrimination in Em- told thought Moorer that she he was an 1967,'29 ployment §§ Act of 621- U.S.C. required alcoholic and him to seek treat- (“ADEA”), Family Medial Leave (3) ment; while Moorer was undergoing Act, (“FMLA”), § 29 U.S.C. 2601-2654 treatment, Hill called Moorer’s wife and Act, Rights Tennessee Human TeNN. told her that alcoholism an incurable 4-21-101 et seq., the Tennes- § Code Ann. and, therefore, disease Moorer would nev- Act, Handicap § see 8- Tenn. Code Ann. (4) cured; be er and when Hill fired Moor- 50-103, and that committed th'e er, she told him that his work-related tort of misrepresentation. tortious On problems were caused his disease of February grant- the district court alcoholism. summary judgment ed favor of on Moorer’s state law claims for Finding testimony tortious Hill’s “lacking in yiolation misrepresentation and for credibility” value,” of the and to be of “no Handicap Tennessee Act and rejected the Tennes- court Hill’s assertion that she re- *9 Rights see Human Act lied'solely on statute of limita- poor perform- on work Moorer’s grounds. tions The court granted also ance in him requiring to have treatment summary judgment Baptist to on Moorer’s and then recommending his termination. Rather, FMLA claim on ground that Moorer the court found “that Hill in acted accord, presented had no evidence of a causal con- with her belief that Plaintiffs defi- nection between his termination and his ciencies were related to his alcoholism.” 478 of court cited to Moorer’s that Hill believed The evidence found
The court next fact anxiety, and the substantially sleep deprivation, limit alcoholism termination, alleged that the reason for his activity working. of major life alcoholism, in knowledge public became duties were court noted that Moorer’s community. The court also awarded diverse, that could small requiring general skills $124,260.45 reinstate- pay in front because range of fields. The in a broad be used The court de- option. ment was not an required the “skills court found that punitive damages. Sepa- are clined award hospital administrator Plaintiff as Moorer’s counsel rately, the court awarded necessary as for most easily identified $212,060.34 fees and costs. attorneys’ positions,” regard- high-level management Therefore, the court conclud- less of field. 2003, on Judgment was entered June evi- “quantitative it not need ed that did appeal its notice of on Baptist filed precluded him impairment dence that his a notice of 2003. Moorer filed June jobs in the rele- from a certain number summary appeal granting of the order Further, the court found vant market.” on his FMLA judgment favor of that Plaintiffs “since Hill believed judgment in favor of claim and substantially ability limited his alcoholism appeal, on his ADEA claim. On Baptist, she must also have work any argument concerning has not raised impairment an would recognized such claim, has waived this his ADEA so he performing him from precluded have on appeal. issue jobs.” broad class of Last, Baptist’s found that ar the court II. terminating
ticulated reasons
ADA Claim
already
only after Hill had
“were identified
pre
that Plaintiffs alcoholism
concluded
A. Standard of Review
such, they
working;
him from
as
vented
trial of
appeal
On the
bench
regardless
alleged
of their
pretext,
are
claim,
ADA
the district
we review
Tenn.,
validity.” (citing Maddox v. Univ. of
findings of fact for clear error.
court’s
Cir.1995)).
(6th
As the court
479
City
major
activity
v.
Bessemer
in the
(citing
working.”
tic
Anderson
life
of
of
564, 573-74,
City,
1630.2(j)(3)(i).
§
105 S.Ct.
U.S.
C.F.R.
(1985))).
district court’s conclusions
disability
1. Moorer’s
status under
616).
(citing Burzynski, 264 F.3d at
Id.
“regarded
as” definition
The first issue is whether the district
Analysis
B.
correctly
court
found Moorer to be dis
entities,”
prohibits
The ADA
“covered
meaning
abled within the
of
ADA.
Baptist,
discriminating against
like
“a
district court found that Baptist “regard
qualified
disability
individual with a
be-
having physical
ed” Moorer as
a
or mental
disability
cause of the
of such individual.”
impairment
4—that
substan
—alcoholism
12112(a).
§
42 U.S.C.
Unlawful discrimina-
work,
tially
ability
and,
limited his
firing
tion includes
an individual because of
therefore, Moorer satisfied the third defi
12112(a).
