Walsh v. United Parcel Serv

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0007P (6th Cir.)

File Name: 00a0007p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



GARY WALSH,



Plaintiff-Appellant,





No. 98-6466

v.



>

UNITED PARCEL SERVICE, 

Defendant-Appellee. 

1

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 96-00676—James D. Moyer, Magistrate Judge.

Argued: November 2, 1999

Decided and Filed: January 6, 2000

Before: KENNEDY and RYAN, Circuit Judges;

CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: David G. Torchia, TOBIAS, KRAUS &

TORCHIA, Cincinnati, Ohio, for Appellant. Tony C.

*

The Honorable Robert H. Cleland, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

2 Walsh v. United Parcel Service No. 98-6466

Coleman, BROWN, TODD & HEYBURN, Louisville,

Kentucky, for Appellee. ON BRIEF: David G. Torchia,

TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, for

Appellant. Matthew R. Westfall, Jr., WESTFALL,

TALBOTT & WOODS, Louisville, Kentucky, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiff Gary Walsh

(plaintiff) worked as a management pilot for United Parcel

Service (defendant or UPS). In 1993 plaintiff went on

disability leave due to complications stemming from an

earlier car accident. Approximately five months after his year

of paid medical leave ended, plaintiff was terminated.

Defendant claims the termination was solely due to plaintiff’s

failure to provide information concerning his disability status

and ability to return to work. As a result of his termination,

plaintiff brought this action against defendant, claiming

violations of the Americans with Disabilities Act, 42 U.S.C.

§ 12101, et seq., Kentucky’s equivalent provision, Ky. Rev.

Stat. Ann. § 344.040, and § 510 of ERISA, 29 U.S.C. § 1140.

The district court granted summary judgment in favor of UPS

on all claims brought by plaintiff and plaintiff appealed. For

the reasons set forth below, we AFFIRM the district court’s

decision.

I. Facts

Plaintiff Gary Walsh worked for United Parcel Service as

a management pilot. In November of 1991, plaintiff was

involved in an automobile accident in which his wrist was

broken and his spine was fractured. He returned to work in

January of 1992 and continued to work until UPS removed

him from flight status in November of 1993. Plaintiff

concedes that at the time UPS made this decision, his memory

was poor, his hand eye coordination had declined and he

could not think as clearly as before the car accident. Plaintiff

acknowledges that his ability to function as a commercial

No. 98-6466 Walsh v. United Parcel Service 3

airline pilot was impaired and raises no argument against

defendant’s conclusion that he should no longer be flying.

On January 10, 1994, defendant received a

neuropsychological evaluation from plaintiff’s doctor which

stated, “My recommendation would be for a two-or-three-

month medical leave of absence to address physical issues,

obtain counseling support and become more physically and

emotionally stable.” After defendant received this evaluation

it had Aviation Medical Examiner Dr. Stephen Wright

examine plaintiff as well. Dr. Wright agreed that a medical

leave of absence would be the best course of action. Based on

these diagnoses, defendant placed plaintiff on medical leave

in February of 1994, continuing his salary through the

company’s salary continuation plan. Plaintiff ultimately

remained on paid leave until March 1, 1995, receiving a total

of $152,716.

During plaintiff’s medical leave Dr. Christopher Lawrence

acted as plaintiff’s primary treating physician. Doctor

Lawrence initially believed that plaintiff’s major problem was

fatigue. As a result, he started plaintiff on Prozac and

indicated that if things went well he hoped that plaintiff could

return to his job in approximately three months. On June 23,

1994, Dr. Lawrence sent an update of plaintiff’s condition in

which he indicated that plaintiff was improving both

physically and mentally. Dr. Lawrence noted that he planned

to see plaintiff in four weeks to evaluate whether he was ready

to work and stated, “[a]t this rate, I anticipate that he will be

ready for a restricted return to work on a limited hour basis.”

On August 12, 1994, Paula Shearer (Shearer), UPS’s

medical manager, sent plaintiff a letter informing him that he

was scheduled for a physical on August 16 with Dr. Wright.

Dr. Wright performed a general company physical and sent a

letter to Shearer indicating that plaintiff’s main complaint of

extreme fatigue continued. Dr. Wright also noted that

plaintiff declined his offer to perform an FAA physical

because plaintiff knew he would not pass while he continued

taking Prozac. Dr. Wright stated that he advised plaintiff that

4 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 21

he would need statements from all of plaintiff’s treating concerning plaintiff’s disability status and accommodations

physicians acknowledging that plaintiff was able to return to required, and plaintiff never provided this information.

work before he could clear him to do so.

