Demyanovich v. Cadon Plating & Coatings, L.L.C.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0058p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ALAN DEMYANOVICH, ┐

Plaintiff-Appellant, │

│

│ No. 13-1015

v. │

>

│

CADON PLATING & COATINGS, L.L.C. et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit

No. 2:10-cv-15119—Avern Cohn, District Judge.

Argued: November 21, 2013

Decided and Filed: March 28, 2014

Before: MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge.*

_________________

COUNSEL

ARGUED: Paul J. Dillon, DILLON & DILLON P.L.C., Plymouth, Michigan, for Appellant.

Patrice Arend, JAFFE RAITT HEUER & WEISS, P.C., Southfield, Michigan, for Appellees.

ON BRIEF: Paul J. Dillon, DILLON & DILLON P.L.C., Plymouth, Michigan, for Appellant.

Patrice Arend, JAFFE RAITT HEUER & WEISS, P.C., Southfield, Michigan, for Appellees.

*

The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York,

sitting by designation.

1

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Alan Demyanovich, an employee of Cadon

Plating & Coatings, LLC (“Cadon”) for more than twenty years, was terminated after he

requested leave under the Family and Medical Leave Act (“FMLA”) to treat his congestive heart

failure. He argues that Cadon and his direct supervisor, Al Ensign, interfered with his exercise

of his FMLA rights, retaliated against him for seeking FMLA leave, and discriminated against

him on the basis of disability. We find evidence in the record to establish a genuine factual

dispute as to whether Demyanovich was permanently incapable of working at the time that he

was terminated. Therefore, we REVERSE the district court’s grant of summary judgment and

REMAND for proceedings consistent with this opinion.

I. BACKGROUND

A. Facts

Cadon coats, seals, and paints various parts for the automotive industry using a number of

production lines to treat parts with different coatings or chemicals. In 1989, Al Ensign, Cadon’s

Vice President, hired Demyanovich as a “helper” on the production lines. R. 38-4

(Demyanovich Dep. at 26) (Page ID #638). He was soon promoted to “operator” and trained to

run several of the lines. Id. at 27–28 (Page ID #639–40). Machine operators load parts onto the

lines and ensure that the parts are evenly distributed by “raking” them to a uniform thickness. Id.

at 30–31 (Page ID #642–43). Once the parts have been treated, operators catch them in baskets

at the end of the line and operate “hi-lo” trucks to move them away. R. 38-6 (Ensign Dep. at 15–

26) (Page ID #894–905). Eventually, Demyanovich earned a promotion to “area leader,” in

which he continued to operate the lines but also trained other operators. R. 38-4 (Demyanovich

Dep. at 38) (Page ID #650).

In late 1998, Demyanovich began to experience health problems. His primary physician,

Dr. Mussani, initially diagnosed bronchitis, R. 38-2 (Employee Med. Records) (Page ID #570),

but a specialist later determined that he suffered from dilated cardiomyopathy (“CMP”) and

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 3

congestive heart failure (“CHF”). Id. (Page ID #571). Demyanovich took FMLA leave between

February 2, 1999 and April 23, 1999, after which a doctor cleared him to return to work with

restrictions: Demyanovich was instructed not to lift more than fifty pounds or work more than

forty hours per week. Id. (Page ID #573).

Demyanovich continued to work as an operator and area leader for the next ten years.

However, during this time he took FMLA and short-term disability leave several times to cope

with various health issues.1 In November 2009, Demyanovich requested FMLA leave when his

heart conditions worsened. He was granted paid medical leave between November 23 and

December 14. R. 38-3 (Employee Med. Records) (Page ID #595–98). In the documentation

supporting Demyanovich’s FMLA request, his physician indicated that upon his return he

“should be able to do what he was doing [before his leave].” Id. (Page ID #596). The physician

also reiterated that Demyanovich was restricted from working overtime and that his restriction

would continue “indefinitely.” Id. (Page ID #597). Demyanovich gave this documentation to

Ensign upon his return to work on December 14, 2009.

Due to his health problems, Demyanovich began experiencing difficulty performing

some aspects of his job. He requested lighter duty assignments, including switching to a

“sorting” position, which he could perform sitting, or to a position at the end of the paint line,

where he would not need to move as quickly. According to Demyanovich, Cadon denied these

requests and continued to schedule Demyanovich to work overtime. R. 38-5 (Demyanovich

Dep. at 138–39) (Page ID #764–65).

