McGonegle v. Select Comfort Retail Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DOUG MCGONEGLE,

Plaintiff

v. Case No. 1:19–cv–442

JUDGE DOUGLAS R. COLE

SELECT COMFORT RETAIL

CORPORATION,

Defendant.

OPINION AND ORDER

This cause is before the Court pursuant to Defendant Select Comfort Retail

Corporation’s (“Sleep Number”) Motion for Summary Judgment (Doc. 28). The Court

held oral argument on that Motion on December 21, 2020. In short, the parties

dispute whether Sleep Number improperly terminated McGonegle’s employment due

to his disability or perceived impairment relating to his essential tremor condition.

The question before the Court at the summary judgment stage, though, is whether

McGonegle raises a genuine dispute of material fact that requires jury resolution. For

the reasons discussed more fully below, the Court concludes that he does, but only as

to his regarded-as-disabled theory, and thus DENIES Sleep Number’s Motion (Doc.

28).

FACTUAL BACKGROUND

Douglas McGonegle worked as an at-will employee for Sleep Number, a

mattress and sleep accessory retailer, from July 13, 2015 until Sleep Number

terminated his employment on October 23, 2017. (Def.’s Proposed Undisputed Facts

(“PUF”), Doc. 28-1, #551–54). During this time, McGonegle worked in sales,

eventually earning the title of “Sleep Expert,” Sleep Number’s highest level of

salesperson. (Id. at #552). Only once did McGonegle miss his sales goals—otherwise

he consistently met Sleep Number’s performance expectations.

Despite his strong sales performance, the relationship between McGonegle and

his employer soured after an incident in October 2017. On October 15, 2017, a

customer, Rod Caminiti, came to the store at which McGonegle worked and wanted

to buy a mattress and base, bringing with him a $1,000 coupon. (Id. at #559).

McGonegle discussed a potential sale with Caminiti. Caminiti’s preferred model, the

“split i8 king” mattress with a “FlexFit 2/FF2” adjustable base, carried a total pre-tax

price tag of $7,599.97. (Id.). Even with his coupon, Caminiti found the price

prohibitive, and left without making a purchase. (Id. at #560).

In an attempt to salvage the sale, McGonegle called Caminiti a few days later

and offered him a reduced price in the $3,400 to $3,600 range, reflecting what

Caminiti believed to be roughly a $4,200 discount. (Pl.’s Resp. to PUF, Doc. 31-1,

#630–31). McGonegle disputes that he offered a discount of the magnitude Caminiti

claims. According to McGonegle, during the call, he quoted the price that Caminiti

claimed, but McGonegle says he quoted that price on a “flat set” (i.e., non-adjustable

base) that had a significantly lower list price. (Pl.’s Resp. to Summ. J., Doc. 31, #620).

In any event, enticed by the offer, Caminiti returned to the Sleep Number store

on October 22. (PUF, Doc. 28-1, #560). After discovering McGonegle was not working

that day, Caminiti spoke to the store manager, Julie Roborecki, who was also

McGonegle’s supervisor. (Id.). Caminiti inquired about the discounted price that he

claimed McGonegle had offered over the telephone, which McGonegle understood to

apply to an adjustable base, but Roborecki replied that no such discount was

available. (Id. at #561). Caminiti once again left the store mattress-less.

After Caminiti left, Roborecki did some quick calculations and determined that

the discounted price that Caminiti claimed McGonegle had offered on an adjustable

base seemed to resemble the price that would have resulted from a then-ongoing

“Friends & Family” discount. (Id. at #562–63). But that discount, per Sleep Number’s

internal announcement, was emphatically “NOT for leads or customers.” (Id. at

#562). What is more, Sleep Number’s internal announcement to its employees about

the promotion clearly spelled out that misusing the promotion could result in both an

investigation and disciplinary action. (Id.). McGonegle himself testified that he knew

offering the discount to unauthorized persons could lead to termination. (Id. at #564).

To rectify Caminiti’s negative experience, Roborecki requested and obtained

permission from William Smith, a Sleep Number district manager, to sell the items

to Caminiti for $3,900. (Id. at #563).

But, based on her suspicions that McGonegle violated Sleep Number’s policy

by quoting the Friends & Family discount price to Caminiti, Roborecki also contacted

Sarah Dudley, a Sleep Number HR representative. Roborecki asked Dudley if

McGonegle could be terminated for improperly offering the discount. (Dudley Email,

Doc. 22-6, #379–80). Dudley informed Roborecki that a single instance of improper

discounting alone would not warrant termination and suggested that Roborecki

instead take verbal corrective action with McGonegle. (Id. at #379). Dudley did,

however, note that inappropriate or disruptive behavior might warrant terminating

McGonegle’s employment. (Id.).

The day after talking to Dudley, Roborecki confronted McGonegle about the

unauthorized discount. (PUF, Doc. 28-1, #565). While it is clear that this exchange

did not end well, the parties dispute what, exactly, occurred. Sleep Number claims

that McGonegle became upset, yelling, cursing, and storming out of the store—and

alleges that he did so despite the store being crowded with customers. Its only source

of evidence for this version of events, though, is Roborecki. McGonegle, on the other

hand, denies that any such outburst occurred. (Pl.’s Resp., Doc. 31, #635). He states

that he neither raised his voice nor used profane language, and claims that all he did

was leave the store on short, routine breaks. (McGonegle Dep., Doc. 21, #116–17).

Other than the competing and inconsistent statements from Roborecki and

McGonegle, the record contains no testimony (or other evidence) about the encounter

or McGonegle’s behavior.

