Gianni-Paolo Ferrari v. Ford Motor Company , 826 F.3d 885 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0146p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GIANNI-PAOLO FERRARI, ┐
Plaintiff-Appellant, │
│
│
v. > No. 15-1479
│
│
FORD MOTOR COMPANY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-14857—Judith E. Levy, District Judge.
Argued: March 10, 2016
Decided and Filed: June 23, 2016
Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Charlotte Croson, NACHTLAW, P.C., Ann Arbor, Michigan, for Appellant. Julia
Turner Baumhart, KIENBAUM OPPERWALL HARDY & PELTON, P.L.C., Birmingham,
Michigan, for Appellee. ON BRIEF: Charlotte Croson, NACHTLAW, P.C., Ann Arbor,
Michigan, for Appellant. Julia Turner Baumhart, KIENBAUM OPPERWALL HARDY &
PELTON, P.L.C., Birmingham, Michigan, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. This case raises claims of unlawful employment
discrimination—claims that return us to the distinctions our case law draws between the tests
governing claims based on direct evidence of discrimination and those based on indirect
1
No. 15-1479 Ferrari v. Ford Motor Co. Page 2
evidence. In February 2013, Ford Motor Company temporarily bypassed Gianni-Paolo Ferrari
for a skilled trades apprenticeship. Ferrari alleges that Ford’s decision was unlawful
discrimination under the Americans with Disabilities Act (ADA) and the Michigan Persons with
Disabilities Civil Rights Act (PWDCRA), and retaliation under the Family Medical Leave Act
(FMLA). The district court granted summary judgment to Ford. We affirm, though we do so by
applying the tests and following the analysis specified by our precedent.
I. BACKGROUND
Ford Motor Company hired Ferrari in 1996. He initially worked in assembly and was a
member of the United Auto Workers (UAW). He is still employed by Ford.
In 2000, Ferrari suffered a neck injury at work, placing him on medical leave from June
2001 to April 2003. After Ferrari returned from medical leave, Ford accommodated his
restrictions for the next nine years by placing him in various light-work positions. The last of
these placements was in a human resources office.
During this period, Ferrari applied for and received leave under the FMLA four times. At
least two of the FMLA requests stemmed from his neck injury. The fourth, in summer 2012, was
for stress and major depression, which Ferrari attributed to his immediate supervisor in the
human resources department.
On November 21, 2012, while Ferrari was still on medical leave, his pain management
doctor, Dr. William Kole, agreed to remove his work restrictions. Until that point, Ferrari’s
restrictions had been classified as “permanent.” In December, he returned from FMLA leave and
testified that he was feeling better and wanted to get back to work. Ferrari was also hopeful that
he would soon be able to leave the human resources office, as Dr. Kole had removed his
restrictions, and he had heard a rumor that he might be called to apprentice in the trades.
On December 3, 2012, Dr. Arthelia Brewer, one of Ford’s company doctors, conducted a
physical to determine whether Ferrari could return from medical leave. Dr. Brewer cleared
Ferrari to return from psychiatric medical leave. Ferrari also asked Dr. Brewer to lift the
restrictions tied to his neck injury. According to Dr. Brewer’s notes, Ferrari told her that “he
No. 15-1479 Ferrari v. Ford Motor Co. Page 3
requested the restrictions be lifted [by Dr. Kole] when an opportunity arose for him to go into
skilled trades.” (R. 37-1, PageID 1102.)
Dr. Brewer decided to maintain Ferrari’s restrictions pending further testing and review.
In her notes, she expressed a need to ascertain “why the restrictions were suddenly removed
especially since [Dr. Kole’s] most recent progress notes to date found his [sic] disabled and the
ongoing need for narcotic medications.” (R. 37-1, PageID 1103.) With regard to the latter
concern about opioids, Dr. Brewer’s notes indicated that on December 21, 2005, another doctor
had found that Ferrari was “latrogenically addicted to narcotics” and determined that he could
not “return to his employment at [Ford] while he is on these narcotics.” (Id.) In her treatment
plan, Dr. Brewer stated that she would obtain additional medical records, including Ferrari’s
most recent MRI reports, and contact Dr. Kole to clarify his decision. She also ordered new MRI
and EMG/NCS tests.
