Hein v. All Amer. Plywood

• Decision Date: 22 September 2000
• Docket Number: No. 99-1381,99-1381
• Citation: 232 F.3d 482
• Parties: (6th Cir. 2000) Wayne Hein, Plaintiff-Appellant, v. All America Plywood Company, Incorporated; Kurt Adam Ludwinski, jointly and severally, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 482

232 F.3d 482 (6th Cir. 2000)

Wayne Hein, Plaintiff-Appellant, v. All America Plywood Company, Incorporated; Kurt Adam Ludwinski, jointly and severally, Defendants-Appellees.

No. 99-1381

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 22, 2000

Decided and Filed: November 14, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 98-71941--Gerald E. Rosen, District Judge. [Copyrighted Material Omitted] Barry S. Fagan, DIB & FAGAN, Royal Oak, Michigan, for Appellant.

Brian H. Rolfe, FALCONE & ROLFE, Southfield, Michigan, for Appellees.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Wayne Hein, a 45-year-old, 5'8", 200-pound truck driver who suffers from hypertension, appeals from an adverse summary judgment ruling in his suit against his former employer, All America Plywood Company (AAP), and its president Kurt Adam Ludwinski. Hein was fired after he refused to make an out-of-town delivery that was assigned to him five days in advance. Contending that he was unable to make the delivery because he would have run out of his blood-pressure medication before his return, Hein alleged that his termination constituted a violation of public policy and illegal disability discrimination. He also claimed discrimination based on both age and weight. The district court granted summary judgment in favor of the defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Basis for public policy and disability discrimination claims

Hein had worked at AAP for sixteen years. His regular delivery territory was western Michigan and Toledo, Ohio. Since 1989, Hein has been diagnosed with hypertension. His medical routine was to have a periodic check-up every six months with his doctor, at which time the doctor prescribed a six-month supply of blood-pressure medication. Hein's general practice was to call his doctor a week in advance to schedule an appointment. According to this routine, he was due for a check-up on July 8, 1997.

Each week, AAP makes at least one delivery to its customers in Cleveland, Ohio. It only had three drivers licensed to make the Cleveland run--Hein, Jack Hinton, and Bill Johnson. Several weeks before the delivery scheduled for July 8, 1997, Hinton, the regular Cleveland driver, posted a notice on the company bulletin board that he would be on vacation. Johnson later notified AAP that he, too, would be unavailable because he needed to stay home to take care of his children on July 8. Hein was consequently given notice by the route scheduler on July 3, 1997 that he was assigned to make the delivery. He told the route scheduler that he could not make the delivery because he was running out of blood-pressure medicine and needed to see his doctor. Hein admitted, however, that the scheduler did not excuse him from his run.

On the day before the scheduled delivery, Hein told Ludwinski that he would be unable to take the Cleveland assignment because he would run out of his medication during the trip and could not obtain a timely refill due to his regular doctor being on vacation. He did not attempt to meet with another doctor in the practice group or obtain medication elsewhere prior to this conversation. After the conversation, Ludwinski gave Hein twenty minutes to reconsider. When Hein took no corrective action, Ludwinski told Hein that he should not return to work. Johnson ended up making the July 8 delivery. Hein's former route was temporarily taken over by the route scheduler, and then by David Richardson, who was then 29 years old.

B. Basis for age and weight discrimination claims

To prove age and weight discrimination, Hein submitted three pieces of evidence. He first cited a January 1997 "sales update" sheet with a cartoon of a reclining Big Boy from the Big Boy restaurant chain, captioned "Wayne Hein Contemplates Lotto Scheme." Ludwinski produced these sales updates, which often poked fun at various AAP employees, and distributed them throughout the company.

Next, Hein presented an April 1996 magazine cover that Ludwinski hung in the company's main office. The cover depicted a gorilla, which Hein described as old, wrinkled, and heavy. The caption on the cover had been modified to read "Wayne Hein Ponders Weight Limits." Although his truck was ticketed for being overweight around the time the cover was produced, Hein argues that this cover was intended to deride his weight.

