Demyanovich v. Plating

• Decision Date: 28 March 2014
• Docket Number: No. 13–1015.,13–1015.
• Citation: 747 F.3d 419
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Alan DEMYANOVICH, Plaintiff–Appellant, v. CADON PLATING & COATINGS, L.L.C. et al., Defendants–Appellees.

747 F.3d 419

Alan DEMYANOVICH, Plaintiff–Appellant,

v.CADON PLATING & COATINGS, L.L.C. et al., Defendants–Appellees.

No. 13–1015.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 21, 2013.

Decided and Filed: March 28, 2014.

ARGUED:Paul J. Dillon, Dillon & Dillon P.L.C., Plymouth, Michigan, for Appellant. Patrice Arend, Jaffe Raitt Heuer & Weiss, P.C., Southfield, Michigan, for Appellees. ON BRIEF:Paul J. Dillon, Dillon & Dillon P.L.C., Plymouth, Michigan, for Appellant. Patrice Arend, Jaffe Raitt Heuer & Weiss, P.C., Southfield, Michigan, for Appellees.

Before: MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Alan Demyanovich, an employee of Cadon Plating & Coatings, LLC (“Cadon”) for more than twenty years, was terminated after he requested leave under the Family and Medical Leave Act (“FMLA”) to treat his congestive heart failure. He argues that Cadon and his direct supervisor, Al Ensign, interfered with his exercise of his FMLA rights, retaliated against him for seeking FMLA leave, and discriminated against him on the basis of disability. We find evidence in the record to establish a genuine factual dispute as to whether Demyanovich was permanently incapable of working at the time that he was terminated. Therefore, we REVERSE the district court's grant of summary judgment and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

A. Facts

Cadon coats, seals, and paints various parts for the automotive industry using a number of production lines to treat parts with different coatings or chemicals. In 1989, Al Ensign, Cadon's Vice President, hired Demyanovich as a “helper” on the production lines. R. 38–4 (Demyanovich Dep. at 26) (Page ID # 638). He was soon promoted to “operator” and trained to run several of the lines. Id. at 27–28 (Page ID # 639–40). Machine operators load parts onto the lines and ensure that the parts are evenly distributed by “raking” them to a uniform thickness. Id. at 30–31 (Page ID # 642–43). Once the parts have been treated, operators catch them in baskets at the end of the line and operate “hi-lo” trucks to move them away. R. 38–6 (Ensign Dep. at 15–26) (Page ID # 894–905). Eventually, Demyanovich earned a promotion to “area leader,” in which he continued to operate the lines but also trained other operators. R. 38–4 (Demyanovich Dep. at 38) (Page ID # 650).

In late 1998, Demyanovich began to experience health problems. His primary physician, Dr. Mussani, initially diagnosed bronchitis, R. 38–2 (Employee Med. Records) (Page ID # 570), but a specialist later determined that he suffered from dilated cardiomyopathy (“CMP”) and congestive heart failure (“CHF”). Id. (Page ID # 571). Demyanovich took FMLA leave between February 2, 1999 and April 23, 1999, after which a doctor cleared him to return to work with restrictions: Demyanovich was instructed not to lift more than fifty pounds or work more than forty hours per week. Id. (Page ID # 573).

Demyanovich continued to work as an operator and area leader for the next ten years. However, during this time he took FMLA and short-term disability leave several times to cope with various health issues.¹ In November 2009, Demyanovich requested FMLA leave when his heart conditions worsened. He was granted paid medical leave between November 23 and December 14. R. 38–3 (Employee Med. Records) (Page ID # 595–98). In the documentation supporting Demyanovich's FMLA request, his physician indicated that upon his return he “should be able to do what he was doing [before his leave].” Id. (Page ID # 596). The physician also reiterated that Demyanovich was restricted from working overtime and that his restriction would continue “indefinitely.” Id. (Page ID # 597). Demyanovich gave this documentation to Ensign upon his return to work on December 14, 2009.

Due to his health problems, Demyanovich began experiencing difficulty performing some aspects of his job. He requested lighter duty assignments, including switching to a “sorting” position, which he could perform sitting, or to a position at the end of the paint line, where he would not need to move as quickly. According to Demyanovich, Cadon denied these requests and continued to schedule Demyanovich to work overtime. R. 38–5 (Demyanovich Dep. at 138–39) (Page ID # 764–65).

