Robert Cady v. Remington Arms Co. , 665 F. App'x 413 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0647n.06
Case No. 16-5035
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 02, 2016
DEBORAH S. HUNT, Clerk
ROBERT B. CADY, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
REMINGTON ARMS COMPANY, ) KENTUCKY
)
Defendant-Appellee. )
BEFORE: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.
COOK, Circuit Judge. In 2013, Remington Arms Company fired its engineer Robert
Cady. Cady sued, claiming wrongful discharge and failure to accommodate his back injury in
violation of the Americans with Disabilities Act (“ADA”), and alleging that Remington failed to
honor his severance agreement. Reasoning that Cady neither notified Remington that he was
disabled nor sought an accommodation, the district court granted Remington’s motion for
summary judgment on the ADA claim. The court also granted summary judgment to Remington
on Cady’s contract claim, determining that Remington had cause to terminate Cady due to his
refusal to perform assigned work. Cady appealed. Because a reasonable jury could find that
Cady both notified Remington of his disability and requested an accommodation, we REVERSE.
Case No. 16-5035
Robert Cady v. Remington Arms Co.
I.
A. Cady’s Back Problems Before Joining Remington
In 2000, Cady hurt his back while bending over to tie his shoe. Surgery relieved the pain
until 2007, when his back pain flared again. He underwent a second surgery in 2008, and for a
brief period the doctor restricted him from lifting and bending. Thereafter, Cady experienced
little pain, and had no occasion to request work restrictions with his light-work job.
B. Cady’s Employment Problems with Remington
Cady began working as an engineer in Remington’s Kentucky facility in 2012, where he
was assigned to a team developing the R-51 handgun. The position required Cady to attend
meetings, deal with suppliers, solve production problems, and ensure that the designers and
technical staff worked together.
From the outset, Cady clashed with team members. Cady described the environment as
“hostile” and “unhealthy,” and said that he had a “degrading relationship” with his boss. Team
members disliked working with Cady, too. One engineer found Cady to be “needlessly
confrontational” and testified that the “stress of dealing with Mr. Cady was one factor in [his]
departure from the company.” Another colleague recalled that the “team was very alienated”
and that “they were not getting along well.” Yet another co-worker described Cady as
“Dr. Jekyll and Mr. Hyde,” alternatively “argumentative and confrontational” or “unconcerned”
with the work. And although Cady’s performance-review rated him as a valued team member, it
also noted that he “struggled with identifying his role within the team” and that his “response
during points of contention bordered on personal confrontation.”
Remington reassigned Cady in April 2013 following a meeting regarding the handgun
project’s status. During that meeting, Cady disagreed with his supervisor, Mike Keeney, about
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whether to fully disclose that the R-51 prototype had failed during a test-shoot. Cady wanted to
include the details of the failure in a presentation; Keeney instead “wanted to downplay” the
failure because “[h]e was afraid that the program would get cancelled.” In addition, toward the
end of the meeting, Keeney congratulated another employee on the employee’s appointment to a
position that Cady wanted. The news angered Cady, and he threatened to resign. Remington’s
Vice President, Scott Franz, spoke with Cady after the meeting, told him to calm down, and
convinced him not to quit. Shortly thereafter, Remington transferred Cady out of the work
group.
C. Cady’s Back Pain Returns
According to Cady, his back began “progressively getting worse” in May 2013, shortly
after Remington reassigned him to the new work group. The following month he had an MRI
and scheduled a meeting with his neurologist for Friday, July 12, to discuss the MRI results. The
day before the neurologist appointment, Cady told Laura Norwood, Remington’s HR manager,
that he was going to the doctor due to back pain, and shared his MRI results with her. This was
the first time that Cady told anyone at Remington about his back issues.
The MRI disclosed significant lower back problems, including spinal stenosis and nerve
compression. Cady’s doctor prescribed only pain medication because he was concerned that
another intrusive surgery might exacerbate the pain. Cady told the doctor that his job was
sedentary, and they agreed that he did not need any work restrictions.