§
disability.
Id.
“The term
disability
nition of
set forth at 42 U.S.C.
disability’
with a
‘qualified individual
12102(2).
§
According to the Supreme
who,
disability
means an individual with a
Court:
accommodation,
with or without reasonable
apparent
There are
ways
two
in which
can
perform the essential functions
may
individuals
fall
statutory
within this
employment position that
individual
such
(1)
definition:
a
entity
covered
mistak-
12111(8).
§
holds or desires.” Id.
Under
enly
person
physi-
believes
a
has a
(1)
ADA,
“disability”
a
a
means either
cal impairment
substantially-
limits
physical
impairment
or mental
that sub-
(2)
major
activities,
one or more
life
or
stantially
major
limits one or more of the
entity mistakenly
covered
believes
(2)
individual;
life activities of such
a rec-
actual, nonlimiting impairment
sub-
(3)
ord of
an impairment;
being
such
or
stantially
major
limits one or more
life
regarded
having
impairment.
as
such an
cases,
necessary
activities.
In both
it is
12102(2).
§
42 U.S.C.
entity
that a
misper-
covered
entertain
According
regulations,
to the ADA
ceptions about the individual—it must
major
activity
life
means “functions such
believe either that one has a substantial-
oneself,
caring
performing
as
manual
ly limiting impairment that one does not
tasks, walking, seeing, hearing, speaking,
substantially
have or that one has a
breathing,
learning,
working.”
when,
fact,
limiting impairment
major
§
C.F.R.
“When the
life
1630.2®.
limiting.
impairment is not so
activity under consideration is that of
Sutton,
working,
statutory phrase
The district jobs. range class or We form broad it concluded that when clear error disagree. physical or men had the believed Moorer per After of alcoholism. impairment tal that Hill was substantial evidence There to be alcohol ceiving what she believed alcohol- perception of Moorer’s linked her 22, 1997, Hill, July breath on Moorer’s job his as a inability perform to his to ism superiors told her via supervisor, August hospital administrator. that Moore’s August 1997 e-mail an Hill to Moorer re- 1997 memo that sent “good was a indica apparent intoxication expecta- to his “failure to meet ferred issue,” broader, lon[g] term tor of [a] normally hospital with the tions associated a minimum 3-4 weeks she recommended in responsibilities BHCC.” administrative obtaining superi him. After her leave for stated, you Hill I find that further “While approval, ors’ demanded to correct the noted have made efforts duty undertake a fitness for examination improve- deficiencies and have made some face immediate termination. La or else areas, a lack of ments in some there is ter, thought that she he Hill told Moorer elimination of progress substantial toward an alcoholic and also called Moorer’s was added). Hill (emphasis causes.” root her that alcoholism is an wife and told examples several of these defi- then listed incurable, deadly disease and that Moorer added, “In an effort to utilize ciencies and Hill fired would never be cured. When to evaluate these all available resources Moorer, told him that his work-related she issues, a man- I have made performance by his disease of problems were caused Concern, EAP, for agement referral to alcoholism. any resulting plan fitness assessment and of Hill’s memo implication of action.” The
This evidence was more than sufficient that a “root eause[ ]” was that she believed that Bap- for the district court to conclude might performance problems of Moorer’s tist, Hill, perceived via Moorer to be an to through uncovered his referral CON- be early July alcoholic 1997. It as as perceived problem. for his alcohol CERN court, province within the of the district as that, Consistently, Moorer testified fact, reject explana- Hill’s finder of termination, time Hill informed him of the solely poor tion that on Moorer’s she relied perform- she told him that she believed his performance requiring work to have caused his “dis- problems ance were recommending his ter- treatment and then ease.” ground explana- mination on the that her credibility” of “no “lacking tion was evidence, on this the court Based
value.” “Hill clearly finding not err in did that Plain acted in accord with her belief significant The more issue is whether alco as a tiffs deficiencies were related his Baptist perceived Moorer’s alcoholism Hill came to the conclu ability limitation on his to holism.” Because substantial above, work, which, perform sion that Moorer could not requires as noted administrator, and hospital him un- of a be showing Baptist perceived as duties jobs poor performance Hill linked his able to work in a broad class of or cause alcoholism, for the jobs his it was reasonable range broad various classes. regard to conclude that Hill Baptist argues that the court erred district court district having impairment Moorer as finding Baptist regarded Moorer as ed ability perform ability per- substantially limited his significantly limited his job. hospital particular form even his
Still,
from
find-
it does not follow
these
a. Role of
in
alcoholism
Moorer’s
a favor-
ings that Moorer was entitled to
discharge
on his ADA claim.
