90 F.3d 1173 (6th Cir. 1996), 95-1114, Monette v. Electronic Data Systems Corp.

Docket Nº:95-1114.
Citation:90 F.3d 1173
Party Name:Roger MONETTE and Doris Monette, Plaintiffs-Appellants, v. ELECTRONIC DATA SYSTEMS CORPORATION, Defendant-Appellee.
Case Date:July 30, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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90 F.3d 1173 (6th Cir. 1996)

Roger MONETTE and Doris Monette, Plaintiffs-Appellants,

v.

ELECTRONIC DATA SYSTEMS CORPORATION, Defendant-Appellee.

No. 95-1114.

United States Court of Appeals, Sixth Circuit

July 30, 1996

Argued March 19, 1996.

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[Copyrighted Material Omitted]

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Charles W. Palmer (argued and briefed), Robb, Messing & Palmer, Taylor, MI, for Plaintiffs-Appellants.

Brian B. Smith, Electronic Data Systems Corp., Troy, MI, Martin T. Wymer (argued and briefed), Duvin, Cahn & Hutton, Detroit, MI, for Defendant-Appellee.

Before: LIVELY, MARTIN, and MOORE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. LIVELY, J. (p. 1189), delivered a separate concurring opinion.

BOYCE F. MARTIN, Jr., Circuit Judge.

Roger Monette appeals the district court's award of summary judgment in favor of the defendant Electronic Data Systems on his claim that the defendant discriminated against him on the basis of his disability, and the court's refusal to allow him to file an amended complaint alleging retaliatory discharge.

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For the reasons set forth below, we AFFIRM in part and REVERSE in part.

Roger Monette worked as a customer service representative for defendant Electronic Data Systems. As part of his duties, Monette delivered audio and visual equipment to various areas of the office. On February 17, 1993, Monette was injured when a television and video cassette recorder fell off the cart he was pushing, hitting him on the back and shoulder. Monette requested an indefinite medical leave, and received full pay and benefits from Electronic Data Systems for the next seven months. During that time Monette submitted several medical reports from various physicians detailing his inability to return to work. In August of 1993, Monette filed for long-term disability benefits, claiming that he was completely incapacitated and unable to perform the necessary functions to return to his old job. Electronic Data Systems denied Monette's application for long-term disability benefits and Monette's full pay and benefits ceased on September 15.

Monette recovered from his total incapacitation soon thereafter, showing up to work unannounced and with a note from his doctor on October 11. Unfortunately, Monette's position at Electronic Data Systems had been filled during his eight month absence. No other customer service representative positions were available.

Over the next thirty-seven days, during which time Monette was placed on unpaid personal leave, Monette's supervisor Laura Frizzell conducted a job search in an attempt to find Monette another position with the company. To facilitate her efforts, Frizzell claims that she asked Monette to provide her with an updated resume and that Monette did not comply with this request. Monette disputes this fact. During her thirty-seven day search, Frizzell located a possible position in Midland, Michigan. However, Monette did not want to move out of the Detroit area and did not interview for this position. Frizzell arranged for interviews for two computer operator positions that were available in the Detroit area. Unfortunately, Monette did not receive an offer of employment after either of the interviews. Each interviewer stated that Monette lacked the requisite technical computer skills and that Monette was less than enthusiastic at his interviews. Having failed in its attempts to relocate Monette to another position, Electronic Data Systems permanently terminated his employment on November 19, 1993.

Monette subsequently filed suit against Electronic Data Systems in state court, alleging that his former employer discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, and the Michigan Handicappers' Civil Rights Act, Mich. Comp. Laws § 37.1102. 1 The defendant subsequently removed the case to federal court in the Eastern District of Michigan. Over the next several months, the parties engaged in extensive discovery proceedings which, under the district court's scheduling order, ceased on October 11, 1994. All dispositive motions were to be filed by October 31. On October 31, Electronic Data Systems filed a summary judgment motion, to which Monette filed a responsive brief in opposition. On November 28, Monette filed a motion for leave to file a second amended complaint, seeking to assert a claim for retaliatory discharge, alleging that Electronic Data Systems fired him in retaliation for his application for worker's compensation benefits.

On December 14, the district court awarded summary judgment in favor of Electronic Data Systems on Monette's state and federal disability discrimination claims. In an accompanying order, the district court also denied Monette's motion to file a second amended complaint. Monette timely appealed to this Court.

In this appeal, Monette takes issue with the district court's award of summary judgment and the district court's refusal to allow him to file a second amended complaint. We review the district court's award of summary judgment de novo. Summary

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judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, we view the facts and any reasonable inferences drawn from those facts in a light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). However, the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986) (citations omitted). After careful review of the record, we believe the district court properly awarded summary judgment to Electronic Data Systems and dismissed Monette's discrimination claims.

The district court concluded that it was unnecessary to determine whether Monette had established a prima facie case of discrimination under the Act, holding that Electronic Data Systems had established a legitimate, nondiscriminatory reason for terminating Monette. The court noted that the defendant filled Monette's position while Monette was on medical leave and was informing the defendant that he was unable to perform his job under any circumstances. Accordingly, when Monette returned to work unannounced, no customer service representative slot was available. The court found that requiring Electronic Data Systems to hold Monette's position open indefinitely, when it had no way of knowing whether or when Monette would return to work, would work an undue hardship on Electronic Data Systems. Further, the court recognized that the Americans with Disabilities Act did not require the defendants to 'create' another position for Monette in the absence of an available vacancy. In light of its belief that Electronic Data Systems offered a legitimate reason for replacing Monette, and did not fail to make reasonable accommodation for Monette's handicap, the district court awarded summary judgment in favor of Electronic Data Systems.

In this appeal, Monette argues that Electronic Data Systems failed to reasonably accommodate his handicap by granting him only thirty-seven days of unpaid leave while they attempted to find a position for him. Instead, Monette claims that the only 'reasonable' accommodation would have been to allow Monette to remain on unpaid leave indefinitely until another position opened up within the company. Along similar lines, Monette argues that the defendants should have considered him for jobs other than customer service representative or computer technician as a reasonable accommodation. 2 On a somewhat different tack, Monette points to two situations in which the defendants held an employee's position open while they were on medical leave and claims that this evidence creates a genuine issue of material fact as to whether the defendants discriminated against him.

Electronic Data Systems asserts two arguments in rebuttal. First, the defendants point out that there were no jobs available when Monette returned to work. Second, the defendants argue that, even if they had a duty (under the requirement that they must make a reasonable accommodation to Monette's disability) to attempt find work for Monette, they reasonably accommodated his disability by placing him on unpaid medical leave for thirty-seven days while they attempted to place him in a new position.

The analysis of claims under the Americans with Disabilities Act roughly parallels those brought under the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1995). Maddox v. University of Tennessee, 62 F.3d 843, 846

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n. 2 (6th Cir.1995). 3 The Act prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To recover on a claim of discrimination under the Act, a plaintiff must show that: 1) he is an individual with a disability; 2) he is "otherwise qualified" to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap. 4 Maddox, 62 F.3d at 846 (relying on Doherty v. Southern College of Optometry, 862 F.2d 570, 573 (6th Cir.1988) (Rehabilitation Act claim), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989), to analyze claims brought under Americans with Disabilities Act and Rehabilitation Act); accord Rizzo v. Children's World...

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