The only other evidence that plaintiff relies on are facts

On December 7, 1994, Shearer sent a letter to both plaintiff advanced in his attempt to state a prima facie case against

and Dr. Lawrence requesting information on plaintiff’s work defendant under ERISA § 510. Accordingly, plaintiff has not

restrictions, projected return to work date, and treatment shown evidence of pretext that would permit a reasonable

plans. The letter also indicated that work that didn’t require juror to conclude it overwhelms the nondiscriminatory

an active FAA medical certificate was available in the reasons UPS advanced for firing him. See Manzer, 29 F.3d at

Louisville office and asked that the requested information be 1084.

provided as soon as possible. UPS needed new

documentation from plaintiff, as corporate policy only Having failed to produce evidence from which a reasonable

allowed salary continuation for a period of twelve months jury could conclude that UPS’s legitimate non-discriminatory

without new documentation. As a result, Shearer made reason for terminating him was pretextual, plaintiff’s ERISA

additional requests on December 22, 1994 and January 5, § 510 claim was properly disposed of by the district court on

1995 for plaintiff to fill out and return the disability form summary judgment.

mentioned in her December 7th letter.

III. Conclusion

Plaintiff did eventually give Dr. Lawrence a disability form

to fill out and send in to UPS, but could not recall how or For the foregoing reasons, we AFFIRM the district court’s

when it was sent. Dr. Lawrence mailed the form sometime in grant of summary judgment to defendant regarding all claims

January, but failed to provide a return to work date and only brought by plaintiff.

certified that plaintiff was disabled “from February 1, 1994

through present.” Dr. Lawrence signed the form and dated it

January 5, 1995. When Shearer called Dr. Lawrence on

February 6, 1995, regarding plaintiff’s disability, Dr.

Lawrence apparently indicated that he could not provide any

further information as he had not seen plaintiff since

December 9, 1994. Shearer also called plaintiff on February

6 to notify him that the form was incomplete.

On February 13, 1995, Shearer sent plaintiff another blank

disability form and advised him that it needed to be

completed in order for him to continue his leave. On March

15, 1995, UPS Human Resource Manager Jan Toronzo

(Toronzo) wrote plaintiff, pointing out that he had declined to

take an FAA first class medical exam, which she stated “was

scheduled to determine your ability to perform the functions

of your current position as management captain or your ability

to return to work in a non-flight position.” Toronzo further

20 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 5

requested. Plaintiff’s argument appears to largely be that stated in her letter that salary continuation could not be

under the circumstances it was unfair for defendant to approved due to plaintiff’s failure to provide appropriate

terminate him. However, the question is not whether it was medical documentation. As a result, she advised plaintiff that

fair for defendant to terminate him, or whether defendant his salary continuation was being discontinued effective

could have considered less drastic alternatives. Rather, the March 1, 1995.

only question is whether plaintiff’s conduct gave defendant a

sufficient non-discriminatory reason to fire him. On March 23, 1995, Toronzo met with plaintiff to discuss

Consequently, plaintiff has not shown that a reasonable jury medical documentation, any limitations on his ability to work,

could conclude that defendant advanced an insufficient basis and the possibility of a new job assignment. Both plaintiff

for terminating him. and UPS were represented by counsel at this meeting. At the

meeting plaintiff provided a disability form signed by a Dr.

Finally, plaintiff states that the case is ultimately about Vengrow. Dr. Vengrow listed plaintiff’s disability dates and

defendant’s motive. In discussing motive, plaintiff is trying return to work date as “unknown.” Toronzo told plaintiff that

to indirectly attack the credibility of defendant’s proffered the form was unacceptable, and they apparently agreed that

explanation for terminating him.6 However, to successfully additional time would be allowed for Dr. Lawrence to furnish

show that a termination was motivated by impermissible the necessary information. The deadline agreed upon appears

considerations, rather than the non-discriminatory reasons to have been May 8, 1995. Although UPS compiled a list of

advanced by the employer, an employee must come forward available non-flying jobs prior to its meeting with plaintiff,

with evidence other than that used to established his or her UPS never reviewed the list with him, apparently because he

prima facie case. See Manzer, 29 F.3d at 1084-85. In this attended the meeting without the return to work release that

regard, plaintiff alleges that defendant previously claimed that the company had anticipated.

it needed additional information about plaintiff’s condition,

but now claims that it only needed to know whether or not he Following the meeting, Shearer sent a letter to Dr.

