LeMarbe v. Vill. of Milford
| Decision Date | 26 October 2021 |
| Docket Number | 19-12992 |
| Parties | CORY LEMARBE, Plaintiff, v. VILLAGE OF MILFORD, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff Cory LeMarbe was employed in the Village of Milford's maintenance department since 2014. He was fired in 2019. He brought this action alleging disability discrimination and retaliation, contending that the Village failed to accommodate his reasonable request for transfer to a more suitable work assignment, and then terminated him pretextually when he threatened to sue over the failure to accommodate. The defendant has moved for summary judgment arguing that the plaintiff cannot prove all the elements of these claims. However, the plaintiff has identified evidence in the record that, if believed, establishes his right to relief. Because there are genuine disputes of material fact the motion for summary judgment will be denied.
The remote background of the plaintiff's employment with the Village is undisputed. LeMarbe worked for the Village of Milford since 2014. In 2015, he was hired to work in the Village's Maintenance Department in a full-time position under supervisor Robert Calley, who was the Director of Public Services for the Village. From October 2015 through September 2018, LeMarbe worked in the DPS Garage, where he performed well in all of his duties, generally received favorable evaluations, and had no disciplinary record. From that point, the parties' accounts diverge.
LeMarbe attested in an affidavit that his doctor has diagnosed him with a “moderate to severe” condition of essential tremors, which he has had for 15 to 20 years. Cory LeMarbe aff., ECF No. 45-14, PageID.1150. He stated that his hand tremors are so severe that they preclude him from, among other things, drinking hot beverages except from a container with a secure lid, that he cannot eat cereal, soup, rice salad, or any other food that requires “precision maneuvers” of utensils with his hands to consume, and that he cannot button a shirt, so he wears only pullover shirts with no buttons. He also is unable to write because his hands shake so badly, and when he tries to write the results are illegible.
In September 2018, LeMarbe was reassigned to work in the Wastewater Department. According to LeMarbe, he was told by Calley initially, in September 2018, that Calley needed LeMarbe to work in the Wastewater Department “for a couple of weeks, ” so that Calley could train two new employees who had been hired and who would be assigned initially to the DPS Garage, where LeMarbe had been working. LeMarbe testified that the DPS Garage and Wastewater Department essentially were “all one department ” with the only distinction being in the location of work assignments and nature of the specific work duties. Although the assignment to the Wastewater Department initially was styled by Calley as temporary, it wound up lasting for several months.
In early October 2018, several weeks after LeMarbe was reassigned to the Wastewater Department, he asked Calley to transfer him back to the DPS Garage as agreed. Calley responded, LeMarbe dep. at PageID.987. Over the next several months, LeMarbe asked repeatedly to be reassigned to the DPS Garage. He asked for a transfer twice in each month from October 2018 through January 2019, and he requested a transfer twice again in February 2019. LeMarbe made all of those requests because he knew that eventually he would be expected to work in the Wastewater lab, and he anticipated that his tremors would prevent him from performing the duties that would be assigned there.
When LeMarbe presented his third request to Calley to be sent back to the DPS Garage, Calley lost his temper and started shouting profanities, yelling, Calley then “walked away got in his truck and left.” LeMarbe dep. at PageID.989. LeMarbe testified that after that encounter he “knew [Calley] wasn't going to move me back, ” but he persisted in requesting the transfer, and eventually, after Calley's blow up, he presented several grievances through his union, in an attempt to appeal the issue of his transfer request to the attention of the Village Manager, Christian Wuerth. LeMarbe subsequently discussed with Wuerth his desire for a transfer back to the DPS Garage, but Wuerth “said nothing” in response to that request.
