Federal Circuits, 6th Cir. (May 03, 2007)
Docket number: 06-3490
Published
Permanent Link:
http://vlex.com/vid/michael-kleiber-honda-america-mfg-inc-27684609
Id. vLex: VLEX-27684609
Click here to download this article in graphic format (Acrobat Reader)

US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1331 - Sec. 1331. Federal question
US Code - Title 42: The Public Health and Welfare - 42 USC 12112 - Sec. 12112. Discrimination
US Code - Title 42: The Public Health and Welfare - 42 USC 12111 - Sec. 12111. Definitions
US Code - Title 42: The Public Health and Welfare - 42 USC 12101 - Sec. 12101. Findings and purpose
U.S. Court of Appeals for the 6th Cir. - Vincent v. Brewer Company (6th Cir. 2007)
U.S. Court of Appeals for the 6th Cir. - Benaugh v. OH Civil Rights Com (6th Cir. 2008)
U.S. Court of Appeals for the 6th Cir. - Grace v. Uscar, et al (6th Cir. 2008)
ARGUED: Gary A. Reeve, Kennedy Reeve & Knoll, Columbus, Ohio, for Appellant. Douglas R. Matthews, Vorys Sater Seymour and Pease LLP, Columbus, Ohio, for Appellee. ON BRIEF: Gary A. Reeve, Kennedy Reeve & Knoll, Columbus, Ohio, for Appellant. Douglas R. Matthews, Vorys Sater Seymour and Pease LLP, Columbus, Ohio, for Appellee.
Before SILER, MOORE, and ROGERS, Circuit Judges.OPINIONKAREN NELSON MOORE, Circuit Judge.This case stems from a tragic off-the-job accident that has diminished Michael E. Kleiber's capacity to work. Admirably, Kleiber attempted to return to work despite his injuries. Unfortunately, he was unsuccessful. He sued his former employer, Honda of America Manufacturing, Inc. ("Honda"), alleging that it violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., and related state statutes by failing to accommodate his disabilities. Finding no evidence that Kleiber could now perform any job at Honda, the district court granted Honda's motion for summary judgment. We similarly find no evidence showing that Kleiber was capable of working at Honda, and accordingly must AFFIRM the district court's judgment.I. BACKGROUNDA. Factual BackgroundMichael Kleiber began working in Honda's Marysville, Ohio plant in June 1989. In November 1999, he remained employed full-time at Honda as a Production Associate and was assigned to a repair position in the Assembly Department. His position required him to read inspection cards describing necessary repairs, to determine the method for performing the repairs, to implement fine motor skills in executing the repairs, and to drive cars across the shop floor.1. Kleiber's Injury and TreatmentOn November 21, 1999, Kleiber fell from a fence while performing yard work at his parents' home and hit his head on a concrete surface. The fall left him with serious head injuries. Kleiber remained hospitalized until January 21, 2000. During his hospitalization, Kleiber was under the care of Dr. Jerry Mysiw, the Director of The Ohio State University's Head Injury Diagnostic Clinic. After being discharged, Kleiber continued to see Dr. Mysiw every three to four months.When first discharged, Kleiber was unable to live independently, and he required ongoing physical, occupational, and speech therapy to overcome difficulties with attention span, thinking, and coordination. His physical therapy continued through August 2000, at which time Kleiber had progressed such that he was able to carry most items on level surfaces and had only some difficulties moving heavy objects up stairs. Although he was no longer receiving physical therapy, Kleiber's occupational therapy sessions continued into 2001. Notwithstanding his therapy, Kleiber failed two driving examinations in March and August 2000.2. Kleiber's Attempts to Return to Worka. BVR AssistanceIn late March 2000, Kleiber met with a counselor from the Ohio Bureau of Vocational Rehabilitation ("BVR"), a state agency whose mission is to provide service leading to employment for Ohioans with disabilities. In April 2000, the BVR determined Kleiber was eligible for its services and soon assigned Rodney Brandel, the BVR's liaison with Honda, to Kleiber's case.Brandel arranged for Kleiber to undergo a neuropsychological evaluation ? intended to identify the cognitive limitations resulting from Kleiber's brain injury ? with Dr. James Arnett on August 17, 2000. Dr. Arnett's evaluation noted various limitations, including deficits in (1) attention and concentration, including memory; (2) problem-solving abilities; and (3) manual dexterity. Dr. Arnett concluded that the evaluation revealed "mild to moderate" impairment of brain function, and that the deficits "raise[d] questions about safety in the performance of high risk activities." Joint Appendix ("J.A.") at 20-21 (Report of Neuropsychological Evaluation at 5-6). He further noted that he could not predict whether Kleiber's attention and concentration deficits would be further compromised in a chaotic environment.After receiving Dr. Arnett's evaluation, Brandel met with Dr. Arnett, Kleiber, and Kleiber's parents on September 12, 2000, to discuss the results and Kleiber's prospects for returning to Honda. Based upon Dr. Arnett's evaluation, Brandel did not expect Kleiber to be able to return immediately to his former position at Honda, nor did Brandel believe that anyone else at the meeting had such an expectation.b. Communications with HondaBrandel began communicating with Honda regarding Kleiber's limitations and his desire to return to work. On October 10, 2000, Dr. Mysiw filled out a Honda document labeled a "Work Capacity Form." On the form, Dr. Mysiw indicated Kleiber's restrictions were "cognitive?i.e., memory, attention," and that