Wysong v. Dow Chem Co

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0402p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
KIMBERLY WYSONG,
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No. 05-4197
v.
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THE DOW CHEMICAL COMPANY, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 04-00007—Gregory L. Frost, District Judge.
Argued: November 28, 2006
Decided and Filed: October 1, 2007
Before: MERRITT and MOORE, Circuit Judges; COLLIER, Chief District Judge.*
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COUNSEL
ARGUED: Gary A. Reeve, KENNEDY REEVE & KNOLL, Columbus, Ohio, for Appellant.
James M. L. Ferber, LITTLER MENDELSON, Columbus, Ohio, for Appellee. ON BRIEF: Gary
A. Reeve, KENNEDY REEVE & KNOLL, Columbus, Ohio, Aaron B. Maduff, MADUFF,
MEDINA & MADUFF, Chicago, Illinois, for Appellant. James M. L. Ferber, Alison Day Hall,
LITTLER MENDELSON, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. COLLIER,
D. J. (pp. 12-14), delivered a separate opinion concurring in part and dissenting in part.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Kimberly Wysong
(“Wysong”) sued Defendant-Appellee The Dow Chemical Company (“Dow”) after Dow terminated
her employment. Wysong alleged that Dow violated her rights under both the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), and Ohio’s anti-discrimination statute, OHIO REV.
CODE § 4112.02, and also that Dow committed the state tort of wrongful discharge. The district
court granted Dow’s motion for summary judgment on all of Wysong’s claims. Because the district
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee,
sitting by designation.
1
No. 05-4197 Wysong v. The Dow Chemical Co. Page 2
court erred in its reasoning when it granted summary judgment to Dow on Wysong’s FMLA claim,
state anti-discrimination claim, and wrongful-discharge claim, we REVERSE the district court’s
judgment on these claims and REMAND to the district court for further proceedings in accordance
with this opinion.
I. BACKGROUND
Wysong worked at Dow’s Hanging Rock facility as an Operating Technician. Joint
Appendix (“J.A.”) at 295 (Wysong Dep. at 50). Her position involved placing raw material into a
laminating machine. J.A. at 299 (Wysong Dep. at 85). The raw material came into Wysong’s work
area on pallets from the warehouse, and a fork truck (sometimes operated by Wysong) was used to
load the laminating machine. Id. The machine had moving parts, and the operator could sustain
serious injury if all safety precautions were not followed. J.A. at 301-02 (Wysong Dep. at 87-88).
In 2001, Wysong took 464 hours of paid medical leave, and in 2002, she took 783.5 hours
of such leave. J.A. at 345 (Wysong Dep. at 163). The leave taken during this period was for various
reasons: chronic neck and groin pain, a hernia operation, mononucleosis, a hysterectomy, and caring
for an ill child. J.A. at 210-13, 303 (Wysong Dep. at 93; Miller Dep. at 22-24, 29). Wysong always
received her full pay during these leaves. J.A. at 334-35 (Wysong Dep. at 152-53).
On February 7, 2003, Production Leader Dwight Miller (“Miller”) issued Wysong a “Letter
of Concern” stating that she had exhausted all of her paid medical leave and that if she required
additional leave before accruing further leave time, she would have to use her vacation time or take
leave without pay. J.A. at 362-63, 365 (Wysong Dep. at 189-90; Ltr. of Concern). Wysong was
required to notify Miller and to obtain his approval prior to any further absences, including planned
medical procedures. J.A. at 239, 362-63, 365 (Miller Dep. at 74; Wysong Dep. at 189-90; Ltr. of
Concern). On February 17, 2003, Miller issued Wysong a “Last Chance Letter” stating that Wysong
had reported to work late without prior notification, and that Dow would terminate Wysong for any
further performance failure. J.A. at 366 (Last Chance Ltr.). There were no further conflicts between
the parties until May 2003.
Although it is unclear how the conversation started, on May 13, 2003, Wysong conveyed that
her neck had been bothering her to Dow’s plant nurse, Janet Jones (“Jones”). J.A. at 221 (Miller
Dep. at 40). Wysong did not request any time off work in conjunction with this incident. J.A. at 223
(Miller Dep. at 42). Jones reported Wysong’s complaint to Environmental Health and Safety
Director, Troy Dehoff (“Dehoff”). Dehoff in turn notified Miller, who contacted Dr. Teter, Dow’s
Regional Medical Director. J.A. at 221-22 (Miller Dep. at 40-41).
After speaking with Miller, Dr. Teter placed Wysong on work restrictions: she was not to
lift, push, pull, or tug anything over five pounds. J.A. at 219-20 (Miller Dep. at 38-39). According
to Dr. Teter, the restrictions were issued out of his concern that Wysong was currently having “neck
trouble,” and that she had missed a lot of work in the past that “may have been due to [a] previous
neck [problem].” J.A. at 251-54 (Teter Dep. at 40-41, 43-44). Miller determined that he could not
assign Wysong to a job comporting with the work restrictions imposed by Dr. Teter, and Miller
called Wysong to tell her not to come into work. J.A. at 225-26 (Miller Dep. at 44-45).