D. The Events Leading to Termination
The Monday following his doctor’s appointment, Cady traveled to the Remington facility
in St. Cloud, Minnesota. Franz tasked Cady with increasing the facility’s production capacity.
Among other jobs, Franz wanted Cady to assemble Creform work stations—benches made out of
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interlocking pipes and joints that can be customized to fit a particular manufacturing task.
According to Cady, his job was to train others how to build the stations, not to construct them
himself.
Cady arrived at the facility on the morning of Tuesday, July 16, 2013, and met with Todd
Mittelstaedt, the plant manager. Mittelstaedt told him that the facility had recently lost eleven
employees and was understaffed. Furthermore, Remington’s chief operating officer had imposed
a deadline to complete the Creform stations. Mittelstaedt therefore instructed Cady to spend the
next few days building work benches. Cady responded that he did not have a problem
constructing the stations, though he expected other employees to help. Mittelstaedt responded
that the facility’s production manager, Lee Vogel, would help Cady build the stations.
Vogel and Cady walked to a paved lot behind the facility, where the unassembled
Creform components were stacked in the back of a semi-truck. Vogel climbed into the truck and
pulled the parts to the mouth of the trailer bed, where Cady unloaded them. Shortly after starting
the work, Cady told Vogel that his medication made him sensitive to sunlight. Vogel gave him
sunscreen, and they moved to the shade.
As the morning progressed, Cady worried about aggravating his back injury. Vogel had
stepped away from the project, leaving Cady to build the stations alone. According to Cady,
climbing in and out of the truck to off-load the parts irritated his back. And to build the stations,
he had to fasten and screw bolts, bend over, and saw pipe, which he thought might also strain his
back. In addition, he fretted about standing for long periods on the pavement.
Shortly before lunch, Cady spoke with Greg Parker, one of his supervisors in Kentucky,
“about the unsafe conditions” at the facility. Parker testified that Cady told him that “[h]e was
concerned about his back, doing this up and down” and that “he didn’t want to stand on concrete
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for long periods of time because . . . he felt he was hurting his back.” Cady also told Parker that
“it was not conducive for him to be in the sun at that time because of his medication.” And Cady
recommended that they “hire a lower paid person to . . . help him do this work, that he was above
this pay grade to be doing this work out in the sun.” Parker instructed Cady to ask Vogel for
better accommodations at the facility.
After speaking with Parker, Cady went to the conference room and worked on his
computer. Vogel found Cady in the conference room. Cady expressed reservations about
continuing to build the stations, and Vogel recommended they talk to Mittelstaedt. In
Mittelstaedt’s office, Cady told Mittelstaedt for the first time that he had concerns about his
back. Cady also told Mittelstaedt that he could continue to work on the benches, but that he
needed to “mix it up” and not work exclusively on the stations. According to Mittelstaedt and
Vogel, Cady also complained that Remington had not hired someone else to build the stations,
that his medication made him sensitive to sunlight, that he had been locked out of the building,
and that there was too much forklift traffic behind the facility.
Mittelstaedt called Parker after the meeting. According to Parker, “Todd indicated that
[Cady] had met with him and that [Cady] had explained that he had a back surgery and a concern
of standing on concrete. . . . Todd indicated [] that he didn’t need [Cady] there if [Cady] was
going to not be able to perform the physical labor of building the Creform stations.”
In the mid-afternoon, Parker called Cady and told him to return to his hotel. That
evening Cady’s supervisors and Norwood called Cady at his hotel, and told him to return to
Kentucky the following day. When he arrived at work on Thursday morning, Remington fired
him for “performance issues.”
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II.
The court “review[s] a grant of summary judgment de novo, construing the evidence and
drawing all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp., Inc.,
656 F.3d 359, 362 (6th Cir. 2011). “Summary judgment is appropriate where the movant
demonstrates that there is ‘no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.’” Rocheleau v. Elder Living Constr., L.L.C., 814 F.3d 398, 400
(6th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
III.
