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SANDERS v. JUDSON CENTER, No. Case No. 13-cv-12090, 2014 BL 217924 (E.D. Mich. Aug. 06, 2014) [2014 BL 217924]

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SANDERS v. JUDSON CENTER, No. Case No. 13-cv-12090, 2014 BL 217924 (E.D. Mich. Aug. 06, 2014) [2014 BL217924]

Pagination* BL

United States District Court, E.D. Michigan

Sandra Sanders, Plaintiff, v. Judson Center, Inc., Defendant.

Case No. 13-cv-12090

August 6, 2014.

ORDER GRANTING DEFENDANT'S MOTION FORSUMMARY JUDGMENT [15]

Judith E. Levy, District Judge, Paul J. Konives,Magistrate Judge

This is an employment discrimination case. Pending isdefendant Judson Center, Inc.'s motion for summaryjudgment under Fed.R.Civ. P. 56. (Dkt. 15.)

I. Background

Defendant is a nonprofit human service agencyproviding services to disabled individuals identifiedas "consumers". Plaintiff was employed as a JobCoach beginning in May 2008. Her duties includedmonitoring, assisting, and training consumers in jobtasks, tending to and monitoring consumers at alltimes, and assisting with the transport of consumersas needed.

A. Plaintiff's Alleged Disability

On December 1, 2009, plaintiff had a heart attack,and was hospitalized through December 4, 2009.Plaintiff was in the hospital twice more for heart-relatedconditions in January and March of 2010. As a resultof her heart condition, plaintiff was prescribed severalmedications. In late 2009, plaintiff was prescribed

Lisinopril, an ace inhibitor used to rid the body offluid, and in October 2011, plaintiff was prescribedhydrochlorothiazide, which is used to treat high bloodpressure. This medication causes the kidneys toeliminate unneeded water and salt from the bodythrough urination.

Plaintiff alleges she is disabled based on this medicalhistory, and that her disability is a mix of her heartcondition and the side effects of the medications she isrequired to take that cause her to urinate on a frequentand sometimes urgent basis.

B. Plaintiff's Job Duties

On May 28, 2008, plaintiff acknowledged her JobCoach Responsibilities, which stated in relevant partthat "[y]ou are to remain with your consumer for theentire work shift" and "[i]f you must leave the consumerfor any reason, you must make sure that the consumeris supervised by someone who knows the consumerand does not have other consumers that may take theirattention from your one-on-one assignment." (Dkt.15-5, at 2.)

On May 23, 2012, following an incident where anotherJudson Center employee left a consumer at a job site,defendant instituted new, stricter standards settingforth the level of supervision each consumer required.



Plaintiff attended the meeting where these standardswere announced. There, she acknowledged that theconsumers at her job site required "line of sight"supervision. During that meeting, plaintiff informed hersupervisor that she was on prescription medicationthat requires her to "go to the bathroom," andher supervisor responded that she was permittedto use the bathroom during her shift. Plaintiff hadanother conversation concerning her medication withmanagement earlier in 2012; the earlier conversationmirrored the May 23rd conversation. Those are theonly times plaintiff discussed this particular topicwith her employer, and plaintiff's description of hercondition focused on frequent [*2] urination and madeno mention of her to need to urinate suddenly orwithout notice.

In response to plaintiff and other employees whoasked the same question, defendant explained whatemployees should do when they need to use therestroom while supervising line-of-sight consumers.Employees were instructed to ask another personat a defendant-affiliated site to watch the consumertemporarily, or the employee was to bring theconsumer into the restroom.

C. The May 29, 2012 Incident and SubsequentTermination

On the night of May 29, 2012, plaintiff was transportingtwo consumers who required line-of-sight supervisionhome from a job site in a van. Plaintiff states she wasovercome with an urgent need to urinate, and stoppedthe van at a gas station in Southfield, Michigan to usethe restroom. While plaintiff used the restroom, one ofthe consumers exited the van, entered the gas station,and attempted to go grocery shopping. Plaintiff wasable to intervene and get the consumer back on thevan, and thereafter she drove both consumers to theJudson Center.

