Besada

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GEORGE BESADA, )

)

Plaintiff, )

)

v. )

) Case No. 3:24-cv-00313

ECS SOUTHEAST, LLP, ) Judge Aleta A. Trauger

)

Defendant. )

MEMORANDUM

Before the court are plaintiff George Besada’s Objections (Doc. No. 46) to the Magistrate

Judge’s Report and Recommendation (“R&R”) (Doc. No. 42), which recommends that the Motion

for Summary Judgment (Doc. No. 33) filed by defendant ECS Southeast, LLP (“ESC”) be granted

and that this case be dismissed. ESC has filed a Response to the Objections. (Doc. No. 47.)

For the reasons set forth herein, the Objections will be overruled. The R&R will be

accepted in its entirety, and the Motion for Summary Judgment will be granted.

I. STANDARD OF REVIEW

Within fourteen days after being served with a report and recommendation as to a

dispositive matter, any “party may serve and file specific written objections to [a magistrate

judge’s] proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district court

must review de novo any portion of the report and recommendation “that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, the district court “may accept,

reject, or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions.” Id.

However, the district court is not required to review—under a de novo or any other

standard—those aspects of the report and recommendation to which no objection is made. Thomas

v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge’s findings

and rulings to which no specific objection is filed. Id. at 151. “The filing of vague, general, or

conclusory objections does not meet the requirement of specific objections and is tantamount to a

complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001); see also Langley

v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (issues raised in a “perfunctory

manner, unaccompanied by some effort at developed argumentation,” are waived (quoting Indeck

Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000))). Likewise, “[a]

general objection to the entirety” of a magistrate judge’s report and recommendation has the same

effect as a complete failure to object. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,

509 (6th Cir. 1991). Finally, arguments made in an objection to a magistrate judge’s report and

recommendation that were not first presented to the magistrate judge for consideration are deemed

waived. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).

Although pro se pleadings and filings are held to less stringent standards than those drafted

by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se litigants are not

entirely exempt from the requirements of the Federal Rules of Civil Procedure. See, e.g., Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989).

II. BACKGROUND

This Memorandum presumes familiarity with the underlying record and sets forth herein

only the facts and background necessary to the resolution of the plaintiff’s Objections.

Plaintiff Besada filed his pro se Complaint initiating this action in March 2024, asserting

that ECS, his former employer, violated the Americans with Disabilities Act (“ADA”) when it

discriminated against him based on a disability, failed to accommodate a disability, and failed to

engage in the interactive process. (Doc. No. 1.) The undersigned referred the matter to the

Magistrate Judge under Federal Rule of Civil Procedure 72 to, among other things, enter a

scheduling order, oversee discovery, and dispose or recommend disposition of any pretrial motions

under 28 U.S.C. § 636(b)(1)(A) and (B).

Following a period of discovery and an unsuccessful settlement attempt, the defendant filed

its Motion for Summary Judgment (Doc. No. 33), supporting Memorandum of Law (Doc. No. 34),

Statement of Undisputed Material Facts (“SUMF”) (Doc. No. 35), and the evidentiary material

cited in support of its factual assertions, including excerpts of the plaintiff’s deposition transcript.

(Doc. Nos. 36, 37, and exhibits thereto.) Shortly after the defendant filed its motion, the Magistrate

Judge entered an Order notifying the plaintiff of his responsibility to respond to both the motion

and the SUMF and establishing a deadline for doing so. (Doc. No. 38.) Regarding the SUMF, the

Magistrate Judge explicitly instructed the plaintiff that,

in order to dispute the facts submitted by Defendant, he must specifically respond

to Defendant’s statement of undisputed facts in accordance with Local Rule

56.01(c), by responding to each fact set forth by Defendant by either (1) agreeing

that the fact is undisputed; (2) agreeing that the fact is undisputed for the purposes

of ruling on summary judgment; or (3) by demonstrating that the fact is disputed,

with specific citation to the record. Plaintiff may include the responses to each fact

listed on the same copy of the statement of undisputed facts with which he was

served, and then file that document together with the response. If Plaintiff needs

more space to respond to the statement of undisputed facts, Plaintiff may attach

additional pages thereto.

(Id. at 1–2 (emphasis added).)