On February 23, 2010, Demyanovich worked a complete eight-hour shift. After work, he

went to his regularly scheduled doctor’s appointment. At this appointment, Dr. Mussani

“[a]dvised [Demyanovich] to quit work [and] apply for S.S. [social security] disability.” R. 34-

11 (Medical Records) (Page ID #459). Demyanovich returned to the Cadon facilities and asked

Ensign about taking FMLA leave. Ensign denied the FMLA request because he believed that

Cadon did not have enough employees to be subject to the Act. R. 38-4 (Demyanovich Dep. at

1

Demyanovich took leave between April 3, 2006 and June 3, 2006 for a hernia operation, between

February 16, 2008 and March 2, 2008 for a CHF flare-up, and between July 28, 2008 and September 13, 2008 for

unspecified health issues. R. 38-4 (Demyanovich Dep. at 84–90) (Page ID #696–702); R. 38-2 (Employee Med.

Records) (Page ID #583, 586); R. 38-3 (Employee Med. Records) (Page ID #591).

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 4

66) (Page ID #678). Demyanovich claims that Ensign also told him that he was a “liability.” R.

38-5 (Demyanovich Dep. at 155) (Page ID #781). At this point, Demyanovich no longer had

enough points under Cadon’s attendance policy to take additional absences.2 Ensign terminated

Demyanovich’s employment shortly thereafter.3 R. 38-6 (Ensign Dep. at 85) (Page ID #962).

Demyanovich applied for Social Security benefits on February 23, 2010, and was referred

for a mental-health assessment “to determine [his] current strengths in intellectual and cognitive

skills.” R. 34-13 (UnifiedMed Report) (Page ID #477–82). The psychologist who examined

Demyanovich noted that he “reports if he were offered a job what would prevent him from

working [would be his] health.” Id. at 2 (Page ID #478). Ultimately, the psychologist concluded

that Demyanovich suffered mild to moderate impairment in several mental abilities and that he

was significantly impaired in his “mental ability to withstand stress and pressure associated with

day to day work activities.” Id. at 6 (Page ID #482). Demyanovich also told the psychologist,

and conceded at his deposition, that he had a number of physical limitations: he struggled to

walk as far as he used to, to complete various household tasks such as shoveling snow or cutting

the grass, to have a sexual relationship with his wife, or even to stand for longer than twenty or

thirty minutes without resting. Id. at 3 (Page ID #479); R. 38-4 (Demyanovich Dep. at 116–18)

(Page ID #728–30). Despite his limitations, after he was terminated Demyanovich looked for

alternative employment at several restaurants and a car wash because he thought that he “was

okay to do some kind of job” under less stressful conditions. R. 38-5 (Demyanovich Dep. at

198–99) (Page ID #824–25). After Demyanovich began receiving Social Security benefits, he

2

Cadon’s “no fault” attendance policy utilizes a point system: Employees start with sixteen points, and

Cadon subtracts points for various attendance issues. Employees lose two points for each full-day absence.

However, the written attendance policy directs that penalties are not assessed for leaves of absence, and no points

were in fact deducted from Demyanovich for his qualified FMLA leaves. See R. 34-6 (Cadon Plating Attendance

Policy) (Page ID #393); R. 34-7 (Absentee Calendars) (Page ID #416, 430, 434–38). Employees are subject to

termination if their attendance point balance falls to zero. Demyanovich received multiple warnings regarding his

absences, and his total dipped below zero several times. Ensign, at his discretion, gave Demyanovich additional

points on these occasions. However, on December 14, 2009, Ensign told Demyanovich that he would not have any

more chances if his point balance dropped to zero again. R. 38-4 (Demyanovich Dep. at 63–64) (Page ID #675–76).

3

The parties dispute the precise date of Demyanovich’s termination. The termination letter given to

Demyanovich was dated February 26, but states that the termination was effective on February 24. R. 34-9

(Termination Ltr.) (Page ID #442). However, Demyanovich seems unsure whether Ensign told him that he was

terminated on February 23 or that Ensign would consider and make a decision when he returned from vacation. R.

38-4 (Demyanovich Dep. at 64–67) (Page ID #676–79). Regardless, in his deposition testimony, Ensign clearly

stated that he told Demyanovich on February 23 that he was terminated. R. 38-6 (Ensign Dep. at 85) (Page ID

#962).

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 5

ceased looking for work because Social Security had determined he was disabled. Id. at 197

(Page ID #823).