LeMarbe attested that his conversation with Wuerth touched on several concerns that LeMarbe had about working with Calley, including Calley's inability to follow work rules, his habit of drinking socially with department staff - problematic for LeMarbe, who is a recovering alcoholic - and his concern that Calley wanted to fire him. LeMarbe admitted that he did not mention to Wuerth any specific concerns about being unable to work in the lab due to his tremors, but he did state that he wanted to be reassigned to his old job as promised by Calley, because he was “more comfortable” with the work there. None of LeMarbe's transfer requests met with satisfactory results. During subsequent conversations with supervisor Tom Harder and Calley, when LeMarbe again brought up his desire for a transfer back to the DPS Garage, and his concerns about doing the expected work in the Wastewater lab, their only responses were “you can do it, ” and “you'll be able to do it.” Id. at PageID.989.
As LeMarbe had anticipated, after several months of performing other duties in the Wastewater Department, the plaintiff eventually was assigned in early 2019 to work in the Wastewater Department laboratory. LeMarbe's previous work in the Wastewater Department had entailed other duties that he performed successfully, but LeMarbe attested that it was expected that all employees of the department would at some point also work in the lab. The routine duties that LeMarbe was assigned outside of the lab essentially were the same work that he had done successfully in the DPS garage, such as maintaining machinery and facilities and performing general cleanup and outdoor landscaping. In the Wastewater lab however, unlike in his prior assignments, the work required handling liquid samples in delicate glassware and dispensing precise measurements of reagents with pipettes to perform laboratory tests. While working in the lab, LeMarbe reported directly to supervisor Tom Harder, and he worked alongside another technician, Heather Sherwood.
Predictably, LeMarbe had difficulties performing the lab work due to his tremors. LeMarbe testified that he was unable to perform any of the laboratory testing procedures properly due to his hand tremors. He was expected to perform a number of procedures such as tests for bio-oxygen demand, fecal coliform and chloride assessments, and tests for levels of ammonia and phosphorous. However, he was not able successfully to perform any of those procedures. Sometimes LeMarbe worked in the lab with another person, such as Harder, and those times he was able to complete some tests, when the other person performed the steps that LeMarbe could not perform himself. LeMarbe also attested that, in addition to Harder's direct observation of LeMarbe's difficulties handling lab procedures, both Harder and Calley were aware previously of LeMarbe's tremor condition, because both had occasion to see LeMarbe's hands shaking in other settings, such as when he would eat or drink at lunch.
On February 19, 2019, shortly after the lab assignment began, LeMarbe asked Tom Harder for a meeting with LeMarbe, Harder, and Calley, to discuss the problems that LeMarbe's tremors were causing him with his new assignment in the lab. The meeting occurred on February 20, 2019, during which LeMarbe told both of his supervisors that he was unable to do the work expected in the lab due to his tremors, and he wanted to be transferred back to the DPS Garage as promised. Harder and Calley responded that there was “no job available” in the DPS Garage for LeMarbe to be reassigned. However, LeMarbe attested that according to the union contract, and because DPS and Wastewater were essentially the same department, workers could be reassigned within the department at will - as he had been in September 2018 - without any need to create a new position or displace an employee from an existing job. LeMarbe had worked with Harder in the lab on February 20, 2019, before the meeting with Harder and Calley, and Harder had seen that LeMarbe was unable to do the lab work due to his hands shaking. On the following day, Harder again worked alongside LeMarbe in the lab, and again witnessed the struggles he encountered due to his hand tremors.
On February 21, 2019, shortly after a department luncheon Harder approached LeMarbe and informed him that he had been told by Wuerth to “write him up” for “inability to do his job” in the lab “because of your hands.” LeMarbe dep. at PageID.1005-06. LeMarbe responded by telling Harder that he would “file charges with the EEOC” and “file charges with the state labor board, ” and he also said that he would “go to Christian Wuerth's office and knock on his door and tell him Bob [Calley] was fornicating with his secretary on the clock.” Id. at PageID.1006. LeMarbe was scheduled to work in the lab alone on February 22, 2019. LeMarbe reported to work in the lab on the morning of February 22, 2019, but because he was alone, he was unable to perform any of the usual lab procedures. Around 1-1/2 hours after he reported to work, LeMarbe was informed that he was being placed on...
To continue reading
Request your trial