Gjokaj v. United States Steel Corp.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0482n.06

Case No. 16-2658 FILED

Aug 17, 2017

UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk

FOR THE SIXTH CIRCUIT

NUA GJOKAJ, )

)

Plaintiff-Appellant, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

UNITED STATES STEEL CORPORATION, )

) OPINION

Defendant-Appellee. )

BEFORE: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. Nua Gjokaj crushed the tip of his finger in a steel-rolling

machine while working at U.S. Steel. After his injury, U.S. Steel sought to provide Gjokaj with

medical treatment, but he was uncooperative. According to U.S. Steel, Gjokaj showed up late to

multiple follow-up evaluations and lied to medical personnel about having his finger amputated.

As a result, U.S. Steel issued three disciplinary notices to Gjokaj—two for failing to follow

medical directives and one for misrepresenting his medical condition. Each carried a five-day

suspension. After a series of grievance hearings, U.S. Steel converted Gjokaj’s suspensions into

a discharge. Gjokaj then sued U.S. Steel a year later, bringing various state and federal claims of

discrimination, retaliation, and wrongful denials of his statutory rights. The district court granted

summary judgment to U.S. Steel on all counts. We affirm.

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

I

Nua Gjokaj worked as an entry-level employee at a U.S. Steel plant in Ecorse, Michigan.

He helped convert slabs of steel into coiled rolls. Gjokaj was a member of the United Steel

Workers Union. In November 2011, Gjokaj injured his back while on the job. Dr. Madden, the

plant medical doctor, diagnosed him with a herniated disc and restricted him to work that

required limited bending and no lifting of objects over 20 pounds. She also prescribed

medication for his pain and recommended surgery. Gjokaj declined both. Throughout 2012,

Gjokaj continued working; however, because of his restrictions, U.S. Steel assigned him to a

sedentary job at the company’s training facility. After about nine months, Gjokaj “got tired of []

just sitting down all day,” so he began performing odd jobs for a supervisor. R. 47-4, Gjokaj

Dep. at 33–34, PID 1326–27.

In late 2012, about a year after his back injury, Gjokaj was accepted into an 18-month

training program to become a maintenance technician mechanic. He considered this a

promotion. The program involved classroom and on-the-job training at locations throughout the

plant. During this time, Gjokaj claims that some of his supervisors made “little remarks” to him

about his back injury. Id. at 167, PID 1356. For example, Gjokaj explained that when they

would hand out assignments, he would hear his name followed by, “[w]e can’t have him do

that.” Id. at 166, PID 1356. He also recalled a time where he picked something up and a

supervisor asked him, “[o]h, is [that] too heavy for you?” Id. at 168, PID 1356. Gjokaj does not

remember the names of these supervisors or why the remarks were made. Despite these

comments, Gjokaj believes U.S. Steel treated him reasonably after he injured his back. Id. at 33,

PID 1326.

-2-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

On July 24, 2013, at about 4:30 P.M., Gjokaj suffered a second workplace injury. As he

was changing out a roller used to flatten sheets of steel and securing a new one with brackets, the

roller actuated downwards, crushing the tip of his right middle finger. Gjokaj immediately

noticed that his finger was bleeding profusely and that it “was hanging just like 90 degrees, just

flopped over.” Id. at 58–60, PID 1333. Gjokaj informed the on-duty supervisor, Todd Chartier,

who then called U.S. Steel’s emergency medical personnel. Gjokaj was transported to Henry

Ford Wyandotte Hospital where he arrived at 5:09 P.M.—approximately forty minutes after his

injury.

At the hospital, Gjokaj was triaged and his finger was cleaned, stitched, wrapped, and

splinted. His final diagnosis was “Primary: Acute crush injury to right middle finger,

Additional: Acute complete nail avulsion with nail bed injury, acute distal phalangeal

comminuted fracture.” R. 39-19, Hospital Notes at 4, PID 703. After Gjokaj was released, he

was transported back to the plant medical department.

There, Gjokaj met with John Benitez, the on-duty nurse, to complete an injury report.

Benitez instructed Gjokaj to return to plant medical at 7:00 A.M. the next morning so that Dr.