A. Failure to Accommodate
The ADA prohibits employers from “discriminat[ing] against a qualified individual on
the basis of disability,” 42 U.S.C. § 12112(a), which includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability,” unless the accommodation would impose an undue hardship on the business,
id. § 12112(b)(5)(A). To establish that Remington failed to accommodate his disability, Cady
must show 1) that he is disabled, 2) that he is otherwise qualified for the position, 3) that
Remington knew of his disability, 4) that he requested an accommodation, and 5) that Remington
failed to provide the necessary accommodation. See Kleiber v. Honda of Am. Mfg., Inc.,
485 F.3d 862, 869 (6th Cir. 2007); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046–47
(6th Cir. 1998); Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir. 1997) (discussing analogous
accommodation provision under the Rehabilitation Act). The employer may defend by showing
that the proposed accommodation will impose an undue hardship on the business. Kleiber,
485 F.3d at 869; Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004).
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Cady argues that Remington failed to accommodate his back injury during his trip to
Minnesota. The district court found that Cady failed to produce evidence that Remington knew
he was disabled or that he asked for an accommodation.
1. The Notice Requirement
The ADA prohibits discrimination “on the basis of disability,” 42 U.S.C. § 12112(a),
which we have held requires that the employer knew or should have known that the employee
was disabled. Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999); see also
29 C.F.R. pt. 1630 app. § 1630.9. In the typical case, “[a]n employer has notice of the
employee’s disability when the employee tells the employer that he is disabled.” Hammon,
165 F.3d at 450 (citing Gantt, 143 F.3d at 1046). Of course, the employee need not use the word
“disabled,” but the employer must know enough information about the employee’s condition to
conclude that he is disabled. See Leeds v. Potter, 249 F. App’x 442, 449 (6th Cir. 2007).
Relevant information could include, among other things, a diagnosis, a treatment plan, apparent
severe symptoms, and physician-imposed work restrictions. See Yarberry v. Gregg Appliances,
Inc., 625 F. App’x 729, 737–38 (6th Cir. 2015).
Given the factual scenario Cady offers—which we must accept as true—a reasonable fact
finder could determine that Cady notified Remington that he was disabled. First, Cady testified
that the Thursday before flying to Minnesota, he told Norwood that he would be leaving work
early to see a surgeon about his back pain. He also testified that he shared with her the results of
his MRI, which disclosed “moderate to severe” spinal stenosis and nerve compression. Second,
Cady’s mid-morning call to Parker included two references to his back issues. Third, Cady told
Mittelstaedt that he was concerned that building the stations would hurt his back, and
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Mittelstaedt relayed Cady’s concerns to Parker. Both Norwood and Parker were instrumental in
recalling Cady to Kentucky and making the firing decision.
Taken together, a jury could find Cady’s complaints about his back, coupled with
Remington’s knowledge of his surgeries, recent doctor’s visit, and MRI results, sufficient to put
Remington on notice that he was disabled.
Remington provides several arguments to the contrary. While a jury might find these
persuasive, they do not entitle Remington to judgment as a matter of law. First, Remington
contends that Cady expressed only a “concern” about his back to Parker and Mittelstaedt. If the
sole evidence of notice was a vague assertion of concern, Remington’s argument would have
force. After all, many healthy people worry about their backs. But Cady also testified that he
told Norwood about his back surgery, informed her that he was going to a surgeon to address the
pain, and shared with her the MRI results. Second, Remington argues that “Cady embedded his
complaint about his back within a series of other complaints and objections.” Although a jury
could find that Cady’s litany of excuses obfuscated his complaint about his back, there is no rule
that an employee’s disability notification must stand alone. We therefore find that a jury could
reasonably determine Cady provided Remington with notice that he was disabled.
