Pride v. National Huntington Bank, No. 1:2017cv02610 - Document 26 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 8/17/18. The Court, for the reasons set forth in this order, grants defendant's motion for summary judgment. Plaintiff's claims are therefore dismissed with prejudice. The Court als o strikes as improper plaintiff's sur-reply and the supporting evidence submitted with that sur-reply. To the extent the list of discovery disputes plaintiff submitted 8/6/18 was intended as a renewed motion to compel, it is denied as moot. (Related Docs. 15 , 24 , and 25 ) (D,MA)
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Pride v. National Huntington Bank Doc. 26 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ---------------------------------------------------------------------: : : : : : : : : : : RONALD V. PRIDE, JR., Plaintiff, vs. HUNTINGTON NATIONAL BANK, Defendant. CASE NO. 1:17-cv-2610 OPINION & ORDER [Resolving Docs. 15, 24, 25] ---------------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff Ronald V. Pride, Jr. sues his former employer, Huntington National Bank, claiming that Huntington fired him because of his disability. Pride suffers from Attention Deficit Hyperactivity Disorder (ADHD) and alleges that Huntington both denied him a reasonable accommodation and fired him because of his disability. Plaintiff Pride brings claims for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 12112(a) and (b)(5)(A); for retaliation and coercion under 42 U.S.C. § 12203; and for creation of a hostile work environment under the ADA and Title VII of the Civil Rights Act of 1964.1 Defendant moves for summary judgment.2 Plaintiff opposes.3 For the following reasons, the Court GRANTS D—‘—n–ant s mot“on ‘or summary ”u–’m—nt. I. BACKGROUND Huntington hired Plaintiff Pride on December 22, 2014.4 Huntington transferred Pride to the Willoughby Hills Giant Eagle bank branch on September 20, 2015.5 At the time of his termination, 1 Doc. 1. Doc. 15. 3 Doc. 20. Defendant replies. Doc. 22. 4 Doc. 15-1 at ¶ 4. 5 Id. at ¶ 5. 2 Dockets.Justia.com Case No. 1:17-cv-2610 Gwin, J. Jeanetta Price supervised Plaintiff Pride.6 Pride has submitted evidence that he had received a satisfactory performance evaluation from a different supervisor in March 2015.7 Pride suffers from ADHD.8 His medical records reveal that his condition makes it difficult for him to read, concentrate, remember, and respond appropriately to stressful situations including those wh—r— h— ‘——ls ‘rustrat—– or un–—rappr—c“at—–. 9 In February 2016, Huntington disciplined Pride for failing to follow bank procedures.10 He was disciplined again in October 2016 for failing to follow bank procedures by not properly closing out the bank branch on August 24 and September 30, 2016.11 Nevertheless, he again failed to properly close the bank branch on November 15, 2016; in particular, he failed to send a required email.12 Then, he asked his supervisor to perform that task for him.13 When his supervisor refused, Pride responded via text message: I th“nk ur [sic] being petty. Just copy and past—. 14 On December 18, 2016, Pride emailed Jennifer Bandenieks, an Employee Relations Consultant at the bank, a Department of Veterans Affairs medical memorandum.15 In this memo, a Dr. Amal Rubai explained that Pride was being treated for ADHD and that he has c—rta“n l“m“tat“ons r—’ar–“n’ soc“al “nt—ract“on/cop“n’ w“th str—ss an– anx“—ty, —tc. 16 Dr. Ruba“ cont“nu—–: In or–—r, [sic] to help alleviate these symptoms it is imperative to maintain a calm non-judgmental approach and an environment which is support“v— to all—v“at“n’ any un–u— str—ss. 17 Bandenieks emailed Pride the next day to acknowledge that he received the medical 6 Id. at ¶ 6. Doc. 19-1 at 1 8; Doc. 15-1 at ¶ 6. 8 Doc. 20-7 at 5. 9 Id. at 12 14, 26 27; Doc. 20-8. 10 Doc. 15-4 at 1; Doc. 14 at 2. 11 Doc. 15-5 at 1; Doc. 14 at 2 3. 12 Id. at 3. 13 Id. at 3 4. 14 Id.; Doc. 15-7 at 1 2. 15 Doc. 15-1 at ¶ 9; Doc. 20-8 at 1. 16 Doc. 15-1 at ¶ 9; Doc. 20-8 at 1. 17 Doc. 15-1 at ¶ 9; Doc. 20-8 at 1. 7 -2- Case No. 1:17-cv-2610 Gwin, J. memorandum and say that she looked forward to discussing his request for accommodation. 