Roborecki testified that McGonegle’s outburst, along with the unauthorized

discount he presented to Caminiti, triggered her decision to seek McGonegle’s

termination. (PUF, Doc. 28-1, #567). After Roborecki relayed her recollection of the

incident to William Smith and Sara Dudley, they decided as a group to fire

McGonegle. (Id.). Roborecki broke the news to McGonegle in a meeting attended by

John Wood, a Sleep Number store manager. At the meeting, the two Sleep Number

employees provided McGonegle a written notice stating four reasons for his

termination: (1) offering the Friends and Family discount to a person outside Sleep

Number’s guidelines; (2) reacting with hostility when confronted about that discount;

(3) attempting to involve Caminiti in the dispute and calling the customer a liar; and

(4) leaving the store during work hours without approval. (Id.). McGonegle did not

take this decision lying down. He refused to leave the store and ultimately security

had to escort him away. (Id. at #568).

In the aftermath, McGonegle contacted Sleep Number officials, asking them to

revisit the termination decision. (Id. at #568). He provided reasons why he believed

his termination was unwarranted, such as Caminiti’s alleged dishonesty about the

discount, but did not raise any allegations of disability discrimination. (Id.). He also

contacted Caminiti, asking him to communicate with Sleep Number and make

statements supporting McGonegle’s reinstatement efforts. (Id. at #569). In the end,

though, Sleep Number stood firm in its decision. And it did so even though it typically

does not fire employees for their first offense of offering an improper discount. (See

Dudley Dep., Doc. 25, #477).

It is undisputed that, throughout these events, McGonegle neither mentioned

his alleged longstanding neurological condition—a condition called “essential tremor”

that sometimes causes his hands to involuntarily shake—nor any potential

discriminatory treatment suffered during employment (or at the time of termination).

Even so, it is also undisputed that McGonegle’s physician, Dr. Gerke, had previously

diagnosed him with the condition. (Gerke Decl., Doc. 30-1, #578). In Dr. Gerke’s

words: “Essential Tremor is a neurological disorder that causes involuntary

movement, typically in the hands, fingers, or arms.” (Id.). The doctor further testified

that “the normal operation of the neurological system of individuals suffering from

Essential Tremor is substantially limited.” (Id.). McGonegle, however, stated during

his deposition that he did not believe that his tremor substantially limited him in any

way. (McGonegle Dep., Doc. 21, #78–79, 137). At most, McGonegle testified that the

tremor (1) causes him difficulty when “trying to work with little screws when [he]

fix[es] toasters,” (2) makes it hard to write legibly “at times” unless McGonegle

focuses on his penmanship, and (3) forces McGonegle to take “a little longer” to do

manual tasks, like operating his car’s rear window defroster. (Id.).

Approximately two weeks after Sleep Number terminated his employment,

McGonegle had an “epiphany” that his employer had fired him for discriminatory

reasons. Based on his further reflection, McGonegle suspected that his shaking hands

bothered Roborecki, who allegedly told him that it “doesn’t look good” when his hands

shake in front of customers. (Id. at #83). McGonegle estimates that, over the course

of approximately ten months at the store, Roborecki negatively commented on his

hand tremor on five separate occasions, and brought up the tremor between fifteen

and twenty times. (Id. at #83–84, 107). What is more, during the course of this

litigation, McGonegle has also learned in greater detail about comments that

Roborecki made to other Sleep Number employees, including Matt Lamantia, Sarah

Dudley, and William Smith, which implied that McGonegle’s shaking hands might

stem from a drinking problem or another serious health issue. (See Lamantia Dep.,

Doc. 26, #495; Smith Dep., Doc. 24, #459–60; Roborecki Dep., Doc. 22, #336–37).

Based on Roborecki’s numerous comments about his shaking hands, McGonegle

concluded that Roborecki, and thus Sleep Number, discriminated against him

because of his essential tremor.

Consistent with that understanding, on or about December 28, 2017,

McGonegle filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”). (Compl., Doc. 1, #2). He claimed that Sleep Number fired him

on account of a disability, namely his essential tremor condition. (Id.). The EEOC

issued a right to sue letter on March 14, 2019, and this action followed shortly

thereafter. (Id.).

PENDING MOTIONS

In his Complaint here, McGonegle argues that Sleep Number’s justification for

terminating his employment was “mere pretext for disability discrimination on

account of [his] tremors.” (Id. at #4). Based on that, McGonegle advances a one-count

disability discrimination suit against Sleep Number under the Americans With

Disabilities Act (“ADA”) and Ohio Revised Code § 4112. But, while McGonegle asserts

only one claim based on Sleep Number’s termination, he relies on two separate

theories for showing that he was disabled under the ADA: (1) that he “suffers from

an [actual] impairment,” and (2) that “Sleep Number regarded him as disabled.” (Id.).

For relief under either theory, McGonegle seeks compensatory damages, punitive

damages, attorney’s fees, plus reinstatement to his position at Sleep Number. (Id. at

#5).

With discovery now closed, Sleep Number has moved for summary judgment

on McGonegle’s discrimination claim. Because McGonegle failed to allege direct

evidence of disability discrimination, Sleep Number contends that McGonegle must

clear the McDonnell Douglas burden-shifting test to defeat summary judgment. Sleep

Number argues he cannot do as to either theory. As for the “actually disabled”

argument, Sleep Number asserts that McGonegle’s essential tremor does not qualify

as a disability under the ADA or Ohio law (which adopts the ADA definition of

“disability”), and thus he cannot make out his prima facie case at step one of

McDonnell Douglas.