be
judgment
“[T]o
able
above,
As noted
there is substantial evi-
substantially limited in the
regarded as
dence that Moorer’s medical status played
major
activity working,
one must be
life
significant
a
role in Baptist’s decision to
from more than a
regarded
precluded
fire him. Prior to Hill’s perception of
job.” Murphy v. United Parcel
particular
breath,
alcohol on Moorer’s
and her ensu-
Serv.,
527 U.S.
S.Ct.
alcoholic,
that
suspicion
he was an
(1999).
re-
panoply employees of other their justifications b. Pretextual perform, certainly could do not often discharge create of such consider direct evidence Id. The that court ations.” Court therefore held district found substantial evi- “where there is substantial evidence that dence the record that concocted played sig pretextual justifications an individual’s medical status a for Moorer’s ter- First, employer’s nificant in an to mination. Hill testified that Moor- role decision individual, part, fire that combined with- evi termination was on a er’s based] fire mar- employer pre report dence concocted written the state justification firing, purportedly stating textual for that shal’s office that there inquiry”— BMH-Tipton. need for more extensive factual was a fire hazard at i.e., by report prior a trier fact—“into that she reviewed this whether claims employer engaged stipu- tc termination. It was unlawful discrimina Moorer’s' Therefore, trial, however, following tion is acute.” Id. lated at especially search, fire office “was un- company pre “evidence that the created marshal’s any that such an in- plaintiffs] firing textual reason for able to find record [the only it occurred.” The two written may prove regarded spection tend to [the safety in the plaintiff] employee.” reports inspections as a disabled Id. at of fire below, application of record indicate that the fire marshal con- 708. As discussed September principles inspections the Ross to the facts of this case ducted Moorer’s ter- prove regarded tends December after lack Baptist acknowledges mination. Moorer as disabled. survey- could have had with report pre-dates Moor- of written conversations prior ors to Moorer’s termination. termination, rec- explains but er’s evidence that the fire replete ord is Third, Hill claimed that her termination *13 prior existed to Moor- hazards themselves based,' part, recommendation was on the howev- explanation, termination. This er’ August from Dr. letter Cannon. er, away testimony explain not Hill’s does However, Moorer’s name is not mentioned fire report on a written of she relied letter, body in the of the and Dr. Cannon hazards. that the letter was not intended to testified a criticism of local administra- be Moorer’s Second, ter- Hill testified Moorer’s BMH-Tipton, tion of at but was “directed based, in part, inspections mination was on system large.” at Dr. further Cannon BMH-Tipton facility of conducted Hill spoke testified that never about the Tennessee Health Facilities Commis- prior of this letter to the date Moorer’s prior sion to the date of Moorer’s termi- discharge. nation, September 1997. She claimed Baptist counters that the issues raised representatives” of the “[a]uthorized necessarily not Dr. Cannon’s letter were reported Commission numerous issues issues, corporate but involved the condition facility. Hill concerning deficiencies at the hospital, and maintenance of the issues reports writing testified that these were Bap- that were responsibilities. Moorer’s on the corner of’ desk and “were Moorer’s Hill tist adds that and others had a meet- to termi- prior and that she reviewed them staff of BMH-Tipton, with members nating Although him. the Commission did Cannon, including days Dr. a few after survey BMH-Tipton, conduct a of the sur- receiving August Dr. Cannon’s vey September not until conducted province letter. It within the of the .was Moorer’s termination. after court, however, district as the finder of fact, testimony to credit over Dr..Cannon’s persuasive response has no Baptist’s explanation. inconsistency, point this other than to out spoken inspectors prior that Hill had with In disputing addition to of the several argument, to Moorer’s termination. This specific Hill grounds cited for his termi- however, away explain does not Hill’s testi- nation, argues that he was selected mony that Moorer’s was based termination for termination before Hill discovered the in part reports on written from the Com- depth performance problems of Moorer’s mission, reports she could not have re- while he was on medical leave. ceived until after the termination decision wife testified that after she told Joe argues was made. also that “Hill