18 She also mentioned that she would be on vacation for the remainder of the year.19 Pride did not follow up with any further explanation of his accommodation request.20 Instead, h— s“mply sa“– h— was ’o“n’ to talk to a –“str“ct mana’—r an– that h— want—– som— stu‘‘ on th— record . . . for the future and as r—‘—r—nc—. 21 Pride and his new supervisor, Jeanetta Price, had an adversarial relationship. He had spoken to Bandenieks about Price on several occasions prior to December 18, 2016.22 And one of his cowork—rs t—st“‘“—– at a –—pos“t“on that Pr“c— sa“– that Pr“–— was a probl—m ‘rom th— b—’“nn“n’. 23 The co-worker also testified that she was hired in June or July 2016 and witnessed Price commenting on Pr“–— s –“sab“l“ty “n a ”ok“n’ or sarcastic way on at least four occasions.24 On January 5, 2017, Pride and Price got into a dispute over the location of a money-counting machine.25 Price moved the money counter to the back room, ostensibly for security reasons.26 Pride thought it should remain in the front of the branch, apparently because he thought moving the counter to the back would make it more difficult for him to perform his job.27 According to the coworker, someone moved the money counter back to the front on January 5, prompting Price to call Pride into her office and yell at him.28 At some point during this altercation, Supervisor Price told Plaintiff Pride to leave her office.29 Pride did not leave immediately.30 Inst—a–, h— coll—ct—– [his] thou’hts ‘or an unsp—c“‘“—– –urat“on 18 Doc. 15-1 at ¶ 10; Doc. 15-11 at 1. Doc. 15-1 at ¶ 10; Doc. 15-11 at 1. 20 Doc. 15-1 at ¶ 11. 21 Id.; Doc. 15-11 at 1. 22 Id. at ¶ 12. 23 Doc. 19-10 at 9. 24 Id. at 5, 11. 25 See id. at 11 12. 26 Doc. 14 at 4. 19 27 Id. 28 Doc. 19-10 at 12. 29 See Doc. 14 at 5 6. 30 Doc. 1 at 2. While statements in a complaint cannot be used to defeat summary judgment, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), [a] stat—m—nt “n a compla“nt . . . “s a ”u–“c“al a–m“ss“on, Am. -3- Case No. 1:17-cv-2610 Gwin, J. o‘ t“m— an– th—n ask—– Pr“c— to call Human R—sourc—s so that th—y coul– h—ar th— scr—am“n’ an– –“sr—sp—ct sh— was –“r—ct“n’ at h“m.31 Pride eventually left the office.32 Pride was terminated later that same day.33 Plaintiff Pride brings claims against Defendant Huntington for disability discrimination under the ADA; retaliation and coercion under 42 U.S.C. § 12203; and creation of a hostile work environment under the ADA and Title VII.34 Huntington now moves for summary judgment.35 II. SUPPORTING MATERIALS The Court would ordinarily proceed directly to its summary judgment analysis. But in this case, the parties both seem to misunderstand the sorts of evidence they may rely upon at the summary judgment stage. The Court therefore begins by sorting through the parties summary judgment materials to exclude those that cannot be considered to support or oppose summary judgment. A. D—‘—n–ant Hunt“n’ton s Improp—r Ev“–—nc— To begin with, Rule 56 of the Federal Rules of Civil Procedure requires that [a]n a‘‘“–avit or –—clarat“on us—– to support or oppos— a mot“on must b— ma–— on p—rsonal knowl—–’—. 36 Likewise, hearsay statements in an affidavit cannot be considered for purposes of summary judgment.37 Defendant Huntington runs afoul of this rule by relying heavily on the affidavit of Employee Relations Consultant Bandenieks.38 Althou’h Ban–—n“—ks purports to hav— ‘“rsthan– knowl—–’— o‘ everything she describes in her affidavit,39 it is plain that she does not. For “nstanc—, h—r –—scr“pt“ons o‘ Pr“–— s –“sc“pl“nary history at Huntington and his text message exchange with his supervisor, Jeanetta Price, are transparently summaries of other Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (6th Cir. 1988). An– [‘]actual ass—rt“ons in pleadings and pretrial orders, unl—ss am—n–—–, ar— cons“–—r—– ”u–“c“al a–m“ss“ons conclus“v—ly b“n–“n’ on th— party who ma–— th—m. Id. 31 Doc. 14 at 6; Doc. 1 at 2. Doc. 14 at 6. 33 Doc. 19-10 at 11 12; see Doc. 15-1 at ¶¶ 17 18. 34 Doc. 1. 35 Doc. 15. Plaintiff Pride opposes. Doc. 20. Defendant replies. Doc. 22. 36 Fed. R. Civ. P. 56(c)(4). 37 See Dole v. Elliot Travel & Tours, Inc. , 942 F.2d 962, 968 69 (6th Cir. 1991). 38 Doc. 15-1 at ¶ 1. 