these issues "require[d] supervision and possibly a job coach." J.A. at 316 (Work Capacity Form). He also indicated that Kleiber could not work in an environment featuring "unrestricted heights," and stated that Kleiber's endurance was "likely poor." Id. Sometime after October 10, 2000, Brandel submitted the Work Capacity Form to Honda.Notwithstanding Kleiber's limitations, Doug Bigler, Honda's placement leader for the Marysville plant, and Cathy Cronley, Honda's in-house registered nurse, began to identify certain positions that they thought Kleiber might be able to perform. These positions included "the Right Rear Beam Tighten position in [the] Assembly [Department]," "the Front Bumper Install position in [the] Assembly [Department]," and processes in the Paint Department. J.A. at 25-27 (Bigler Aff. ¶¶ 14-15, 19). Ultimately, Honda determined that none of these positions were appropriate for Kleiber because they required walking on uneven surfaces, working under substantial time pressures, and employing fine manual dexterity.During this process, the Honda representatives determined that they needed more precise information regarding Kleiber's limitations, so they scheduled a meeting with Brandel. On October 27, 2000, Brandel and Joe Roop, Kleiber's job coach from the BVR, met with several Honda representatives to discuss Kleiber's prospects for returning to work. According to Brandel, "[t]he idea was to have the [job] coach work with Honda staff to identify a suitable position to start." J.A. at 111-12 (Brandel Dep. at 75:23-76:2). Kleiber did not attend this meeting. The Honda contingent included Bigler, Cronley, and Jean Jackson, a disability and case-management nurse. At the meeting, Honda's representatives indicated that the Work Capacity Form did not provide enough information for them to identify job processes that Kleiber could perform. Consequently, Honda's representatives requested more specific information and asked that Kleiber be evaluated by Dr. Robert Shadel at Health Partners, Inc.1c. Further EvaluationsKleiber visited Dr. Shadel on October 30, 2000, for a Fitness for Duty Examination. In this examination, Kleiber's performance on a memory test revealed a "significant memory deficit." J.A. at 28 (Shadel Aff. ¶ 3). Dr. Shadel also reviewed Dr. Arnett's earlier neuropsychological evaluation of Kleiber and concluded that both evaluations were consistent and "that there was no reason to expect significant improvement in Mr. Kleiber's condition in the future." Id. (¶ 4). Consequently, Dr. Shadel concluded that Kleiber's limitations in gait, balance, upper-extremity coordination, cognitive processing, and memory would substantially inhibit Kleiber's returning to work. He also expressed some reservations regarding Kleiber's ability to perform job functions involving lifting, carrying, and moving around in the factory environment. Nonetheless, he ordered a Functional Capacity Evaluation from Health Partners's physical therapist Sanford Goldstein.During the Functional Capacity Evaluation, Kleiber lost his balance while walking down a flight of stairs and tested "inadequate" for balance on level surfaces. J.A. at 138-39 (Goldstein Dep. 30:8-9, 32:12-13). Based upon his examination, Goldstein identified four underlying limitations: (1) safety issues resulting from decreased motor planning; (2) poor balance on level surfaces; (3) decreased grip strength; and (4) decreased finger dexterity. Goldstein concluded that Kleiber should not be assigned to jobs that require "balance on uneven surfaces," "fine motor and medium motor dexterity," or "rapid cyclical work." J.A. at 403 (Phys. Work Performance Evaluation Summary). However, when asked in deposition what constituted a "rapid pace," Goldstein was unable to answer. J.A. at 141 (Goldstein Dep. at 43:15-18).After receiving Goldstein's Functional Capacity Evaluation, Dr. Shadel wrote a report regarding Kleiber, dated November 13, 2000. Dr. Shadel concluded that Kleiber (1) could not work independently; (2) needed to work where balance would not be at issue; (3) had to work in a position that allowed only light gripping and simple, slow hand movements due to his dexterity deficits; and (4) could not be placed in a job requiring multiple processes. Additionally, Shadel noted that any return to work would have to be gradual because Kleiber's endurance was likely poor and that it was impossible to predict how Kleiber would function in a busy and noisy environment.d. Kleiber's Discharge from HondaBased upon Dr. Shadel's report and "a thorough review of [Honda]'s production work environment," Honda's placement committee determined that Kleiber's limitations precluded him from working as a Honda Production Associate. J.A. at 397 (Memo dated Nov. 16, 2000). Consequently, and consistently with its policy of releasing employees who have been unable to work for twelve consecutive months, Honda terminated Kleiber's employment effective November 22, 2000. Randy Moore, Honda's assistant manager for restriction placement, sent a letter to Brandel on November 30, 2000 indicating that Honda was unable to accommodate Kleiber, and that it consequently terminated him. Brandel responded on December 4 with a letter reiterating the BVR's willingness to continue working with Honda on Kleiber's behalf, and requesting documentation of Kleiber's Functional Capacity Evaluation and Fitness for Duty Examination, as well as specific information regarding the jobs for which Kleiber was considered.B. Procedural HistoryOn July 16, 2001, Kleiber filed a discrimination charge against Honda with