The plaintiff filed a Response to the Motion for Summary Judgment and attached thereto

evidentiary material on which he apparently intended to rely, but he did not file a response to the

SUMF. (See Doc. No. 39.) The defendant filed a Reply (Doc. No. 40), along with additional

evidentiary material to counter the plaintiff’s unsworn assertions in his Response.

The R&R expressly notes that the plaintiff, as a pro se litigant, was given a “considerable

measure of leeway” but that the evidence of record would not permit a reasonable trier of fact to

find that his rights under the ADA were violated when the defendant terminated him. (Doc. No.

42 at 7.) The R&R also observes that, although the plaintiff’s Response includes factual assertions,

the plaintiff failed to provide a declaration or affidavit and, further, did not respond to the SUMF,

as a result of which he could not rebut the statements of fact set forth in the defendant’s SUMF

that are supported by sworn declarations, deposition testimony, and other admissible evidence in

the record. (Id. at 8–9.)

Based on those undisputed facts, the R&R finds that, even assuming for purposes of his

ADA claims that the plaintiff was disabled, (1) he was not a “qualified individual” protected by

the anti-discrimination provisions of the statute; (2) the plaintiff has not shown that he requested a

reasonable accommodation that would have permitted him to perform the essential functions of

his job with ECS, assuming, for purposes of summary judgment, that he requested an

accommodation at all; and (3) the defendant had no obligation to engage in the interactive process,

because there is no evidence that the plaintiff requested a reasonable accommodation to trigger

that process. Finally, with respect to the plaintiff’s contention that the defendant’s failure to

provide him with health insurance during his employment was discriminatory, the R&R finds that

this claim was not raised in the Complaint or articulated as a basis for his ADA claim. Although

the availability of health insurance “may be relevant as background information,” the R&R finds

that “an independent and alternative ADA claim that is premised upon Plaintiff’s inability to

receive health insurance through Defendant is not a part of this lawsuit.” (Id. at 14.)

Based on these findings, the R&R recommends that the defendant’s Motion for Summary

Judgment be granted and that this case be dismissed with prejudice.

III. THE OBJECTIONS

The plaintiff articulates specific objections, each of which the court addresses, albeit not in

the same order in which the plaintiff presents them.

A. Objection No. 5: “The Report relies excessively on Local Rule 56 to deem facts

undisputed [on the] Record.” (Doc. No. 46 at 3.)

Local Rule 56.01 requires a party opposing a motion for summary judgment to “respond

to the movant’s statement of undisputed material facts in a separately filed response” and sets forth

the procedure for doing so. L.R. 56.01(e). In addition, Local Rule 56.01(g) states: “If a timely

response to a moving party’s statement of material facts is not filed within the time periods

provided by these rules, the asserted facts shall be deemed undisputed for purposes of summary

judgment.” Based on the plaintiff’s failure to comply with Rule 56.01(e), the Magistrate Judge

applied Rule 56.01(g) to find that the facts set forth in the defendant’s SUMF were undisputed for

purposes of summary judgment. (See Doc. No. 42 at 8–9.) The court notes that the Magistrate

Judge expressly notified the plaintiff in advance that he was required to respond to the SUMF; yet

he failed to do so.

The plaintiff contends that the Magistrate Judge erred in relying on this rule because, as a

pro se plaintiff, the court must still “examine the entire record.” (Doc. No. 46 at 3.) The plaintiff

contends that he “submitted evidence and argument disputing Defendant’s narrative” and that the

Magistrate Judge’s “elevating form over substance . . . conflicts with the requirement to view

evidence in the light most favorable to the non-moving party.” (Id.)

First, as set forth above, although pro se filings are held to less stringent standards than

those drafted by lawyers, pro se litigants are not entirely exempt from the requirements of the

Federal Rules of Civil Procedure. Regardless, the plaintiff’s status as a pro se litigant does not

reduce his burden at the summary judgment stage. The Sixth Circuit has repeatedly recognized

that “a party’s ‘status as a pro se litigant does not alter his duty on a summary judgment motion’

to present evidence demonstrating a material issue for trial.” Curran v. Wepfer Marine Servs., Inc.,

No. 23-5284, 2024 WL 4489916, at *4 (6th Cir. May 20, 2024) (quoting Viergutz v. Lucent Techs.,