32 39 Id. -4- Case No. 1:17-cv-2610 Gwin, J. documents in the record that describe events Bandenieks herself did not witness. Since those documents are admissible as business records, this is not particularly problematic for Huntington. Ban–—n“—k s t—st“mony “s —ss—nt“ally a c—rt“‘“cat“on that thos— –ocum—nts ar— Hunt“n’ton s bus“n—ss records. But Hunt“n’ton also r—l“—s on Ban–—n“—ks to –—scr“b— Pla“nt“‘‘ Pr“–— s final confrontation with Price. In that confrontation, Huntington claims that, for ten minutes, Pride staged a sit-“n “n Pr“c— s office after arguing with her about the proper placement of a money-counting machine.40 As another paragraph of the affidavit makes clear, Bandenieks was not present for that altercation indeed Price instant-messaged her to see if she could call into the meeting.41 Nor does Bandenieks have personal knowledge of the motivations of the individual who ultimately decided to fire Pride. As a result, she has no personal knowledge of what happened during that meeting or leading up to it. And the Court cannot consider those portions of her affidavit. That said, Bandenieks did have some direct interaction with Plaintiff Pride and the Court sees no reason why she would not have knowledge of when Pride was hired, when he was fired, what branches he worked at, who his supervisors were, etc. The Court will therefore consider paragraphs 1 through 6, 9 through 13, 15, an– 18 o‘ Ban–—n“—k s a‘‘“–av“t as stat—m—nts o‘ ‘act, an– para’raph 7 as a certification of various employment documents, but no others. B. Pla“nt“‘‘ Pr“–— s Improp—r Ev“–—nc— Pride, too, attempts to rely on improper evidence. Pride submits, along with his brief in opposition, a host of documents that he purportedly sent or gave to Hunt“n’ton s Human R—sourc—s D—partm—nt or other managers that relate his various grievances with management, his suggestions for improvement, and his version of his final altercation 40 41 Id. at ¶¶ 14, 16 17. Id. at ¶ 15. -5- Case No. 1:17-cv-2610 Gwin, J. with Supervisor Price.42 The problem is that none of these documents are sworn statements: they are neither affidavits given under oath nor are they subscribed under penalty of perjury as permitted by 18 U.S.C. § 1746. As a result, they cannot be considered at the summary judgment stage.43 That Pride may have sent these documents to Huntington officials before filing this lawsuit does not change this fact. Pride has attempted to remedy this deficiency by filing a sur-reply that includes additional evidence and an affidavit that, among other things, attests to the accuracy of some of the evidence he submitted before.44 But that is improper. For one thing, the Court s rul—s ’—n—rally –o not permit a party to file a sur-reply without first requesting leave from the Court.45 Pride did not do so. More importantly, however, there is no reason Pride could not have provided this evidence earlier. While he may only have received some of this evidence from Huntington recently, that is largely because he has apparently procrastinated in seeking discovery.46 The Court will not allow Pride to sandbag the opposing party merely because he has not been diligent in pursuing evidence to support his claims.47 For that reason, the Court STRIKES Pr“–— s sur-reply and all of the supporting documentation filed with it. III. SUMMARY JUDGMENT ANALYSIS Having disregarded or stricken the part“—s improper evidence, the Court now considers whether Defendant Huntington is entitled to summary judgment. The Court concludes that it is. 42 Doc. 20-10; Doc. 20-11; Doc. 20-14; Doc. 20-15. Worthy v. Mich. Bell Tel. Co., 472 F. App x 342, 343 45 (6th Cir. 2012); Little v. BP Exploration & Oil Co. , 265 F.3d 357, 363 n.3 (6th Cir. 2001); Dole, 942 F.3d at 968 69. 44 See generally Doc. 24 and attachments. 45 Eberhard v. Chi. Title Ins. Co., No. 1:11-cv-834, 2014 WL 12756822, at *2 (N.D. Ohio Jan. 8, 2014). 46 Doc. 21 at 3 4. 47 Cf. Wike v. Vertrue, Inc., No. 3:06-0204, 2007 WL 869724, at *8 (M.D. Tenn. Mar. 20, 2007) ( [T]h— Court w“ll not allow V—rtru— to san–ba’ th— Pla“nt“‘‘ by pr—s—nt“n’ . . . —v“–—nc— [w“th a r—ply br“—‘]. ). 