was disabled and what jobs, if any, he would be able to Lawrence on March 27, 1995, requesting information

perform. Assuming this to be true, this is not the type of regarding plaintiff’s condition, ability to return to work, and

conflict in testimony that would preclude summary judgment. medical treatment. Dr. Lawrence responded on March 29,

Cf. Tinker v. Sears Roebuck & Co., 127 F.3d 519, 523 (6th 1995, indicating that he felt plaintiff was stable objectively,

Cir. 1997) (finding that the completely inconsistent reasons but that subjectively plaintiff felt that he couldn’t go back to

advanced by several individuals to explain plaintiff’s firing his old job as a pilot. Dr. Lawrence noted that plaintiff

indicated the presence of an issue of material fact). It is complained of persistent fatigue and chronic pain and was

undisputed that UPS consistently requested information ineligible to return to work as a pilot, but he stated that he was

offering no active treatment and expected no significant

change in his condition over the next twelve to eighteen

months. As the district court observed, “[the] letter did not

6

Although he does not state so, plaintiff is apparently arguing in the offer a diagnosis, did not release plaintiff to return to work,

alternative. When a plaintiff claims that the reasons the employer did not identify a disability, and did not point out any

advanced for firing him or her did not actually motivate the termination, potential accommodations which would allow plaintiff to

“the plaintiff admits that the factual basis underlying the employer’s

proffered explanation and further admits that such conduct could motivate function either as a pilot or in any other UPS position.”

the dismissal.” See Manzer, 29 F.3d at 1084. This is necessarily so

because the employee is arguing that the legitimate reasons the defendant

advanced for the termination weren’t the actual motivating reasons.

6 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 19

On April 11, 1995, Shearer sent Dr. Lawrence another discriminatory reason for its actions. The burden then shifts

letter, requesting a summary of treatment, ability to return to to plaintiff to show either: “(1) that the proffered reasons had

work, tentative return date, limitations and restrictions no basis in fact, (2) that the proffered reasons did not actually

required, and recommendations for future medical evaluation. motivate the discharge, or (3) that they were insufficient to

Plaintiff received a copy of this letter as well. Apparently in motivate discharge.” Manzer v. Diamond Shamrock, 29 F.3d

response, a letter from Dr. Vengrow was sent to UPS on April 1078, 1084 (6th Cir. 1995).

28, 1995. In his sixty word letter Dr. Vengrow indicated that

he could not diagnose a neurologic problem and concluded Plaintiff argues defendant’s reason for discharging him was

that it was beyond the realm of his expertise to suggest that pretextual because it had no basis in fact. However, plaintiff

plaintiff should not be currently working. Dr. Vengrow stated has come forward with no evidence showing that the basis

that the appropriate specialty should be consulted and noted which defendant advanced for plaintiff’s discharge was

that he had referred plaintiff to the Mayo Clinic. factually false. See Anderson v. Baxter Healthcare Corp., 13

F.3d 1120, 1124 (6th Cir. 1994) (providing that plaintiff must

Plaintiff never visited the Mayo Clinic as the insurance produce evidence from which a rational fact finder could infer

carrier refused to authorize the expense. UPS scheduled that the company lied to have a submissible issue of pretext

plaintiff for an independent medical evaluation with an for the jury). Over a more than six month period, which

orthopedic surgeon on May 16, 1995, to determine what work included multiple phone calls, letters, and a meeting where

plaintiff could perform and what medical restrictions would the parties where represented by counsel, defendant continued

be required. Plaintiff canceled, however, stating that he had to request information relating to plaintiffs disability.

jury duty. Toronzo then sent plaintiff a final letter on May 26, Nonetheless, plaintiff failed to supply the requested

1995, detailing the requests for information that UPS had information. In response plaintiff attempts to argue that he

made over the last six months and concluding, “I will allow substantially complied, however at no point did he respond to

you another week to provide this information, but you must defendant’s questions by indicating his disability status or

know if I have not received appropriate documents by June 5, what accommodations he might require. Consequently,

1995, your continued employment with United Parcel Service plaintiff has not come forth with evidence from which a

will cease on that date.” Plaintiff called on or around June 5 reasonable jury could find that defendant’s reason for

to tell Toronzo that he was currently undergoing evaluation terminating plaintiff had no basis in fact.

and could not supply the information in time.