the EEOC, which issued a right-to-sue letter on November 19, 2003. Kleiber filed a complaint in the U.S. District Court for the Southern District of Ohio on February 10, 2004. Kleiber's complaint alleged that Honda discriminated against him on the basis of his disability, and asserted claims for (1) violation of the Americans with Disabilities Act by refusing to provide a reasonable accommodation, refusing to participate in the interactive process, and causing the breakdown of the interactive process; (2) violation of the Ohio Revised Code's prohibition of disability discrimination, OHIO REV.CODE § 4112.02; and (3) discharge in violation of public policy as prohibited by Ohio Revised Code § 4112.02.In early October 2005, both Honda and Kleiber filed motions for summary judgment. Kleiber amended his complaint on November 17, 2005 but continued to pursue the same three claims. On February 27, 2006, the district court issued an order granting Honda's, and denying Kleiber's, motion for summary judgment and entered judgment in Honda's favor. The district court concluded that Kleiber could not show that he was qualified for any position at Honda, and therefore, he could not show that Honda either failed to offer him a reasonable accommodation for, or terminated him because of, his disability. Further, the district court concluded that because Honda's actions did not contravene Ohio's prohibition of disability discrimination, Kleiber could not show that his termination would jeopardize that policy; accordingly, the district court rejected his claim for violation of public policy. On March 16, 2006, Kleiber timely filed his notice of appeal.II. JURISDICTION AND STANDARD OF REVIEWThe district court had federal-question jurisdiction over Kleiber's ADA claim, 28 U.S.C. 1331, and supplemental jurisdiction over Kleiber's state-law claims, Id. § 1367(a). We have jurisdiction over his appeal from the district court's final judgment. Id. § 1291.We review de novo a district court's order granting summary judgment, DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004), and will affirm a grant of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). In reviewing the district court's decision to grant summary judgment, we must view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).III. ANALYSISOn appeal, Kleiber offers two arguments. First, Kleiber argues that a genuine dispute of material fact exists as to whether there was an open position at Honda for which he was qualified. Second, he contends that Honda denied him a reasonable accommodation by failing to participate in good faith in the informal, interactive process required to identify a suitable reasonable accommodation. These arguments both address Honda's alleged failure to offer Kleiber a reasonable accommodation.A. ADA ClaimThe ADA prohibits discrimination because of disability against "a qualified individual with a disability," 42 U.S.C. 12112(a), and defines "discrimination" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability," id. § 12112(b)(5)(A). The Act further defines "reasonable accommodation" to include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.Id. § 12111(9).Kleiber bases his discrimination claim upon Honda's failure to accommodate his disability. Honda acknowledges that it did not accommodate Kleiber's disability but argues that no reasonable accommodation was possible because Kleiber was not qualified for any position. As noted above, failing to make a reasonable accommodation falls within the ADA's definition of "discrimination." Accordingly, claims premised upon an employer's failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination.2 Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir.1996). This conclusion is consistent with the definition of direct evidence, for if the fact-finder accepts the employee's version of the facts, no inference is necessary to conclude that the employee has proven this form of discrimination. See Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999) (sex-discrimination case; defining direct evidence as "that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions"); Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003) (race-discrimination case; noting that direct evidence does not require the fact-finder to draw any inferences to conclude that the defendant discriminated against the plaintiff). It is further consistent with our analysis in Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1182-84 (6th Cir.1996), in which we noted that claims for failure-to-accommodate fall within the category of cases in which the employer relies on the employee's disability in its decision-making, and consequently are suitable for analysis under the direct-evidence framework. See also Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 724-30 (6th Cir.2000) (applying direct-evidence standard to claim for failure to accommodate).When an ADA plaintiff premises his claim upon direct evidence, we jettison the familiar McDonnell Douglas burden-shifting framework applicable in indirect-evidence cases (also called "circumstantial-evidence cases"), and we analyze the claim under the following framework: (1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is "otherwise qualified" for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged "essential" job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir.), cert. denied,Try vLex for FREE for 3 days
Access legal information from United States including:
Try vLex without any commitment for 3 days and see why you need it.
3
days of Free Access