43 -6- Case No. 1:17-cv-2610 Gwin, J. A. Legal Standard Under Federal Rule of Civil Procedure 56, [s]ummary ”u–’m—nt “s prop—r wh—n th—r— “s no ’—nu“n— –“sput— as to any mat—r“al ‘act an– th— movant “s —nt“tl—– to ”u–’m—nt as a matt—r o‘ law. 48 The moving party must first demonstrate that there is no genuine dispute as to a material fact entitling it to judgment.49 Once the moving party has done so, the non-moving party must set forth specific facts in the record not its allegations or denials in pleadings showing a triable issue.50 The nonmoving party must show more than some doubt as to the material facts in order to defeat a motion for summary judgment.51 But the Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.52 When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant s v—rs“on o‘ th— ‘acts unl—ss “ncontrov—rt“bl— —v“–—nc— “n th— r—cor– –“r—ctly contradicts that version.53 Otherwise, a district court does not weigh competing evidence or make credibility determinations.54 B. ADA Discrimination Claim In or–—r to —stabl“sh a cla“m ‘or –“scr“m“nat“on un–—r th— ADA, a pla“nt“‘‘ may —“th—r [introduce] direct evidence of discrimination or [prove] inferential and [indirect] evidence which would support an inference of discrimination . . . The direct evidence and [indirect] evidence paths ar— mutually —xclus“v—; a pla“nt“‘‘ n——– only prov— on— or th— oth—r, not both. 55 Based on the circumstances of Pla“nt“‘‘ s cas—, th— Court w“ll –“scuss —ach o‘ th—s— “n turn. 48 Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 50 See Matsushita Elec. Indus. Co., 475 U.S. at 587. 51 Id. at 586. 52 Killion, 761 F.3d at 580 (internal citations omitted). 53 See Scott v. Harris, 550 U.S. 372, 380 (2007). 54 Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037 (N.D. Ohio 2012) (citing V & M Star Steel v. Centimark 49 Corp., 678 F.3d 459, 470 (6th Cir. 2012)). 55 Cf. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348-49 (6th Cir. 1997); see also Hendrick v. W. Reserve Care Sys., 355 F.3d 444, 452 54 (6th Cir. 2004). -7- Case No. 1:17-cv-2610 Gwin, J. 1. Direct Evidence D“r—ct —v“–—nc— “s —v“–—nc— that “‘ b—l“—v—–, r—qu“r—s th— conclus“on that unlaw‘ul –“scr“m“nat“on was at l—ast a mot“vat“n’ ‘actor “n th— a–v—rs— —mploym—nt act“on. 56 In the realm of —mploym—nt –“scr“m“nat“on, th— S“xth C“rcu“t ‘oun– that stat—m—nts that su’’—st that th— –—c“s“onmak—r r—l“—– on “mp—rm“ss“bl— st—r—otyp—s to ass—ss an —mploy—— s ab“l“ty to perform can constitute –“r—ct —v“–—nc—. 57 Additionally: The context in which the comments are made is also critical. Discriminatory remarks made while implementing an adverse employment action are likely to reveal animus. In contrast, occasional disparaging remarks made during the regular course of business about . . . protected characteristics are much more likely to be considered the kind of “solat—– an– amb“’uous comments that do not trigger employer liability.58 For example, an —mploy—r s stat—m—nt to an —mploy—— that h— was too ol– to carry th— ma“l made while terminating the employee was sufficiently direct evidence to create a genuine dispute of material fact as to whether the employee was terminated for discriminatory reasons.59 However, an —mploy—r s comm—nts about an —mploy—— s a’— an– m—mory loss ma–— s“x and a half months before the employee was terminated wer— too “solat—– an– amb“’uous to support a finding of discrimination, wh—r— th—r— was no —v“–—nc— that th— —mploy—r subsequently communicated any –“scr“m“natory an“mus to th— —mploy—— wh—n h— t—rminated him.60 And a sup—rv“sor s reference to an —mploy—— as th— m—ntally “ll ’uy on Prozac that s ’o“n’ to shoot th— plac— up (r—‘—rr“n’ to an employee with Attention Deficit Disorder) on one occasion was also too “solat—– an– amb“’uous to be direct evidence of discrimination.61 Here, Plaintiff Pride has at best shown that his supervisor made derogatory comments Erwin v. Potter, 79 F. App x 893, 896 (6th C“r. 2003) (quoting Bartl“k v. U.S. D—p t o‘ Labor, 73 F.3d 100, 103 n.5 (6th Cir. 1996)). 57 Erwin, 79 F. App x at 897. 58 Id. at 898 (internal citations omitted) (quoting Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993)). 59 Id. at 897. 60 Rosso v. A.I. Root Co., 97 F. App x 517, 518 20 (6th Cir. 2004). 61 Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 657, 660-61 (6th Cir. 1999). 