On February 23, 2010, Demyanovich worked a complete eight-hour shift. After work, he went to his regularly scheduled doctor's appointment. At this appointment, Dr. Mussani “[a]dvised [Demyanovich] to quit work [and] apply for S.S. [social security] disability.” R. 34–11 (Medical Records) (Page ID # 459). Demyanovich returned to the Cadon facilities and asked Ensign about taking FMLA leave. Ensign denied the FMLA request because he believed that Cadon did not have enough employees to be subject to the Act. R. 38–4 (Demyanovich Dep. at 66) (Page ID # 678). Demyanovich claims that Ensign also told him that he was a “liability.” R. 38–5 (Demyanovich Dep. at 155) (Page ID # 781). At this point, Demyanovich no longer had enough points under Cadon's attendance policy to take additional absences.² Ensign terminated Demyanovich's employment shortly thereafter.³ R. 38–6 (Ensign Dep. at 85) (Page ID # 962).

Demyanovich applied for Social Security benefits on February 23, 2010, and was referred for a mental-health assessment “to determine [his] current strengths in intellectual and cognitive skills.” R. 34–13 (UnifiedMed Report) (Page ID # 477–82). The psychologist who examined Demyanovich noted that he “reports if he were offered a job what would prevent him from working [would be his] health.” Id. at 2 (Page ID # 478). Ultimately, the psychologist concluded that Demyanovich suffered mild to moderate impairment in several mental abilities and that he was significantly impaired in his “mental ability to withstand stress and pressure associated with day to day work activities.” Id. at 6 (Page ID # 482). Demyanovich also told the psychologist, and conceded at his deposition, that he had a number of physical limitations: he struggled to walk as far as he used to, to complete various household tasks such as shoveling snow or cutting the grass, to have a sexual relationship with his wife, or even to stand for longer than twenty or thirty minutes without resting. Id. at 3 (Page ID # 479); R. 38–4 (Demyanovich Dep. at 116–18) (Page ID # 728–30). Despite his limitations, after he was terminated Demyanovich looked for alternative employment at several restaurants and a car wash because he thought that he “was okay to do some kind of job” under less stressful conditions. R. 38–5 (Demyanovich Dep. at 198–99) (Page ID # 824–25). After Demyanovich began receiving Social Security benefits, he ceased looking for work because Social Security had determined he was disabled. Id. at 197 (Page ID # 823).

B. Procedural History

On December 23, 2010, Demyanovich filed a complaint alleging that Cadon and Ensign interfered with his FMLA rights and discriminated against him on the basis of his disability, among other claims. R. 1 (Compl.) (Page ID # 1–13). Cadon and Ensign filed a motion to dismiss the complaint for failure to state a claim. R. 7 (Def. Mot. to Dismiss) (Page ID # 24–43). The district court granted in part the Defendants' motion to dismiss, but allowed Demyanovich to file an amended complaint alleging five counts: FMLA interference in violation of 29 U.S.C. § 2615(a)(1), FMLA retaliation in violation of 29 U.S.C. § 2615(a)(2), disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), ADA retaliation in violation of 42 U.S.C. § 12203, and disability discrimination in violation of the Persons With Disabilities Civil Rights Act (“PWDCRA”), Mich. Comp. Laws § 37.1101 et seq. R. 25 (First Am. Compl.) (Page ID # 251–63).

After discovery, the Defendants filed a motion for summary judgment on all counts. R. 33 (Mot. for Summ. J.) (Page ID # 304–26). On December 4, 2012, the District Court entered an order granting the motion. The district court first determined that Demyanovich could not create a genuine issue of material fact regarding his FMLA interference claim. The district court reasoned that Demyanovich was not an “eligible employee” under the Act because he could not show that he would have been able to work at the end of the twelve-week FMLA leave period. R. 46 (D. Ct. Mem. and Order at 8–9) (Page ID # 1331–32). The district court also rejected Demyanovich's argument that the Defendants should have accommodated him by modifying his work schedule or permitting him to take leave. Instead, the court concluded that Demyanovich was unable to work in any capacity. Id. at 14 (Page ID # 1337). In a lengthy footnote, the district court also concluded that there remains a question of material fact whether Cadon was an “eligible employer” under the Act. Id. at 12–13 n. 6 (Page ID # 1335–36). The court noted the lingering factual disputes regarding whether Cadon and MNP Corporation (“MNP”), a company with many owners, managers, and business operations common to Cadon, are an “integrated employer” for FMLA purposes. Id. Nevertheless, because it concluded that Demyanovich could not show that he was eligible for FMLA benefits, the district court granted summary judgment to the Defendants.

The district court also concluded that Demyanovich had failed to create a genuine issue of material fact as to his FMLA retaliation claim. Although Demyanovich established a prima facie case of retaliation, the district court concluded that he could not show that the Defendants' legitimate, nondiscriminatory reasons for terminating him were pretextual. Id. at 16–20 (Page ID # 1339–43). The court recognized two legitimate reasons for the termination: violation of Cadon's attendance policy and Demyanovich's permanent inability to return to work. Id. at 17 (Page ID # 1340). The district court found no evidence that demonstrated intentional...