Inc., 375 F. App’x 482, 485 (6th Cir. 2010); and citing United States v. Ninety Three Firearms,

330 F.3d 414, 427–28 (6th Cir. 2003)).

Second, the R&R makes it clear that the Magistrate Judge did review the record as a whole,

and his review of the record established that the factual statements in the SUMF are supported by

the evidence on which the defendant relies—including the plaintiff’s deposition testimony. The

plaintiff failed to rebut the defendant’s evidence with admissible evidence. Moreover, the

Magistrate Judge clearly did draw inferences in favor of the plaintiff and accord him the benefit of

the doubt, despite his failure to respond to the SUMF. Finally, except with respect to his more

specific objections, addressed below, the plaintiff does not cite any specific instance in which the

Magistrate Judge failed to view the evidence in the light most favorable to the plaintiff as the non-

moving part.

This objection will be overruled.

B. Objection No. 6: “The Report improperly weighs evidence and draws

inferences against Plaintiff.” (Doc. No. 46 at 3.)

In support of this objection, the plaintiff states only: “Throughout the analysis, the Report

accepts Defendant’s interpretation of the evidence while discounting reasonable inferences in

Plaintiff’s favor. Credibility determinations and weighing of [c]ompeting evidence [are] jury

functions, not appropriate at the summary judgment stage.” (Id.)

This objection is not sufficiently specific to permit a ruling on it, as the plaintiff does not

point to any specific instance in which the Magistrate Judge made a credibility determination or

failed to draw reasonable inferences in the plaintiff’s favor. This objection, therefore, will be

overruled. In addition, the court has reviewed the record in its entirety and discerns no error in the

Magistrate Judge’s recitation of the undisputed facts in this case.

C. Objection No. 2: “The Report incorrectly concludes that driving is an essential

function . . . of the Field Technician position.” (Doc. No. 46 at 2.)

The plaintiff argues that there is a material factual dispute as to whether driving was an

essential function of his job and that the R&R erroneously concluded that this fact was undisputed.

The plaintiff contends that the record shows that the “primary functions” of the position he

formerly held are “testing, sampling, inspection, and reporting.” (Id. (citing Doc. Nos. 36-2, 36-

1).) He concedes that “travel is required,” but he nonetheless argues that the “method of

transportation is not inherent to the core duties.” (Id.) He also argues that the fact that ESC

“compensates Field Technicians for travel supports the inference that transportation is the means

to the work, not the work itself.” (Id.)

As for this latter argument, the plaintiff is simply incorrect. Under federal labor laws,

employers are generally not required to compensate employees for the time spent traveling from

home to a job site or from the job site home unless the travel is “an integral and indispensable part

of the principal activities” of the plaintiff’s job. Steiner v. Mitchell, 350 U.S. 247, 253 (1956); see

also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 448 (2016) (citing 29 U.S.C. § 254(d)); see

also Wilson v. PrimeSource Health Care of Ohio, Inc., No. 1:16-CV-1298, 2017 WL 2869341, at

*8 (N.D. Ohio July 5, 2017) (“Under the FLSA, when ‘an employee is required to report at a

meeting place to receive instructions or to perform other work there, or to pick up and to carry

tools, the travel from the designated place to the work place is part of the days work, and must be

counted as hours worked.’” (quoting 29 C.F.R. § 785.38)). Although this point is not dispositive,

the fact that the plaintiff was compensated for his travel gives rise to an inference that it was an

essential function of his job, rather than an inference that it was not.

Regardless, as the R&R points out, the plaintiff has not filed an affidavit or declaration to

support his factual assertions, and the admissible evidence in the record firmly establishes that

travel—specifically the ability to drive his own vehicle to and between job sites—was an essential

component of the plaintiff’s job. The plaintiff’s offer letter states that, “[d]ue to the amount of

traveling for [his] position,” the plaintiff’s offer was contingent on his owning or having access to

a reliable vehicle, a valid driver’s license, automobile insurance, and an acceptable driving record.