Madden could evaluate him. According to Benitez, he scheduled the earliest appointment time

so that Gjokaj could receive immediate treatment. Gjokaj expressed anger with this instruction

and indicated that he was not going to return in the morning because the plant was too far away

and because he would rather see a doctor closer to home. The plant medical department is

located on-site at the Ecorse plant, where Gjokaj worked daily, and is about an hour away from

Gjokaj’s home. Benitez explained to him that, because his finger injury occurred at the

workplace, U.S. Steel would cover the costs of his medical care only if he saw the plant

physician.

-3-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Gjokaj continued to resist, so Benitez called Laura Lieb, the manager of the plant medical

department, and she attempted to persuade Gjokaj. According to Lieb, she explained the

importance of receiving a follow-up evaluation, reassured him that U.S. Steel would provide him

with good care, and informed him that a failure to follow this directive could result in

disciplinary action. Gjokaj says he does not remember this conversation.

On July 25, Gjokaj did not show up for his 7:00 A.M. appointment. At 7:40 A.M., Dr.

Madden called Gjokaj, but he did not answer. Dr. Madden’s notes indicate that Gjokaj returned

her call around 10:00 A.M., at which time he requested authorization to be seen at a medical

clinic closer to his home. See also R. 39-26, Lieb Notes at 3, PID 736 (writing that Gjokaj

“called at 10 AM . . . he was at a clinic on Shaner [sic] Road trying to get his own treatment”).

Although Gjokaj admits that he was not at plant medical at 7:00 A.M., he denies going to a clinic

that morning. Instead, Gjokaj testified that he “was at home.” R. 47-4, Gjokaj Dep. at 87, PID

1340.

Eventually, Gjokaj arrived at plant medical around noon and saw Dr. Madden. Dr.

Madden took an x-ray of his finger, which revealed that only about half of his fingertip was

involved in the accident and that his volar skin was still intact—meaning, his finger had not been

completely severed. She diagnosed him with a “comminuted fracture” and noted that, although

he had “suffered a partial amputation,” after receiving stitches, his finger had been “repaired.”

R. 39-22, Dr. Madden Notes at 4, PID 716. She cleared him to return to one-handed or sedentary

work at the training center.

Before he went back to work, however, she scheduled him to be seen by Dr. Ottoni, an

orthopedic hand surgeon, at 1:15 P.M. that afternoon. Before Gjokaj left for his appointment,

Lieb instructed him to return afterwards for follow-up. Dr. Ottoni diagnosed Gjokaj with a

-4-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

“partial amputation [and] fracture,” but noted that his “nail bed is still intact,” his “skin was

closed on each side [of his finger],” and that he had “good volar skin.” R. 39-27, Dr. Ottoni

Notes at 3, PID 740. Like Dr. Madden, Dr. Ottoni determined that Gjokaj was fit to return to

work the next day—July 26—with no use of his right upper extremity.

By 3:00 P.M. on July 25, Gjokaj had not yet returned from his appointment with Dr.

Ottoni, so Lieb called him to check in. According to Lieb, Gjokaj told her that “he was in Dr.

Ottoni’s office waiting for transportation to HF Wyandotte Hospital for a procedure” because his

finger “could not be saved so Dr. Ottoni ha[d] to cut it off.” R. 39-26, Lieb Notes at 3, PID 736.

After offering her condolences, Lieb told Gjokaj to come to plant medical after the procedure.

Gjokaj first testified that he did not remember this phone call and later claimed that it “didn’t

happen” and that he “did not say” those things to Lieb. R. 47-4, Gjokaj Dep. at 103, 149, PID

1343, 1352. Phone records confirm a call from Lieb to Gjokaj at this day and time.

Gjokaj ultimately returned to plant medical at 7:40 P.M. on July 25. Benitez, the on-duty

nurse, and Angela Toland, the medical assistant, were working at the time. Both testified that

Gjokaj had a brown paper bag over his right hand, secured with duct tape, and that he told them

that, “[t]hey had to take it off. They could’nt [sic] save the finger.” R. 39-26, Benitez & Toland

Notes at 4, PID 737. When Benitez asked Gjokaj why his finger had to be amputated, Gjokaj

replied “[b]ecause it was too infected because of all the grease and dirt, that’s why they had to

cut it off.” Id. Gjokaj, again, claimed that he did not remember making these statements and

then denied them outright.