On May 31, 2012, plaintiff filed an incident report,which she submitted to her supervisors at the JudsonCenter. In that report, she stated that she urgentlyneeded to use the restroom and that one of theconsumers got off of the van while she was inthe restroom. She then stated that upon exitingthe restroom, she found the consumer carryingmerchandise inside the gas station.

Latacha Shelton, an Employment Specialist at theJudson Center, received the report that day. Sheltondiscussed the report with the second consumer onthe van. That consumer stated that plaintiff askedboth consumers to stay in the van, and that she hadfollowed directions and remained on the van listeningto the van's radio.

Based on plaintiff's report and Shelton's discussionwith the other consumer, Dan Robin, Judson'sManager of Supported Employment, completed aNotice of Disciplinary Action later the same day. Robinreviewed the Notice with plaintiff and Shelton, and thenterminated plaintiff for violating the line of sight rule.

On June 8, 2012, plaintiff sent defendant a lettercontesting her termination. The letter set forth theemployer's stance on using the bathroom during theworkday, and provided a recitation of the eventsconsistent with plaintiff's May 31st incident report. Shethen stated that Robin may have been confused aboutthe nature of his instructions to her when she askedabout using the restroom on shift, and that plaintiff wasactually inquiring about what to do if she needed torelieve herself while transporting consumers.

On June 11, 2012, Sheri Smith, the Human ResourcesManager for the Judson Center, discussed thesituation with plaintiff, including the contents ofher June 8th letter. On July 5, 2012, Smith sentplaintiff a letter reaffirming the results of defendant'sinvestigation, and reaffirming plaintiff's termination.The stated reason for the termination was plaintiffleaving two line-of-sight consumers in a van alone.Defendant reasoned that plaintiff [*3] left the keys inthe van as well, based on the second consumer'sstatement that she listened to the radio while plaintiffwas inside the gas station.

Plaintiff filed suit on May 10, 2013, alleging violationsof the Americans with Disabilities Act ("ADA"), 42U.S.C. 12101 et seq., and Michigan's Personswith Disabilities Civil Rights Act ("PWDCRA"), M.C.L. 37.1101 et seq. In her deposition testimonyand summary judgment briefing, plaintiff additionallycontends that 1) she took the van keys with her whenshe went into the gas station; 2) she asked the gasstation attendant to keep an eye on the consumers



while she used the bathroom; and 3) she kept thebathroom door open while she was inside the gasstation so she could observe the consumers. Oralargument was held on this motion on July 11, 2014,and this motion is now ready for decision.

II. Standard

Summary judgment is proper where "the movantshows that there is no genuine dispute as to anymaterial fact and the movant is entitled to judgment asa matter of law." Fed.R.Civ. P. 56(a). The Court maynot grant summary judgment if "the evidence is suchthat a reasonable jury could return a verdict for thenonmoving party." Anderson v. Liberty Lobby, Inc., 477U.S. 242, 248. The Court "views the evidence, all facts,and any inferences that may be drawn from the facts inthe light most favorable to the nonmoving party." PureTech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F.App'x 132,135 (6th Cir. 2004) (citing Skousen v. Brighton HighSch., 305 F.3d 520, 526 (6th Cir. 2002)).

III. Analysis

Plaintiff claims that defendant violated both the ADAand the PWDCRA by discriminating against her onthe basis of her disability. The PWDCRA "substantiallymirrors the ADA, and resolution of a plaintiff's ADAclaim will generally, though not always, resolve theplaintiff's PWDCRA claim." Cotter v. Ajilon Servs., Inc.,287 F.3d 593, 597 (6th Cir. 2002).