In a letter dated May 15, 2003, Miller informed Wysong that her “request” for FMLA leave
was approved, and that because she had previously exhausted most of her FMLA leave for that leave
year, she was eligible for only three more days of FMLA leave. J.A. at 372 (Ltr. Re: Certification
of Med. Leave). Wysong brought the letter back to Human Resources Partner Tom Hutson
(“Hutson”) explaining that she had not “requested” any leave. J.A. at 127 (Hutson Dep. at 40).
Hutson reissued the letter, removing the language about her “request,” but retaining the fact that
Dow had put her on FMLA leave. Id.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 3
Dow’s Medical Review Board met to discuss Wysong’s case. The Medical Review Board
concluded and Wysong was informed that she would need to pass a functional capacity exam
(“FCE”) as a condition of returning to work. J.A. at 122-23, 227-29 (Hutson Dep. at 35-36; Miller
Dep. at 46-48). An FCE is used to determine whether an employee is physically capable of
performing a specific set of job duties. It consists of a series of tests, conducted by a physical or
occupational therapist, and is intended to duplicate actions that the employee would perform at
work. J.A. at 256-57 (Teter Dep. at 47-48).
On May 20, 2003, Wysong signed release forms authorizing Dow to obtain medical
information from her treating physicians and providers. J.A. at 370-71 (Signed Authorization for
Info. Forms). After reviewing Wysong’s medical records (obtained as a result of the medical
releases signed by Wysong), Dr. Teter found a comment by one of Wysong’s treating physicians that
Wysong was possibly exhibiting “drug-seeking behavior.” J.A. at 262-63, 270-71, 352 (Teter Dep.
at 54-55, 63-64; Wysong Dep. at 170). Dr. Teter took this to mean that Wysong was “drug
dependen[t].”1 J.A. at 262-63, 270-71 (Teter Dep. at 54-55, 63-64).
Without consulting with any of Wysong’s treating physicians, Dr. Teter decided that Wysong
could not take the FCE unless she stopped taking all pain medication for two weeks. J.A. at 260-61
(Teter Dep. at 51, 53). In addition to being concerned about the safety risks associated with her
taking narcotic drugs while working with the laminating machine and the fork truck, Dr. Teter
believed that if Wysong took the FCE while taking these narcotics, the result of the test would be
invalid. J.A. at 258, 265 (Teter Dep. at 49, 57). Wysong maintains that she refused to stop taking
her pain medication for two weeks on the advice of one of her physicians. J.A. at 359 (Wysong Dep.
at 177).
Because Wysong did not stop taking her pain medication, Dow refused to give her the FCE.
J.A. at 373 (Ltr. Re: Extension of Med. Leave). On June 23, 2003, Dow placed Wysong on unpaid
leave, effective July 7, 2003, “pending a release to work without restrictions” from both her
physician and from Dow’s medical department. Id. Wysong did not obtain any work releases, and
on December 3, 2003, Dow terminated Wysong, basing the decision on its policy of terminating
employees who are “on a medical leave of absence status for a continuous period of six months.”
J.A. at 360, 374 (Wysong Dep. at 178; Termination Notification Ltr.).
Wysong sued Dow in the district court alleging that Dow’s conduct violated both the FMLA
and Ohio’s anti-discrimination statute, and also constituted wrongful discharge. The district court
granted Dow summary judgment on all of Wysong’s claims. This appeal followed.
II. ANALYSIS
A. Standard of Review
“We review de novo the district court’s grant of summary judgment.” Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). The district court’s grant of
summary judgment to Dow was proper “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 [Dow] is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
district court must construe the evidence and draw all reasonable inferences in favor of Wysong, the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The crux of the inquiry is “whether the evidence presents a sufficient disagreement to require
1
Wysong maintains that she was not drug dependent, but rather, she had become ill on a newly prescribed drug
and had asked the physician to take her off that drug and return her to a drug that she formerly took without serious side
effects. J.A. at 352-53 (Wysong Dep. at 170-71).
No. 05-4197 Wysong v. The Dow Chemical Co. Page 4
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. FMLA Claim: Interference
The FMLA entitles qualifying employees to take up to twelve weeks of unpaid leave, without
fear of termination, when the leave is taken for, inter alia, “a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29 U.S.C.
§§ 2612(a)(1)(D), 2614(a)(1). A “serious health condition” is “an illness, injury, impairment, or
physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential
medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).
There are two recovery theories available under the FMLA: the interference theory, pursuant to 29
U.S.C. § 2615(a)(1), and the retaliation theory, pursuant to 29 U.S.C. § 2615(a)(2). Edgar v. JAC
Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006).
The district court found that Wysong’s complaint stated only a retaliation “claim” under the
FMLA, and refused to consider her FMLA claim under the interference theory. J.A. at 97 (Op. at
8 n.2). In its decision granting summary judgment for Dow, the district court determined that
Wysong did not make her prima facie case for retaliation. On appeal, Wysong argues that the
district court erred in failing to analyze her FMLA claim under the interference theory.
Under our system of notice pleading a complaint need only provide “the defendant [with]
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 127
S. Ct. 2197, 2200 (2007) (second alteration in original) (quoting Bell Atlantic Corp. v. Twombly, 127
S. Ct. 1955, 1959 (2007)). See also FED. R. CIV. P. Rule 8(a) (requiring only “a short and plain
statement of the claim” at the complaint stage).