B. Procedural History

On December 23, 2010, Demyanovich filed a complaint alleging that Cadon and Ensign

interfered with his FMLA rights and discriminated against him on the basis of his disability,

among other claims. R. 1 (Compl.) (Page ID #1–13). Cadon and Ensign filed a motion to

dismiss the complaint for failure to state a claim. R. 7 (Def. Mot. to Dismiss) (Page ID #24–43).

The district court granted in part the Defendants’ motion to dismiss, but allowed Demyanovich

to file an amended complaint alleging five counts: FMLA interference in violation of 29 U.S.C.

§ 2615(a)(1), FMLA retaliation in violation of 29 U.S.C. § 2615(a)(2), disability discrimination

in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), ADA

retaliation in violation of 42 U.S.C. § 12203, and disability discrimination in violation of the

Persons With Disabilities Civil Rights Act (“PWDCRA”), Mich. Comp. Laws § 37.1101 et seq.

R. 25 (First Am. Compl.) (Page ID #251–63).

After discovery, the Defendants filed a motion for summary judgment on all counts. R.

33 (Mot. for Summ. J.) (Page ID #304–26). On December 4, 2012, the District Court entered an

order granting the motion. The district court first determined that Demyanovich could not create

a genuine issue of material fact regarding his FMLA interference claim. The district court

reasoned that Demyanovich was not an “eligible employee” under the Act because he could not

show that he would have been able to work at the end of the twelve-week FMLA leave period.

R. 46 (D. Ct. Mem. and Order at 8–9) (Page ID #1331–32). The district court also rejected

Demyanovich’s argument that the Defendants should have accommodated him by modifying his

work schedule or permitting him to take leave. Instead, the court concluded that Demyanovich

was unable to work in any capacity. Id. at 14 (Page ID #1337). In a lengthy footnote, the district

court also concluded that there remains a question of material fact whether Cadon was an

“eligible employer” under the Act. Id. at 12–13 n.6 (Page ID #1335–36). The court noted the

lingering factual disputes regarding whether Cadon and MNP Corporation (“MNP”), a company

with many owners, managers, and business operations common to Cadon, are an “integrated

employer” for FMLA purposes. Id. Nevertheless, because it concluded that Demyanovich could

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 6

not show that he was eligible for FMLA benefits, the district court granted summary judgment to

the Defendants.

The district court also concluded that Demyanovich had failed to create a genuine issue

of material fact as to his FMLA retaliation claim. Although Demyanovich established a prima

facie case of retaliation, the district court concluded that he could not show that the Defendants’

legitimate, nondiscriminatory reasons for terminating him were pretextual. Id. at 16–20 (Page ID

#1339–43). The court recognized two legitimate reasons for the termination: violation of

Cadon’s attendance policy and Demyanovich’s permanent inability to return to work. Id. at 17

(Page ID #1340). The district court found no evidence that demonstrated intentional

discrimination. Id. at 20 (Page ID #1343).

Finally, the district court concluded that Demyanovich was unable to prove his ADA

discrimination or retaliation claims because he was not a “qualified individual.” Id. at 21 (Page

ID #1344). Although Demyanovich suggested several accommodations, including a modified

work schedule, additional leave time, or transfer to alternative line positions, the district court

concluded that he presented no evidence, other than his own testimony, that he would have been

able to perform those positions. Id. at 23 (Page ID #1346). The court reiterated its conclusion

that the evidence unquestionably showed that Demyanovich was incapable of performing any

job. Id. at 24 (Page ID #1347). This appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary judgment. Edgar v. JAC

Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006). Summary judgment is proper when the moving

party 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). On a motion for summary judgment, the

court must view all evidence and draw any reasonable inferences therefrom in favor of the

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

Grace v. USCAR, 521 F.3d 655, 661 (6th Cir. 2008). The court must determine “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.” Anderson v. Liberty Lobby, Inc., 477

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 7

U.S. 242, 251–52 (1986). A genuine dispute exists when there is sufficient evidence on which

the jury could reasonably find for the nonmoving party. Id. at 252.

III. FMLA CLAIMS

The FMLA entitles eligible employees to take up to twelve weeks of leave during any

twelve month period “[b]ecause of a serious health condition that makes the employee unable to

perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Employees

who return to work within the twelve-week statutory period are entitled to return to their

previous position or an equivalent position. Id. at § 2614(a)(1). An employer violates the

FMLA when it “interfere[s] with, restrain[s], or den[ies] the exercise of or the attempt to

exercise” FMLA rights. Id. at § 2615(a)(1); see also Bryson v. Regis Corp., 498 F.3d 561, 569–

70 (6th Cir. 2007). An employer is also prohibited under the FMLA from “discharg[ing] or in

any other manner discriminat[ing] against any individual for opposing any practice made

unlawful” under the FMLA. 29 U.S.C. § 2615(a)(2).