Ferrari testified that on December 17, 2012, the UAW informed him of two skilled trades
apprenticeships in refrigeration maintenance (RMI apprenticeship) at the Van Dyke plant. There
is a wait list for apprenticeship positions, and the collective bargaining agreement between UAW
and Ford provides that any apprenticeship shall go to the person who is highest on the wait list,
as long as he or she is deemed qualified. Ferrari’s position on the wait list guaranteed him one of
the two RMI apprenticeships if he passed a pre-apprenticeship physical.
Ferrari’s pre-apprenticeship physical was scheduled for January 16, 2013, with Dr.
Brewer. In advance of this physical, Ferrari obtained clearances from two other doctors—Dr.
David Calton and Dr. Michael Louwers—and a functional capacity evaluator, David Brown.
Although Dr. Calton and Dr. Louwers both concluded that Ferrari’s neck injury no longer
required physical restrictions, they did not address Ferrari’s opioid use. Dr. Calton’s chart entry
indicated that Ferrari was still actively using opioids, but did not address whether the opioids
could affect his performance on the job. Dr. Louwers’s letter did not mention Ferrari’s opioid
use at all.
No. 15-1479 Ferrari v. Ford Motor Co. Page 4
Dr. Brewer conducted Ferrari’s pre-apprenticeship physical on January 16, as scheduled.
Ferrari brought the clearances from Dr. Calton and Dr. Louwers to the appointment.1 In her
notes, Dr. Brewer observed that Dr. Kole had not responded to her inquiry as to “what changed
to warrant dropping all restrictions after 9 years.” (R. 37-7, PageID 1140.) She also noted that
Ferrari’s medical records indicated that he was still using opioids. On his pre-apprenticeship
medical questionnaire, however, Ferrari stated that he had already weaned off opioids. Dr.
Brewer decided to “[m]aintain [Ferrari’s] existing restrictions pending further evaluation.” (Id.)
To that end, she resolved to obtain a job description for the RMI position, follow up with the
functional capacity evaluator, obtain further information on Ferrari’s opioid use, and schedule an
independent medical examination with a neurosurgeon.
On February 7, 2013, Dr. Brewer sent a letter to Dr. Kole in which she provided the job
description for the RMI apprenticeship and inquired about whether Ferrari could “safely execute
the tasks required while taking [opioids].” (R. 36-16, PageID 977.) According to the job
description, RMI apprentices must climb 30-50 foot ladders and open and close large overhead
valves; the RMI apprenticeship supervisor, Thomas Ternan, also testified that they must work at
heights on overhead catwalks and mobile elevated work platforms. In his reply, which Dr.
Brewer did not receive for another three or four weeks, Dr. Kole said that Ferrari was not
addicted to opioids, that it would take three to four months to wean off the opioids, and that the
opioids did not affect Ferrari’s physical performance, mental clarity, or cognitive functioning.
Dr. Kole concluded that Ferrari was “safely able to perform all functions listed in the RMI job
description.” (Id.)
Dr. Brewer also scheduled an independent medical examination with Dr. Phillip
Friedman for January 29, 2013, which both parties acknowledged as binding. Dr. Brewer
received Dr. Friedman’s report sometime between February 14 and February 21. In the report,
Dr. Friedman determined that from “a purely objective physical perspective,” Ferrari was “able
to perform the tasks described as a RMI tradesman without restriction.” (R. 37-5, PageID 1134.)
He also acknowledged that Ferrari claimed to have been off opioids for three months. Dr.
Friedman pointed out, however, that Ferrari’s claim was not substantiated by his medical records
1
After the physical, Ferrari also obtained a clearance from Dr. Vittorio Morreale on January 31, 2013.
No. 15-1479 Ferrari v. Ford Motor Co. Page 5
because “as of January 7, 2013 he reported to Dr. Calton that he [was] still on Diazepam,
Morphine, and Kadian.” (R. 37-5, PageID 1133.) Accordingly, Dr. Friedman concluded, if
Ferrari “currently remains on opioids”—as the medical records indicated—he “would not allow
[Ferrari] to resume unrestricted employment” because “the use of opioids may affect his
performance.” (R. 37-5, PageID 1134.)