(Doc. No. 37-1 at 51, Ex. 1 to Pl.’s Dep.) The plaintiff testified that he understood that the Field

Technician position “required a significant amount of travel” (Doc. No. 37-1, Pl.’s Dep. 19), up to

“hundreds of miles per day” (id. at 22); and he agreed that he had to “drive and travel to lots of

places” while employed as a Field Technician (id. at 58). He also repeatedly acknowledged that,

because of a doctor’s restriction on his ability to drive, he “could not do the driving and traveling

required of [his] field technician [job].” (Id. at 103; see also id. at 106 (“Q. . . . You and I agreed

that with the driving restriction, you can’t do the field technician job, right? Right? A. Yeah, of

course.”); id. at 116 (same).)

In short, the Magistrate Judge did not err in finding that the record conclusively establishes

that driving was one of the essential duties of the plaintiff’s Field Technician position.

D. Objection No. 1: “The Report improperly treats Plaintiff’s no-driving

restriction as permanent and undisputed.”

In this objection, the plaintiff asserts that the R&R “improperly concludes that Plaintiff

was not a ‘qualified individual’ under the ADA because he could not perform the essential function

of driving. This conclusion improperly resolves disputed facts.” (Doc. No. 46 at 1 (internal citation

omitted).) The plaintiff asserts that his “driving restriction arose from a temporary medical

condition following a workplace accident” and was not a “permanent disability.” (Id.) He asserts

that the question of whether the restriction was temporary or “indefinite” is a jury question.

The initial problem with this objection is that it raises an argument not presented in the

plaintiff’s Response to the Motion for Summary Judgment. It is well established that a claimant

may not present new arguments for the first time in objections to a report and recommendation.

McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006); Murr v. United States,

200 F.3d 895, 902 n.1 (6th Cir. 2000).

Regardless, it is unclear what the point of the plaintiff’s argument is. To establish a prima

facie case of discrimination under the ADA, the plaintiff must show that (1) he is actually disabled

or regarded as having a disability; (2) he is otherwise qualified for the position, with or without a

reasonable accommodation; (3) he suffered an adverse employment action; (4) his employer knew

or had reason to know of his disability; and (5) his position remained open or he was replaced.

Edwards v. Shelby Cnty., 159 F.4th 489, 498 (6th Cir. 2025). That is, regardless of whether the

plaintiff was actually disabled or simply “regarded as” disabled by the employer, he still must

show that he was “otherwise qualified” for his position, with or without a reasonable

accommodation. Id. Here, it is undisputed on the record that the plaintiff’s medical provider placed

a no-driving restriction on the plaintiff and that the plaintiff, despite being directed by ECS to do

so, never obtained a second opinion lifting the no-driving restriction. It is also undisputed, as

discussed above, that the ability to drive was an essential function of the plaintiff’s job. Given the

plaintiff’s failure to show that he could perform an essential function of his position, the questions

of whether his disability was temporary or permanent and whether he was actually disabled or

simply regarded as disabled are not material, even if the plaintiff could show that they are disputed.

In any event, the defendant apparently presumed for purposes of summary judgment that

the plaintiff was disabled or regarded as disabled, so the R&R does so as well. (See Doc. No. 42

at 10 n.7.) The R&R focuses on the “otherwise qualified” element of the claim and correctly sets

forth the law in this area. Specifically, the ADA defines “qualified individual” to “mean[] an

individual who, with or without reasonable accommodation, can perform the essential functions

of the employment position that such individual holds or desires.”42 U.S.C.A. § 12111(8). As the

R&R recognizes, “if an individual’s disability renders him unable to perform an ‘essential

function’ of his job, he is not a ‘qualified individual’ protected by the non-discrimination provision

of [29 U.S.C. §] 12112.” Wagner v. Sherwin-Williams Co., 647 F. App’x 645, 647 (6th Cir. 2016).

Moreover, in this situation, “the Act does not require an employer to continue employing the

disabled employee, nor does it require the employer to offer that employee an accommodation.”

Id. (citing 29 U.S.C. §§ 12111–12). In Wagner, the court affirmed summary judgment for the

defendant based on the proof that the plaintiff was unable to drive, that driving was an essential

function of his position, and therefore that he was not a “qualified individual” for purposes of the

ADA. Id. at 651.

The same conclusions pertain here, and the R&R correctly concludes that the plaintiff, due

to his driving restriction, cannot show that he was “otherwise qualified” for his job. This objection,

too, will be overruled.

E. Objection No. 3: “The Report Misapplies the reasonable-accommodation

standard.” (Doc. No. 46 at 2.)