A. FMLA Interference

An employee may prove FMLA interference using the familiar burden-shifting

framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): the

employee has the initial burden of establishing his prima facie case; if he does so, the burden

shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions; finally,

the employee has the burden of rebutting the employer’s proffered reasons by showing them to

be pretextual. See Donald v. Sybra, Inc., 667 F.3d 757, 761–62 (6th Cir. 2012). To establish a

prima facie case of FMLA interference, an employee must show that: (1) he was an eligible

employee; (2) the defendant was a covered employer under the FMLA; (3) he was entitled to

take leave under the FMLA; (4) he notified his employer of his intent to take leave; and (5) the

employer denied him benefits or rights to which he was entitled under the FMLA. Edgar,

443 F.3d at 507. There is no dispute that Demyanovich was an eligible employee with a serious

health condition that required ongoing treatment. See 29 U.S.C. § 2611(11). Nor is there any

dispute that Demyanovich was entitled to take FMLA leave, id. at § 2612(a)(1)(D), and that he

notified Ensign of his intention to take leave on February 23. Rather, Cadon argues that it is not

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 8

a covered employer under the FMLA and that Demyanovich was not denied any benefits to

which he was entitled.

Demyanovich has presented sufficient evidence to raise a genuine factual dispute

regarding whether Cadon is a “covered employer” under the FMLA. The FMLA applies only to

employers with fifty or more employees “during each of 20 or more calendar workweeks in the

current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(i). Documentation provided by

Cadon shows that it employed, at most, forty-seven employees at any given time during the 2009

calendar year and the portion of 2010 before Demyanovich was terminated. R. 45-7 (Def.

Interrog. Resp. at

9–11) (Page ID #1300–02). Even with the addition of temporary employees, the total number of

employees never rose to fifty. R. 45-6 (Temp. Employee Chart) (Page ID #1296). Although

Demyanovich asserts that he knows of employees who were not accounted for on the list

provided by Cadon, he failed to offer any evidence of additional employees to dispute Cadon’s

employment figures. See Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir. 2009).

Thus, Demyanovich failed to refute Cadon’s evidence that it employed fewer than fifty

individuals during the relevant time period.

Nonetheless Demyanovich has created a genuine dispute as to whether Cadon is a

covered employer because he has presented evidence that Cadon is an “integrated employer”

with MNP, an affiliated company with more than 500 employees. The federal regulations

accompanying the FMLA provide:

Separate entities will be deemed to be parts of a single employer for purposes of

FMLA if they meet the integrated employer test. . . . A determination of whether

or not separate entities are an integrated employer is not determined by the

application of any single criterion, but rather the entire relationship is to be

reviewed in its totality. Factors considered in determining whether two or more

entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 9

29 C.F.R. § 825.104(c)(2). No single factor among the four is determinative, and all four need

not be present in every case to conclude that two entities are integrated. Swallows v. Barnes &

Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir. 1997).

Demyanovich has presented evidence from which a reasonable jury could conclude that

Cadon and MNP are integrated employers. First, MNP and Cadon share several common

managers. Craig Stormer is the Executive Vice President of both Cadon, R. 39-4 (Cadon Annual

Statement) (Page ID #1055), and MNP, R. 45-10 (MNP Website) (Page ID #1320). In addition,

Randy Allison, who is Vice President of Human Resources for MNP, also functioned as a human

resources manager at Cadon: Ensign made the decision to terminate Demyanovich “with some

help” from Allison, R. 38-6 (Ensign Dep. at 80) (Page ID #958); Cadon’s office manager

regularly consulted Allison or his subordinates at MNP regarding employee matters, R. 39-5

(Bluhm Dep. at 12–13) (Page ID #1072–73); and Allison represented Cadon management when

negotiating the collective bargaining agreement with unionized Cadon employees, R. 38-6

(Ensign Dep. at 9) (Page ID #889). Second, the operations of the two entities are interrelated.