On February 27, 2013, Dr. Brewer removed two of Ferrari’s four restrictions. Based on
Dr. Friedman’s report and the other clearances, Dr. Brewer concluded that Ferrari was “able to
work without restrictions from a physical perspective.” (R. 37-2, PageID 1106.) However,
pursuant to Dr. Friedman’s recommendation, Dr. Brewer maintained the ladder-climbing and
overhead-work restrictions “until Mr. Ferrari is taken off the prescribed opioids which, per Dr.
Kole, will take approximately 3-4 months,” clarifying that the overhead-work restriction would
be “synonymous with no working at heights.” (Id.) She also noted that Ferrari would be
“reassessed in 3-4 months to monitor the progress of weaning him from these medications” and
“[i]f this process is successful and documented, the remaining restrictions will be removed.”
(Id.)
The RMI apprenticeship supervisor, Tom Ternan, reviewed Ferrari’s two restrictions to
determine whether he could participate in the program. Ternan concluded that Ferrari’s
restrictions precluded him from participating in the apprenticeship “[b]ecause having the ability
to work overhead and climb ladders on a daily basis are essential to performing any RMI job.”
(R. 33-11, PageID 801.) “While an apprentice could, theoretically and occasionally, stay on the
ground while a supervising journeyman climbed the ladder,” Ternan explained further, “[t]he
climbing of the ladder is essential to learning the task to be performed at the top of the ladder,
which is also an essential function of the position, whether it be checking fluid levels, venting
fluids, mixing chemicals, monitoring or repairing HVAC equipment, opening or closing a
multitude of valves, sometimes on an emergency basis to prevent an explosion, or the like.” (R.
33-11, PageID 801-02.) Ternan’s supervisor, Rob Shaver, also signed off on this decision.
After Ternan and Shaver concluded that Ferrari could not participate in the
apprenticeship program, the labor relations supervisor, Linda Beggs, contacted the UAW
representative, who informed her that the collective bargaining agreement had a provision for
No. 15-1479 Ferrari v. Ford Motor Co. Page 6
temporarily “bypassing” candidates whose medical restrictions prevent them from performing
essential functions of an apprenticeship. Ferrari was temporarily bypassed for the RMI
apprenticeship in February 2013. Another candidate filled the RMI opening in March 2013.
Ford placed Ferrari in a machining associate position that met his restrictions. In
September 2013, Ferrari notified the Joint Apprenticeship Committee that his restrictions had
expired. He is first on the wait list for an apprenticeship at the Van Dyke and Sterling plants.
Ferrari sued Ford in November 2013 for violations of the ADA, PWDCRA, and FMLA.
In October 2014, Ford moved for summary judgment on his claims. The district court
subsequently ordered supplemental briefing on whether the case involved the direct or indirect
method of proving a disability claim, the correct standard under each method, and whether
Ferrari had satisfied the relevant standard. In March 2015, the district court granted Ford’s
motion for summary judgment. This appeal followed.
II. ANALYSIS
We review de novo the district court’s grant of summary judgment. Cass v. City of
Dayton, 770 F.3d 368, 373 (6th Cir. 2014). Summary judgment is appropriate if, viewing the
facts and reasonable inferences in the light most favorable to the nonmoving party, there are no
genuine issues of material fact for trial. Fed. R. Civ. P. 56(a); Cass, 770 F.3d at 373.
A. Disability Discrimination
To recover on a claim for discrimination under the ADA, a plaintiff must show that he or
she (1) is disabled, (2) otherwise qualified to perform the essential functions of the position, with
or without accommodation, and (3) suffered an adverse employment action because of his or her
disability. See Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996); Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 317, 321 (6th Cir. 2012) (en banc) (abrogating
Monette in part by holding that a plaintiff must show that he or she suffered an adverse
employment action “because of” rather than “solely by reason of” disability). A plaintiff may do
so “by introducing direct evidence of discrimination, including evidence that the employer relied
No. 15-1479 Ferrari v. Ford Motor Co. Page 7
upon the plaintiff’s disability in making its employment decision, or by introducing indirect
evidence of discrimination.” Monette, 90 F.3d at 1178 (citation omitted).
The direct method mirrors the requirements listed above. If there is direct evidence that
the plaintiff suffered an adverse employment action because of his or her disability, the plaintiff
then “bears the burden of establishing that he or she is ‘disabled’” and “‘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.” Monette, 90 F.3d at 1186. Once the plaintiff has established these elements,
the employer “bear[s] the burden of proving that a challenged job criterion is essential . . . or that
a proposed accommodation will impose an undue hardship upon the employer.” Id.