56 -8- Case No. 1:17-cv-2610 Gwin, J. about his disability four times between October 2016 (when Price became his supervisor62) and his termination on January 5, 2017.63 Four comments in around three months, unrelated to the time of his termination, are simply too “solat—– an– amb“’uous to prov“–— –“r—ct —v“–—nc— that Pr“–— was discriminated against because of his ADHD.64 2. Indirect Evidence To present a prima facie case of disability discrimination using indirect evidence, Plaintiff must establish that (1) he is disabled; (2) he is otherwise qualified for his position, with or without reasonable accommodation; (3) he suffered an adverse employment decision or action; (4) Huntington knew or had reason to know of his disability; and (5) his position remained open or he was replaced.65 If Plaintiff is successful, then the burden shifts to Defendant to provide a legitimate, non-–“scr“m“natory r—ason ‘or Pla“nt“‘‘ s t—rm“nat“on, and if Defendant does so, then the burden shifts back to Plaintiff to show that that explanation was pretextual.66 Th— ADA proh“b“ts –“scr“m“nat“on that “s a but-‘or caus— o‘ an —mploy—r s a–v—rs— employment action.67 An employee is not required to show that his disability was the sole reason for his termination.68 Plaintiff must create a genuine dispute of material fact as to both the prima facie case and pretext to survive summary judgment.69 In this case, even assuming that Plaintiff Pride could establish a prima facie case of 62 Huntington noted this fact in its December 13, 2016 response to the discrimination charge that Plaintiff Pride filed with the EEOC. See Doc. 19-1 at 25-26 & n.3. 63 Pr“–— also ass—rts “n h“s r—spons— to D—‘—n–ant Hunt“n’ton s r—qu—sts ‘or a–m“ss“ons that J—an—tta Pr“c— t—as—– me because of my disability whenever she was with“n —ar –“stanc— o‘ m—. Doc. 14 at 6. But that statement is neither sworn, properly declared under penalty of perjury nor an a–m“ss“on o‘ Pr“–— s own con–uct or an a–v—rs— ‘actual con–“t“on. As a result, the Court cannot consider it. 64 See Erwin, 79 F. App x at 898. 65 Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir. 2012); Whitfield v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1185 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc. , 681 F.3d 312 (6th Cir. 2012) (en banc). 66 McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-04 (1973); Whitfield, 639 F.3d at 259; Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008); Monette, 90 F.3d at 1185-86. 67 Lewis, 681 F.3d at 321; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). 68 Lewis, 681 F.3d at 315-17. 69 Whitfield, 639 F.3d at 260. -9- Case No. 1:17-cv-2610 Gwin, J. discrimination, Plaintiff Pride does not show that Hunt“n’ton s stat—– r—asons ‘or t—rm“nat“n’ h“m were pretextual. Huntington says it fired Pride for insubordination. Plaintiff Pride admits that he ‘a“l—– to l—av— Pr“c— s office when asked,70 instead sitting in her office for an indeterminate period of time after Price asked him to leave. Plaintiff Pride then asked Supervisor Price to call human resources. This conduct was insubordination. So Pr“–— s ADA –“scr“m“nat“on claim fails. C. ADA Retaliation The lack of any direct evidence of discrimination71 and the presence of non-pretextual —xplanat“on ‘or Pr“–— s t—rm“nat“on72 also –—‘—ats Pla“nt“‘‘ Pr“–— s ADA retaliation claim. D. Failure to Accommodate To present a prima facie case for failure to accommodate a disability under the ADA, Plaintiff must establish that: (1) he is disabled; (2) he is otherwise qualified for his position, with or without reasonable accommodation; (3) Huntington knew or had reason to know about his disability; (4) he requested an accommodation; and (5) Huntington failed to provide the requested accommodation.73 I‘ Pla“nt“‘‘ —stabl“sh—s th“s, th—n th— bur–—n sh“‘ts to th— —mploy—r to –—monstrat— that any part“cular accommodation would impose an undue hardship on the employer. 74 The Court will assume for purposes of summary judgment that Plaintiff is disabled, that he is otherwise qualified for his position, and that Huntington knew about his disability. An employee bears the burden of proposing r—asonabl— accommo–at“ons; an —mploy—— s cla“m must b— –“sm“ss—– “‘ [h—] ‘a“ls to “–—nt“‘y an– r—qu—st such r—asonabl— accommo–at“ons. propos—– accommo–at“ons must b— ob”—ct“v—ly r—asonabl—. 