Although there is no evidence that Cadon and MNP mingle accounts or keep joint financial

records, see Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir. 1983), they maintain the same

registered business address and jointly obtain quality certifications. R. 39-6 (Quality

Certifications) (Page ID #1092–1102). Moreover, the two entities are engaged in the same

business of preparing automotive parts, see Grace, 521 F.3d at 665, and orders from MNP

comprise half of Cadon’s business. R. 38-6 (Ensign Dep. at 81) (Page ID #958); R. 39-3 (MNP

Website) (Page ID #1053). Third, MNP exercised at least some control over Cadon’s labor

relations. Cadon employees regularly consulted Allison, MNP’s human resources officer, on

labor and employment issues. Allison also represented Cadon in negotiating the collective

bargaining agreement, suggesting that MNP retained some degree of centralized control over

Cadon’s employment practices. But see Swallows, 128 F.3d at 995 (finding no evidence of

control over labor relations because one company had no authority to hire or fire employees at

the other). Finally, the same group of investors has owned both MNP and Cadon since 2004. R.

38-6 (Ensign Dep. at 4–5) (Page ID #884). Thus, Demyanovich has presented sufficient

evidence to create a genuine dispute regarding whether Cadon and MNP are an “integrated

employer” covered under the FMLA.

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 10

Demyanovich also disputes Cadon’s assertion that he was not entitled to FMLA benefits

because he would have been unable to return to work at the end of the statutory leave period. If

an employer takes an adverse employment action at least in part because an employee requested

or took FMLA leave, the employer has denied an FMLA benefit. Donald, 667 F.3d at 761.

However, the employee must show that he was entitled to the benefit and was harmed by the

denial. See Edgar, 443 F.3d at 508. Employees who, at the end of the twelve-week leave period,

remain “unable to perform an essential function of the position because of a physical or mental

condition . . . [have] no right to restoration to another position under the FMLA.” 29 C.F.R.

§ 825.216(c). Indeed, “[t]he right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the

linchpin of the [interference claim] because the FMLA does not provide leave for leave’s sake,

but instead provides leave with an expectation that an employee will return to work after the

leave ends.” Edgar, 443 F.3d at 507 (internal quotation marks omitted). Thus, when an

employee is indisputably unable to work at the end of the statutory leave period, he has not been

denied any benefit to which he was entitled even if his employer denied his request for leave.

Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 784–85 (6th Cir. 1998).

Although there is ample evidence that Demyanovich might have had difficulty returning

to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable

that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician,

“advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any

documentation stating that Demyanovich was categorically unable to continue working. R. 34-

11 (Medical Records) (Page ID #459). We may not draw the inference, adverse to

Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work

after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was

no longer capable of working. Edgar, 443 F.3d at 506 (“In considering a motion for summary

judgment, the district court must construe the evidence and draw all reasonable inferences in

favor of the nonmoving party.”)

The materials related to Demyanovich’s application for Social Security disability benefits

are also not determinative. Neither application for nor receipt of social security disability

benefits is by itself conclusive evidence that an individual is completely incapable of working.

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 11

See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797–98 (1999) (concluding that claims

for Social Security disability benefits are not inherently inconsistent with ADA claims because a

disabled worker might be able to perform essential job functions with reasonable

accommodations); see also Verhoff v. Time Warner Cable, Inc., 299 F. App’x 488, 497–98 (6th

Cir. 2008) (extending Cleveland’s logic to an FMLA interference claim). Furthermore, although

the psychologist who evaluated Demyanovich in connection with his Social Security claim

concluded that he was limited in several work-related abilities, R. 34-13 (UnifiedMed Report at

6) (Page ID #482), he did not conclude that Demyanovich was incapable of working in any

capacity. Cf. Cehrs, 155 F.3d at 778, 784–85 (finding no FMLA violation when the employee’s

doctor provided her employer with documentation stating that she would be unable to return to

work until after the statutory leave period); Williams v. Toyota Motor Mfg., Ky., Inc., 224 F.3d

840, 845 (6th Cir. 2000), rev’d on other grounds by 534 U.S. 184 (2002) (finding no violation

because the employee “unequivocally stated that she was restricted at the time of her termination

and up until at least nine months later from doing any work of any kind, not even office jobs”).

Nor do the vague descriptions of statements made by Demyanovich contained in the

psychologist’s report amount to indisputable admissions that Demyanovich was incapable of

working. Employees are generally estopped from making factual assertions in a civil suit that

directly contradict factual positions taken before the Social Security Administration. Cleveland,

526 U.S. at 802; see also Blanton v. Inco Alloys Int’l, Inc., 108 F.3d 104, 108 (6th Cir. 1997).

However, the statements recorded in the psychologist’s report are not definitive admissions that

Demyanovich was permanently unable to work. The psychologist reported that Demyanovich

said that “if he were offered a job what would prevent him from working [is his] health” and that

“he is not working now due to . . . health reasons.” R. 34-13 (UnifiedMed Report at 2–3) (Page

ID #478–79). Drawing reasonable inferences in Demyanovich’s favor, these statements could be

read as indicating that Demyanovich simply concluded that he was fired because of his health.