Swaim, BMH-Tipton a member of the unequivocally testified trial that she directors, board of that Moorer’s bosses spoke surveyors from the Commis- just had visited him at Talbot Recov- sion about at the hospital prior deficiencies him, ery respond- Center and fired Swaim 18[, September Baptist’s Reply ed, 1997].” “I They know all it. told us. all about 594). However, Br. at 21 (citing J.A. it they about before ever sent him.” portion sup- cited of the record not does denied making this statement and Swaim Indeed, port this Hill assertion. admitted stated he was never told advance survey at trial that the itself was conduct- going, Bap- that Moorer was to be fired. September days ed on explains twelve tist the statement Mrs. (J.A. 585-87.) after Moorer’s termination. Moorer attributed to “could Swaim have Thus, record, it fact is unclear how referred to the that he knew there ability jobs perform and that Moorer would be either a class of or problem awas jobs classes, facility, range rather than that a broad various away from the “ noting may that a court consider ‘the Baptist’s be terminated.” Moorer would jobs types utilizing number and similar Although Baptist’s Br. at n. 20. Reply abilities, training, knowledge, skills or characterization of Swain’s statement area, that geographical within from which only it is not the reasonable plausible, disqualified the individual is also because court, district as fact- interpretation. The (class ”) (em- impairment jobs)’ finder; to infer from this was entitled omitted; phasis quoting 29 C.F.R. statement that Swaim knew that Moorer § 1630.2(j)(3)(ii)(B)). prior would be terminated to Moorer’s ad- *14 Recovery the Center. mission to Talbot type The Henderson case illustrates the Bap- This inference tends to undermine of evidence Moorer needed to submit. In subsequently assertion that discover- tist’s Henderson, a on an assembly welder line performance Moorer’s problems ed with injured her back and was restricted from led to his termination. stooping bending or lifting from 25 pounds frequently pounds or 40 infre- Regarded perform c. as unable to Henderson, quently. at F.3d jobs range of a class of or broad Company policy prohibited an employee
jobs returning to work unless he or she evidence, company’s The above-described was “100% healed.” Id. The plant manager that Moorer’s alcoholism testified that there would suggests which job plant plain- not be one at the that the significant discharge in his played role “bump tiffs medical restrictions would not Baptist’s and that several of reasons for into.” Id. at 651. terminating pretextual, Moorer were tend that him prove Baptist regarded ed to as that This Court found one reasonable Ross, 708; however, disabled, 237 F.3d at of reading plant manager’s the view “is prove in itself to that it was not sufficient that he physical considers .someone substantially lim Baptist regarded as doing to ‘make it’ facto- restrictions unable Rather, ability his to work. ited in work, ry even if it is within the technical proffer showing still needed to evidence restrictions, the worker’s requirements of regarded that him as unable to risky that considers it too or he and/or range jobs, of perform a broad or class employ to workers with whom problematic un meaning Baptist perceived that him as push to be cautious not to much he has general of perform type able to the same beyond the functions of their essential geographic in the area. See work same job.” then held that there Id. Court Ardco, Inc., Henderson v. 247 F.3d fact as to genuine was a issue of material (6th Cir.2001) (noting in 653 n. employer perceived plain- the the whether “regarded ADA as” case that it would be substantially ability in her tiff to be limited plaintiffs prove at trial to that she burden jobs class of because perform larger to “substantially impaired” perceived effectively treated the “100% healed rule” ability perform employment in other her in a manufactur- “incapable her as of work experi age, suitable to her education and In other ing operation.” Id. at 651-52. area); geographic words, in her perception ence and available the about the employer’s Inc., Enters., ability any Burns v. F.3d work at plaintiffs perform Coca-Cola (6th Cir.2000) (looking competent to the evi- plant also constituted employer’s perception about regulations guidance EEOC for dence the the same plaintiffs ability perform meaning of a substantial limitation on the anywhere jobs. This is buttressed by of work else. See inference broad class (“Plaintiff belief, apparent has she brought developed id. at 654 forward Hill’s which defendant perceived any before she had