The indirect method adapts the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
burden-shifting framework. Monette, 90 F.3d at 1179-82. To establish a claim for disability
discrimination under the indirect method, a plaintiff must first establish a prima facie case of
discrimination by showing that (1) he or she is disabled, (2) he or she is otherwise qualified for
the position, with or without reasonable accommodation, (3) he or she suffered an adverse
employment decision, (4) the employer knew or had reason to know of the plaintiff’s disability,
and (5) the position remained open while the employer sought other applicants or the disabled
individual was replaced. Id. at 1186; Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011)
(reaffirming that “Monette states the proper test” under the indirect method). Once the plaintiff
establishes a prima facie case under the indirect method, the burden shifts to the defendant to
“offer a legitimate explanation for its action.” Monette, 90 F.3d at 1186. If the defendant does
so, the burden then shifts back to the plaintiff, who “must introduce evidence showing that the
proffered explanation is pretextual.” Id.
“Distinguishing between cases that involve direct evidence of discrimination and those in
which the plaintiff is not able to introduce direct evidence is vital because the framework for
analyzing the two kinds of cases differs.” Id. at 1184. When an “employer acknowledges that it
relied upon the plaintiff’s handicap in making its employment decision . . . [t]he McDonnell
Douglas burden shifting approach is unnecessary because the issue of the employer’s intent, the
issue for which McDonnell Douglas was designed, has been admitted by the defendant . . . and
No. 15-1479 Ferrari v. Ford Motor Co. Page 8
the plaintiff has direct evidence of discrimination on the basis of his or her disability.” Id. at
1182 (citation omitted).
The district court appears to have analyzed the present case under the direct method
alone. Ferrari, however, alleged two claims for disability discrimination: a claim under the
direct method based on his opioid use, and a claim under the indirect method based on his neck
injury. The district court’s determination that Ferrari’s opioid use was not a disability under the
ADA—and thus that he lacked a claim for disability discrimination under the direct method—
resolved the first claim but not the second. For the reasons stated below, we nevertheless affirm
the district court’s decision to grant summary judgment, because Ferrari’s disability
discrimination claims fail under both the direct and indirect methods.
1. Direct Method
Dr. Brewer’s stated reason for imposing the February 2013 restrictions was Ferrari’s
continued use of opioids, and Ford based the temporary bypass decision on these restrictions.
Ferrari does not present any other direct evidence regarding Dr. Brewer’s restrictions or Ford’s
temporary bypass decision.2 To proceed under the direct method, then, Ferrari needed to show
that opioid use is a disability under the ADA and that he was “otherwise qualified” for the RMI
apprenticeship despite his continued opioid use. Monette, 90 F.3d at 1186. His claim fails at this
first step.
Under the ADA, the term “disability” means a physical or mental impairment that
substantially limits one or more major life activities of an individual; a record of such an
impairment; or being regarded as having such an impairment. 42 U.S.C. § 12102(1). Ferrari
contends that Ford regarded him as disabled because of his opioid use.
“The regarded-as-disabled prong of the ADA protects employees who are perfectly able
to perform a job, but are rejected . . . because of the myths, fears and stereotypes associated with
disabilities.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008) (quoting
2
Although the parties do not dispute the district court’s holding that Ferrari’s neck injury was a record of
disability under the ADA, Ferrari did not present any direct evidence of disability discrimination based on this
injury.
No. 15-1479 Ferrari v. Ford Motor Co. Page 9
Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008)) (internal quotation marks
omitted). “Individuals may be regarded as disabled when (1) [an employer] mistakenly believes
that [an employee] has a physical impairment that substantially limits one or more major life
activities, or (2) [an employer] mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more [of an employee's] major life activities.” Id. at 704 (quoting
Gruener, 510 F.3d at 664) (internal quotation marks omitted). Major life activities include, but
are not limited to, “[c]aring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, interacting with others, and working.”
29 C.F.R. § 1630.2(i).
Ferrari does not specify which “major life activity” Ford believed was limited by his
opioid use. He does challenge Ford’s conclusion that the opioid use precluded him from
working certain jobs. It would seem, then, that Ferrari is arguing that Ford mistakenly believed
that his opioid use substantially limited him in the major life activity of “working.”