After Gjokaj informed Benitez and Toland that his finger had to be cut off, Benitez called

Lieb to inform her of this turn of events. Lieb told Benitez to have Gjokaj return to plant

medical at 7:00 A.M. the following morning—July 26—so that Dr. Madden could re-evaluate

-5-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

him following the loss of his finger. Gjokaj was upset with this order, contending that Dr.

Madden should “come over to see him” and complaining that “[t]here is nothing she can do, the

finger is gone.” R. 47-2, Benitez Dep. at 105, PID 1299.

On July 26, Gjokaj once again missed his 7:00 A.M. appointment. He called around 8:00

A.M. and spoke with Lieb, telling her, “I’m weak. I didn’t eat nothing. I don’t feel safe to

drive.” R. 47-4, Gjokaj Dep. at 109–10, PID 1344–45. According to Lieb, Gjokaj also stated

that he had been bleeding heavily during the night. Lieb then transferred Gjokaj to Dr. Madden,

who asked him to come in because she was concerned about his condition. Gjokaj agreed for a

cab to pick him up.

Gjokaj arrived at plant medical around noon on July 26. His hand was still wrapped in a

brown bag, and he was carrying a box of chocolates. Toland testified that, shortly after his

arrival, he waived his hand in front of her and said, “just kidding, I got you.” R. 39-7, Toland

Dep. at 44, PID 622. When Toland asked Gjokaj what he meant, Gjokaj stated, “I have my

finger. It’s not gone.” Id. at 46, PID 623. According to Lieb’s notes, Gjokaj made a similar

statement to the x-ray technician.

Dr. Madden then examined Gjokaj and took another x-ray of his finger. She noted that

Gjokaj’s “bandaged finger look[ed] good,” there was “minimal blood,” the “x-ray appear[ed] to

[show] all the bony tissue intact,” and he had a “return to work” slip from Dr. Ottoni. R. 39-22,

Dr. Madden Notes at 4, PID 716. Dr. Madden again cleared Gjokaj to return to “light duty” in a

“clean environment,” reiterating that he “was completely capable of doing one handed work, at

any time post injury.” Id. She also clarified that, contrary to Gjokaj’s statements the night

before, “there was never an amputation of the bone.” Id.

-6-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Lieb and Dr. Madden then asked Gjokaj why he previously told several medical

personnel that his finger had to be cut off. According to Lieb’s notes, Gjokaj replied, “I was so

happy that it was not cut off that [I] decided to play a trick on you.” R. 39-26, Lieb Notes at 3,

PID 736. When asked where he was instead of having this procedure, Gjokaj told Lieb that he

went out to dinner with a friend. Lieb reported Gjokaj’s behavior to her supervisor, Steve

Kovalchik. Kovalchik referred Gjokaj’s case to U.S. Steel’s Labor Relations Manager, Jennifer

Hickey, who then assigned the matter to Michael Simpson, the Labor Relations Representative

assigned to the region.

Simpson issued three notices of discipline to Gjokaj, each carrying a five-day suspension

from work. The first was for Gjokaj’s failure to follow Lieb’s medical directive to arrive at plant

medical at 7:00 A.M. on July 25, the morning after his finger injury. The second was for falsely

telling Lieb, Benitez, and Toland that Dr. Ottoni had to cut off his finger. The third was again

for failing to return to plant medical at 7:00 A.M. on July 26 for another follow-up appointment.

Once Gjokaj received notice of his suspensions, he filed a grievance with U.S. Steel

according to the terms of the Basic Labor Agreement (BLA) signed between the company and

his union. For suspensions of five calendar days or more, an employee is entitled to a

preliminary fact-finding hearing—a “9-B Hearing.” At the conclusion of this hearing, the

company has the authority to “convert the suspension to a discharge.” See R. 39-9, BLA

Agreement at 18–19, PID 657–658.

Gjokaj’s 9-B Hearing took place on August 2, 2013. Gjokaj, Simpson, and four union

representatives attended. Simpson led the hearing and took handwritten notes, which are the

subject of an evidentiary dispute between the parties. During the hearing, Simpson explained the

basis for Gjokaj’s disciplinary suspensions and gave him an opportunity to offer his own story.