The district court’s rejection of Wysong’s interference-theory argument evidences an overly
rigid approach which stands in conflict with our notice-pleading system. A defendant looking at
Wysong’s complaint would be on sufficient notice that she was broadly alleging violations under
29 U.S.C. § 2615, and that her FMLA claim could encompass either the interference theory, the
retaliation theory, or both theories. J.A. at 10-11 (Compl. at 4-5). Contrary to the district court’s
characterization, Wysong has never alleged a new claim since filing her complaint. The claim has
always been the same one: that Dow’s actions violated the FMLA. Although we analyze an FMLA
claim based on the interference theory differently from one based on the retaliation theory, notice
pleading does not box plaintiffs into one theory or the other at the complaint stage of an FMLA
action. Thus, Wysong did not forfeit the opportunity to present her FMLA claim under the
interference theory.
Wysong’s claim that she was terminated for taking FMLA leave is cognizable under the
(a)(1)-interference theory. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 825 (6th
Cir. 2002) (“[E]mployers are prohibited from interfering, restraining, or denying the exercise of or
attempted exercise of any FMLA right. [] § 2615(a)(1). This prohibition includes retaliatory
discharge2 for taking leave. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.
2001)”). We now turn to the applicable statutory provisions and analyze Wysong’s claim under
the interference theory.
The FMLA prohibits qualifying employers from “interfer[ing] with, restrain[ing], or
deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].”
2
We note that, in this circuit, retaliatory discharge is also cognizable under the retaliation theory, 29 U.S.C.
§ 2615(a)(2). See Arban v. West Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003). We need not analyze Wysong’s claim
under this provision, because, on appeal, Wysong’s arguments are all made under the (a)(1)-interference theory.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 5
29 U.S.C. § 2615(a)(1). To prevail under the interference theory, the employee must establish the
following:
(1) he is an “[e]ligible employee,” 29 U.S.C. § 2611(2); (2) the defendant is an
“[e]mployer,” 29 U.S.C. § 2611(4); (3) the employee was entitled to leave under the
FMLA, 29 U.S.C. § 2612(a)(1); (4) the employee gave the employer notice of his
intention to take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer denied the
employee FMLA benefits to which he was entitled.
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003). The employee must establish
these elements by a preponderance of the evidence. Sorrell v. Rinker Materials Corp., 395 F.3d 332,
335 (6th Cir. 2005). The parties agree that Wysong meets the first four elements of her case. The
question of whether Dow denied her FMLA benefits to which she was entitled (the fifth element)
is more complicated.
Quoting a case from the U.S. District Court for the Southern District of Ohio, Wysong argues
that the fifth element of an interference-theory claim is that the employer “somehow used the leave
against her and in an unlawful manner, as provided in either the statute or regulations.” Bradley v.
Mary Rutan Hosp., 322 F. Supp. 2d 926, 940 (S.D. Ohio 2004). Although this language is different
from the language used in Cavin, it does not conflict with Cavin, and, in fact, adds depth to the fifth
element articulated in Cavin. Under 29 C.F.R. § 825.220(c) “employers cannot use the taking of
FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary
actions.” We have earlier held that this negative-factor analysis is applicable in analyzing an
interference claim. See Brenneman v. Medcentral Health Sys., 366 F.3d 412, 422 (6th Cir. 2004);
Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405, 408 (6th Cir. 2003). If an employer takes an
employment action based, in whole or in part, on the fact that the employee took FMLA-protected
leave, the employer has denied the employee a benefit to which he is entitled. We, therefore, have
no objection to rephrasing the fifth element of an interference claim as being that the employer has
“somehow used the leave against her and in an unlawful manner, as provided in either the statute
or regulations.” Bradley, 322 F. Supp. 2d at 940.
Wysong’s theory is that she was eventually terminated because of her taking FMLA leave
in 2002. Wysong asserts that Dr. Teter wrote the work restrictions, in part, as a result of his
knowledge that she had taken significant leave time in the past. The work restrictions prevented her
from working, and she states that she could not comply with Dow’s mandate that she go off all pain
medications for two weeks before taking the FCE. Because she was not reporting to work, Dow
terminated her. According to Wysong, this chain of events indicates that Dow used her 2002 FMLA
leave time as a negative factor in its decision to terminate her. Wysong Br. at 20.
Dow acknowledges that Dr. Teter considered Wysong’s previous absences when he issued
the work restrictions and required Wysong to take the FCE without pain medications, but argues that
he could consider her previous absences, because Dr. Teter did not write the restrictions solely on
the basis of her missing work in 2002. Dow Br. at 26-27. This argument stands in direct conflict
with the rule that “employers cannot use the taking of FMLA leave as a negative factor in
employment actions.” 29 C.F.R. § 825.220(c) (emphasis supplied). See also Cavin, 346 F.3d at 726
(“[A] termination based only in part on an absence covered by the FMLA, even in combination with
other absences, may still violate the FMLA.”) (internal quotation marks omitted).