That leaves McGonegle’s regarded-as-disabled theory, which Sleep Number

contests on two grounds. First, Sleep Number argues that McGonegle failed to show

that his employer believed he had an impairment, and thus fell short of establishing

his prima facie case. Second, Sleep Number contends that it has offered a non-

discriminatory reason for his termination, and that McGonegle cannot show the

proffered reason is pretextual, meaning he fails at step three of McDonnell Douglas.

In opposing summary judgment, McGonegle argues that Sleep Number has not

shown an absence of a genuine dispute of material fact over (1) McGonegle’s actual

disability or regarded-as-disabled arguments, or (2) whether Sleep Number’s reasons

for terminating McGonegle were legitimate, and not pretextual. This matter is now

ripe and properly before the Court.

LEGAL STANDARD

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show

that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Once the

movant presents evidence to meet its burden, the nonmoving party may not rest on

its pleadings, but must come forward with significant probative evidence to support

its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347.

This Court is not obliged to sua sponte search the record for genuine issues of

material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996);

Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404–06 (6th Cir. 1992). The burden

falls upon the nonmoving party to “designate specific facts or evidence in dispute.”

Jordan v. Kohl’s Dep’t Stores, Inc., 490 F. App’x 738, 741 (6th Cir. 2012) (quotation

omitted). If the nonmoving party fails to make the necessary showing for an element

upon which it bears the burden of proof, then the moving party is entitled to summary

judgment. Celotex, 477 U.S. at 323.

Granting summary judgment depends upon “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v.

Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In sum, the nonmoving party, at this stage,

must present some “sufficient disagreement” that would necessitate submission to a

jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). In making that determination, though, this Court

must view the evidence in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.”).

LAW AND ANALYSIS

Under the ADA,1 plaintiffs may show discrimination based on wrongful

termination through direct or indirect evidence. Ferrari v. Ford Motor Co., 826 F.3d

885, 891 (6th Cir. 2016), abrogated on other grounds by Babb v. Maryville

Anesthesiologists P.C., 942 F.3d 308 (6th Cir. 2019). Here, McGonegle does not

advance a direct evidence theory. Thus, the Court analyzes his claim at the summary

judgment stage under the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The Sixth Circuit describes the analysis

that applies at summary judgment as follows:

McDonnell Douglas first requires the plaintiff to establish a prima facie

case of discrimination. If she can, the burden shifts to the defendant,

who must produce legitimate, nondiscriminatory reasons for the adverse

employment action. And if the employer can produce those reasons, the

burden shifts back to the plaintiff to establish that the proffered reasons

1 Although McGonegle brought his wrongful-termination-based discrimination claim under

both the ADA and the Ohio Revised Code, “Ohio's disability discrimination law parallels the

ADA, [so] the same analytical framework applies to [p]laintiff’s claims under Ohio Revised

Code § 4112.02.” Anaissie v. Univ. Cincinnati Phys., Inc., No. 1:15cv701, 2018 WL 1456102,

at *4 (S.D. Ohio Mar. 23, 2018). Thus, the Court analyzes McGonegle’s discrimination lawsuit

under the ADA framework.

are simply pretext for age discrimination. If the plaintiff satisfies this

third step, the factfinder may reasonably infer discrimination.

Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020) (citations

omitted). Here, Sleep Number seeks summary judgment at both the first and third

steps of the McDonnell Douglas framework. That is, Sleep Number claims that

(1) McGonegle cannot establish his prima facia case, and (2) even if he could, he has

failed to create a genuine dispute as to whether Sleep Number’s proffered reasons for

his termination are pretextual. The Court addresses each of these issues in turn.

A. McGonegle Has Failed To Establish A Prima Facie Case As To His

“Actually Disabled” Theory, But Has Met His Burden On That Front

For His Regarded-As-Disabled Theory.

The first step under McDonnell Douglas is determining whether McGonegle

has made a prima facie discrimination case. To establish a prima facie discrimination

case under the ADA, a plaintiff must show that: “(1) he or she is disabled;

(2) otherwise qualified for the position, with or without reasonable accommodation;

(3) suffered an adverse employment decision; (4) the employer knew or had reason to

know of the plaintiff’s disability; and (5) the position remained open while the

employer sought other applicants or the disabled individual was replaced.” Barlia v.

MWI Veterinary Supply, Inc., 721 F. App’x 439, 444 (6th Cir. 2018) (quoting Whitfield

v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011)).

The parties here principally dispute whether McGonegle can make the

necessary showing as to the first element of the prima facie case (i.e., whether

McGonegle is “disabled” for purposes of the ADA). Importantly, there are three

different avenues to meeting that element. “To qualify as disabled under the ADA, an

individual must: (1) be actually disabled, i.e., suffer from ‘a physical or mental

impairment that substantially limits one or more major life activities,’ (2) have ‘a

record of such an impairment,’ or (3) be ‘regarded as having such an impairment.’”

Id. at 445 (quoting 42 U.S.C. § 12102(1)). This case involves both the first option,

being “actually disabled,” and the third option, being regarded as impaired. The Court

thus considers whether McGonegle has made a sufficient showing on either of these

two theories as to avoid summary judgment.

1. McGonegle Fails To Show An Actual Disability Under The ADA.

To establish an actual “disability” under the ADA, a plaintiff must show a

“physical or mental impairment that substantially limits one or more major life

activities.” 42 U.S.C. § 12102(1)(A). According to the statute, major life activities

“include, but are not limited to, caring for oneself, performing manual tasks, seeing,

hearing, eating sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working.” Id. at

§ 12102(2)(A). While the statute provides a non-exhaustive list, determining the

precise bounds of what constitute other, non-listed major life activities “remains

difficult” given that “the statutory text itself [is] largely unhelpful” and that “caselaw

... has done little to explicate a general test to use in deciding the issue.” Hentze v.