Finally, many of Demyanovich’s own statements indicate that he was capable of working

as a machine operator. Demyanovich admits that he was having difficulty with many basic

physical activities, such as standing, lifting, and walking. R. 38-4 (Demyanovich Dep. at

116–20) (Page ID #728–32); R. 34-13 (UnifiedMed Report at 3) (Page ID #479). These

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 12

limitations may have prevented him from filling the fast-paced line positions that required

raking. However, some machine operators at Cadon performed duties that were less physically

demanding and stressful than the paint line operator positions that Demyanovich had been

regularly filling. Demyanovich maintains that he was capable of performing the “sorting” or

“catching” paint line positions, both of which were positions to which machine operators could

be assigned.4 R. 38-5 (Demyanovich Dep. at 198–99, 224) (Page ID #824–25, 850). Although

Demyanovich’s difficulty with standing for long periods of time may have disqualified him from

even these positions, a jury could also reasonably conclude that Demyanovich was capable of

working at slower-paced positions by the end of the statutory leave period. Thus, Demyanovich

has created a genuine dispute as to whether he was entitled to FMLA benefits, which Cadon

denied by terminating him.

Because Demyanovich has presented sufficient evidence to prove a prima facie case, the

burden shifts to Cadon to articulate a legitimate reason for terminating Demyanovich’s

employment after he requested FMLA leave. “[I]nterference with an employee’s FMLA rights

does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of

FMLA rights for engaging in the challenged conduct.” Edgar, 443 F.3d at 508. Cadon has

asserted two reasons for terminating Demyanovich that are purportedly unrelated to his FMLA

request: First, Cadon claims that any further absences would subject Demyanovich to

termination under Cadon’s “no fault” attendance policy and, second, Cadon contends that

Demyanovich would have been unable to return to work at the end of his leave period in any

event. Therefore, the burden shifts back to Demyanovich to demonstrate that Cadon’s purported

reasons for terminating his employment are pretextual. Plaintiffs may show that an employer’s

proffered reasons for an adverse employment action are pretext for discrimination if the reasons

4

An employee returning from FMLA leave must be able to perform the job he held at the time he took

leave: “If the employee is unable to perform an essential function of the position because of a physical or mental

condition . . . the employee has no right to restoration to another position under the FMLA.” 29 C.F.R.

§ 825.216(c). Cadon designates most of its employees as “machine operators” and rotates them through a variety of

different positions on or near the various production lines. Not all machine operators have the training or ability to

perform all of the functions of all of the positions, and some positions are easier than others. R. 38-6 (Ensign Dep.

at 26–27) (Page ID #905–06). For example, Demyanovich himself was unable to perform some of the functions on

the WMV paint line, but was nonetheless considered fully qualified as a machine operator. R. 38-5 (Demyanovich

Dep. at 168–69) (Page ID #794–95). Thus, even if Demyanovich was no longer able to perform some of the

functions of the line positions he once regularly filled, he is not necessarily unable to work as a machine operator.

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 13

“(1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to

warrant the action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012).

First, Demyanovich did not actually drop to a zero-point attendance balance, and thus

Cadon’s assertion that he was subject to termination under the attendance policy has no basis in

fact. Ensign understood that Demyanovich had one-and-a-half attendance points remaining as of

February 23, 2010. R. 38-6 (Ensign Dep. at 72) (Page ID #949). Although Demyanovich’s

termination letter states that his termination was effective February 24, after an additional

absence that would have left him with a negative point balance, R. 34-9 (Termination Ltr.) (Page

ID #442), Demyanovich has presented evidence from which a jury could conclude that he was

actually fired on February 23. Demyanovich believed that after he “asked [Ensign] for medical

leave” on the evening of February 23, Ensign told him to stay home. R. 38-5 (Demyanovich

Dep. at 226–27) (Page ID #852–53). Furthermore, Ensign admitted in his deposition testimony

that he told Demyanovich that he was terminated on February 23. R. 38-6 (Ensign Dep. at 85)

(Page ID #962). A reasonable jury could conclude that at the time Demyanovich was terminated

on February 23, he still had attendance points and was not subject to termination under Cadon’s

attendance policy.