Plaintiff’s claim that his conduct was insufficient to

On June 6, 1995, defendant sent plaintiff a letter stating that motivate defendant to discharge him is also unsupported by

his employment was terminated for failure to provide the evidence. To support such a claim, an employee must

appropriate medical documentation. Sometime after normally show that other employees who engaged in

receiving this letter, plaintiff apparently spoke with James substantially identical conduct were not discharged by the

Darwin, an assistant of Toronzo’s, about the possibility of employer. See Manzer, 29 F.3d at 1083. Plaintiff did not

going on long term disability. Plaintiff claims he was told produce evidence that defendant refrained from terminating

that he was no longer eligible because his employment with other employees in similar circumstances. Plaintiff instead

UPS had terminated. On August 31, 1995, plaintiff sent a argues that because he did not wilfully fail to provide the

letter to Toronzo requesting reinstatement and long term information requested, his conduct was insufficient to warrant

disability benefits. Plaintiff also attached a letter from Dr. dismissal. As support, plaintiff points to the fact that

Stoff, a homeopathic physician. In the letter Dr. Stoff defendant did not have an urgent need for the information it

18 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 7

wouldn’t be interested because he would have to terminate his concluded that plaintiff was disabled from his profession and

employment. When combined with the timing of his firing, predicted that it would be one to three years before he could

i.e., while he was still under medical evaluation to determine return to working as a commercial pilot. The letter did not

the extent of his disability, plaintiff contends an inference of release plaintiff for work or suggest what jobs he might be

discriminatory motive is raised. able to perform or what accommodations might be required.

On September 11, 1995, Toronzo responded to plaintiff’s

Plaintiff’s evidence of a causal connection between his letter, stating that UPS could not consider any information

firing by defendant and a desire on the part of defendant to provided because he was no longer an employee.

avoid paying LTD benefits is weak at best. For the purpose

of argument, however, we will assume that a prima facie Plaintiff filed this action against UPS, claiming violations

showing has been made, as it is clear that plaintiff has failed of the Americans with Disabilities Act (ADA), 42 U.S.C.

to show that defendant’s alleged non-discriminatory reason § 12101, et seq., Kentucky’s equivalent provision, Ky. Rev.

was pretextual. The Smith v. Ameritech Court addressed the Stat. Ann. § 344.040, and § 510 of ERISA, 29 U.S.C. § 1140.

issue of pretext and how the explanations employers advance Prior to trial UPS moved for summary judgment. The district

for their actions fit within ERISA § 510 analysis, providing: court granted defendant’s motion with regard to the ADA

claims and the corresponding claims brought under Ky. Rev.

If the plaintiff states a prima facie case under § 510, Stat. Ann. § 344.040. The court found summary judgment

the employer can rebut the presumption of impermissible was proper for three reasons. First, the court stated that

action raised by the prima facie case by introducing plaintiff had not shown that he was a qualified individual with

evidence of a legitimate, nondiscriminatory reason for its a disability, having never supplied any information

challenged action. This shifts the burden back to the concerning what accommodations he would require, what

plaintiff to show that the employer’s proffered reason jobs he could perform, or even that he was released to return

was mere pretext. Although the plaintiff need not show to work. Second, the court observed that an employer has a

that the employer’s sole purpose was to interfere with the right to request reasonable medical information from an

plaintiff’s entitlement to benefits, he must either prove individual who claims a disability. The court noted that

that the interference was a motivating factor in the plaintiff failed to meet these requests over a period in excess

employer’s actions, or prove that the employer’s of six months, not coming up with documentation for his

proffered reason is unworthy of credence. Summary disability until nearly three months after the deadline. Third,

judgment is appropriate if plaintiff fails to establish a the court found that plaintiff made no showing of a causal

prima facie case or fails to rebut the employer’s proffer connection between his disability and his delay in furnishing

of a legitimate, nondiscriminatory reason for its actions. the requested information. Given plaintiff’s repeated and

long term consultation with medical professionals and the fact

Id. at 865. that he was represented by counsel, the court could not find a

causal connection between plaintiff’s disability and his failure

As detailed above, defendant made repeated requests over to produce the requested medical information.

a six month period for the medical information necessary to

keep the plaintiff on medical leave. Defendant also met with As to the plaintiff’s ERISA § 510 claim, the court found

plaintiff and plaintiff’s counsel to discuss the information defendant’s initial argument, that plaintiff’s claim should be

needed. Defendant has stated that its sole reason for firing dismissed on summary judgment for failure to exhaust

plaintiff was that he failed to produce the requested administrative remedies, unavailing. Defendant then entered

information. In so stating, defendant has advanced a non-

8 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 17

a new motion for summary judgment, arguing that plaintiff To state a claim under § 510, the plaintiff must show

had failed to state a prima facie case. The district court that an employer had a specific intent to violate ERISA.