In Daugherty, we considered a regarded-as-disabled claim in which the employer
“believed that [the plaintiff’s] back condition and current medication levels precluded him from
performing the dangerous machinery functions required of [a] particular job,” but informed the
plaintiff that he would be considered for the job “if his medication levels were reduced or
eliminated.” 510 F.3d at 706. We observed that where the major life activity at issue is working,
the statutory phrase “substantially limits” takes on special meaning . . . and
imposes a stringent standard, requiring proof that the employer regarded the
employee as significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average person
having comparable training, skills and abilities.
Id. at 704 (internal quotation marks omitted). Given this stringent standard, we held that the
plaintiff had failed “to establish a prima facie regarded-as-disabled discrimination claim . . . that
implicates the major life activity of working.” Id. at 706. “The inability to perform a single,
No. 15-1479 Ferrari v. Ford Motor Co. Page 10
particular job,” we explained, “does not constitute a substantial limitation in the major life
activity of working.” Id. at 704.3
The present case is analogous to Daugherty. Ford concluded that Ferrari’s opioid use
restricted him from working jobs that required ladder climbing or working at heights. Ford
cleared Ferrari to work in any job that did not require those activities, and in fact placed him in
both clerical and assembly positions. Moreover, like the employer in Daugherty, Ford only
barred Ferrari from a single, particular job—the RMI apprenticeship—and told Ferrari that he
would be eligible for the job once he had weaned off opioids. Thus, as in Daugherty, the
evidence does not show that Ford regarded Ferrari’s opioid use as a substantial impairment on
the major life activity of working. Ferrari’s claim therefore fails under the direct method.
2. Indirect Method
As stated above, under the indirect method, Ferrari must first establish a prima facie case
of discrimination by showing that (1) he is disabled, (2) he was otherwise qualified for the RMI
position, with or without reasonable accommodation, (3) he suffered an adverse employment
decision, (4) Ford knew or had reason to know of his disability, and (5) the RMI apprenticeship
remained open while Ford sought other applicants. Monette, 90 F.3d at 1186; Whitfield,
639 F.3d at 259 (reaffirming that “Monette states the proper test” under the indirect method).
Establishing a prima facie case of discrimination under the indirect method is “not onerous.”
Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (quoting Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If Ferrari satisfies this burden, the burden
shifts to Ford to offer a legitimate explanation for its decision to temporarily bypass Ferrari for
3
The same standard applies for the PWDCRA. See Salim v. MGM Grand Detroit, L.L.C., 106 F.
App’x 454, 458-59 (6th Cir. 2004) (applying standard to a case with both ADA and the PWDCRA
claims); Degiuli v. City of Taylor, No. 317681, 2014 WL 7338890, at *5 (Mich. Ct. App. Dec. 23, 2014)
(“While work may constitute a major life activity [under the PWDCRA], the inability to perform a
particular job does not constitute a substantial limitation. Rather, the perceived condition must
significantly impair plaintiff's ability to perform at least a wide range of jobs.” (internal quotation marks
and citations omitted)); Chiles v. Mach. Shop, Inc., 238 Mich. App. 462, 478, 606 N.W.2d 398, 407-08
(1999) (same); see also Donald v. Sybra, Inc., 667 F.3d 757, 763-64 (6th Cir. 2012) (observing that the
PWDCRA “substantially mirrors the ADA” and using ADA definitions to determine whether plaintiff
was regarded as disabled); MacDonald v. United Parcel Serv., 430 F. App’x 453, 461-63 (6th Cir. 2011)
(same).
No. 15-1479 Ferrari v. Ford Motor Co. Page 11
the RMI apprenticeship. Monette, 90 F.3d at 1186. If Ford does so, the burden then shifts back
to Ferrari, who “must introduce evidence showing that the proffered explanation is pretextual.”
Id.