Dow also argues that “[n]othing in the FMLA, its regulations, or the case law states that
FMLA leave can never be considered by an employer for any purpose, or that it cannot be taken into
consideration by medical personnel in making medical decisions.” Dow Br. at 27. Further, Dow
asserts that “[i]t would be illogical to presume that the FMLA makes it unlawful for a company
No. 05-4197 Wysong v. The Dow Chemical Co. Page 6
physician to consider that a medical condition required an employee to miss work in determining
what steps need to be taken to protect that employee from injury.” Id. at 27-28.
These arguments suffer from the same malady: they are based on the false premise that Dr.
Teter knew that Wysong missed work in 2002 based on a neck condition. Dr. Teter had no idea why
Wysong missed work in 2002. J.A. at 251-54 (Teter Dep. at 40-41, 43-44). In fact, Wysong’s 2002
absences were unrelated to her neck condition. J.A. at 210-13, 303 (Wysong Dep. at 93; Miller Dep.
at 22-24, 29). Dow cannot prevail on the argument that Dr. Teter was permitted to consider FMLA-
protected leave time in issuing severe work restrictions, because he had no knowledge as to why the
earlier leave was taken. Accordingly, Dow’s arguments are without merit.
We finally turn to the question of causation. The facts in this case are unique in that there
are intervening events between the leave Wysong took in 2002 and her termination in 2003. Dr.
Teter considered her 2002 FMLA (taken for reasons unrelated to her neck condition) when writing
the work restrictions. Miller determined that Wysong could not perform a job meeting those
restrictions and so told Wysong to stay home. Wysong was not permitted to return until she took
the FCE which Wysong alleges she could not take based on the conditions imposed by Dow. As a
result, Wysong could not return to work, which led to her termination. We agree with Wysong that
the initial issuance of the severe restrictions set in motion an unbroken chain of events culminating
in her termination. On these facts, we conclude that Wysong has met the fifth element of her
interference claim.
C. FMLA: Involuntary Leave
Wysong also made a claim under an “involuntary-leave theory,” alleging that Dow violated
her FMLA rights by forcing her to take her last three days of FMLA leave when she did not need
to do so. Wysong argues that Dow forced her to take FMLA leave after she complained of neck pain
in May 2003. The district court rejected Wysong’s argument, stating that “[c]ase law is clear that
Dow could place Wysong on FMLA leave,” so long as Wysong’s neck condition constituted a
“serious health condition.” J.A. at 100 (Op. at 11). Finding that Wysong did have a serious health
condition, the district court granted summary judgment to Dow on this argument as well.3 Although
we ultimately agree with the district court’s rejection of Wysong’s involuntary-leave argument, we
do so for different reasons.
An involuntary-leave claim is really a type of interference claim. An employee may have
a claim under § 2615(a)(1) when an employer forces an employee to take FMLA leave when the
employee does not have a “serious health condition” that precludes her from working. See Hicks
v. Leroy’s Jewelers, Inc., No. 98-6596, 2000 WL 1033029, at *3-4 (6th Cir. July 17, 2000)
(unpublished), cert. denied, 531 U.S. 1146 (2001); Megan E. Blomquist, A Shield, Not a Sword:
Involuntary Leave Under the Family and Medical Leave Act, 76 WASH. L. REV. 509, 529-31 (2001).
However, the employee’s claim ripens only when and if the employee seeks FMLA leave at a later
date, and such leave is not available because the employee was wrongfully forced to use FMLA
leave in the past. See Edgar, 443 F.3d at 507 (setting forth the elements of an interference claim).
Our decision in Hicks provides an excellent example as to when one might have a ripe,
involuntary-leave claim. In Hicks, the plaintiff was pregnant and informed her employer that she
wanted to take twelve weeks of FMLA leave after the baby was born so that she could care for the
infant. Hicks, 2000 WL 1033029, at *1. A month before the baby was born, the plaintiff developed
a kidney infection, causing her to miss work and spend one night in the hospital. She informed her
3
The district court erred in making the determination as to whether Wysong was suffering from a “serious
health condition.” The parties dispute whether a “serious health condition” existed, and as this is a fact question, it was
inappropriate for the district court to reach such a conclusion.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 7
employer that she would return to work the next day, but her employer instead forced her to take
FMLA leave and would not allow her to return to work before the baby’s birth. As a result of the
involuntary leave, the plaintiff was unable to take the full twelve weeks of FMLA leave when the
baby was born.
In a case such as Hicks, a plaintiff has a ripe § 2615(a)(1) claim—the employee may argue
that she was later prevented from taking FMLA leave time to care for her child, because the
employer had earlier forced her to take FMLA leave when she was suffering from a kidney
infection. In order to recover, a plaintiff such as the one in Hicks would have to show that she was
not suffering from a “serious health condition” that precluded her from working during the time for
which the employer forced her to take FMLA leave, and thus, the employer was not entitled to
require her to take the leave.4
Although we recognize that an employer who forces an employee to take leave may create
a claim under the FMLA, Wysong does not have a viable claim under this theory. Wysong alleged
that she was forced to take leave even though she did not have a “serious health condition” that
precluded her from working. But this, in itself, does not create a ripe, involuntary-leave claim.
Wysong would have had to allege also that she later requested FMLA leave, but that Dow refused,
based on the fact that she had already used up her available FMLA leave. Wysong did not allege
these facts, and thus, as a matter of law, she can not prevail on her FMLA claim based on this
theory.