agreed, finding that plaintiff had produced no evidence In the absence of direct evidence of such discriminatory

showing it was defendant’s specific intent to fire plaintiff to intent, the plaintiff can state a prima facie case by

prevent him from receiving long term disability benefits due showing the existence of (1) prohibited employer

to him under ERISA. Further, the court found that even if the conduct (2) taken for the purpose of interfering (3) with

plaintiff did present a prima facie case, UPS had articulated the attainment of any right to which the employee may

a reasonable non-discriminatory grounds for terminating become entitled.

plaintiff—his failure to provide medical information

concerning his eligibility for continued leave. Id. at 865 (internal citations and quotations omitted). Further,

the Smith v. Ameritech Court found that in making its prima

II. Discussion facie case, a plaintiff must show a causal link between

pension benefits and the adverse employment decision. Id.

A. Standard of Review This means that for plaintiff’s case, “to survive a defendant’s

motion for summary judgment, plaintiff must come forward

This court reviews a district court’s grant of summary with evidence from which a reasonable jury could find that

judgment de novo. Monette v. Electronic Data Systems the defendant’s desire to avoid pension liability was a

Corp., 90 F.3d 1173, 1176 (6th Cir.1996). Summary determining factor in plaintiff’s discharge.” Id.

judgment is appropriate when there is no genuine issue as to

any material fact and the moving party is entitled to judgment In the case at bar, the district court held that plaintiff failed

as a matter of law. See Fed.R.Civ.P. 56(c). A fact is material to establish a prima facie case. In arriving at this conclusion,

if its resolution will affect the outcome of the lawsuit. See the district court emphasized the fact that, regardless of what

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. UPS officials may have thought, termination was not a bar to

2505, 91 L.Ed.2d 202 (1986). If, “the moving party has the plaintiff applying for and receiving LTD benefits.

carried its burden of showing that the pleadings, depositions, Further, the court observed that there was no evidence that

answers to interrogatories, admissions and affidavits in the plaintiff had ever applied for LTD benefits, but had he

record, construed favorably to the nonmoving party, do not applied, it would have been difficult to see how he would

raise a genuine issue of material fact for trial,” summary have qualified, given that he had represented himself as ready,

judgment should be granted. Gutierrez v. Lynch, 826 F.2d willing, and able to work in his application for Washington

1534, 1536 (6th Cir.1987). State unemployment benefits.

B. Plaintiff’s ADA Claim Plaintiff disputes the district court’s conclusion, stating that

sufficient evidence existed in the record to create an issue of

The Americans with Disabilities Act provides that: material fact as to whether defendant fired plaintiff out of a

desire to avoid paying long term disability benefits. In

No covered entity shall discriminate against a qualified support, plaintiff points to the fact that defendant knew that

individual with a disability because of the disability of LTD was a possibility and had even estimated the cost to the

such individual in regard to job application procedures, company. Further, plaintiff claims that he asked for LTD

the hiring, advancement, or discharge of employees, forms in December of 1994 and asked Toronzo about the

employee compensation, job training, and other terms, possibility of LTD in March of 1995, but was told he

conditions, and privileges of employment.

16 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 9

Corp., 87 F.3d 1167, 1169 (6th Cir. 1996) (holding that where 42 U.S.C. § 12112. Under the act, a qualified individual with

plaintiff has failed to present any evidence of the expected a disability means, “an individual with a disability who, with

duration of her impairment as of the date of her termination, or without reasonable accommodation, can perform the

a request for medical leave was unreasonable). essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111. The Act

Because continued leave was an unreasonable makes it clear that failure to accommodate an individual’s

accommodation, we find that the plaintiff’s ADA claim and disability may qualify as discrimination, defining the term

his claim under Kentucky’s equivalent provision, Ky. Rev. “discriminate” to include:

Stat. Ann. § 344.040, were properly dismissed by the district

court on defendant’s motion for summary judgment. not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

C. Plaintiff’s ERISA Claim individual with a disability who is an applicant or

employee, unless such covered entity can demonstrate

Plaintiff also challenges the district court’s grant of that the accommodation would impose an undue hardship

summary judgment regarding his claim that UPS violated on the operation of the business of such covered entity

ERISA § 510, 29 U.S.C. § 1140, by allegedly terminating him ....

to avoid paying long term disability (LTD) benefits. ERISA

§ 510 makes it unlawful for an employer to: 42 U.S.C. § 12112 (b)(5)(A).

discharge, fine, suspend, expel, discipline, or As an aid to determining whether a plaintiff has made the

discriminate against a participant or beneficiary for required showing of discrimination under § 12112, this

exercising any right to which he is entitled under the Circuit has stated the required analysis in the form of a

provisions of an employee benefit plan . . . or for the multifactor test. To recover for discrimination under the Act,

purpose of interfering with the attainment of any right to the plaintiff must show he or she: (1) is an individual with a

which such participant may become entitled under the disability; (2) is otherwise qualified to perform the job

plan . . . . requirements, with or without reasonable accommodation;

and (3) was discharged solely on account of the disability.