70 76 75 The The Sixth Circuit found that: Doc. 1 at 2. 71 See Rorrer v. City of Stow, 743 F.3d 1025, 1047 (6th Cir. 2014). See EEOC v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015). 73 Mosby-Meacham v. Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018); Johnson v. Cleveland City Sch. Dist., 443 F. App x 974, 982 83 (6th Cir. 2011). 74 Johnson, 443 F. App x at 983. 75 Id.; see also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th Cir. 1998) (finding that the initial 72 burden of requesting an accommodation is placed on the employee). 76 Cassidy v. Detroit Edison Co., 138 F.3d 629, 633-34 (6th Cir. 1998); Monette, 90 F.3d at 1183. -10- Case No. 1:17-cv-2610 Gwin, J. Our case law establishes no bright-l“n— t—st ‘or wh—n th— ‘orm o‘ an —mploy—— s request is sufficiently clear to constitute a request for an accommodation. On one hand, we have held that the ADA does not require employees to use the magic words accommo–at“on or —v—n –“sab“l“ty. On the other hand, [t]he employer is not r—qu“r—– to sp—culat— as to th— —xt—nt o‘ th— —mploy—— s –“sab“l“ty or th— —mploy—— s need or desire for an accommodation. The employee must also make it clear that the request is being made because of the employ—— s –“sab“l“ty.77 Plaintiff Pride emailed h“s –octor s not— to Ban–—n“—ks on D—c—mb—r 18, 2016. Althou’h Plaintiff does not appear to request any specific accommodations in the email itself, the note stated that to h—lp all—v“at— [Pla“nt“‘‘ Pride s] symptoms it is imperative to maintain a calm non-judgmental approach an– an —nv“ronm—nt wh“ch “s support“v— to all—v“at“n’ any un–u— str—ss. 78 In her response, Ban–—n“—ks sa“– that sh— look[—–] ‘orwar– to sp—ak“n’ w“th [Pride] further regarding [his] accommo–at“on r—qu—st. For purposes of summary judgment, the Court will find that Plaintiff 79 requested an accommodation from Huntington regarding his ADHD.80 Plaintiff must then establish that Huntington failed to provide his requested accommodation. Onc— the employee requests an accommodation, the employer has a duty to engage in an “nt—ract“v— proc—ss to “–—nt“‘y th— pr—c“s— l“m“tat“ons r—sult“n’ ‘rom th— –“sab“l“ty an– pot—nt“al r—asonabl— accommo–at“ons that coul– ov—rcom— thos— l“m“tat“ons. 81 man–atory, an– both part“—s hav— a –uty to part“c“pat— “n ’oo– ‘a“th. [T]he interactive process is 82 The Court finds that Bandenieks at least attempted to engage in the required interactive process with Plaintiff through her email exchange with Plaintiff r—’ar–“n’ h“s –octor s not—. As Plaintiff did not request any specific accommodations other than a general suggestion of a low-stress environment in his email exchange with Bandenieks, the Court cannot find that Huntington failed to 77 Judge v. Landscape Forms, Inc., 592 F. App x 403, 407 (6th C“r. 2014) (internal quotation marks and citations omitted) (alteration in original). 78 Doc. 15-10 at 1. 79 Doc. 15-11 at 1. 80 Th— Court r—co’n“z—s D—‘—n–ant s ar’um—nt that Pla“nt“‘‘ s—nt th— not— to Ban–—n“—ks m—r—ly ‘or “n‘ormat“onal purpos—s. Doc. 15 at 16. However, it is reasonable to infer that Plaintiff was also requesting an accommodation for his disability with this note, albeit not in the most direct manner, especially given that Bandenieks appeared to understand it as a request for an accommodation. 81 Melange v. City of Center Line, 482 F. App x 81, 84 (6th C“r. 2012) (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007)); see also 29 C.F.R. § 1630.2(o)(3). 82 Kleiber, 485 F.3d at 871. -11- Case No. 1:17-cv-2610 Gwin, J. provide Plaintiff with a requested accommodation based on that conversation. L“k—w“s—, Pr“c— s r—‘usal to allow th— money-counting machine to remain in the front of the branch cannot b— v“—w—– as a ‘a“lur— to accommo–at— Pr“–— s –“sab“l“ty. Th“s “s b—caus— Pr“–— has not timely presented any cognizable evidence to show why having the money counter in the back of the room prevented him from performing his job effectively with ADHD. His concentration and focus issues might make the availability of the machine a reasonable accommodation, but it is unclear why it would matter that the machine was in a back room rather than at the customer service counter. Huntington claims (and Pride admits83) that Pr“–— –“– not