The first step in assessing both claims is to beginwith the general framework for determining whetherplaintiff has stated a claim under the ADA. See Id.at 598; Donald v. Sybra, Inc., 667 F.3d 757, 764.Plaintiff has provided no direct evidence of intentionaldiscrimination based on disability, so she must firstestablish a prima facie case of discrimination basedon circumstantial evidence. See McDonnell DouglasCorp. v. Green, 411 U.S. 792, 804 (1973); Talley v.Family Dollar Stores of Ohio, Inc., 542 F.3d 1099,1105 (6th Cir. 2008). To establish her case, plaintiffmust make five showings: "she was disabled; she wasotherwise qualified to perform the essential functionsof her job; she suffered an adverse employment action;her employer knew or had reason to know of herdisability; and either the position remained open or a

non-disabled person replaced her." Gecewicz v. HenryFord Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir.2012).[fn1]

"Disability" under the ADA is defined as: "(A) a physicalor mental impairment that substantially limits one ormore major life activities of such individual; (B) arecord of such an impairment; or (C) being regarded ashaving such an impairment[.]" 42 U.S.C. 12101(1).The inquiry into whether a person is disabled underthe ADA is thus a two-part inquiry: first, whether animpairment exists; second, if the impairment exists,whether it substantially limits one or more major lifeactivities.

A physical impairment [*4] consists of "[a]nyphysiological disorder or condition, cosmeticdisfigurement, or anatomical loss affecting one or morebody systems, such as neurological, musculoskeletal,special sense organs, respiratory (including speechorgans), cardiovascular, reproductive, digestive,genitourinary, immune, circulatory, hemic, lymphatic,skin, and endocrine[.]" 29 C.F.R. 1630.2(h)(1).

Plaintiff contends that her impairment consists ofher heart condition, and is evidenced by hermultiple hospitalizations for heart attacks and relatedcardiovascular events. Plaintiff further argues that theheart condition requires her to take medication whichcauses her to experience sudden or urgent urination.For the purposes of her employment discriminationclaim, plaintiff claims that the relevant impairment isthe heart condition itself, and she implies that she issubstantially limited in the major life activity of urinationcaused by medication. In the alternative, plaintiffappears to argue that frequent urination caused bymedication is her impairment.

Courts have addressed the question of whether theeffects of a treatment for a condition may constitute animpairment, even if the underlying condition is not itselfan impairment. See Sulima v. Tobyhanna Army Depot,602 F.3d 177, 186-87 (3rd Cir. 2010) (citing Christianv. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052(7th Cir. 1997)); see also Hill v. Kan. City Area Transp.Auth., 181 F.3d 891, 894 (8th Cir. 1999); Gordon v.E.L. Hamm & Assocs., 100 F.3d 907, 912 (11th Cir.1996). The plaintiff must show that "(1) the treatmentis required in the prudent judgment of the medical



profession, (2) the treatment is not just an attractiveoption, and (3) that the treatment is not required solelyin anticipation of an impairment resulting from theplaintiff's voluntary choices." Sulima, 602 F.3d at 186(citing Christian, 117 F.3d at 1052) (internal quotemarks omitted). The Court adopts this standard inassessing plaintiff's claims.

The record shows that plaintiff's medication is requiredby her doctor in order to treat her underlying heartcondition. There is no indication that plaintiff haschosen this medication as an attractive option inalternative to some other treatment that would notresult in urination issues. Likewise, there is noindication that plaintiff's treatment is required solelyin anticipation of an impairment resulting from hervoluntary choices; it is instead required to treat acondition already in existence. Taking the facts allegedin the light most favorable to plaintiff as the non-movingparty, plaintiff has raised a genuine issue of materialfact regarding whether she has a physical impairmentconsisting of her sudden need to urinate, caused byher medication, as required by the ADA.

Next, plaintiff must show that due to the impairment,she is substantially limited in a major life activity.Plaintiff argues that she is limited in "walking, standing,and such activities," and offers as evidence aSeptember 2011 return to work letter from her treatingphysician. (Dkt. 16-7, at 2.) At oral argument, plaintiffalso argued that she was impaired in the major lifeactivity of thinking. Walking, standing, and thinking [*5]are undeniably major life activities under the ADA. See29 C.F.R. 1630.2 (i)(1)(i). The Court must determinewhether plaintiff has raised a material question of factrelated to whether she is substantially limited in thesemajor life activities "as compared to most people in thegeneral population." 29 C.F.R. 1630.2(j)(ii).