29 U.S.C. § 1140. In Smith v. Ameritech, 129 F.3d 857 (6th See Monette v. Electronic Data Systems Corp., 90 F.3d 1173,

Cir. 1997), this Circuit laid out the framework under which an 1177 (6th Cir. 1996) (citing Maddox v. University of

ERISA § 510 claim should be analyzed, providing: Tennessee, 62 F.3d 843, 846 (6th Cir. 1995), for its

conclusion that the analysis of claims brought under the ADA

roughly parallels that of claims brought under the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1995)). Monette

further clarified the burdens placed on each party by this

employer incurs additional administrative costs and more importantly is analysis, stating that if the plaintiff has direct evidence that

forced to shoulder long-term uncertainty regarding the composition of its the employer relied on his or her disability in making an

work force. Further, during the extended leave, the employee loses adverse employment decision:

valuable work skills, and if the employee ever returns, he or she will likely

require significant retraining. When this is balanced against the potential (1) The plaintiff bears the burden of establishing that

benefit derived from the employee returning to work, which must be

significantly discounted by the obvious indeterminacy involved, the cost he or she is disabled. (2) The plaintiff bears the burden

exceeds the likely benefit. of establishing that he or she is “otherwise qualified” for

10 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 15

the position despite his or her disability: (a) without and a half in length to be reasonable. However, we must still

accommodation from the employer; (b) with an alleged address the particular accommodation that plaintiff requested.

“essential” job requirement eliminated; or (c) with a See Cehrs, 155 F.3d at 782 (noting that the Supreme Court

proposed reasonable accommodation. (3) The employer has made clear that individualized attention is essential in

will bear the burden of proving that a challenged job disability cases).

criterion is essential, and therefore a business necessity,

or that a proposed accommodation will impose an undue Plaintiff argues that while he was not specific in his

hardship upon the employer. request, he only needed ninety days for additional evaluation.

However, plaintiff has made no credible showing why the

Monette, 90 F.3d at 1186. When a plaintiff seeks to establish nearly year and a half leave defendant gave him was somehow

his or her case indirectly, however, the Monette court an inadequate period for him to obtain an evaluation. Further,

recognized that the traditional McDonnell Douglas1 burden the evaluation that plaintiff received from his homeopathic

shifting approach continues to apply, stating: physician, months after his termination, still did not indicate

a time frame or circumstances under which plaintiff could

[P]laintiff may establish a prima facie case of return to work. The ADA was designed to eliminate

discrimination by showing that: (1) he or she is disabled; discrimination against individuals with disabilities so that

(2) otherwise qualified for the position, with or without they could become productive members of the workforce.

reasonable accommodation; (3) suffered an adverse See 42 U.S.C. § 12101; 29 C.F.R. pt.1630 (1996). However,

employment decision; (4) the employer knew or had when the requested accommodation has no reasonable

reason to know of the plaintiff’s disability; and (5) the prospect of allowing the individual to work in the identifiable

position remained open while the employer sought other future, it is objectively not an accommodation that the

applicants or the disabled individual was replaced. The employer should be required to provide. See cases cited in

defendant must then offer a legitimate explanation for its supra note 4. We therefore hold that when, as here, an

action. If the defendant satisfies this burden of employer has already provided a substantial leave, an

production, the plaintiff must introduce evidence additional leave period of a significant duration, with no clear

showing that the proffered explanation is pretextual. prospects for recovery, is an objectively unreasonable

Under this scheme, the plaintiff retains the ultimate accommodation.5 Cf. Hudson v. MCI Telecommunications

burden of persuasion at all times.