-7-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

According to Simpson’s notes, neither Gjokaj nor his union representatives disputed Gjokaj’s

failure to arrive on time for his July 25 and July 26 appointments; instead, they argued that five-

day suspensions for these infractions were “too harsh” since Gjokaj eventually “c[a]me in later”

both days. R. 39-33, 9-B Minutes at 2–3, PID 754–55. Simpson, however, reiterated the

importance of following medical directives and noted that Lieb warned Gjokaj about the

consequences of failing to do so.

In discussing his suspension for misrepresenting his medical condition, Gjokaj initially

denied telling Lieb that his finger was cut off. Later in the hearing, however, he no longer

refuted this statement. See id. at 3, PID 755 (union rep stating that “[Gjokaj] wants to explain

why he said his finger was cut off,” and Gjokaj explaining that it was “still cut off to me”). The

union rep attempted to re-characterize Gjokaj’s false statement as a practical joke. Id. (union rep

claiming that “[h]e likes to joke a lot”).

On August 8, a week after the 9-B Hearing, Simpson converted Gjokaj’s 5-day

suspensions into a discharge. The union appealed this discharge through the remaining steps of

the grievance process, arguing that the penalty was too severe for Gjokaj’s actions. Simpson

upheld Gjokaj’s termination. The union then sought arbitration, but later withdrew its request,

and Gjokaj’s termination became final.

Approximately a year later, Gjokaj filed this lawsuit against U.S. Steel, asserting claims

under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., Michigan’s

Persons with Disabilities Civil Rights Act (PDCRA), Mich. Comp. Laws § 37.1101 et seq.,

Michigan’s Worker’s with Disabilities Compensation Act (WDCA), Mich. Comp. Laws §

418.300 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. After

discovery, U.S. Steel filed a motion for summary judgment. Gjokaj responded to this motion

-8-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

and filed his own cross-motion, seeking a declaration that he was “disabled” within the meaning

of the ADA and the PDCRA. Additionally, Gjokaj filed a motion to strike several exhibits

related to the grievance process that were attached to U.S. Steel’s motion. The only exhibit

relevant to this appeal—Exhibit 32—contained Simpson’s handwritten notes from Gjokaj’s 9-B

Hearing. The district court denied Gjokaj’s motion to strike Exhibit 32, granted summary

judgment to U.S. Steel on all substantive claims, and denied Gjokaj’s cross-motion as moot.

Gjokaj appealed.

II

A. Standard of Review

We review a district court’s evidentiary rulings for an abuse of discretion, see Flagg v.

City of Detroit, 715 F.3d 165, 175 (6th Cir. 2013), but review de novo whether a statement

qualifies as inadmissible hearsay, Stalbosky v. Belew, 205 F.3d 890, 894 (6th Cir. 2000).

Likewise, we review de novo a district court’s grant of summary judgment. Branham v. Gannett

Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir. 2010). Summary judgment is proper

when “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We construe all evidence and

draw reasonable inferences against the moving party. Martin v. Cincinnati Gas & Elec. Co., 561

F.3d 439, 443 (6th Cir. 2009). Although the moving party bears the initial burden of production,

the burden then shifts to the nonmoving party to present significant and probative evidence to

support his claim, including “specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 & n.4 (1986). When the evidence is so

one-sided that a reasonable jury could not find for the nonmoving party, the moving party must

prevail as a matter of law. Id. at 251–52.

-9-

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

B. Evidentiary Issues

Gjokaj moved to strike on evidentiary grounds Simpson’s 9-B Hearing notes. These

notes reveal Gjokaj’s admissions of showing up late to plant medical and his concession that he

“might have said that [his finger was cut off],” and serve as evidence supporting his termination.

The district court denied Gjokaj’s motion, concluding that the notes themselves were admissible

under the business-records exception to the hearsay rule, Fed. R. Evid. 803(6), and that the

relevant statements contained therein were opposing party statements, and thus non-hearsay, Fed.

R. Evid. 801(d)(2). This ruling was proper.

Gjokaj first contends that Simpson’s notes are inadmissible under Federal Rule of

Evidence 408 as statements made during compromise negotiations between Gjokaj and U.S.

Steel. Rule 408 prohibits the admission, for certain purposes, of offers to compromise along

with any statement made during the course of such compromise negotiations. See Fed. R. Evid.