substantiation of evidence Moor- at job alcoholism, for her Ardco no er’s had a drink there was that Moorer an indication plant, gives problem the short-term would suitability about her employer’s perception preclude working him from at all for four relevantly employ- for similar a class of long-term would weeks kill ment.”). Indeed, him. Hill’s belief Moorer’s inevitably incurable alcoholism would re that, plaintiff like We hold permitted sult his death inference Henderson, presented evidence regarded that Hill substantially Moorer as Baptist perceived him as in showing that any ability perform limited life capable broad class of performing all, activity major alone the let life Baptist’s perception work virtue of activity of working. Heyman v. inability perform managerial Moorer’s Cf. Queens Village Comm. Mental Health The district found Baptist. work for court for Program, Jamaica Adolescent Comm. diverse, duties were re *15 Cir.1999) Inc., (2d (revers 68, 198 F.3d that quiring general skills could be used ing grant summary judgment of for em a of fields.5 court noted range broad ployer because a reasonable trier of fact required that of a the “skills Plaintiff as could regarded conclude that defendants easily are hospital administrator identified plaintiff a suffering physical as from high-level necessary manage as for most impairment (lymphoma) significantly that regardless of field. Ac positions,” ment work; restricted ability concluding his court, cording to the because “Hill believed jury that might find that defendants’ expe substantially that Plaintiffs alcoholism lim having rience of allowed another employee ited at ability Baptist, his to work she lymphoma recognized working with to continue must also have that such an impairment precluded resulting have him his all of inability perform would his jobs.” a performing broad class of duties led that defendants to conclude disease, plaintiff, the same afflicted with Henderson, with the district Consistent would likewise be unable function fully essentially found that Baptist per- court workplace and soon would become liabili perform any as unable to ceived Moorer ty). that Accordingly, we hold the district appropriate giv- that would for him be court did not commit clear error when it knowledge, en training, his skills and abili- that Baptist regarded found Moorer as Baptist ties. The fact that believed that disabled when it terminated him. made Moorer’s alcoholism him unable to perform hospital job, administrator 2. Causal connection between Moor- range required manageri- which a broad perceived disability er’s and his skills, al pennits reasonable inference termination Baptist believed Moorer’s alco- incapable We hold that perform- holism rendered further district number of managerial clearly finding a substantial court did not err in general budget facilitating process, positive The court found that re- "Plaintiff's sponsibilities Baptist planning environment, included ensuring proper work level affairs, coordinating hospital reporting re- services, coordinating and mix of risk man- quirements departments, different between di- agement, creating continuing pro- education recting programs, serving human resource grams, cost-saving spearheading tech- management, liaison between staff and en- niques.” suring regulatory compliance, coordinating satisfied his ultimate burden U.S. S.Ct. 84 L.Ed.2d (1985)). terminated Moorer proving disability. 42 perceived of’ his “because 12112(a). above, Analysis § As noted there B.
U.S.C.
evidence that at least some
significant
was
Baptist requests a remittitur of
for Moorer’s termination
of the reasons
$250,000
the district
award
court’s
v. Elec.
pretextual.
See Monette
were
damages, claiming
emotional distress
Sys. Corp.,
Data
90 F.3d
1185-86
dispropor
the award was excessive and
Cir.1996)
(6th
(holding
plaintiffs
that the
injury
allegedly
tionate to the
that Moorer
prove
in an ADA case is to
that the
burden
sustained as a result of his unlawful termi
pretext
is a
for un-
employer’s explanation
nation.
hold that the
We
award was not
discrimination).
sig-
lawful
There also
grossly
clearly
so
excessive as to be
erro
alcoholism,
nificant evidence that Moorer’s
neous.
erroneously
perceived to be
which
“[D]amages for mental and emo
substantially limiting impairment, actual-
presumed,
tional distress will not be
termination.
ly motivated his
”
proven
‘competent
must be
evidence.’
disagree
Baptist’s
contention
We
Turic, supra,
(quoting
IV.
equivalent position
“to be restored to an
benefits,
equivalent employment
pay,
with
FMLA Claim
and other
employ-
terms
conditions of
A. Standard of Review
2614(a)(1).