In Monette, we unequivocally held that the above five-element test is the proper test for
establishing a prima facie case under the indirect method. But despite Monette, some cases in
this circuit appeared to use a three-element test instead of this five-element test. In Whitfield, we
addressed this apparent inconsistency, holding that Monette “states the proper test.” 639 F.3d at
259. The line of cases using a three-element test, we explained, stemmed from a misreading of
Monette in Mahon v. Crowell, 295 F.3d 585 (6th Cir. 2002). Specifically, “Monette is cited for
the formulation used in Mahon, and although Monette includes the three-element language, it is
not used in the context of establishing a prima facie cases for purposes of McDonell Douglas,
but is rather in the context of what is required for recovery under the ADA.” Whitfield, 639 F.3d
at 259. “Because conflicts between published cases are resolved in favor of the earlier case, we
adopt[ed] Monette’s five-element test for a prima facie case of employment discrimination under
the ADA.” Id. (citing United States v. Allen, 619 F.3d 518, 524 n.2 (6th Cir. 2010).4
In most cases decided after Whitfield, panels in this circuit have used the five-element
Monette test. See, e.g., Neely v. Benchmark Family Servs., No. 15-3550, 2016 WL 364774, at *3
(6th Cir. Jan. 26, 2016); Hurtt v. Int’l Servs., Inc., No. 14-1824, 2015 WL 5332531, at *4 (6th
Cir. Sept. 14, 2015); Yarberry v. Gregg Appliances, Inc., No. 14-3960, 2015 WL 5155553, at *6
(6th Cir. Sept. 3, 2015); White v. Standard Ins. Co., 529 F. App’x 547, 549 (6th Cir. 2013);
Roetter v. Michigan Dep't of Corr., 456 F. App’x 566, 569-70 (6th Cir. 2012). In some cases,
however, we have continued to cite the line of authority we rejected in Whitfield. See, e.g.,
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014) (citing
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008), which relied
on Mahon); see also Boileau v. Capital Bank Fin. Corp., No. 15-5820, 2016 WL 1622349, at *4
(6th Cir. Apr. 25, 2016) (citing Demyanovich); Blazek v. City of Lakewood, 576 F. App’x 512,
4
We also noted in Whitfield that using the three-element test for the indirect method would “make[] little
sense, as its third element—whether the employee was, in fact, discharged because of disability—requires at the
prima facie stage what the McDonnell Douglas burden-shifting framework seeks to uncover only through two
additional burden shifts, thereby rendering that framework wholly unnecessary.” Id.
No. 15-1479 Ferrari v. Ford Motor Co. Page 12
516 (6th Cir. 2014) (citing Demyanovich). These cases rely on Mahon’s misreading of our
published precedent, Monette, an error we corrected in Whitfield. Since these cases use the
three-element test from Mahon, they should not be cited for the prima facie test under the
indirect method. The five-element test previously articulated in Monette remains the proper test.
As occurred in Whitfield, the district court here “used the incorrect Mahon formulation of
a prima facie case” under the indirect method and, therefore, “[t]here [was] no decision
below . . . on whether [the plaintiff] ha[d] made out a prima facie case of employment
discrimination under the correct framework.” 639 F.3d at 261. And also like Whitfield, the
district court here considered the defendant’s legitimate, non-discriminatory reason for the
adverse action (i.e., Ferrari’s continued opioid use) at the prima facie case stage. Id. Faced with
this situation in Whitfield, we assumed that the plaintiff “ha[d] made out a prima facie case”
under the correct test and, finding that the plaintiff could not demonstrate a genuine dispute of
material fact as to pretext, affirmed the district court’s decision to grant summary judgment. Id.
at 261-62. The same analysis is appropriate here. Assuming a prima facie case under the correct
test, we affirm because Ferrari has not raised a genuine dispute of material fact as to pretext, as
explained below.
Dr. Brewer’s stated reason for imposing restrictions on Ferrari was his opioid use, and
Ford temporarily bypassed Ferrari for the RMI position because of these restrictions. Ferrari’s
restrictions—and the medical condition underlying them—are a legitimate, nondiscriminatory
explanation for Ford’s adverse employment decision. The burden thus shifts to Ferrari, who
“must introduce evidence showing that [Ford’s] proffered explanation is pretextual.” Monette,
90 F.3d at 1186.
To survive a motion for summary judgment, Ferrari need not definitively prove that
Ford’s reason is pretextual, but rather “must prove only enough to create a genuine issue as to
whether the rationale is pretextual.” Whitfield, 639 F.3d at 260. “Under the law of our circuit, a
plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no basis
in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that
they were insufficient to motivate the employer’s action.” Romans v. Mich. Dep’t of Human
Servs., 668 F.3d 826, 839 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400
No. 15-1479 Ferrari v. Ford Motor Co. Page 13
(6th Cir. 2009)); see also Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998) (reciting
same standard in ADA case).