408(a)(1)–(2). However, this Rule applies only to preclude evidence related to the claim “that

was the subject of the compromise.” See Uforma/Shelby Bus. Forms, Inc. v. N.L.R.B., 111 F.3d

1284, 1293–94 (6th Cir. 1997) (quoting 23 Charles Alan Wright & Kenneth W. Graham, Jr.,

Federal Practice and Procedure: Evidence § 5314 n.25 (1st ed. 1980)).

Here, the subject of Gjokaj’s 9-B Hearing had nothing to do with the discrimination,

retaliation, and interference claims he now asserts. Gjokaj did not lodge those claims against

U.S. Steel until more than a year later. In fact, Gjokaj had not yet been fired at the time of the 9-

B Hearing, nor did he dispute any of the behavior that formed the grounds for his discipline. He

merely requested leniency in punishment. But he never claimed that his punishment was

imposed because of the improper behavior of any U.S. Steel employee. Rule 408 is simply

inapplicable to this fact-finding hearing that occurred well before the formulation of the claims

- 10 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Gjokaj now asserts. See Josephs v. Pac. Bell, 443 F.3d 1050, 1064 (9th Cir. 2006) (finding no

abuse of discretion in admission of statements made during a grievance proceeding because that

proceeding “did not concern [plaintiff’s] not-yet-filed discrimination claim[s]”).

Moreover, Gjokaj’s notes are not precluded from consideration on hearsay grounds.

First, the notes themselves qualify as a business record under Rule 803(6). See United States v.

Collins, 799 F.3d 554, 582 (6th Cir. 2015). Gjokaj argues that the notes cannot be properly

authenticated under this exception because the author, Michael Simpson, is deceased. But it is

not necessary that the preparer of the business record be the one to authenticate it. Rather, this

can be done through the testimony of any qualified witness. See id. at 583. And to be a qualified

witness, one simply needs to be “familiar with the record-keeping procedures of the

organization.” Dyno Constr. Co. v. McWane, Inc., 198 F.3d 567, 576 (6th Cir. 1999). U.S. Steel

has indicated that Jennifer Hickey, as Labor Relations Manager and Simpson’s boss, will testify

that the notes meet the requirements of the business records exception. This satisfied the

company’s burden on summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). Hickey is clearly familiar with the company’s grievance process and easily meets the

criteria of a qualifying witness. Although Gjokaj alternatively argues that Simpson’s notes

cannot be authenticated under Rule 901, a business record certified by a qualified witness such as

Hickey is self-authenticating. See Fed. R. Evid. 902(11).

Second, the relevant statements contained within Simpson’s notes are opposing-party

statements and thus themselves non-hearsay. Rule 801(d)(2) excludes from the rule against

hearsay those statements that are “offered against an opposing party” and that were either made

“by the party,” made “by a person whom the party authorized to make a statement on the

subject,” or made “by the party’s agent,” among others. See Fed. R. Evid. 801(d)(2)(A), (C)-(D).

- 11 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Here, the statements in Simpson’s notes are being offered by U.S. Steel against Gjokaj, and were

either made by Gjokaj—the opposing party—or his union representatives—persons who were

“authorized to make a statement” on his behalf and who were acting as his “agents.” Thus, the

district court did not err in considering Simpson’s 9-B Hearing notes in granting summary

judgment to U.S. Steel.

C. Americans with Disabilities Act and Persons with Disabilities Civil Rights Act

Gjokaj first argues that U.S. Steel used his lack of cooperation following his finger injury

as a basis for firing him when in actuality it was frustrated with having to accommodate him

after his 2011 back injury. He brings disability discrimination claims under the Americans with

Disabilities Act (ADA) and Michigan’s state-law analogue, the Persons with Disabilities Civil

Rights Act (PDCRA). The ADA prohibits an employer from “discriminat[ing] against a

qualified individual on the basis of disability in regard to . . . [the] discharge of employees.” See

42 U.S.C. § 12112(a). Claims of disability arising under the PDCRA “essentially track those

under [the ADA].” See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433

(6th Cir. 2014) (internal quotation marks omitted) (alteration in original). Therefore, we analyze

the two claims together.