Wysong does not have a viable FMLA claim under the involuntary-leave theory pursuant
to 29 U.S.C. § 2615(a)(1), because she cannot show that she was denied FMLA leave to which she
was entitled as a result of Dow forcing her to take earlier leave when she did not have a “serious
health condition” that precluded her from working.
D. Ohio Disability-Discrimination Claim
1. Statutory & Regulatory Framework
Wysong also claimed that Dow’s actions violated Ohio’s statute prohibiting discrimination
based on disability. Ohio law prohibits “any employer, because of the . . . disability . . . of any
person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.” OHIO REV. CODE § 4112.02. “Disability” is defined
as “a physical or mental impairment that substantially limits one or more major life activities,
including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working; a record of a physical or mental impairment; or being
regarded as having a physical or mental impairment.” OHIO REV. CODE § 4112.01(A)(13).
Because “[t]he federal Americans with Disabilities Act (“ADA”) is similar to the Ohio
handicap discrimination law[,]. . . . [w]e can look to regulations and cases interpreting the federal
Act for guidance in our interpretation of Ohio law.” City of Columbus Civil Serv. Comm’n v.
McGlone, 697 N.E.2d 204, 206-07 (Ohio 1998). Regulations issued to provide interpretive guidance
for terms found in the ADA define “substantially limits” to mean a person is:
4
In Hicks, we ultimately concluded that it was not necessary to remand even though there was a genuine issue
of material fact as to whether the plaintiff’s kidney infection was a “serious health condition” that precluded her from
working. It was undisputed that, because of complications from childbirth, the plaintiff would not have been able to
return to work after twelve weeks, even if the twelve weeks were calculated from the time the child was born rather than
from the time the employer forced the plaintiff to take leave. We concluded that this undisputed fact precluded recovery
under the FMLA, thus making remand unnecessary. Hicks, 2000 WL 1033029, at *4-5.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 8
(i) Unable to perform a major life activity that the average person in the general
population can perform; or (ii) Significantly restricted as to the condition, manner
or duration under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1). “Major life activities” are defined as “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
29 C.F.R. § 1630.2(i). However, an EEOC interpretive guideline states that this list is not meant to
be exclusive, and 5added lifting as one example of another “major life activity.” 29 C.F.R. § 1630.2,
App. § 1630.2(i).
Where the “major life activity” in issue is “working,” the definition for “substantially limits”
changes to:
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. The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i).
2. Prima Facie Case
To make a prima facie case of disability discrimination under Ohio law, an employee must
show: “(1) that he or she was handicapped, (2) that an adverse employment action was taken by an
employer, at least in part, because the individual was handicapped, and (3) that the person, though6
handicapped, can safely and substantially perform the essential functions of the job in question.”
Hood v. Diamond Prods., Inc., 658 N.E.2d 738, 739 (Ohio 1996).
An employee may satisfy the first requirement of her prima facie case by showing that,
although she was not disabled, she was “regarded as having a physical or mental impairment.” OHIO
REV. CODE § 4112.01(A)(13); Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). “[A]n
individual may fall into the definition of one regarded as having a disability if an employer ascribes
to that individual an inability to perform the functions of a job because of a medical condition when,
in fact, the individual is perfectly able to meet the job’s duties.” Ross v. Campbell Soup Co., 237
F.3d 701, 706 (6th Cir. 2001). The Supreme Court has explained:
There are two apparent ways in which individuals may fall within this statutory
definition: (1) a covered entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life activities, or (2) a covered
entity mistakenly believes that an actual, nonlimiting impairment substantially limits
5
“While Congress has not assigned authority to any federal agency to issue regulations defining the terms . . .
‘substantially limits,’ or ‘major life activities,’ the parties accept the EEOC’s regulatory interpretation of these terms and
this court assumes 29 C.F.R. § 1630.2[](i), and (j) are reasonable.” Swanson v. Univ. of Cincinnati, 268 F.3d 307, 314
(6th Cir. 2001).
6
In Macy v. Hopkins County School Board of Education, 484 F.3d 357 (6th Cir. 2007), we recently stated in
the ADA-discrimination context that in order to establish a prima facie case, “a plaintiff’s burden is merely to present
evidence from which a reasonable jury could conclude that the plaintiff suffered an adverse employment action under
circumstances giving rise to an inference of unlawful discrimination.” Id. at 364 (footnote omitted). We emphasized
that there are “various context-dependent ways by which plaintiffs may establish a prima facie case, and not rigid
requirements that all plaintiffs with similar claims must meet regardless of context.” Id. at 365 (emphasis omitted).
No. 05-4197 Wysong v. The Dow Chemical Co. Page 9
one or more major life activities. In both cases, it is necessary that a covered entity
entertain misperceptions about the individual—it must believe either that one has a
substantially limiting impairment that one does not have or that one has a
substantially limiting impairment when, in fact, the impairment is not so limiting.
Sutton, 527 U.S. at 489. It is undisputed that Dow regarded Wysong as having a chronic neck
condition and drug dependency. Thus, the critical inquiry is whether Dow mistakenly regarded
those impairments as substantially limiting a major life activity.