This circuit has employed a version of the “honest belief” rule with regard to pretext.
The formulation used provides that as long as the employer honestly believed the reason it gave
for its employment action, an employee is not able to establish pretext even if the employer’s
reason is ultimately found to be mistaken. See Smith, 155 F.3d at 806; see also Tingle v. Arbors
at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012) (citing Smith for the honest belief rule). “[T]he
focus of a discrimination suit is on the intent of the employer,” so “[i]f the employer honestly,
albeit mistakenly, believes in the non-discriminatory reason it relied upon in making its
employment decision, then the employer arguably lacks the necessary discriminatory intent.” Id.
But to prove that the offered, non-discriminatory basis for the employment action is “honestly
held,” “the employer must be able to establish its reasonable reliance on the particularized facts
that were before it at the time the decision was made.” Id. at 807. Once the employer shows that
it “made a reasonably informed and considered decision before taking an adverse employment
action,” “the employee has the opportunity to produce proof to the contrary.” Id. (internal
quotation marks omitted).
Ferrari has failed to present evidence creating a dispute of material fact as to whether the
RMI apprenticeship decision-makers honestly believed that his restrictions reflected a reasonable
medical judgment. Dr. Brewer imposed Ferrari’s restrictions, but she was not the final decision-
maker with regard to the RMI apprenticeship. Rather, it was Ternan and Shaver who made this
decision.5 Ferrari also failed to present evidence creating a dispute of material fact as to whether
Dr. Brewer herself honestly believed that he was using opioids or honestly believed that the
opioids could affect his performance, creating a danger to him and other employees. Dr.
Brewer’s evaluation of Ferrari’s opioid use was thorough. She conducted two examinations of
Ferrari, reviewed his medical history, obtained his most up-to-date medical records, ordered new
5
Although Ferrari does not say so, it could be argued that he is asserting a “cat’s paw” theory of liability to
impute Dr. Brewer’s alleged discriminatory animus to Ternan and Shaver. See Shazor v. Prof’l Transit Mgmt., Ltd.,
744 F.3d 948, 955 (6th Cir. 2014) (“In a cat’s paw case, the plaintiff seeks to hold [an] employer liable for the
animus of a supervisor who was not charged with making the ultimate employment decision.” (internal quotation
marks omitted)). Even if Ferrari had asserted such a theory, however, it would not help his claim, because he has
not presented evidence that Dr. Brewer was motivated by discriminatory animus.
No. 15-1479 Ferrari v. Ford Motor Co. Page 14
tests, ordered an independent medical examination to resolve discrepancies in his medical record,
and revised his restrictions based on this new information.
We are unpersuaded by Ferrari’s arguments as to why Ford’s explanation was pretextual.
Ferrari claims that he had ceased using opioids when Dr. Brewer imposed restrictions, but he has
not presented evidence creating a dispute of fact as to whether Dr. Brewer honestly believed he
was using opioids. His medical record indicated that he was addicted to opioids and was still
“actively” using them. Ferrari also does not provide sufficient evidence to challenge Dr.
Friedman’s independent medical examination, which the parties agreed was binding. That
eleven-page report concluded (a) that the medical record did not substantiate Ferrari’s claim to
have weaned off opioids, and (b) that opioid use could affect his performance. Ferrari points to
Dr. Kole’s letter, which said that the opioids did not affect Ferrari’s performance and concluded
that Ferrari was “safely able to perform all functions listed in the RMI job description.” (R. 35-
15, PageID 977.) But Dr. Kole’s letter does not rise to the level of a material dispute because it
lacks medical explanation, and Dr. Kole admitted in his testimony that “the only way [he] would
know whether the opioids were impairing [Ferrari] either physically or mentally was if [Ferrari]
told [him].” (R. 33-7, PageID 772.)