l—av— Pr“c— s o‘‘“c— a‘t—r Pr“c— tol– Pla“nt“‘‘ Pr“–— to l—av— Pr“c— s Office. If true, Pride was more responsible for increasing the stress level. E. ADA Coercion Claim Courts have either used the ADA retaliation framework84 or the Fair Housing Act (FHA) interference framework to evaluate interference, coercion, and intimidation claims under the ADA.85 Plaintiff cannot establish a prima facie case under either framework. The Court has already found that Plaintiff Pr“–— s ADA retaliation claim cannot survive a motion for summary judgment. In order to establish a prima facie case using the FHA interference framework, Plaintiff must –—monstrat— that: (1) [h—] —n’a’—– “n act“v“ty statutor“ly prot—ct—– by th— ADA; (2) [he] was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of [his] protected activity; and (4) th— –—‘—n–ants w—r— mot“vat—– by an “nt—nt to –“scr“m“nat—. 86 Assuming for purposes of this analysis that Plaintiff Pride requested an accommodation under the ADA and therefore fulfills the first two elements, he has not presented any evidence that 83 Doc. 1 at 2. See, e.g., Valtchev v. City of New York, 400 F. App x 586, 589 (2– C“r. 2010); Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999). 85 See, e.g., Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550-51 (7th Cir. 2017); Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003). 86 Frakes, 872 F.3d at 550-51. 84 -12- Case No. 1:17-cv-2610 Gwin, J. Defendant Huntington coerced him as a result of his asking for an accommodation or intended to discriminate against him. As explained above, Huntington fired Pride for other, non-disability and protected activity related reasons. And there is no cognizable evidence that the money counter was moved in an effort to coerce, threaten, or intimidate Pride. There is no cognizable evidence that Pr“–— s “nsubor–“nat“on –“– not caus— h“s ‘“r“n’. F. Hostile Work Environment A hostile work environment occurs [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the v“ct“m s —mploym—nt an– cr—at— an abus“v— work“n’ —nv“ronm—nt. objectively and subjectively abusive to be actionable.88 —nv“ronm—nt as a whol—, 89 87 Conduct must be both A court must cons“–—r th— work “nclu–[“n’] th— ‘r—qu—ncy o‘ th— –“scr“m“natory con–uct; “ts s—v—r“ty; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes w“th an —mploy—— s work p—r‘ormanc—. 90 [S]“mpl— t—as“n’, o‘‘han– comments, and isolated incidents (unless extremely serious) will not amount to discriminatory chan’—s “n th— t—rms an– con–“t“ons o‘ —mploym—nt. 91 To present a claim for a hostile work environment under the ADA, Plaintiff must establish that: (1) he is disabled; (2) he was subjected to unwanted harassment; (3) this harassment was based on his disability; (4) the harassment unreasonably interfered with his work performance; and (5) Defendant either knew or should have known about the harassment and failed to take corrective 87 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). See Harris, 510 U.S. at 21-22; Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). 89 See Bowman, 220 F.3d at 463. 90 See Harris, 510 U.S. at 23. 91 See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotation marks omitted). 88 The Court not—– th— n——– to ‘“lt—r out compla“nts attack“n’ th— or–“nary tr“bulat“ons o‘ th— workplac—, such as th— spora–“c use of abusive language, gender-r—lat—– ”ok—s, an– occas“onal t—as“n’. Id. (internal quotation marks omitted). See also Hibbl—r v. R—’ l M—–. Ctr., 12 F. App x 336, 339 (6th C“r. 2001); Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). -13- Case No. 1:17-cv-2610 Gwin, J. measures.92 The Court assumes that Plaintiff is disabled and therefore fulfills the first element. Because Plaintiff Pride brou’ht th“s cla“m un–—r th— ADA, h— must . . . show that any intimidation, ridicule[, or] “nsult occurr—– b—caus— o‘ [h“s] . . . –“sab“l“ty. 93 Conv—rsat“ons b—tw——n an employee and his superiors about his work performance [do] not constitute harassment simply b—caus— th—y caus— th— —mploy—— –“str—ss. 94 Plaintiff Pride and Branch Manager Price apparently disagreed over proper management of the branch including the location of the money-counting machine and Price issued Plaintiff a performance