The district court granted summary judgment to Dow because it determined that Wysong did
not meet the first prong of her prima facie case, that is, she did not demonstrate that Dow regarded
her as disabled. J.A. at 109 (Op. at 20). Before examining each health condition, we initially note
that “[u]nder the ‘regarded as’ prong of the ADA, membership in the protected class becomes a
question of intent. . . . [and] that question—i.e., the employer’s motive—is one rarely susceptible
to resolution at the summary judgment stage.” Ross, 237 F.3d at 706 (internal quotation marks
omitted). The case at bar is no exception.
3. Neck Condition
The “major life activity” in issue with respect to Wysong’s neck condition is lifting.7 See
Ross, 237 F.3d at 709 (“[T]he standard mandates that [the defendant] must have regarded [the
plaintiff] as significantly limited in his ability to lift . . . .”). Thus, the question is whether Wysong
put forth evidence demonstrating that Dow regarded her as “[u]nable to [lift]” or regarded her as
“[s]ignificantly restricted as to the condition, manner or duration under which” she could lift “as
compared to the condition, manner, or duration under which the average person in the general
population can [lift].” 29 C.F.R. § 1630.2(j)(1).
The key evidence put forth were the work restrictions imposed by Dr. Teter forbidding
Wysong from lifting, pushing, pulling, or tugging more than five pounds. J.A. at 219-20 (Miller
Dep. at 38-39). The district court rested its decision to grant summary judgment on two bases. First,
the district court noted that “Teter stated that he imposed the restrictions to prevent her from injuring
herself, and he never determined that Wysong required permanent restrictions.” J.A. at 107 (Op.
at 18). But this reasoning fails because a reasonable jury could infer, based on the severity of the
restrictions imposed, that Dr. Teter regarded Wysong as substantially limited in her ability to lift.
Second, the district court found that “Wysong has failed to introduce any evidence that Dow
ever considered whether she was able to lift more than five [] pounds in her daily life outside of
work. In fact, Teter’s restrictions were for work only.” Id. (citation omitted). Of course the
restrictions were for work only: Dr. Teter, as a Dow employee, had no authority to restrict
Wysong’s movement outside of the workplace. But a jury could make the obvious inference that,
based on the work restrictions, Dr. Teter believed Wysong could not safely lift five pounds outside
of work. Because the work restrictions could lead a reasonable jury to determine that Dow regarded
Wysong as disabled, the district court erred in finding that Wysong did not meet the first prong of
her prima facie case with respect to her neck condition.
4. Drug Dependence
The “major life activity” in issue with respect to Wysong’s drug-dependence claim is
“working.” Thus, the question here is whether Dow regarded Wysong’s “drug dependence” as
“significantly restrict[ing] [her] ability to perform either a class of jobs or a broad range of jobs in
7
We disagree with Dow that we must analyze the “major life activity” in issue here as “working.” “Lifting”
in itself is a major life activity, and the restrictions that Dr. Teter placed upon Wysong specifically include lifting.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 10
various classes as compared to the average person having comparable training, skills and abilities.”
29 C.F.R. § 1630.2(j)(3)(i). The district court found that Wysong failed to make her prima facie case
because “[n]o where does [Dr.] Teter state that he considered Wysong unable to perform a broad
class of jobs because of her drug dependency.” J.A. at 109 (Op. at 20). But such specific evidence
is not required to make a prima facie showing of disability.
In Henderson v. Ardco, Inc., 247 F.3d 645, 654 (6th Cir. 2001)), we reversed a grant of
summary judgment for the defendant where the plaintiff “brought forward evidence that the
defendant perceived there was no job for [the employee] at the [] plant.” Id. This evidence “g[ave]
an indication of the employer’s perception about her suitability for a class of relevantly similar
employment.” Id. See also Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 483-84 (6th
Cir. 2005) (relying on Henderson in concluding that evidence that the employer perceived the
plaintiff as unable to work in any relevant position at the defendants’ place of business “constituted
competent evidence of the employer’s perception about the plaintiff’s ability to perform the same
broad class of work anywhere else.”).
In the case at bar, Wysong has presented evidence that she was not permitted back to work
at Dow until she was completely off all pain medications. Wysong received a letter from Dow
stating that, due to her “condition” of drug dependency, she was unable to return to work “pending
a release to work without restrictions from [her] Physician and the Dow Medical Department.” J.A.
at 373 (Ltr. Re: Extension of Med. Leave); see also J.A. at 137 (Hutson Dep. at 67). The letter sent
by Dow, stating that she was unfit to return to work because of her “condition,” is the type of
evidence that “gives an indication of the employer’s perception about her suitability for a class of
relevantly similar employment.” Moorer, 398 F.3d at 483-84. Further, Dow did not offer Wysong
any other position within the Hanging Rock facility. A reasonable fact finder could conclude that,
under the facts presented, Dow perceived Wysong as being unable to work anywhere at the plant,
and thus, unable to perform the same broad class of work anywhere else. Because there was
sufficient evidence put forth by Wysong that could lead a reasonable fact finder to conclude that
Dow regarded her as disabled, we conclude that the district court erred in granting summary
judgment to Dow with respect to Wysong’s disability claim based on drug dependency.