Finally, Hein noted that his coworkers frequently called him as "Burger Boy," "Buffet Boy," "Double Cheese," and "Turtle Hein," and highlighted how AAP's driver-contact list referred to him as "Buffet Boy." Hein, however, did not establish that any of these nicknames were originated by Ludwinski.

C. Summary of Hein's legal theories

Hein filed a complaint in the Wayne County Circuit Court alleging disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C §§ 12101-12213, and the Michigan Persons with Disabilities Civil Rights Act (PDCRA), Mich. Comp. Laws §§ 37.1101-607; age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Michigan Elliot-Larsen Civil Rights Act, Mich. Comp. Laws §§37.2101-2804; weight discrimination under the Elliot-Larsen Act; and a common law claim of wrongful discharge in violation of public policy. The case was removed to the United States District Court for the Eastern District of Michigan on May 11, 1998.

Following discovery, AAP and Ludwinski both moved for summary judgment. In an opinion and order dated March 5, 1999, the district court entered summary judgment in their favor. This appeal followed the denial of Hein's motion for a rehearing.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of summary judgment. See, e.g., Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000). Summary judgment is proper when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The judge is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists only when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

B. Public policy claim

Hein first argues that his termination violated public policy. Under Michigan law, an employee may have a cause of action against his employer when his termination is contrary to clearly articulated public policy. See Suchodolski v. Michigan Consol. Gas Co., 316 N.W.2d 710, 711 (Mich. 1982) (holding that even in an at-will employment relationship, "some grounds for discharging an employee are so contrary to public policy as to be actionable").

An employee has a valid public policy claim under Michigan law if he was fired because his employer requested that he break the law, but he failed or refused to do so. See Garavaglia v. Centra, Inc., 536 N.W.2d 805, 808 (Mich. Ct. App. 1995) (providing three situations where a termination can give rise to a valid public policy claim, including where the employee refused to break the law). Hein argues that he did not make the July 8, 1997 delivery because he refused to disobey the Federal Motor Carrier Safety Regulations prohibiting drivers with serious hypertension from driving while unmedicated. See 49 C.F.R. § 391.41. According to Hein, AAP and Ludwinski violated public policy when they fired him for refusing to drive on that date.

Ludwinski, however, never demanded that Hein violate the law by driving without his blood-pressure medication. Instead, Ludwinski told Hein to make his assigned delivery, an assignment made five days in advance of the delivery date. During this time, Hein did not attempt to meet with another doctor or obtain a temporary refill of his blood-pressure medication. Yet Hein, by his own admission, had the responsibility to keep himself medicated. It was thus Hein, rather than his employer, who placed himself in the position of being forced to either violate the federal motor carrier safety laws or abandon his work duties. Accordingly, we find that the public policy exception to the at-will employment doctrine is inapplicable under these circumstances.

C. Disability discrimination claim

Hein next alleges disability discrimination under the ADA and the PDCRA. The federal ADA and the Michigan PDCRA each require an individual seeking redress to show that he has an impairment that substantially limits a major life activity. See Gilday v. Mecosta County, 124 F.3d 760, 762 (6th Cir. 1997) (finding no disability under the ADA where the plaintiff's diabetes, which was controlled by medication, did not substantially impair any of his major life activities); Chmielewski v. Xermac, Inc., 580 N.W.2d 817, 823 (Mich. 1998) (holding that a plaintiff who received a liver transplant, and whose anti-rejection medication allowed him to live a normal life, did not have a disability). Hein's hypertension, therefore, does not rise to the level of a disability as defined under those statutes.

The Supreme Court has expressly held that courts must evaluate a person with high blood pressure in his medicated state in order to determine whether he is disabled under the ADA. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999) (holding that Murphy, a truck driver, was not disabled under the ADA because his hypertension did not substantially limit his major life activities when he was medicated). Michigan law is similar in requiring claim...