Ferrari v. Ford Motor Co.
| Decision Date | 23 June 2016 |
| Docket Number | No. 15-1479,15-1479 |
| Citation | 32 A.D. Cases 1518,826 F.3d 885 |
| Parties | Gianni–Paolo Ferrari, Plaintiff–Appellant, v. Ford Motor Company, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Charlotte Croson, NachtLaw, P.C., Ann Arbor, Michigan, for Appellant. Julia Turner Baumhart, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, Michigan, for Appellee. ON BRIEF: Charlotte Croson, NachtLaw, P.C., Ann Arbor, Michigan, for Appellant. Julia Turner Baumhart, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, Michigan, for Appellee.
Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.
This case raises claims of unlawful employment discrimination—claims that return us to the distinctions our case law draws between the tests governing claims based on direct evidence of discrimination and those based on indirect evidence. In February 2013, Ford Motor Company temporarily bypassed Gianni–Paolo Ferrari for a skilled trades apprenticeship. Ferrari alleges that Ford's decision was unlawful discrimination under the Americans with Disabilities Act (ADA) and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), and retaliation under the Family Medical Leave Act (FMLA). The district court granted summary judgment to Ford. We affirm, though we do so by applying the tests and following the analysis specified by our precedent.
Ford Motor Company hired Ferrari in 1996. He initially worked in assembly and was a member of the United Auto Workers (UAW). He is still employed by Ford.
In 2000, Ferrari suffered a neck injury at work, placing him on medical leave from June 2001 to April 2003. After Ferrari returned from medical leave, Ford accommodated his restrictions for the next nine years by placing him in various light-work positions. The last of these placements was in a human resources office.
During this period, Ferrari applied for and received leave under the FMLA four times. At least two of the FMLA requests stemmed from his neck injury. The fourth, in summer 2012, was for stress and major depression, which Ferrari attributed to his immediate supervisor in the human resources department.
On November 21, 2012, while Ferrari was still on medical leave, his pain management doctor, Dr. William Kole, agreed to remove his work restrictions. Until that point, Ferrari's restrictions had been classified as “permanent.” In December, he returned from FMLA leave and testified that he was feeling better and wanted to get back to work. Ferrari was also hopeful that he would soon be able to leave the human resources office, as Dr. Kole had removed his restrictions, and he had heard a rumor that he might be called to apprentice in the trades.
On December 3, 2012, Dr. Arthelia Brewer, one of Ford's company doctors, conducted a physical to determine whether Ferrari could return from medical leave. Dr. Brewer cleared Ferrari to return from psychiatric medical leave. Ferrari also asked Dr. Brewer to lift the restrictions tied to his neck injury. According to Dr. Brewer's notes, Ferrari told her that “he requested the restrictions be lifted [by Dr. Kole] when an opportunity arose for him to go into skilled trades.” (R. 37-1, PageID 1102.)
Dr. Brewer decided to maintain Ferrari's restrictions pending further testing and review. In her notes, she expressed a need to ascertain “why the restrictions were suddenly removed especially since [Dr. Kole's] most recent progress notes to date found his [sic] disabled and the ongoing need for narcotic medications.” (R. 37-1, PageID 1103.) With regard to the latter concern about opioids, Dr. Brewer's notes indicated that on December 21, 2005, another doctor had found that Ferrari was “latrogenically addicted to narcotics” and determined that he could not “return to his employment at [Ford] while he is on these narcotics.” (Id. ) In her treatment plan, Dr. Brewer stated that she would obtain additional medical records, including Ferrari's most recent MRI reports, and contact Dr. Kole to clarify his decision. She also ordered new MRI and EMG/NCS tests.
Ferrari testified that on December 17, 2012, the UAW informed him of two skilled trades apprenticeships in refrigeration maintenance (RMI apprenticeship) at the Van Dyke plant. There is a wait list for apprenticeship positions, and the collective bargaining agreement between UAW and Ford provides that any apprenticeship shall go to the person who is highest on the wait list, as long as he or she is deemed qualified. Ferrari's position on the wait list guaranteed him one of the two RMI apprenticeships if he passed a pre-apprenticeship physical.
Ferrari's pre-apprenticeship physical was scheduled for January 16, 2013, with Dr. Brewer. In advance of this physical, Ferrari obtained clearances from two other doctors—Dr. David Calton and Dr. Michael Louwers—and a functional capacity evaluator, David Brown. Although Dr. Calton and Dr. Louwers both concluded that Ferrari's neck injury no longer required physical restrictions, they did not address Ferrari's opioid use. Dr. Calton's chart entry indicated that Ferrari was still actively using opioids, but did not address whether the opioids could affect his performance on the job. Dr. Louwers's letter did not mention Ferrari's opioid use at all.