Second, Demyanovich’s purported inability to return to work at the end of the statutory

leave period could not have actually motivated Ensign’s decision to terminate his employment

on the evening of February 23. As an initial matter, Demyanovich disputes the factual

conclusion that he would have been unable to work as a machine operator at the end of the

twelve-week FMLA leave period. More troubling is that Ensign did not even have access to

information regarding Demyanovich’s physical limitations at the time he fired Demyanovich:

There is no evidence that Ensign had seen Dr. Mussani’s note recommending that Demyanovich

quit, and a psychologist had not yet even examined Demyanovich to determine his eligibility for

Social Security benefits. Because Ensign had no basis on which to believe that Demyanovich

would be unable to return to work at the time he was terminated, that could not have been the

actual reason for Demyanovich’s termination. Therefore, Demyanovich has presented evidence

genuinely to dispute whether each of Cadon’s purported reasons for terminating his employment

is pretextual. Because we find sufficient evidence to support the conclusion that Cadon

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 14

interfered with Demyanovich’s right to FMLA leave without a legitimate reason for doing so, we

reverse the district court’s grant of summary judgment in favor of Cadon as to the FMLA

interference claim.

B. FMLA Retaliation

A plaintiff can prove his FMLA retaliation claim using either direct or indirect evidence.

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008). “The direct evidence and

circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the

other, not both.” Kline v. Tennesseee Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997). Direct

evidence, “if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.” Laderach v. U-Haul of Nw. Ohio, 207 F.3d 825,

829 (6th Cir. 2000) (internal quotation marks omitted). We have explained:

[Direct evidence] does not require a factfinder to draw any inferences in order to

conclude that the challenged employment action was motivated at least in part by

prejudice against members of the protected group. The evidence must establish

not only that the plaintiff’s employer was predisposed to discriminate on the basis

of [FMLA leave], but also that the employer acted on that predisposition.

DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (internal quotation marks and citations

omitted). If an employee successfully presents direct evidence that the employer acted with

discriminatory motive, “the burden shifts to the employer to prove by a preponderance of the

evidence that it would have made the same decision absent the impermissible motive.” Weigel v.

Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir. 2002).

Demyanovich asserts that Ensign made comments to him in connection with his FMLA

request that directly demonstrate Ensign’s prejudice against Demyanovich relating to his health

issues. Specifically, Ensign referred to Demyanovich as a “liability” immediately after

Demyanovich requested FMLA leave. R. 38-5 (Demyanovich Dep. at 155, 173) (Page ID #781,

799). Ensign was Demyanovich’s direct supervisor, and he made the ultimate decision, on that

same evening, to terminate Demyanovich’s employment. See DiCarlo, 358 F.3d at 415–17

(reversing summary judgment on an employee’s discrimination claim because the employee’s

immediate supervisor referred to him as a “dirty wop” and terminated his employment only three

weeks later); see also Daugherty, 544 F.3d at 708; Wexler v. White’s Fine Furniture, Inc.,

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 15

317 F.3d 564, 572 (6th Cir. 2003) (en banc). Cadon has not presented evidence sufficient to

meet its burden that it would have fired Demyanovich even had he not inquired into FMLA leave

because, as discussed above, neither of its purported justifications actually motivated its

decision. Thus, Demyanovich has presented sufficient evidence from which a jury could

conclude that he was terminated in retaliation for requesting FMLA leave.

Although we believe that Demyanovich has successfully provided direct evidence of

retaliation, there is also sufficient evidence to support his claim under the McDonnell Douglas

burden-shifting framework. An employee can establish a prima facie case of retaliation by

showing that (1) he engaged in protected activity, (2) his employer was aware of the protected

activity, (3) he was subject to an adverse employment action, and (4) there was a causal nexus

between the protected activity and the adverse employment action. Donald, 667 F.3d at 761.

“[T]he employer’s motive is an integral part of the analysis” in a claim of retaliation. Edgar,

443 F.3d at 508 (emphasis omitted). By asking Ensign for FMLA leave, Demyanovich both

engaged in protected activity and made his employer aware of it. His employment was

terminated mere minutes after he informed Ensign of intent to take leave. We have held that

such “proximity in time between the protected activity and the adverse employment action may

constitute evidence of a causal connection.” Bryson, 498 F.3d at 571; see also Mickey v. Zeidler

Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Thus, Demyanovich can prove a prima facie

case of retaliation.

Cadon responds with the same two purported legitimate reasons for terminating

Demyanovich as raised in the FMLA interference claim. As discussed above, Demyanovich has

presented evidence from which a reasonable jury could conclude that those reasons were

pretextual. Therefore, Demyanovich can genuinely dispute whether Cadon retaliated against him

for attempting to exercise his FMLA rights under either a direct or indirect evidence proof

structure. We reverse the district court’s grant of summary judgment in favor of Cadon as to

Demyanovich’s FMLA retaliation claim.

