Cotter v. Ajilon Services, Inc.

• Citation: 287 F.3d 593
• Decision Date: 25 April 2002
• Docket Number: No. 00-2041.,00-2041.
• Parties: Gerard COTTER, Plaintiff-Appellant, v. AJILON SERVICES, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

287 F.3d 593

Gerard COTTER, Plaintiff-Appellant, v. AJILON SERVICES, INC., Defendant-Appellee.

No. 00-2041.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted March 18, 2002.

Decided and Filed April 25, 2002.

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Christopher E. Mengel (briefed), Berkley, Mengel & Vining, Detroit, MI, for Plaintiff-Appellant.

Virginia F. Metz (argued and briefed), Vercruysse, Metz & Murray, Bingham Farms, MI, for Defendant-Appellee.

Before: SILER and GILMAN, Circuit Judges; HEYBURN, Chief District Judge.^*

OPINION

HEYBURN, Chief District Judge.

Plaintiff-appellant Gerard Cotter filed claims against his former employer, Ajilon Services, Inc. ("Ajilon"), under the federal Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Michigan's Persons with Disabilities Civil Rights Act ("PWDCRA"), Mich. Comp. Laws §§ 37.1101 et seq., which substantially resembles the ADA. The district court, finding that Cotter failed to provide evidence sufficient to raise a genuine issue of material fact that he either was actually disabled or regarded as disabled within the meaning of either law, granted Ajilon summary judgment on both claims. For the reasons stated in this Memorandum Opinion, this Court AFFIRMS that decision.

I.

Cotter began working for Ajilon in September 1993. Ajilon hires technically-skilled employees and places them with client employers. As with most "temp services," the client employer pays Ajilon, and Ajilon pays the employee; however, Ajilon pays its employees whether they are placed with and working for a client-thus generating revenues for Ajilon-or not. Ajilon placed Cotter with Blue Cross/Blue Shield. Cotter worked full-time, with occasional overtime.

In the autumn of 1993, a doctor diagnosed Cotter with ulcerative colitis. Ulcerative colitis (hereinafter "colitis") is an intestinal ailment which has no known cure but may be controlled by medication, a proper diet, exercise, and adequate rest. The doctor recommended to Cotter that he limit overtime work. Cotter notified his supervisor, Charles Bachleda, of the recommendation, and Bachleda took him off overtime at Blue Cross. In August 1994, Cotter submitted a letter of resignation in order to accept a better-paying job, but Ajilon offered to top its competitor's offer and Cotter chose to stay.

In November 1994, Bachleda told Cotter to take on continuous overtime work with the Chrysler Corporation, and threatened that Ajilon would terminate him if he did not accept the additional work. Cotter tried to go above Bachleda in Ajilon's chain of command for permission to refuse the overtime. Unsuccessful, Cotter started working sixteen to twenty hours overtime with Chrysler.

In April 1995, Cotter collapsed and was hospitalized due to a flare-up of his colitis. He took leave, with full pay. In May, Bachleda visited him at home and told Cotter that he had lost the Blue Cross position, and that if he lost another position, Ajilon would terminate him. Bachleda admonished Cotter not to return to work until he could do so without medical restrictions, and demanded that he inform Ajilon in advance of any serious medical condition.

Cotter returned from leave in June 1995, under medical advice that he take a walk of up to fifteen minutes' duration every two hours. Cotter interviewed with two Ajilon clients for a new placement, and chose to work at Ford Motor Company. In the spring of 1996, Cotter asked to be reassigned. He also asked Bachleda to let him take time off three days each of two weeks to attend a stress management clinic. When Bachleda refused these requests, Cotter's psychiatrist recommended that Cotter take two weeks of sick leave, which he did, though he did not attend the clinic. Cotter suffered another flare-up during his leave, and extended his leave until November 1996. During this time, in early September, Ajilon contacted Cotter with an offer to work for a client in Jacksonville, Florida, which Cotter rejected. While on leave, Cotter received disability pay from Ajilon.

In November, upon clearance from a physician to work part-time, Cotter put in a request to Bachleda, who told him no part-time work was available. In mid-December, Cotter said that he was fit for full-time work, and Bachleda advised him that no work would be available until after the holidays.

On February 3, 1997, Ajilon returned Cotter to full pay. Bachleda promised to try to find work for Cotter, but told him not to come into the office looking for work. On February 28, Ajilon terminated Cotter's employment, effective March 14. The stated reason in Ajilon's records is "lack of work."

Ajilon claims that it usually keeps an employee "on the bench" — paid at the regular salary, though not working — for a maximum of four weeks, but that, in spite of reasonable efforts over six weeks to place Cotter with a client employer, it was unable to do so, and consequently had to terminate him. Cotter claims that he is disabled; alternatively, he argues that Ajilon mistakenly regarded him as substantially limited in the ability to work, and consequently failed to market him aggressively to client employers.

II.

This Court reviews a district court's grant of summary judgment de novo, and affirms such a judgment only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The Court should believe the evidence presented by the nonmovant, and draw all justifiable inferences in his favor. Plant v. Morton International, Inc., 212 F.3d 929, 933-34 (6th Cir.2000).

III.

The ADA prohibits covered entities from discriminating against qualified individuals with a disability. The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). In turn, the ADA defines "disability" as follows:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).¹ Equal Employment Opportunity Commission ("EEOC") guidelines define the phrase "substantially limits" as follows:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) 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)(1). These guidelines advise that a court, in determining whether an individual is substantially limited in a major life activity, should consider the following factors:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2).

Michigan's Persons with Disabilities Civil Rights Act² substantially mirrors the ADA, and resolution of a plaintiff's ADA claim will generally, though not always, resolve the plaintiff's PWDCRA claim. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 n. 3 (6th Cir.1998); Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 606 N.W.2d 398, 405 (1999).

To state a claim under the ADA, a plaintiff must establish 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." Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996). The issue before us is whether Cotter is disabled within the meaning of the statute.

A.

We must make an individualized inquiry into whether a plaintiff is disabled. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Thus, though colitis might not be a disability for everyone who has it, it might be a disability for Cotter. Moreover, because we must take into account "measures that mitigate the individual's impairment," id. at 475, 119 S.Ct. 2139, the colitis must be viewed in its medicated-and thus substantially controlled — state. In determining whether Cotter's colitis is disabling, we consider three factors: 1) whether his colitis constitutes a physical impairment; 2) if so, whether any life activity which the colitis purportedly curtails constitutes a major life activity under the ADA; and 3) if so, whether the colitis substantially limits that major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).

In his complaint, Cotter alleged, without elaborating, that his colitis "substantially limits major life activities." In an affidavit filed after Ajilon's motion for summary judgment, Cotter claimed that his colitis restricts his ability to perform manual tasks such as lifting, bending, standing and carrying things. Apart from this perfunctory statement, however, Cotter offered no evidence from which a reasonable jury could infer that his digestive ailment substantially limits these major life activities. As we have held, "[a] single conclusory statement about an alleged substantial limitation is not enough to avoid summary judgment sought by the employer." Anderson v. Inland Paperboard & Packaging, Inc., 11 Fed.Appx. 432, 436 (6th Cir.2001). Cf. Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir.1997) (plaintiff's bare allegation of a walking impairment did not suffice to prove that the impairment rose to the level of a disability).

Cotter also cited his doctor's order that he "take frequent breaks to avoid stress [and] avoid prolonged...