CSX Transp., Inc., No. 1:17-cv-217, 2020 WL 4569127, at *10 (S.D. Ohio Aug. 7, 2020).

That being said, it is clear that “not every impairment, illness or injury will

constitute a disability,” especially when the plaintiff provides “no medical proof that

[the] alleged medical conditions substantially limited a major life activity.” Perry v.

Am. Red. Cross Blood Servs., No. 3-13-1146, 2015 WL 1401058, at *2 (M.D. Tenn.

Mar. 26, 2015), aff’d on other grounds, 651 F. App’x 317 (6th Cir. 2016). At the same

time, “[a]n impairment need not prevent, or significantly or severely restrict ... a

major life activity” to constitute an actual disability. 29 C.F.R. § 1630.2(j)(1)(ii). “[F]or

cases on the margin, the [ADA] includes a ‘rule of construction’ that tips in favor of

coverage. It instructs that the definition of disability ‘shall be construed in favor of

broad coverage of individuals ... to the maximum extent permitted by the terms’ of

the ADA.” Darby v. Childvine, Inc., 964 F.3d 440, 445 (6th Cir. 2020) (quoting 42

U.S.C. § 12102(4)(A)).

Adding to the confusion, Congress amended the ADA in 2008 to state that the

term “major life activity also includes the operation of a major bodily function,

including but not limited to, functions of the immune system, normal cell growth,

digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and

reproductive functions.” 42 U.S.C. § 12102(2)(B). Accordingly, under the revised

statute’s plain language, a substantial limitation on a plaintiff’s neurological system

operations would constitute a substantial limitation on a major life activity sufficient

to show a disability.

Moreover, to determine whether a bodily function is limited to the degree

requiring protection under the ADA (i.e., “substantially” limited), courts generally

ask how well the plaintiff’s major bodily function operates “‘as compared to’ the

general population.” Darby, 964 F.3d at 445 (quoting Lonergan v. Fla. Dep’t of Corr.,

623 F. App’x 990, 993 (11th Cir. 2015)). Although a “substantial limitation need not

be severe,” merely alleging “difficulties” related to the operation of a major bodily

function does not show actual disability. Miller v. Md. Dept. of Nat. Res., 813 F. App’x

869, 876 (4th Cir. 2020). In other words, an actual disability argument that fails to

explain how plaintiff’s impairment limits him as compared to the general populace is

“exactly the type of conclusory allegation devoid of any reference to actual events that

will not survive a motion to dismiss.” Id.

Against this (admittedly somewhat muddled) backdrop, the Court begins by

noting that aggrieved employees typically raise actual disability arguments only

when seeking a reasonable accommodation. See Alexander v. Washington Metro. Area

Transit Auth., 826 F.3d 544, 547 (D.C. Cir. 2016). That is so because “[w]here an

individual is not challenging a covered entity’s failure to make reasonable

accommodations and does not require a reasonable accommodation, it is generally

unnecessary to proceed under the ‘actual disability’ or ‘record of’ prongs, which

require a showing of an impairment that substantially limits a major life activity or

a record of such an impairment.” 29 C.F.R. § 1630.2(g)(3) (emphasis added). As

further described below, a regarded-as-disabled theory does not include the

substantially-limited requirement. Thus, perhaps not surprisingly, “the regarded-as

prong has become the primary avenue for bringing the type of discrimination

claim[s]” that seek to redress adverse employment actions. Alexander, 826 F.3d at

547.

Here, McGonegle does not claim that his employer failed to accommodate his

disability, but instead challenges Sleep Number’s termination decision. Thus,

McGonegle’s decision to press an actual disability theory appears puzzling, as it is no

more efficacious than a regarded-as-disabled theory in terms of the remedies he seeks

in his Complaint (e.g., compensatory damages, punitive damages, and

reinstatement), yet requires a heightened showing that is not necessary for the latter.

That being said, nothing prevents McGonegle from pursuing an actual

disability argument if he so desires. To proceed past summary judgment based on

such a theory, however, he must identify a major life activity and create a least a

genuine dispute as to whether he experiences an “impairment” that “substantially

limits” that major life activity. Here, McGonegle attempts to meet that burden by

arguing that his essential tremor, which impacts the operation of his neurological

system, qualifies as an impairment that limits a major life activity. (Pl.’s Resp., Doc.

31, #608).

The first impediment to that argument is McGonegle’s direct affirmation,

under oath, that he believes that his tremor does not substantially limit him in any

way. (McGonegle Dep., Doc. 21, #78; Pl.’s First Supp. Resps., Doc. 21-4, #166). He now

seeks to skirt that admission’s potential harm to his case by suggesting that even if

his tremor does not substantially limit him in his activities, that does not prevent a

finding that the operation of McGonegle’s neurological system (which is a “major

bodily function”) might be substantially limited in comparison to the general

population. On that front, McGonegle relies on the expert opinion from Dr. Gerke,

who declares that “[c]ompared to the general population, the normal operation of the

neurological system of individuals suffering from Essential Tremor is substantially

limited. Members of the general population unaffected by essential tremor or other

physiological disorders do not suffer persistent involuntary movement in their hands,

fingers or arms.” (Gerke Decl., Doc. 30-1, #578). According to McGonegle, under the

ADA’s plain language, this substantial limitation as to a major bodily function

suffices.