Id. at 1186-87. 5

Some Courts have explained the inquiry into the reasonableness of

As an initial matter, it is not entirely clear whether an accommodation as involving a benefit burden type analysis. See

plaintiff’s ADA claim is based on direct or indirect evidence. Cehrs, 155 F.3d at 781 (stating that plaintiff must show that the existence

of a plausible accommodation which costs less than the benefits that

Defendant claims to have fired plaintiff not because he was would be received); Monette, 90 F.3d at 1184 (suggesting a cost-benefit

disabled, but rather because he failed to produce the medical analysis to determine whether a proposed accommodation is reasonable);

documentation which UPS required for additional leave. In Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995)

support, defendant points to the fact that it was prepared to (observing “it is enough for the plaintiff to suggest the existence of a

plausible accommodation, the costs of which, facially, do not clearly

exceed its benefits.”). Such an analysis could be employed here. When

1 both the time and likelihood of return to work cannot be roughly

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. quantified after a significant period of leave has already been granted, the

1817, 1824-25, 36 L.Ed.2d 668 (1973). costs of the requested additional leave outweigh the benefits. The

14 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 11

last medical evaluation which defendant received from a give plaintiff an alternate job as soon as it could determine

homeopathic physician, months after the deadline set by what plaintiff’s disability was. Plaintiff, on the other hand,

defendant, only contained a vague estimate of the date that claims that the reasonable accommodation which his

plaintiff could return to his job as a pilot, placing it at one to disability required was additional time for evaluation and

three years in the future. Further, the letter did not release treatment, the very thing defendant was unwilling to give.2

defendant for work or suggest what other jobs he might be

able to perform or what accommodations might be required. However, regardless of whether the direct or indirect

evidence test is used, plaintiff’s claim must fail. As the

Our review of case law in this and other circuits disclosed Monette Court stated, the plaintiff bears the initial burden of

no cases where an employer was required to allow an establishing that the accommodation he or she seeks is

employee to take a leave of absence for well in excess of a reasonable. Id. at 1187; c.f. Gaines v. Runyon, 107 F.3d 1171,

year—let alone indefinitely—as a reasonable accommodation 1175–76 (6th Cir. 1997) (observing that in order for a plaintiff

to the employee’s disability.4 This suggests that it would be to establish a prima facie handicap discrimination case based

very unlikely for a request for medical leave exceeding a year on a failure to accommodate, plaintiff must show that he is a

qualified individual with a handicap, i.e., “[one] who, with or

without reasonable accommodation, can perform the essential

4 functions of the position in question without endangering the

See, e.g., Nowak v. St. Rita High School, 142 F.3d 999, 1004 (7th

Cir. 1998) (finding that, “[t]he ADA does not require an employer to health and safety of the individual or others . . . .”). In

accommodate an employee who suffers from a prolonged illness by Monette, the plaintiff proposed that as a possible

allowing him an indefinite leave of absence.”); Ralph v. Lucent Techs., accommodation he be kept on indefinite medical leave until

135 F.3d 166, 172 (1st Cir. 1998) (reviewing a preliminary injunction another position opened up. The court concluded:

granted by the district court and agreeing with the court’s decision that a

very limited four weeks leave time might be required as a reasonable

accommodation, even after plaintiff had been given 52 weeks of leave [E]mployers simply are not required to keep an employee

with pay); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225-26 (11th on staff indefinitely in the hope that some position may

Cir. 1997) (stating that where plaintiff had been on salary continuation for become available some time in the future. Moreover,

10 months already, defendant had no obligation to maintain this benefit employers are not required to create new positions for

for the remaining two months the company allowed when the defendant disabled employees in order to reasonably accommodate

could not show that he would likely be able to return to work at the end

of this period); Monette, 90 F.3d 1173, 1187 (holding that it is not a the disabled individual. Accordingly, Monette has failed

reasonable accommodation to require employers to keep employees on to establish that his proposed accommodation is a

medical leave indefinitely in the hope that a position that they can perform “reasonable” one under the statute.

will come available); Hudson v. MCI Telecommunications Corp., 87 F.3d

1167 (6th Cir. 1996) (finding that while a reasonable allowance of time

for medical care may constitute a reasonable accommodation, defendant

was not required to wait indefinitely for plaintiff, who had failed to 2

present any evidence of expected return date at time of termination, to See Monette, 90 F.3d at 1187 (finding in a failure to accommodate

recover); see also Micari v. Trans World Airlines, 43 F. Supp.2d 275, case that the defendant’s explanation for the replacing plaintiff—that he

281-82 (E.D. NY. 1999) (observing that where medical leaves have was on medical leave, unable to perform his job, and was the only

stretched beyond one year, courts have found that an employee cannot customer service representative in the building—was direct evidence that

perform the essential functions of his or her job as a matter of law); defendant relied on plaintiff’s disabled status in replacing him); but see

Powers v. Polygram Holding, 40 F. Supp.2d 195, 200 (S.D. NY. 1999) Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 781

(noting that cases in which courts have concluded that the length of (6th Cir. 1998) (applying the Monette court’s indirect evidence test in a

requested medical leave is an unreasonable accommodation as a matter of case involving the termination of an employee for failure to properly fill

law usually involved requests for close to a year or more). out required company paperwork for an extended leave of absence).