"[T]he plaintiff's evidence that his or her impairmentis substantially limiting must derive from his or herown experience." McPherson v. Fed. Express Corp.,241 F.App'x 277, 282 (6th Cir. 2007) (citing ToyotaMotor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184,198 (2002)). Deposition testimony from the plaintiffor a medical professional as to the limitations issufficient to survive summary judgment. See Roushv. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996)

(holding that there was a genuine issue of material factas to substantial limitation where plaintiff and plaintiff'sdoctor described such limitations at depositions).

Here, the only evidence plaintiff provides of anysubstantial limitation on the major life activities ofwalking and standing is a return to work letter,dated September 6, 2011, which restricts plaintiff fromworking more than nine hours per day. The letter saysnothing concerning any limitation on plaintiff's ability towalk or stand at that time. Plaintiff does not explain whyshe was at the clinic that day, or the health issue forwhich she sought treatment. The three-sentence letterdoes not tie the work-hour limitation to any impairmentalleged in her complaint. Moreover, plaintiff did notbegin taking hydrochlorothiazide, the medication thatcaused the need for urination, until October 2011, amonth after the note was written. Whatever limitationplaintiff wishes the Court to infer from the note couldnot have applied to any side effect of that drug.[fn2]

The only evidence plaintiff provides of a substantiallimitation on the major life activity of thinking isher deposition testimony, in which she states thaton the night at issue, "[b]ecause my urge to usethe restroom was so extreme, I could not evenhardly focus." (Dkt. 16-11 at 9.) This testimony isinsufficient to raise a genuine issue of material fact thatplaintiff was substantially limited in thinking. Plaintiff'stestimony states only that on the night in question,she considered her thinking to be impaired during thetime she urgently needed to use the restroom. Plaintiffdoes not state that this limitation was a regular or evensporadic occurrence, and has therefore failed to raisea genuine issue of material fact as to whether she issubstantially limited in this major life activity.

The Court cannot infer from the evidence provided thatplaintiff is substantially limited in either of the major lifeactivities alleged. Because plaintiff has demonstratedno substantial limitation in a major life activity, she hasfailed to make a prima facie case that she is disabledwithin the meaning of the ADA and PWDCRA.[fn3]

IV. Conclusion



For the reasons set forth above, plaintiff has notdemonstrated that she is entitled to relief under eitherthe ADA or the PWDCRA, as she has not shown thatshe is disabled. Accordingly, it is ordered [*6] that:

Defendant Judson Center, Inc.'s motion for summaryjudgment is GRANTED; and

Plaintiff's complaint is DISMISSED.

IT IS SO ORDERED.

[fn1] There has been "confusion in this circuitconcerning the proper test for establishing a primafacie case of employment discrimination under theADA." Whitfield v. Tennessee, 639 F.3d 253, 259 (6thCir. 2011). Some courts have applied a three-step testrequiring only 1) a showing of a disability; 2) a showingthat the plaintiff was otherwise qualified to perform ajob's requirements with or without an accommodation;and 3) discharge solely by reason of the disability. Id.The Sixth Circuit has clarified that the five-step testabove is the proper one where a plaintiff does not havedirect evidence of disability discrimination. Id.

[fn2] Plaintiff provides an FMLA form dated April21, 2011, which states that plaintiff was "unable tostand or walk for prolonged periods." (Dkt. 16-6, at13.) However, those limitations are related to "severeuncontrolled knee pain," (Id.), and the form does notindicate that the knee pain has any connection toplaintiff's heart or medication issues.

[fn3] If the Court looks at plaintiff's underlying heartcondition as the relevant impairment and frequenturination as the alleged substantial limitation on amajor life activity, the above analysis still holds. Plaintiffhas not raised a question of material fact as to whethershe is substantially limited in the major life activity ofurination through her testimony or medical records.

General Information

Parties Sandra Sanders, Plaintiff, v. Judson Center, Inc., Defendant.

Date Filed 2014-08-06 00:00:00

Court United States District Court for the Eastern District of Michigan

SANDERS v. JUDSON CENTER, Case No. 13-cv-12090, 2014 BL 217924 (E.D. Mich. Aug. 06, 2014), Court Opinion

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