The Court disagrees. Even construing all factual assumptions in McGonegle’s

favor, as the Court must at the summary judgment stage, McGonegle has not shown

that his essential tremor substantially limits a major life activity. Let’s start with

such activities not involving the “operation of a major bodily function.” The

illustrative examples of these “major life activities” that the statute provides include

things like walking, standing, lifting, bending, breathing, or performing manual

tasks. 42 U.S.C. § 12102(2)(A). McGonegle’s cited difficulties appear to be the closest

fit with that latter category—performing manual tasks. But difficulties with “trying

to work with little screws when [McGonegle] fix[es] toasters,” (McGonegle Dep., Doc.

21, #78), or the fact that it takes McGonegle “a little longer” to operate his car’s rear

window defroster, (id.), do not amount to “substantial limitations,” even under a

generous reading of that term, on the overall activity of “performing manual tasks.”

Nor does difficulty in writing, “at times,” “without focusing,” carry him across the

line. (Id.).

On the other hand, McGonegle’s argument based on the deficiencies in the

operation of a major bodily function (here, his neurological system) is admittedly a

closer call. That is in part because of ambiguity created by the statutory text. The

statute expressly defines the term “major life activity” to include “the operation of a

major bodily function,” but there is not necessarily an easy fit between the categories

of “activity” and “operation.” Generally speaking “activities” refers to things that

people do, not to how their bodies operate. So, some clarification on exactly how

“operation of a major bodily function” is meant to fit within the category “activity”

would be helpful.

Further muddying the water, the plaintiff pursuing this path must identify not

only the “major bodily function” that is not operating properly, but under the ADA’s

plain language must also show an “impairment” that “substantially limits” the

operation of that major bodily function. 42 U.S.C. § 12102(1)(A) (defining disability

as “[1] a physical or mental impairment [2] that substantially limits [3] one or more

major life activities”). Moreover, the regulations interpreting this provision make

clear that an “impairment” is “any physiological disorder or condition … affecting one

or more bodily systems,” such as the “neurological” system. 29 C.F.R. § 1630.2(h)(1).

So putting that all together, a plaintiff must show (1) a condition (i.e., an

“impairment”), and (2) that the condition “substantially limits” (3) “operation of a

major bodily function.”

The question here is what is necessary to make the “substantially limits”

showing in the context of a claim based on the operation of a major bodily function.

As noted above, as applied to most activities (such as walking), “substantially limited”

merely means something like “does not perform this activity as well as the general

population.” So, for example, if as a result of some condition, a person’s ability to walk

is well below average, then that would constitute a substantial limitation on that

major life activity.

But the implications of carrying that analysis over to the “operation of a major

bodily function” type of “major life activity” is not entirely clear. Is it enough to show

that the operation of a given person’s identified “major bodily function” is merely

different from that of most people in the population, or must the person also establish

some kind of substantial functional impairment that follows from that difference?

McGonegle advocates for the former. He argues that his expert’s opinion confirms

that his neurological system operates differently from that of most other people, and

that he need not also show any meaningful functional impairment to make his case.

McGonegle’s approach is difficult to square with the statutory text. Under his

theory, the diagnosis of virtually any condition relating to the operation of a major

bodily function, in and of itself, would suffice to show an actual disability. After all, a

medical determination that something constitutes a “condition” or “disease” or

“diagnosable event” of a major bodily function typically means that the major bodily

function at issue operates differently, and in some way worse, for that person than

for the population at large. On that understanding, though, every “physical

impairment” of a major bodily function (i.e., every diagnosable “condition” involving

the operation of a major bodily function) would necessarily also constitute a

“disability,” as it means that person’s major bodily function operates differently as

compared to the general populace.

The ADA’s own text, however, says the contrary. As noted, a plaintiff must

show both an impairment (which is defined to mean “condition,” see 29 C.F.R.

§ 1630.2(h)(1)) and a resulting “substantial limitation” to the major bodily function.

To say that a condition, in and of itself, is sufficient basis to show an actual disability

would thus be to read the term “substantially limits” out of the statute. In short,

contrary to McGonegle’s argument, not all “physical or mental impairments”—even

of a “major bodily function”—constitute “disabilities” for purposes of the statutory

text. Rather, it is only those “physical or mental impairment[s] that substantially

limit[] one or more major life activities” that count as “disabilities.” 42 U.S.C.

§ 12102(1).

Because McGonegle’s approach is fundamentally inconsistent with the

statutory text, the Court rejects it. Rather, to show a “substantial limitation” on the

“operation of a major bodily function,” the Court holds that a plaintiff must make

some showing that the impairment as to the operation of that person’s identified

“major bodily function” (i.e., the diagnosed “condition”) also results in some

meaningful functional difficulty as compared to the population at large. And those

difficulties must be more than merely “inconvenient” to achieve the “severity required

to qualify the ailment as a substantial limitation.” See Jones v. AKKO Fastener, Inc.,

No. 1:09-cv-286, 2010 WL 3365940, at *11 (S.D. Ohio Aug. 23, 2010). After all, the

ADA still places the burden on the plaintiff to show that his impairment constitutes

a disability. Whitesell v. FMS Fin. Mgmt. Servs., LLC, No. 3:18-cv-00496, 2020 WL

2770017, at *4 (M.D. Tenn. May 28, 2020).

The bottom line is that showing an impairment is not enough, in and of itself,

to survive summary judgment on an “actually disabled” argument. Rather, a plaintiff

must show that, because of the identified impairment, he or she is “significantly

restricted … as compared to the average person in the general population.” Southall

v. USF Holland, No. 3:15-cv-1266, 2018 WL 6413651, at *7 (M.D. Tenn. Dec. 5, 2018)

(emphasis added). McGonegle has failed to identify any such restrictions here. Thus,

while the Court does not dispute that his essential tremor constitutes an

“impairment,” the Court nonetheless finds as a matter of law that, on the facts

presented here, McGonegle has not shown that this impairment rises to the level of

a “disability” under the ADA’s definition.