12 Walsh v. United Parcel Service No. 98-6466 No. 98-6466 Walsh v. United Parcel Service 13

Id. at 1187. The burden of establishing that the proposed for treatment of her Psoriasis. At the end of this period,

accommodation is reasonable remains with the plaintiff, plaintiff’s physician determined that another months

regardless of whether plaintiff has direct or indirect evidence treatment was needed, and estimated that plaintiff could

in support of his or her ADA claim. See Id. at 1883,1186-87. return to work on a part time basis by March 1, 1994. Id. at

This logically flows from the fact that the plaintiff is always 778. The defendant ostensibly denied the request because the

required to show that he or she is qualified for the position, plaintiff had not properly filled out the required paperwork.

with or without reasonable accommodation. See 42 U.S.C. Observing that the defendant had allowed other employees to

§ 12112(b)(5)(A). take medical leave under similar circumstances, the court

found that a genuine issue of fact existed as to whether the

Because it is clear that in this case, plaintiff’s request for granting of further medical leave would unduly burden the

additional leave was not a reasonable accommodation, we defendant, or would have 3 constituted a reasonable

must affirm the district court. Plaintiff was given a year of accommodation to the plaintiff. Id. at 783.

paid disability leave by UPS. Following that leave, plaintiff

was given more than six additional months of unpaid leave to Thus, the Cehrs Court was confronted with a situation

provide UPS with information concerning his alleged where a request for a definite and relatively short leave was

disability. As the district court observed, no information was made, accompanied by a reasonable prospect of recovery.

forthcoming, and plaintiff, who saw multiple doctors and was Clearly, the case at bar presents a much different scenario. In

represented by counsel, made no showing that the delay was this case, plaintiff knew of his injury for years, was on salary

attributable to his disability. continuation for a year, and unpaid medical leave for five

months before being terminated. As noted above, even the

Plaintiff claims that the accommodation he was asking for

was more time for diagnosis and treatment by his doctors. It

is possible that his June 5, 1995 phone call to Toronzo, 3

Significantly, the Court’s statements indicate that it believed that in

requesting additional time for diagnosis would qualify as a some instances the employer would have the burden of showing that the

request for accommodation. Plaintiff is also correct that this employee’s proposed accommodation was unreasonable. See Cehrs, 155

Circuit has recognized that a medical leave of absence can F.3d at 782-783 (discussing inquiry into the reasonableness of an

constitute a reasonable accommodation under appropriate accommodation in the same manner as the question of whether the

proposed accommodation unduly burdens an employer). To the extent

circumstances. See, e.g., Cehrs v. Northeast Ohio that the Cehrs Court suggested the employer must show that the

Alzheimer’s Research Institute, 155 F.3d 775 (6th Cir. 1998), accommodation proposed by the employee is unreasonable, it misread

(finding a genuine issue of material fact as to whether an Monette. Monette makes it plain that whether a requested accommodation

eight-week leave of absence followed by a request for an is reasonable and whether it unduly burdens the employer are separate

additional one-month leave was a reasonable accommodation inquiries. See Monette, 90 F.3d at 1183, 1184 n.10 and 1187. (stating the

language of § 12112 makes it clear that while the employer has the burden

under the ADA). However, plaintiff’s request, to the extent of persuasion on whether an accommodation would impose an undue

it was made, was unreasonable. hardship, the disabled individual has the initial and separate burden of

showing a proposed accommodation is objectively reasonable). The

Plaintiff attempts to rely on Cehrs for the proposition that Monette Court did acknowledge that the inquiry into undue burden and

an indefinite leave of absence, no matter how potentially reasonableness are similar. The Court distinguished them on the grounds

lengthy, can never be found to be objectively unreasonable. that the inquiry into reasonableness requires, “a factual determination

untethered to the defendant employer’s particularized situation,” whereas

We disagree with plaintiff’s reading of Cehrs. In Cehrs, the the question of whether a reasonable accommodation imposes an undue

plaintiff had just taken a roughly eight week leave of absence burden is evaluated with regard to “the employer’s specific situation.” Id.

at 1184 n.10.