§
Id.
In
ment.”
addition to
providing
rights
This Court reviews de novo a district
substantive
to leave and
reinstatement,
grant summary judg-
court’s decision to
the FMLA makes it unlaw-
with,
Shelby County
employer
ment. Cockrel v.
Sch.
ful for an
“to interfere
restrain,
prior
of or the
to his leave and had worked at
deny
or
the exercise
least
1,250
exercise,
during
previous
hours
12 months.
any right provided
attempt
2611(2)
2615(a)(1).
§
(defining “eligible
§
29 U.S.C.
em-
Id.
under” the FMLA.
Further,
ployee”).
Baptist conceded for
and dis-
prohibits
also
retaliation
FMLA
summary
purposes
judgment
that Moor-
for
against employees
oppos-
crimination
had a
health
er
serious
condition and that
under the FMLA or
practices
unlawful
stay
for an
in-patient
his leave
charge
participating
or
filing
for
an FMLA
Recovery Center
Talbott
was
FMLA
inquiry related to the
proceeding
in a
or
2611(11) (de-
§
qualifying reason. See id.
(b).
2615(a)(2),
§
FMLA. Id.
fining
health
“serious
condition” to include
complaint
Count VI of Moorer’s
physical
a
or mental condition that involves
alleges
denied
the sub
inpatient
hospital
care at a
or residential
position
to return to the
right
stantive
facility).
medical
checking into the Tal
he had held before
In a
single sentence
a foot
Center, in
Recovery
violation of
bott
motion,
summary judgment
note of its
explained:
has
FMLA. As
Court
Baptist further asserted that Moorer nev
interferes with the
employer
If an
requested
er
or discussed FMLA leave
leave or
right
FMLA-created
medical
To
Baptist.
the extent this footnote
leave,
following the
to reinstatement
argument
was an
failed to
King v. Pre
violation has occurred.
provide Baptist with sufficient notice of
Group,
Technical
166 F.3d
ferred
leave,
argument
FMLA
we find the
waived
(7th Cir.1999).
simply
The issue is
man
appeal
perfunctory
because
employer provided
whether the
its em
argument
presented
in which the
ner
forth in the
ployee the entitlements set
Chrysler
Noble v.
Motors
below. See
example,
FMLA —for
twelve-week
Div.,
(6th
Corp., Jeep
32 F.3d
taking
leave or reinstatement after
Cir.1994)
(holding that an
observation
Because the issue is the
medical leave.
in a
court
footnote
brief filed
the district
entitlement,
employee
right to an
preserve argument
con
was insufficient
statutory require
due the benefit if the
cerning
any
issue on
In
appeal).
satisfied,
regardless
ments are
event,
argument
is meritless
employer. Hodgens
intent of the
v.
discussed below.
reasons
Dynamics Corp., 144 F.3d
General
Moorer’s leave was for a seri-
Because
(1st Cir.1998).
condition,
required
health
the FMLA
ous
Corp.,
Arban v.
Pub.
345 F.3d
West
him to “make a reasonable effort to sched-
*18
(6th Cir.2003).
initial
401
burden
disrupt
so as not to
ule the treatment
“ ‘establish, by
of the
preponderance
is to
unduly
operations
employer,
of the
the
evidence, that he is entitled to the benefit
subject
approval
the
of the health care
to
”
v.
(quoting
he claims.’
Id.
Rice
Sunrise
of’ Moorer.
29 U.S.C.
provider
(7th
Express, 209 F.3d
1018
Cir.
2612(e)(2)(A).
argued
§
not
Baptist has
2000)).
comply
that Moorer failed to
with
nor can it. The evidence
1.
Moorer was entitled to
requirement,
Whether
Baptist fully anticipated
that
and
reinstatement
shows
lengthy treatment at
approved Moorer’s
Baptist
disputed
has not
that Moorer
Recovery
the Talbott
Center.