2. McGonegle Has Made A Prima Facie Case For His Regarded-As-

Disabled Theory.

McGonegle’s inability to show a “disability,” however, is not dispositive for his

regarded-as-disabled theory. “[T]o state the threshold condition of a ‘regarded as’

ADA claim, an employee need only show that [his] employer believed [he] had a

‘physical or mental impairment,’ as that term is defined in federal regulations. The

employer may then rebut this showing by pointing to objective evidence ‘that the

impairment is (in the case of an actual impairment) or would be (in the case of a

perceived impairment) both transitory and minor.’” Babb, 942 F.3d at 319 (quoting

29 C.F.R. § 1630.15(f)). “‘[P]hysical impairment’ is otherwise defined broadly, to

include ‘any physiological disorder or condition … affecting one or more body

systems.’” Id. (citing 29 C.F.R. § 1630.2(h)).

Notably, unlike the case with an actual disability argument, this regarded-as-

disabled inquiry does not turn on whether “the impairment limits or is perceived to

limit a major life activity.” Id. (quoting 42 U.S.C. § 12102(3)(A)). Instead, the

employer only needs to have known about its employee’s impairment. Nor is there

any need to show that the impairment results in a “substantial limitation.” Rather,

the only exclusion from coverage under the ADA for regarded-as-disabled theories is

that they “shall not apply to impairments that are transitory and minor.” 42 U.S.C.

§ 12102(3)(B). And, even on that front, the “‘transitory and minor’ limitation is an

affirmative defense that the employer bears the burden of proving.” Babb, 942 F.3d

at 319 (citing 29 C.F.R. § 1630.15(f)). In short, to proceed on a regarded-as-disabled

theory, McGonegle need only show that Sleep Number knew or believed he had an

“impairment” of some kind. If he can, then the burden then shifts to Sleep Number

to show that McGonegle’s impairments were transitory and minor. If it cannot do so,

then McGonegle’s regarded-as-disabled argument satisfies the prima facie case at the

first McDonnell Douglas step.

Here, McGonegle alleges that Sleep number regarded him as impaired based

on one or both of two conditions: his essential tremor and alcoholism. Notably, as to

the latter, McGonegle is not claiming that he suffers from alcoholism. Rather, he

asserts that his employer regarded him as suffering from alcoholism because of the

tremor—more particularly, that Sleep Number wrongly believed that the tremor

resulted from a drinking problem. (Pl.’s Sur-Reply, Doc. 33-1, #673–74). Still, there is

no dispute that McGonegle advances two separate “perceived impairments” in

support of his regarded-as-disabled theory: (1) his employer fired him because it

regarded his tremor as an impairment; and (2) his employer fired him because it

regarded him as suffering from alcoholism. (Pl.’s Resp., Doc. 31, #611). The Court

thus considers whether McGonegle can overcome summary judgment on either of

those theories.

The Court begins with an issue common to both alleged impairments. Although

the parties agree that McGonegle must identify an alleged “impairment,” they

dispute what he must show to do so. For example, no one disputes that McGonegle

suffers from an essential tremor and that Sleep Number knew about that condition.

According to McGonegle, the prima facie case for his regarded-as-disabled theory

ends there—his tremor is an impairment, Sleep Number knew about that

impairment, and that is that.

Sleep Number, though, has a different view on the necessary showing for an

“impairment.” Sleep Number concedes that it knew about McGonegle’s condition and

physical symptoms, but claims that McGonegle’s tremor was not an “impairment”

because it did not hinder him at work or carry any serious negative effects (i.e.,

impairments). In other words, Sleep Number contends that it could not have

“perceive[d] McGonegle to have an impairment related to the tremor at all” because

no Sleep Number employee or official “suggested that he was bad at his job or that he

could not perform job duties.” (Def.’s Mot. for Summ. J., Doc. 28, #535).

Sleep Number’s argument cannot be squared with the ADA’s text. As the Sixth

Circuit put it, “an employee need only show that [his] employer believed [he] had a

‘physical or mental impairment,’ as that term is defined in federal regulations” to

make a prima facie case for a regarded-as-disabled ADA argument. Babb, 942 F.3d

at 319. And “physical impairment” is “defined broadly, to include ‘any physiological

disorder or condition … affecting one or more body systems.’” Id. (quoting 29 C.F.R.

§ 1630.2(h)). Here, there can be no dispute that essential tremor is a “disorder or

condition” that “affects one or more body systems,” a term which expressly includes

the neurological system. 29 C.F.R. § 1630.2(h)(1). Thus, Sleep Number’s concession

that it knew about McGonegle’s tremor suffices to show that it was aware of an

“impairment.”

The analysis also reaches the same conclusion for McGonegle’s alcoholism

theory, but there is a detour along the way. Namely, as a threshold matter, Sleep

Number claims that the alcoholism regarded-as-disabled issue is not properly before

the Court. That is so, Sleep Number says, for two reasons. First, Sleep Number

contends that McGonegle’s failure to reference alcoholism in his Complaint forfeited

that theory as a response to Sleep Number’s Motion for Summary Judgment. (Def.’s

Reply, Doc. 32, #658). Second, Sleep Number claims that McGonegle needed to

exhaust his alcoholism discrimination theory before the EEOC before pursuing it as

part of his ADA claim. (Id. at #659). The Court finds neither argument persuasive.