Ferrari also points to evidence outside his medical record that, he claims, shows that
Ford’s explanation was pretextual. He references the beginning of an email in which Dr. Brewer
discusses an inquiry from workers’ compensation about whether lifting restrictions would
change his date of injury, seeking to imply that workers’ compensation personnel were against
lifting his neck-injury restrictions and that Dr. Brewer was sympathetic to those concerns. But
the rest of Dr. Brewer’s email explains the workers’ compensation position differently, showing
that such a conclusion is unwarranted. The email concludes, moreover, with Dr. Brewer’s
primary medical concern: the potential side effects of opioids on Ferrari’s ability to perform the
RMI trades position. Ferrari also challenges Ford as changing its explanation for the adverse
employment decision, but Dr. Brewer revised Ferrari’s restrictions before Ford made the adverse
employment decision and, more importantly, she did so pursuant to the recommendation of an
independent medical examination that the parties agreed was binding. Lastly, Ferrari claims that
Dr. Brewer “hid” Ford’s medical records from him because she did not release them immediately
No. 15-1479 Ferrari v. Ford Motor Co. Page 15
when they became available. Ford, however, had a policy of providing medical records within
15 days, and Ferrari does not allege that Ford exceeded this period.
Ferrari’s evidence does not create a genuine dispute of material fact about whether Dr.
Brewer relied on Dr. Friedman’s binding medical examination, nor does it create a genuine
dispute about whether Dr. Brewer honestly believed that Ferrari was using opioids or that opioid
use could affect his performance. And without regard to Dr. Brewer’s medical evaluation,
Ferrari’s claim would fail for another reason: he has not presented any evidence that the RMI
apprenticeship decision-makers did not honestly believe that his restrictions reflected a
reasonable medical judgment. Ferrari has thus failed to present sufficient evidence of pretext to
survive summary judgment.
B. FMLA Retaliation
A plaintiff can prove an FMLA retaliation claim using direct or circumstantial evidence.
Daugherty, 544 F.3d at 707. Ferrari does not present any direct evidence of FMLA retaliation.
To establish a prima facie case of FMLA retaliation under the indirect method, a plaintiff must
show that (1) he or she engaged in an activity protected by the FMLA; (2) the employer knew
that he or she was exercising FMLA rights; (3) he or she suffered an adverse employment action;
and (4) there was a causal connection between the protected FMLA activity and the adverse
employment action. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012).
Once a plaintiff has established a prima facie case of FMLA retaliation, the analysis follows the
familiar McDonnell Douglas burden-shifting framework. Id.
The district court concluded that Ferrari could not establish a prima facie case of FMLA
retaliation because Ferrari had not presented any evidence that (a) Dr. Brewer or the FMI
apprenticeship decision-makers knew about his FMLA leave, or (b) a causal connection existed
between the FMLA leave and the apprenticeship decision. In his opening brief, Ferrari points to
several instances in which Dr. Brewer’s notes mention that he had been on psychiatric medical
leave. Although these notes do not evidence knowledge of his FMLA activity, he argues that
“[a] jury could infer that Dr. Brewer’s knowledge of [his] ‘medical leave’ extended to his FMLA
leaves, which were documented in his personnel records.” (Appellant’s Br. at 55.)
No. 15-1479 Ferrari v. Ford Motor Co. Page 16
This is not a reasonable inference based on the evidence in the record. Ferrari has not
presented any evidence that Dr. Brewer had access to his personnel file, let alone reviewed it.
His speculation as to this point is insufficient at summary judgment. See Pearce v. Faurecia
Exhaust Sys., Inc., 529 F. App’x 454, 458 (6th Cir. 2013) (“Conclusory allegations, speculation,
and unsubstantiated assertions are not evidence, and, are not enough to defeat a well-supported
motion for summary judgment.”). Additionally, as Ford points out, Ferrari’s psychiatric leave
did not actually count as FMLA leave, though he did use two days of FMLA leave under
previous certifications. Accordingly, Ferrari needed to show that Dr. Brewer knew about these
previous certifications. He has not done so.
To establish a prima facie case of FMLA retaliation, Ferrari needed to present evidence
of a causal connection between his FMLA leave and the adverse employment action. He does
not even argue this point in his opening brief, and his reply brief abandons the FMLA claim
entirely. Ferrari’s FMLA retaliation claim therefore fails for this reason as well.
III. CONCLUSION
Ferrari’s evidence does not create a genuine dispute of fact as to the disability
discrimination claim or the FMLA retaliation claim. For the foregoing reasons, we AFFIRM the
district court’s grant of summary judgment.