2. Request for an Accommodation
In addition to notifying the employer of a disability, an employee must inform the
employer of limitations arising from the disability and request an accommodation. Gantt,
143 F.3d at 1046–47. An employee must affirmatively request an accommodation because many
disabled people do not need an accommodation, and the employee is in the best position to know
how the disability impacts their work. Furthermore, the ADA generally prohibits employers
from inquiring about a disability’s severity. See 42 U.S.C. § 12112(d). Thus, “[t]he employer is
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not required to speculate as to the extent of the employee’s disability or the employee’s need or
desire for an accommodation.” Gantt, 143 F.3d at 1046–47. But once an employee notifies the
employer of any limitations and requests an accommodation, the employer must discuss the
limitations and potential accommodations with the employee. See Kleiber, 485 F.3d at 871;
29 C.F.R. § 1630.2(o)(3).
Here, a jury could find that Cady informed Remington that his back problems limited his
ability to 1) climb into and out of the semi-truck, and 2) stand for long periods on pavement.
Parker’s deposition confirmed that Cady told him that “[h]e was concerned about his back, doing
this up and down” and that “he didn’t want to stand on concrete for long periods of time because
. . . he felt he was hurting his back.” Furthermore, Parker garnered information regarding Cady’s
limitations from Mittelstaedt’s post-meeting call. Thus, Remington’s decision-makers did not
need to speculate about limitations arising from Cady’s back problems: Cady told them himself.
In addition, Cady told Mittelstaedt that he was willing to continue building the stations, but that
he would need to “mix it up” and not work exclusively on the benches. In short, Cady identified
specific ways that his back problems limited his ability to build Creform stations and asked to
mix up his work tasks.
Remington argues that asking to “mix it up” is not a sufficiently specific request for an
accommodation. But Cady’s request was specific enough under the ADA to require Remington
to inquire further about “the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” Kleiber, 485 F.3d at 871(quoting 29 C.F.R. § 1630.2(o)(3)).
Accordingly, a reasonable jury could find that Cady adequately informed Remington of
the limitations arising from his back problems and requested an accommodation.
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B. Wrongful Discharge
In addition to the failure to accommodate claim, Cady argues that Remington fired him
because his back problems prevented him from building the Creform stations. Cady relies on
both direct and circumstantial evidence to establish his wrongful discharge claim.
1. Direct Evidence
Direct evidence is “evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (quoting Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). Cady points to evidence that
he claims requires the conclusion that discrimination motivated the termination.
First, Cady argues that Mittelstaedt’s comment that “he did not need a ‘pencil pusher’
who ‘was going to not be able to perform the physical labor of building the Creform stations’” is
direct evidence of discrimination. But Mittelstaedt was not involved in the decision to terminate
Cady, and therefore his statement is not direct evidence of discrimination. Second, Cady points
out that “there were no plans to terminate [him] before his trip to Minnesota, and that the events
of the Minnesota trip directly led to [his] termination.” The fact finder, however, still must infer
that it was Cady’s inability to construct the stations, and not his history of argumentativeness,
that led to the firing. Accordingly, Cady has not provided direct evidence of discrimination.
2. Circumstantial Evidence
To make a prima facie showing of wrongful discharge through circumstantial evidence,
Cady must show that 1) he is disabled, 2) he is “otherwise qualified for the position,” 3) he
“suffered an adverse employment decision,” 4) Remington “knew or had reason to know” of
Cady’s disability, and 5) the “position remained open while the employer sought other applicants
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or the disabled individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253, 258–59 (6th Cir.
2011) (quoting Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007)).
“[O]nce a plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a
non-discriminatory explanation for the employment action[.]” Id. (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04 (1973)). The plaintiff must then show that the defendant’s
explanation is pretextual. Id.The district court dismissed Cady’s wrongful discharge claim because it found Cady
failed to notify Remington of his disability. We, however, decide here that a jury could find that
Cady notified Remington that he was disabled. Remington does not otherwise argue on appeal
that Cady failed to make out a prima facie case. The burden therefore shifts to Remington to put
forth a legitimate reason for terminating Cady.