To be sure, Sleep Number is correct that “a plaintiff may not expand [his]

claims to assert new theories in response to summary judgment or on appeal.” Renner

v. Ford Motor Co., 516 F. App’x 498, 504 (6th Cir. 2013). But that principle does not

get Sleep Number to its desired result. Although Sleep Number rightly notes that

McGonegle’s Complaint does not address alcoholism-based discrimination, the

Complaint does allege that Sleep Number terminated McGonegle’s employment

because of his shaking hands. Now, McGonegle claims that his employer associated

his shaking hands with alcoholism, which he offers as a reason for the discrimination

alleged in the Complaint. What is more, McGonegle has not added any additional

claims on summary judgment and his overall theory remains the same (i.e., Sleep

Number fired him because of his shaking hands). Accordingly, the Court finds that

McGonegle has not improperly expanded his claim in his opposition to Sleep

Number’s Motion for Summary Judgment.

Likewise, the Court finds that McGonegle did not have to, and thus did not

impermissibly fail to, exhaust his alcoholism discrimination theory. “[A] party's

discrimination claim in the District Court may include claims ‘limited to the scope of

the EEOC investigation reasonably expected to grow out of the charge of

discrimination.’” Davis v. Sodexo, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th

Cir. 1998) (quoting EEOC v. McCall Printing Corp., 633 F.2d 1232, 1235 (6th Cir.

1980)). During discovery, McGonegle learned that his supervisor might have

negatively associated his tremor with alcoholism. Accordingly, his regarded-as-

disabled argument based on alcoholism “grew out of” his original disability

discrimination claim, which centered on that same essential tremor. Thus, the Court

concludes that neither procedural argument bars McGonegle from pursuing his

regarded-as-disabled argument based on that theory.

The next question, then, is whether McGonegle can survive summary

judgment as to his alcoholism theory at step one of the McDonnell Douglas test. The

Court starts by noting that there is no question that alcoholism constitutes an

impairment under the ADA. Marrari v. WCI Steel, Inc., 130 F.3d 1180, 1185 (6th Cir.

1997) (“There is no dispute that alcoholism is a disability within the protection of

the ADA.”). And, on the record here, McGonegle has shown there is a genuine dispute

as to whether Sleep Number (especially in the person of his supervisor, Roborecki,

who allegedly pushed for McGonegle’s termination) “perceived” him as suffering from

alcoholism based on his shaking hands. For example, he points to testimony revealing

that Roborecki told Matt Lamantia, another Sleep Number employee, that a customer

had remarked that McGonegle’s shaking hands might be due to alcoholism.

(Lamantia Dep., Doc. 26, #495). In the same conversation, Lamantia also testified,

Roborecki worried out loud about whether McGonegle had a drinking habit. (Id.).

Based on such testimony, the Court finds McGonegle has cleared the bar, at least for

summary judgment purposes, for showing a factual dispute about whether his

employer regarded him as suffering from alcoholism, and thus having a perceived

impairment on that basis under the ADA.

In short, to meet the first element of his prima facie case for a regarded-as-

disabled argument, McGonegle need only show that he was regarded as having an

“impairment.” He has made a sufficient factual showing as to two impairments, i.e.,

alcoholism and essential tremor, to avoid dismissal of his claim at the summary

judgment stage.

To be clear, Sleep Number could have sought to challenge McGonegle’s

showing on that front by demonstrating that the impairments at issue were “minor

and transitory,” and thus would not support a regarded-as-disabled argument. See

Lackey v. Heart of Lancaster Reg’l Med. Ctr., 704 F. App’x 41, 49 (3d Cir. 2017)

(finding plaintiff did not establish an impairment because she failed to show that her

tremor “was not transitory and minor”). But Sleep Number did not make that

argument (for which it bears the burden of proof), and the Court will not sua sponte

consider potential arguments that a party has not elected to raise (nor, in any event,

does it seem a very strong argument here).

Thus, McGonegle has made the necessary showing for the first element of the

five-element prima facie case for his regarded-as-disabled theory. And, because Sleep

Number has not attempted to show that McGonegle failed to meet any other element

of that prima facie case, that means that McGonegle has shown enough to satisfy step

one of the McDonnell Douglas burden-shifting test.

B. McGonegle Has Identified A Genuine Dispute As To Whether Sleep

Number’s Proffered Reasons For Termination Are Pretextual.

Once an employee satisfies the first step of the McDonnell Douglas test as to a

disability discrimination claim, an employer may nonetheless rebut that claim by

pointing to a legitimate, non-discriminatory reason for the adverse employment

action. Babb, 942 F.3d at 320. Sleep Number pursued that avenue here by claiming

that it fired McGonegle because he (1) improperly issued a “Friends and Family”

discount to a nonqualifying customer, and (2) responded inappropriately when

approached about his interactions with that customer. Neither party disputes that

those reasons, on their face, are legitimate and non-discriminatory, and thus suffice

for purposes of the second McDonnell Douglas step. The remaining question then

becomes whether McGonegle can show that those reasons were pretextual, and thus

permit an inference of discrimination (the third and final McDonnell Douglas step).

“A plaintiff can establish pretext by showing that the proffered reason:

‘(1) ha[d] no basis in fact; (2) did not actually motivate the [adverse employment]

action; or (3) [was] insufficient to warrant the [adverse employment] action.’” Brown

v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (alterations in original). “To

survive a motion for summary judgment, the plaintiff need not prove that the

defendant’s proffered rationale is pretextual, as that would be enough proof for

summary judgment in favor of the plaintiff. Rather, the plaintiff must prove only

enough to create a genuine issue as to whether the rationale is pretextual.” Whitfield,

639 F.3d at 260. By creating “a genuine issue of material fact over the truthfulness”

about the employer’s proffered reason for termination, an employee satisfies the

McDonnell Douglas pretext requirement at the summary judgment stage. Stokes v.