“eligible employee”
was an
under
the
Therefore,
required
provide
was
to
FMLA.
assume that Moorer
Moorer also
we
notice,
days’
not less than 30
Baptist
Baptist
for
for at least months
with
worked
(6th
Inc.,
149 F.3d
begin,
Props.,
of v. JH
the leave was
the date
before
“
Cir.1998). Rather,
question
critical
‘[t]he
leave for a serious
to take
his intention
imparted to the
is whether the information
condition,
if
except that
the date
health
reasonably ap
employer is sufficient
begin
required leave
the treatment
request to take
prise
employee’s
it of the
required
was
days,
than
Moorer
less
30'
”
condition.’
time off for a serious health
“practicable.”
notice as was
provide such
Polymers
Manuel v. Westlake
(quoting
Id.
2612(e)(2)(B).
chronology
§
Id.
(5th Cir.1995)).
758, 764
Corp., 66 F.3d
that
there
suggests
case
events" in this
Here,
obviously
of Moorer’s
Baptist
knew
days
than 30-
between
were far less
anticipated leave to treat his serious health
would' have to
knew he
date
Moorer
of alcoholism and that Moorer
condition
medical leave and
take an extended
Bap
be on leave for weeks because
would
for that
leave.
actually departed
date he
participate
tist demanded
Moorer
suggests that
August
1997 e-mail
Hill’s
program and fol
employee
assistance
would need to
anticipated that Moorer
she
through
low
on the recommended course
four week leave in
take at least a three to
hardly complain
can
of treatment.
Hill met
order to
his alcoholism.
.treat
lack of
of Moorer’s leave.
about
notice
pre-
August
with Moorer on
outlining his
Moorer with
letter
sented
rein-
Moorer was denied
Whether
deficiencies, notify-
purported performance
for reasons unrelated to
statement
Hill had referred him to
Moorer
taking
FMLA leave
(“EAP”)
program
employee
assistance
had a
Although Moorer
substantive
any resulting
assessment and
“fitness
a.
completion
right
upon
to reinstatement
action,”
threatening Moorer
plan, of
center,
recovery
of his treatment at the
if he failed to meet with
with termination
“
right
not
em-
‘[A]n
absolute.
20, 1997.
August
EAP counselor on
ployee
requests
who
FMLA leave would
assured Moorer
he-would
also
greater protection against
have no
his or
he returned from alcohol
have a
when
employment being
her
terminated for rea-
rehabilitation,
indicating that Hill
further
or her
re-
sons not related to his
FMLA
having to take an ex-
anticipated Moorer
submitting
quest than he or she did before
leave.
met with
tended medical
” Arban,
request.’
FMLA The FMLA leave was di- leave. employer,
rected and Moorer had objection of the leave in taking
no to the fact, In he seems to have believed
itself. by taking the leave and other actions Employee Program,
under the Assistance job. taking steps he would be to retain his America, UNITED STATES of majority’s reasoning point The on this Plaintiff-Appellee, Ar- comparison relies on to cases such as v. firing for a given ban where the reasons no other pretextual, were relevant MURDOCK, Defendant-Appellant. Seth occurring, other than the tak- events were No. 03-1811. ing of FMLA leave. Under such circum- stances, an inference sufficient to defeat Appeals, United States Court of drawn, summary judgment might be based Sixth Circuit. on events “in connection with” the FMLA Argued: Oct. 2004. leave. Decided and Filed: Feb. This not at all the situation in the only instant “connection” with case.
the FMLA leave is that Moorer was on
FMLA improperly leave when he was fired
for other reasons. Moorer has never al-
leged any causal connection between his leave, taking
termination and his FMLA noted, pre-
and as the district court has
sented no evidence of such a connection.
Thus, no reasonable finder of fact could
infer from the evidence before the district any
court that Moorer’s termination was in
way taking related to his FMLA leave. analogy,
As an consider the situation of employee who takes FMLA leave for reasons,
clearly legitimate medical without
any by anyone. complaint or concern leave, employee’s super-
While on that by with a replaced person long
visor is racism,
history of who proceeds fire the
employee pretextual grounds. Under circumstances, employee
those would
have a meritorious Title VII race discrimi-