improvement plan based on Pla“nt“‘‘ s ”ob p—r‘ormanc— a‘t—r sh— b—cam— h“s mana’—r.95 According to co-worker Jackson, Pr“c— also comm—nt—– that sh— v“—w—– Pla“nt“‘‘ as a probl—m b—caus— h— –“–n t un–—rstan– [h“s] plac— as a bank—r, an– that Pr“ce wanted to terminate Plaintiff.96 By itself, this would not be sufficient to survive summary judgment because it does not clearly implicate Plaintiff Pride s –“sab“l“ty.97 However, Pr“–— s co-worker testified that she heard Price make negative comments regarding Pr“–— s ADHD on mor— than ‘our occas“ons. 98 Price became Pr“–— s manager on October 5, 2016,99 and Plaintiff was terminated on January 5, 2017.100 That means Price made these comments at least four times over the course of three months. But Plaintiff Pride gives no evidence that he was present when Price made these statements about Pride. Without some show“n’ that Pr“–— h—ar– Pr“c— s comm—nts, “t “s nowh—r— cl—ar how thos— comm—nts interfered with Plautz v. Potter, 156 F. App x 812, 818 (6th C“r. 2005) (setting out the elements and borrowing the Harris standard discussed in the preceding paragraph from the Civil Rights Act context); Trepka v. Bd. of Educ. of the Cleveland City Sch. Dist., 28 F. App x 455, 461 (6th C“r. 2002). 93 See Waltherr-Williard v. Mariemont City Sch., 601 F. App x 385, 388 (6th Cir. 2015). 94 Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir. 1998). 95 See Doc. 15-1 at ¶¶ 6 7; Doc. 19-1 at 13 15; Doc. 19-10 at 9. 96 Doc. 19-10 at 9. 97 See Waltherr-Williard, 601 F. App x at 388-89 (finding that an employee presented no evidence that her prot—ct—– charact—r“st“cs mot“vat—– h—r —mploy—r s alleged hostility); Trepka, 28 F. App x at 461-62 (finding that an —mploy—— was unabl— to pr—s—nt —v“–—nc— that h—r —mploy—r s n—’at“v— con–uct towar–s h—r occurr—– b—caus— o‘ h—r disability). 98 Doc. 19-10 at 11. 99 Huntington noted this fact in its December 13, 2016 response to the discrimination charge that Plaintiff filed with the EEOC. See Doc. 19-1 at 25-26 & n.3. 100 Doc. 14 at 6. 92 -14- Case No. 1:17-cv-2610 Gwin, J. Pr“–— s work p—r‘ormanc—. Court finds that this insufficient to fulfill the second and third elements for purposes of summary judgment.101 Also, Plaintiff has not cr—at—– a ’—nu“n— “ssu— o‘ mat—r“al ‘act as to wh—th—r Pr“c— s purport—– harassment unreasonably interfered with his work performance. Pride does state that he felt compelled to contact Human Resources only after Price became manager.102 However, none of the proper evidence Pride submitted demonstrates that any harassment that occurred unreasonably “nt—r‘—r—– w“th Pla“nt“‘‘ s work p—r‘ormanc—, especially because Plaintiff admitted that he was able to perform the essential functions of his position.103 The Court therefore finds that Plaintiff cannot fulfill the fourth element for purposes of summary judgment. Additionally, since the Court cannot find that Pr“c— cr—at—– an act“onabl— host“l— —nv“ronm—nt, th—r— “s no bas“s ‘or D—‘—n–ant s l“ab“l“ty, an– no genuine dispute of material fact exists as to the fifth element. G. Title VII Harassment Lastly, because Plaintiff does not claim that he was fired based on his membership in any class protected under Title VII, he has not established a Title VII harassment claim.104 IV. CONCLUSION For those reasons, the Court GRANTS D—‘—n–ant s mot“on ‘or summary ”u–’m—nt. Plaintiff Pr“–— s cla“ms ar— th—r—‘or— DISMISSED WITH PREJUDICE. The Court also STRIKES as “mprop—r Pla“nt“‘‘ Pr“–— s sur-reply and the supporting evidence submitted with that sur-reply. To the extent the list of discovery disputes Pride submitted on August 101 See Trepka, 28 F. App x at 462 (not“n’ that [t]o avo“– summary ”u–’m—nt, [th— pla“nt“‘‘] n——– not prov— [th— —mploy—r s] mot“vat“on, but [h—] shoul– at l—ast prov“–— som— —v“–—nc— o‘ –“scr“m“nat“on ). 102 Doc. 14 at 7. 103 Id. at 4-5. 104 See 42 U.S.C. § 2000e-2 (proh“b“t“n’ —mploym—nt –“scr“m“nat“on bas—– on rac—, color, r—l“’“on, s—x, or nat“onal or“’“n ). -15- Case No. 1:17-cv-2610 Gwin, J. 6, 2018,105 was intended as a renewed motion to compel, it is DENIED AS MOOT. IT IS SO ORDERED s/ Dated: August 17, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 105 Doc. 25. -16-
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