Detroit Pub. Schs., 807 F. App’x 493, 504 (6th Cir. 2020) (citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).

Under such case law, McGonegle need only show a dispute of material fact

about whether Sleep Number’s proffered reasons for termination are pretextual. The

Court finds that McGonegle has done so. As noted, Sleep Number appears to be

offering two reasons: (1) the alleged unauthorized discount, and (2) McGonegle’s

alleged improper reaction to Roborecki’s reproach. But the record makes clear that

these are not two separate bases. Rather, Sleep Number admits that it does not fire

employees for their first offense when it comes to improper discounting, (Dudley Dep.,

Doc. 25, #481), and the Sleep Number HR person involved in the termination decision

here likewise testified under oath that Sleep Number does not ordinarily terminate

employees for a first offense of offering an improper discount. (Id. at #477). Thus, not

surprisingly, that same HR employee also stated in an email that, while Sleep

Number’s HR policy technically permitted firings for offering an improper Friends

and Family discount, McGonegle’s alleged improper discount here, absent other

circumstances, warranted a verbal reprimand, not termination of employment.

(Dudley Email, Doc. 22-6, #379–80). Indeed, Roborecki (i.e., McGonegle’s boss, who

initiated the termination process), when asked whether the discount was the reason

for his termination, said this: “I would say that a corrective action was given to

[McGonegle] regarding that. Was he terminated specifically for that reason? No.”

(Roborecki Dep., Doc. 22, #344). In short, Sleep Number did not fire McGonegle for

rendering an improper discount, and if it had done so, by its own admission it would

have been treating him differently from other similarly situated employees.

But, as the alleged improper discounting is not a sufficient (or even the

claimed) reason for McGonegle’s termination, then that reason can only be considered

in combination with the other proffered reason—McGonegle’s allegedly hostile

reaction when confronted by Roborecki. That immediately leads to an

insurmountable problem for Sleep Number on summary judgment because there is a

genuine dispute as to the nature of that interaction. To be sure, Roborecki claims that

McGonegle reacted in an indecorous fashion, but McGonegle says that simply is not

true—a classic he-said/she-said situation.

Sleep Number tries to avoid this problem by claiming that many aspects of the

interaction, such as the claim that McGonegle left the building after arguing with

Roborecki, are undisputed. But the undisputed parts do not suffice to make the

interaction a legitimate reason for the termination. The key parts of the description,

from the Court’s perspective, include the yelling, the language used, and the physical

act of banging on the desk, all with customers allegedly present. But none of those

are undisputed. Rather, there are only two witnesses, McGonegle and Roborecki, and

they strongly disagree as to those details. Perhaps if there had been affidavits from

the others allegedly in the store, especially affidavits uniformly supporting one

version or the other, one could ask whether any remaining dispute is “genuine,” but

in the absence of such evidence, this strikes the Court as exactly the type of credibility

determination that the legal system assigns exclusively to a jury.

Finally, it is of little consequence that the actual termination decision was

made by other Sleep Number employees (i.e., persons aside from Roborecki). Neither

party disputes that those Sleep Number employees made the termination decision

based on the information that Roborecki provided. Under the well-settled “cat’s-paw

doctrine” in discrimination claims, a biased supervisor’s influence on an employer’s

adverse employment action can create liability for the employer. Staub v. Proctor

Hosp., 562 U.S. 411, 421 (2011) (“The employer is at fault because one of its agents

committed an action based on discriminatory animus that was intended to cause, and

did in fact cause, an adverse employment decision.”). So if Roborecki intentionally

misled other employees about what occurred in her interaction with McGonegle in

support of her efforts to terminate him on discriminatory grounds, then her

discriminatory intent is imputed to those other actors even if Roborecki herself lacked

authority to make a termination decision. See Marshall v. The Rawlings Co., 854 F.3d

368, 384 (6th Cir. 2017) (holding that the district court erred by granting summary

judgment to an employer on an ADA claim despite a factual dispute about biased

supervisors potentially influencing an adverse employment action). In the end,

McGonegle has at least shown a factual dispute about whether (1) Roborecki believed

McGonegle suffered from an impairment; (2) Roborecki influenced Sleep Number’s

decision to fire McGonegle; and (3) that his termination was pretextual. Given the

cat’s-paw doctrine, those showings preclude entering summary judgment in Sleep

Number’s favor even though McGonegle only alleged that Roborecki, and not Sleep

Number’s decisionmakers, harbored any discriminatory animus.

In sum, at this stage and given the record before it, the Court must accept as

true McGonegle’s testimony that he behaved properly when Roborecki approached

him about the potential improper discount. And because McGonegle’s allegedly

inappropriate behavior is necessary to establish Sleep Number’s legitimate,

nondiscriminatory reason for firing him, he has established a genuine dispute of

material fact as to the third prong of the McDonnell Douglas test. Thus, the Court

DENIES Sleep Number’s Motion for Summary Judgment on McGonegle’s

discrimination claim based on his regarded-as-disabled theory.

CONCLUSION

For the reasons above, the Court DENIES Sleep Number’s Motion for

Summary Judgment (Doc. 28). While the Court holds as a matter of law that Sleep

Number has shown McGonegle was not “actually disabled” under the ADA, Sleep

Number failed to demonstrate the absence of a genuine dispute as to (1) whether

Sleep Number regarded McGonegle as impaired, or (2) that it terminated

McGonegle’s employment for a legitimate, non-pretextual reason. McGonegle can

thus proceed on his regarded-as-disabled theory, both under the ADA and

corresponding Ohio state law.

SO ORDERED.

January 22, 2021

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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