E. Wrongful-Discharge Claim
Wysong also brought a state public-policy claim, averring that Dow wrongfully discharged
her by unlawfully requiring her to sign a blanket release of her medical records and then using the
information obtained therefrom to terminate her employment. Wysong based this claim on a
provision of the federal ADA which states:
A covered entity shall not require a medical examination and shall not make inquiries
of an employee as to whether such employee is an individual with a disability or as
to the nature or severity of the disability, unless such examination or inquiry is
shown to be job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A).
The district court granted summary judgment to Dow on the rationale that Wysong’s public-
policy claim was actually based on Ohio Revised Code § 4112.01 et seq., and that because her claim
under the state disability statute failed, the underlying public-policy claim must also fail. J.A. at
109-10 (Op. at 20-21) (citing Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 375 (6th Cir. 1999)).
Ohio’s disability discrimination law has no mirror statute or regulation that covers the same
area as 42 U.S.C. § 12112(d)(4)(A), i.e., no law covering unlawfully broad medical examinations
or requests for information. Therefore, the district court erred in concluding that Wysong’s
No. 05-4197 Wysong v. The Dow Chemical Co. Page 11
common-law claim was subsumed by Ohio Revised Code § 4112.01 et seq. Accordingly, we
remand this claim to the district court. In so doing, we express no opinion on the merits of the claim.
III. CONCLUSION
Because the district court erred in its reasoning when it granted summary judgment to Dow
on Wysong’s FMLA claim, state anti-discrimination claim, and wrongful-discharge claim, we
REVERSE the district court’s judgment on these claims and REMAND to the district court for
further proceedings in accordance with this opinion.
No. 05-4197 Wysong v. The Dow Chemical Co. Page 12
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
CURTIS L. COLLIER, District Judge. For the most part, I concur in the well-reasoned and
well-written majority opinion. However, I find I must respectfully dissent from one aspect of the
decision, that is the portion of the majority opinion labeled II.D.3 where the issue of Wysong’s
disability claim is discussed. My dissent is driven by my understanding of the Supreme Court’s
decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. I understand the import of that
decision differently than does the majority.
In all other aspects of the majority opinion, I join in the opinion. Wysong, through no fault
of her own, found herself in a position where she was not allowed to continue her employment with
Dow while also meeting her medical needs. Dow’s actions in this regard were not reasonable. It
is unfortunate Dow, once it learned the complete facts, did not reinstate Wysong.
Where I part company with the majority opinion is where the opinion concludes Wysong had
made out a prima facie case demonstrating Dow regarded her as being disabled in the major life
activity of lifting due to her chronic neck condition.
On this issue I would affirm the district court. What the record shows is that Dow’s company
doctor restricted Wysong’s ability to lift more than five pounds. Based upon this restriction, Dow
concluded Wysong could not perform any work at Dow so she was told to not report to work.
Although there is no evidence in the record Dow gave any thought as to how this inability to lift
more than five pounds would affect Wysong in her daily life outside of work, it is reasonable, as the
majority does, to infer that Dow considered Wysong unable to lift more than five pounds in her life
outside of work. I agree with the majority that such an inference is permissible.
In my opinion, however, even given that inference, the question remains whether Wysong
has demonstrated what the Supreme Court has indicated she must. The majority correctly states the
test for a “regarded as disabled” case, i.e. the court must look “to the state of mind of the employer
against whom [the plaintiff] makes a claim.” Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th
Cir. 2001). In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court
emphasized, in addressing major life activities other than the ability to work, “the central inquiry
must be whether the claimant is unable to perform the variety of tasks central to most people’s daily
lives, not whether the claimant is unable to perform the tasks associated with her specific job.” 534
U.S. 184, 200-01 (2002). I believe this same logic must be applied to a “regarded as disabled” case.
Accordingly, this Court must consider whether, with this lifting restriction, Dow regarded Wysong
as substantially limited in her daily life.
The district court relied on Dunaway v. Ford Motor Co., 134 F. App’x 872 (6th Cir. 2005),
in granting summary judgment on Wysong’s “regarded as” claim. In Dunaway, an unpublished
decision, the plaintiff claimed his prospective employer believed he was disabled (i.e. substantially
limited in the major life activities of standing, climbing, squatting, kneeling, and lifting more than
30 pounds) and so refused to hire him. Id. at 877-78. The plaintiff offered evidence that the
defendant’s company doctor restricted his ability to lift. Id. The plaintiff also submitted testimony
from the hiring decisionmaker, which purportedly demonstrated the belief the plaintiff was disabled.
The decisionmaker, a Mr. Abbey, testified in a deposition, “it was clear to me he [the plaintiff] was
unable to perform the essential functions [of the position] . . . based on the medical consultation.”
Id. at 878. A panel of the Sixth Circuit read this testimony to mean Mr. Abbey believed the plaintiff
could not perform the job under the restrictions imposed by the company doctor. However, the
panel found there had been no inquiry by defendant Ford into whether the plaintiff was restricted
No. 05-4197 Wysong v. The Dow Chemical Co. Page 13
in his daily life. Id. (“Dunaway did not present any evidence Abbey, Dr. Lin, or the other physicians
ever asked him whether he could stand for prolonged periods, climb, squat, kneel, or lift more than
30 pounds, or required him to demonstrate his ability to perform those activities.”).