Dr. Brewer conducted Ferrari's pre-apprenticeship physical on January 16, as scheduled. Ferrari brought the clearances from Dr. Calton and Dr. Louwers to the appointment.1 In her notes, Dr. Brewer observed that Dr. Kole had not responded to her inquiry as to “what changed to warrant dropping all restrictions after 9 years.” (R. 37-7, PageID 1140.) She also noted that Ferrari's medical records indicated that he was still using opioids. On his pre-apprenticeship medical questionnaire, however, Ferrari stated that he had already weaned off opioids. Dr. Brewer decided to “[m]aintain [Ferrari's] existing restrictions pending further evaluation.” (Id. ) To that end, she resolved to obtain a job description for the RMI position, follow up with the functional capacity evaluator, obtain further information on Ferrari's opioid use, and schedule an independent medical examination with a neurosurgeon.
On February 7, 2013, Dr. Brewer sent a letter to Dr. Kole in which she provided the job description for the RMI apprenticeship and inquired about whether Ferrari could “safely execute the tasks required while taking [opioids].” (R. 36-16, PageID 977.) According to the job description, RMI apprentices must climb 30-50 foot ladders and open and close large overhead valves; the RMI apprenticeship supervisor, Thomas Ternan, also testified that they must work at heights on overhead catwalks and mobile elevated work platforms. In his reply, which Dr. Brewer did not receive for another three or four weeks, Dr. Kole said that Ferrari was not addicted to opioids, that it would take three to four months to wean off the opioids, and that the opioids did not affect Ferrari's physical performance, mental clarity, or cognitive functioning. Dr. Kole concluded that Ferrari was “safely able to perform all functions listed in the RMI job description.” (Id. )
Dr. Brewer also scheduled an independent medical examination with Dr. Phillip Friedman for January 29, 2013, which both parties acknowledged as binding. Dr. Brewer received Dr. Friedman's report sometime between February 14 and February 21. In the report, Dr. Friedman determined that from “a purely objective physical perspective,” Ferrari was “able to perform the tasks described as a RMI tradesman without restriction.” (R. 37-5, PageID 1134.) He also acknowledged that Ferrari claimed to have been off opioids for three months. Dr. Friedman pointed out, however, that Ferrari's claim was not substantiated by his medical records because “as of January 7, 2013 he reported to Dr. Calton that he [was] still on Diazepam, Morphine, and Kadian.” (R. 37-5, PageID 1133.) Accordingly, Dr. Friedman concluded, if Ferrari “currently remains on opioids”—as the medical records indicated—he “would not allow [Ferrari] to resume unrestricted employment” because “the use of opioids may affect his performance.” (R. 37-5, PageID 1134.)
On February 27, 2013, Dr. Brewer removed two of Ferrari's four restrictions. Based on Dr. Friedman's report and the other clearances, Dr. Brewer concluded that Ferrari was “able to work without restrictions from a physical perspective.” (R. 37-2, PageID 1106.) However, pursuant to Dr. Friedman's recommendation, Dr. Brewer maintained the ladder-climbing and overhead-work restrictions “until Mr. Ferrari is taken off the prescribed opioids which, per Dr. Kole, will take approximately 3-4 months,” clarifying that the overhead-work restriction would be “synonymous with no working at heights.” (Id. ) She also noted that Ferrari would be “reassessed in 3-4 months to monitor the progress of weaning him from these medications” and “[i]f this process is successful and documented, the remaining restrictions will be removed.” (Id. )
The RMI apprenticeship supervisor, Tom Ternan, reviewed Ferrari's two restrictions to determine whether he could participate in the program. Ternan concluded that Ferrari's restrictions precluded him from participating in the apprenticeship “[b]ecause having the ability to work overhead and climb ladders on a daily basis are essential to performing any RMI job.” (R. 33-11, PageID 801.) “While an apprentice could, theoretically and occasionally, stay on the ground while a supervising journeyman climbed the ladder,” Ternan explained further, “[t]he climbing of the ladder is essential to learning the task to be performed at the top of the ladder, which is also an essential function of the position, whether it be checking fluid levels, venting fluids, mixing chemicals, monitoring or repairing HVAC equipment, opening or closing a multitude of valves, sometimes on an emergency basis to prevent an explosion, or the like.” (R. 33-11, PageID...
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