Remington argues that Cady’s poor performance, including his aggressive attitude and
lack of professionalism, is a legitimate non-discriminatory reason for termination. See Stockman
v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 802 (6th Cir. 2007). Cady does not dispute that
poor performance is a non-discriminatory justification, but argues instead that Remington’s
justification is pretextual. “[P]retext is a commonsense inquiry: did the employer fire the
employee for the stated reason or not?” Montell v. Diversified Clinical Servs., Inc., 757 F.3d
497, 508 (6th Cir. 2014) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir.
2009)). A plaintiff establishes pretext by showing that the alleged non-discriminatory reason for
the termination has no basis in fact, did not actually motivate the defendant’s challenged
conduct, or was insufficient to warrant termination. See Seeger v. Cincinnati Bell Tel. Co.,
681 F.3d 274, 285 (6th Cir. 2012) (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.
2000)).
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A fact finder could determine that Cady’s performance issues didn’t warrant firing.
Indeed, this case is similar to Yazdian v. ConMed Endoscopic Tech., Inc., 793 F.3d 634, 642 (6th
Cir. 2015), where the plaintiff complained that his boss was creating a hostile work environment.
Shortly after his complaints, the employer fired Yazdian, blaming his long history of negativity
and unprofessional behavior. Id. at 644. We found that a jury could determine that the
employer’s explanation was pretextual, reasoning in part that though multiple supervisors
“cautioned Yazdian about his communication style, they were not clear with Yazdian that these
behavioral issues might lead to his termination.” Id. at 653. His performance reviews were
generally positive, with “good” or “very good” in all categories. Id. And although the
performance review opined that “Yazdian’s communications could be ‘overly negative’ when
frustrated, [it] did not provide any suggestion that this was a major concern.” Id.
Here, prior to Cady’s trip to Minnesota, there is little evidence of Cady’s unproductivity
or poor work. Indeed, his performance evaluation rated him as either “valued” or “highly
valued,” depending on the topic. His supervisor evaluated him as “very well organized” and
good at coming up with “very detailed plans.” Franz pressed him not to resign following the
April 2013 meeting. And it does not appear anyone at Remington counseled Cady about his
work quality.
Moreover, the only contemporaneous documentation of Cady’s personality problem was
his performance review, which noted his “response during points of contention bordered on
personal confrontation.” No one at Remington otherwise counseled Cady on his workplace
demeanor or interactions with other employees. And there is no evidence that he clashed with
colleagues between the April meeting and his July trip to Minnesota.
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Remington focuses on Cady’s heated argument with his supervisor, Keeney, prior to the
team’s presentation about the handgun project’s status. Remington claims Cady had a
“meltdown” over the formatting of power-point slides. According to Cady, he disagreed with
Keeney about whether to accurately report weapon failures. After Remington released the R-51,
the handgun’s failures were widely reported, leading Remington to recall the weapon. Thus, the
parties disagree whether Remington reassigned Cady because he overreacted to the formatting of
power-point slides, or because he expressed legitimate concerns about underreporting weapon
failures.
Finally, Franz testified that Remington did not plan to fire Cady prior to his trip to
Minnesota. Rather, the Creform-benches episode precipitated it. As Parker explained during his
deposition, “[Cady] wasn’t able to perform the work that we had asked him to do. . . . [I]f [he]
wasn’t going to be able to do this work, I didn’t need him at that particular point [] on my
team[.]” Remington contends that his refusal to build the stations demonstrated that he was a
malingerer. Cady counters that Remington fired him because his back problems prevented him
from building the stations. Because there are two reasonable interpretations of the evidence, one
of which supports a finding of discrimination, summary judgment was not proper on this claim.
See Yazdian, 793 F.3d at 653.
C. Severance Agreement
Cady also brings a claim for breach of a Severance Agreement. Given that issues
regarding Cady’s right to payment under that agreement turn on whether his discharge violated
the ADA, we reverse the entry of summary judgment.
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IV.
The judgment of the district court is VACATED and the case is REMANDED for
proceedings consistent with this opinion.
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