Furthermore, in Dunaway, the Court found “the Court’s focus in the regarded as disabled
inquiry is not on the defendant’s belief about the plaintiff’s ability to perform functions on the job,
but rather the defendant’s belief about ‘the effect of the impairment on the individual’s daily life.’”
Id. (citing Equal Opportunity Employment Comm’n v. Daimler Chrysler Corp., 111 F. App’x 394,
399 (6th Cir. 2004) (unpublished)). In the context of a “regarded as” claim, the plaintiff should have
satisfied the Williams inquiry and demonstrated “the employer believed he was unable or
significantly restricted in his ability to perform the activities at issue in his ‘daily life,’ not merely
as part of the specific duties of the position for which he applied.” Id. Because the plaintiff offered
no evidence anyone at Ford considered whether he was limited in his abilities outside of work, the
panel approvingly quoted the district court: “The imposition of these restrictions for the purpose of
employment in one position at Ford is not tantamount to a perception by Ford that plaintiff was
unable to perform these restricted activities in his daily life.” Id. Along these same lines, the Sixth
Circuit affirmed the district court’s finding “Dunaway did not create a genuine issue of fact as to
whether Ford regarded him as disabled in those major life activities” since the plaintiff “ha[d] not
presented the type of evidence necessary to support his argument Ford considered him substantially
limited in his ability to perform the major life activities of prolonged standing, climbing, squatting,
kneeling, and lifting more than 30 pounds in his daily life.” Id.1
Although Dunaway is an unpublished opinion and is not binding, I do think it is specifically
on point for this case. As in Dunaway, Wysong has offered absolutely no evidence anyone at Dow
considered her substantially limited in her ability to lift outside of work. Even inferring that Dow
believed Wysong could not lift more than five pounds outside of work, the question remains whether
such a restriction, in this case, constitutes an “impairment that prevents or severely restricts the
individual from doing activities that are of central importance to most people’s daily lives.”
Williams, 534 U.S. at 200-01. Not only would one have to infer that Dow considered the lifting
restriction carried over into Wysong’s life outside of work, but that the restriction severely restricted
her from engaging in activities of central importance to most people’s daily lives. On this record
I do not think such an inference is possible. There is no evidence Dow gave any consideration as
to how many times a day outside of work Wysong would be called upon to lift more than five
pounds, under what circumstances she would be called upon to do so, what assistance she might
have when such occasions arose, or how her inability to life more than five pounds would impact
her.
My examination of the record in this case forces me to conclude that the District Court was
correct on this issue. As the Dunaway court did, I would reject the idea that Dr. Teter’s imposition
of a lifting restriction on Wysong could permit a jury to infer he considered her lifting restriction
to substantially limit her ability in her daily life activities outside of work. In fact, such an idea is
contradicted by Dr. Teter’s testimony. The majority itself cites the district court, which quoted Dr.
Teter as stating, “he imposed the [lifting] restrictions to prevent [Wysong] from injuring herself, and
1
See also Cotter v. Ajilon Servs., 287 F.3d 593, 600-01 (6th Cir. 2002) (contrasting Ross v. Campbell Soup
Co., 237 F.3d 701 (6th Cir. 2001), with the facts at issue; in Ross,“there was substantial evidence that the plaintiff’s
medical status significantly influenced his employer’s decision to terminate him” including a memo labeling the plaintiff
as a “back case”; in Cotter, the evidence was “insubstantial” and in fact, the defendant “attempted to market Cotter to
a client . . . a fact which mitigates against a finding that Ajilon regarded him as substantially limited in working . . .”;
Thompson v. Potter, No. C2-04-291, 2006 WL 783395, *12 (S.D. Ohio Mar. 27, 2006) (defendant-employer viewed the
plaintiff “through the lens of the permanent work restrictions provided by Dr. Jeu, not through any lens of ‘myth, fear,
and stereotype,’” which are the concerns addressed by 29 U.S.C. § 705(20)(B)(iii)) (citing Mahon v. Crowell, 295 F.3d
585, 585 (6th Cir.2002)).
No. 05-4197 Wysong v. The Dow Chemical Co. Page 14
he never determined that Wysong required permanent restrictions.” (See Pt. II.D.3, supra, citing
J.A. at 107 (Op. at 18)). Williams requires the disability to be long-term or permanent. 534 U.S.
at 185, 198. In a “regarded as disabled” case, then, the employer must regard or think the disability
is long-term or permanent. Here, there is no such evidence in the record.
Moreover, I find it troubling that, if simply an employer’s work restriction raises the
inference that the employer regarded the employee as disabled, then all “regarded as” cases would
necessarily go to the jury, notwithstanding the absence of evidence the employer gave any thought
to how the work restriction impacted the employee’s daily life activities. This to me seems to run
completely counter to the teachings of Williams.
In sum, I believe, on this record, Wysong has failed to make a prima facie case that she is
disabled under Ohio law or that Dow regarded her as disabled. Wysong failed to demonstrate her
lifting restriction extended to “activities of central importance to most people’s daily lives” and
outside of her employment. The crux of the matter is that Wysong is not trying to show she was
“regarded as disabled” from working, but from lifting, and as Dunaway suggests, the test to be
applied to this major life activity is stringent.
Therefore, on the question of a lifting disability due to her neck pain, I would affirm the
district court.