IV. ADA and PWDCRA CLAIMS

The ADA provides that “[n]o covered entity shall discriminate against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 16

advancement, or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Claims under the PWDCRA

“essentially track those under [the ADA].” Monette v. Electric Data Sys. Corp., 90 F.3d 1173,

1178 n.3 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312 (6th Cir. 2012) (en banc). As with FMLA claims, plaintiffs may prove disability

discrimination using the McDonnell Douglas burden-shifting framework. Talley v. Family

Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008).

To prove a prima facie case of disability discrimination, a plaintiff must show that (1) he

is disabled, (2) he is otherwise qualified to perform the essential functions of a position, with or

without accommodation, and (3) he suffered an adverse employment action because of his

disability. Id. The plaintiff’s disability must be a “but for” cause of the adverse employment

action. Lewis, 681 F.3d at 321. Demyanovich is disabled because his heart condition and

diabetes substantially limit several major life activities, including standing, walking, and

bending. See 42 U.S.C. § 12102(2). In addition, his disability was a “but for” cause of his

termination: He would not have been terminated had he not asked about taking leave to treat his

medical conditions. The remaining disputed point is whether Demyanovich was “otherwise

qualified” to work as a machine operator at the time his employment was terminated.

Demyanovich has presented evidence from which a reasonable jury could conclude that

he was a qualified individual able to perform his job duties as of February 23. A “qualified

individual” is one who “can perform the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). The essential functions of a job can be

discerned by consulting written job descriptions, as well as the employer’s judgment as to which

duties are essential. Id. Cadon’s written description of the “line operator” job identifies several

essential duties, including loading and unloading equipment, performing quality inspections, and

visually inspecting the product as it moves through the plating lines. R. 34-5 (Job Description)

(Page ID #390). The written description does not specifically identify a lifting requirement or

any other physical fitness requirement. Furthermore, although Ensign described the line operator

job during his deposition as requiring several physically exerting activities that Demyanovich

was no longer capable of at the time he was deposed, R. 38-6 (Ensign Dep. at 21) (Page ID

No. 13-1015 Demyanovich v Cadon Plating & Coatings et al. Page 17

#900–03), there is no evidence that Demyanovich was incapable of performing these physical

tasks at the time he was terminated. Indeed, Ensign admitted that Demyanovich was not fired

because of performance issues, and that he had been performing satisfactorily at his job. Id. at

54 (Page ID #932–33). Demyanovich has provided sufficient evidence genuinely to dispute

whether, at the time he was fired, he was qualified to perform the essential functions of at least

some of the machine operator positions at Cadon.5

Because Demyanovich can prove a prima facie case of disability discrimination, the

burden falls to Cadon to articulate a legitimate, nondiscriminatory reason for terminating him.

Cadon asserts that it fired Demyanovich because he was subject to termination under the

attendance policy and because he was permanently unable to work, the same reasons raised in

response to Demyanovich’s FMLA claims. For the reasons discussed above, Demyanovich can

genuinely dispute whether those justifications are pretextual. Therefore, we find sufficient

evidence in the record from which a reasonable jury could conclude that Cadon discriminated

against Demyanovich on the basis of his disability in violation of the ADA and the PWDCRA.

Accordingly, we reverse the district court’s grant of summary judgment in favor of Cadon as to

the disability discrimination claims.6

V. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of summary judgment

on Demyanovich’s FMLA interference, FMLA retaliation, ADA discrimination, and PWDCRA

discrimination claims and REMAND for further proceedings consistent with this opinion.

5

Had Demyanovich been unable to show that he was qualified for the machine operator position without

accommodation at the time he was terminated, his PWDCRA claim would fail. Although he may also show that he

would have been qualified for the job with reasonable accommodation under the ADA or the PWDCRA, the

PWDCRA imposes the additional obligation that an employee request an accommodation in writing within 182 days

of the date that he knew or should have known an accommodation was required. Mich. Comp. Laws § 37.1210(18).

Because Demyanovich never presented a formal request for accommodation, his PWDCRA claim would have failed

if he had not presented evidence from which a reasonable jury could conclude that he was able to work without

accommodation.

6

By failing to present any facts or argument relating to his ADA retaliation claim in his opening brief,

Demyanovich has waived the claim on appeal. Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir. 2004).