The plaintiff, arguing that the Magistrate Judge applied an incorrect legal standard, takes

issue with the R&R’s conclusion that the plaintiff did not request a reasonable accommodation

and, therefore, that the plaintiff’s claim based on a failure to accommodate necessarily fails.

The Sixth Circuit has stated that, to establish a prima facie case of failure to accommodate,

a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) he is otherwise

qualified for the position, with or without reasonable accommodation; (3) his employer knew or

had reason to know about his disability; (4) he requested an accommodation; and (5) the employer

failed to provide the necessary accommodation. Brumley v. United Parcel Serv., Inc., 909 F.3d

834, 839 (6th Cir. 2018). That is, as part of his prima facie case, the plaintiff must show that he is

“otherwise qualified” for his position. As set forth above, the plaintiff cannot establish that he is a

“qualified individual.” Moreover, a plaintiff “bears the initial burden of proposing an

accommodation and showing that accommodation is objectively reasonable.” Hunt v. Monro

Muffler Brake, Inc., 769 F. App’x 253, 258 (6th Cir. 2019) (quoting Kleiber v. Honda of Am. Mfg.,

Inc., 485 F.3d 862, 870 (6th Cir. 2007)). Under the ADA, a reasonable accommodation “does not

include removing an essential function from the position, for that is per se unreasonable.” E.E.O.C.

v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (emphasis in original; alterations and internal

quotation marks omitted) (quoting Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir.

1998)). Thus, “the ADA does not require employers ‘to assign existing employees or hire new

employees to perform certain functions or duties of a disabled employee’s job which the employee

cannot perform by virtue of [his] disability.” Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 419 (6th

Cir. 2021) (quoting Bratten v. SSI Servs., Inc., 185 F.3d 625, 632 (6th Cir. 1999)).

Here, although the plaintiff objects that the R&R concludes that the plaintiff failed to offer

a reasonable accommodation, the Magistrate Judge, upon review of the entire record, presumed

that the plaintiff had requested an accommodation in the form of either borrowing a vehicle from

the employer or getting rides to his job sites. (See Doc. No. 42 at 11 (“From the evidence that is in

the record, it appears that the only accommodation actually requested by Plaintiff was to either be

provided with a company vehicle to drive or to be provided with some type of rideshare or

alternative transportation to the work sites.”).) The plaintiff argues that there is a question of fact

as to whether his requested accommodation was “facially reasonable given Defendant’s existing

practices.” (Doc. No. 46 at 2.)

The plaintiff does not explain what he means by “Defendant’s existing practices.”

Regardless, the record establishes, as set forth above, that the plaintiff was placed under a driving

restriction, that the restriction was never lifted, and that driving was an essential function of the

plaintiff’s job. It would have been per se unreasonable to allow an employee with a “no driving”

restriction to borrow a company vehicle. It would have been equally unreasonable to reallocate the

plaintiff’s driving requirements to other employees (or to a ride share service paid for by the

employer). This objection, too, will be overruled.

F. Objection No. 4: “The Report improperly excuses Defendant’s failure to

engage in the interactive process.” (Doc. No. 46 at 2.)

The R&R concludes that ECS cannot be liable for failure to engage in the interactive

process because no reasonable accommodation existed. The plaintiff objects to this conclusion,

arguing that an employer “may be liable where it prematurely ends the interactive process,

particularly where accommodations are feasible but unexplored.” (Id.) He also contends that

evidence in the record “supports an inference that Defendant conditioned Plaintiff’s continued

employment solely on the driving restriction rather than engaging in a meaningful dialogue.” (Id.)

The plaintiff, however, still has not identified any “feasible but unexplored”

accommodation. Further, because driving was an essential function of the plaintiff’s job, the

employer was justified in conditioning the plaintiff’s continued employment on his being able to

drive. This objection must also be overruled.

13

IV. CONCLUSION

For the reasons set forth herein, the plaintiff's Objections (Doc. No. 46) will be overruled.

The court will accept the R&R (Doc. No. 42) in its entirety, grant the defendant’s Motion for

Summary Judgment (Doc. No. 33), and dismiss this case.

An appropriate Order is filed herewith.

ALETA A. TRAUGER

United States District Judge