When a plaintiff seeks to prove disability discrimination through reliance on indirect

evidence—as Gjokaj does here—the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), applies. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d

1099, 1105 (6th Cir. 2008). A plaintiff must first establish a prima facie case of disability

discrimination. Id. If he does, then the burden shifts to the defendant “to articulate some

legitimate, nondiscriminatory reason for its actions.” Id. (internal quotation marks and citation

omitted). Finally, it is up to the plaintiff to show that the defendant’s proffered explanation is

- 12 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

really a pretext for discrimination. Id. The parties dispute whether Gjokaj made out a prima

facie case, but we need not address this issue. For even assuming that he has, we find that

Gjokaj has not shown a genuine dispute as to whether U.S. Steel’s stated reasons for firing him

were pretextual. See Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016).

U.S. Steel offered a legitimate, nondiscriminatory reason for firing Gjokaj: He failed to

follow two medical directives requiring him to return to the plant medical department for doctor

appointments at 7:00 A.M. on July 25 and 26, and he affirmatively misrepresented the nature of

his finger injury to Lieb, Benitez, and Toland when he claimed that Dr. Ottoni had to “cut it off.”

The burden then shifts to Gjokaj to demonstrate that a jury could find that this stated reason was

really pretext for discriminating against him because of his back injury.

An employee can prove pretext by showing that the proffered reason (1) “had no basis in

fact,” (2) “did not actually motivate the employer’s action[s],” or (3) was “insufficient to

motivate the employer’s actions.” Ferrari, 826 F.3d at 895 (quoting Romans v. Mich. Dep’t of

Human Servs., 668 F.3d 826, 839 (6th Cir. 2012)). The employee must set forth enough

evidence so that a reasonable jury could find “both that the [employer’s] reason was false, and

that discrimination was the real reason” for termination. Seeger v. Cincinnati Bell Tel. Co., 681

F.3d 274, 285 (6th Cir. 2012) (internal citation omitted). Thus, to survive summary judgment,

Gjokaj must show that U.S. Steel did not fire him because of insubordination, and that the real

reason was because of his back injury.

Although the grounds for Gjokaj’s pretext argument are unclear from his brief, he cannot

seriously contend that his firing had no basis in fact because he admitted to much of the behavior

that formed the basis of U.S. Steel’s stated reason for terminating him. See Chattman v. Toho

Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012). Moreover, Michael Simpson—the

- 13 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

individual responsible for terminating Gjokaj—“honestly believed” that Gjokaj failed to follow

medical directives and misrepresented his medical condition. In our circuit, an employer is

entitled to summary judgment on pretext so long as it honestly believed in the non-

discriminatory, factual basis for firing an employee, even if that decision later turns out to be

incorrect.1 Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001).

An employer has an honest belief when it makes a reasonably informed decision grounded in

particularized facts. Id.

Here, Simpson collected notes and statements from three witnesses prior to issuing

Gjokaj’s notices of discipline, and each corroborated Gjokaj’s disobedience. First, Lieb, the

manager of the plant medical department, confirmed that Gjokaj did not arrive at plant medical

until noon on July 25 and July 26, well after his scheduled appointment times. Additionally,

Lieb stated that when she called Gjokaj around 3:00 P.M. on July 25, he told her that “he was in

Dr. Ottoni’s office waiting for transportation to HF Wyandotte Hospital for a procedure” because

his finger “could not be saved so Dr. Ottoni ha[d] to cut it off.” R. 39-26, Lieb Notes at 3, PID

736. Similarly, the joint statement of Benitez and Toland aligns with Lieb’s story. When Gjokaj

returned to plant medical on July 25—several hours after his appointment with Dr. Ottoni and his

phone call with Lieb—Benitez and Toland were the two medical personnel on duty. According

to them, Gjokaj returned “with a brown paper bag” over his right hand and informed them that

“[t]hey had to take [his finger] off.” Id. He told them that it could not be saved “[b]ecause it

was too infected because of all the grease and dirt, that’s why they had to cut it off.” Id.

1

Gjokaj challenges the application of the honest belief rule in the aftermath of the Supreme Court’s decision in

Staub v. Proctor Hospital, 562 U.S. 411 (2011), which established the “cat’s paw” theory of liability. This theory

holds employers liable for the actions of biased, non-decisionmaking supervisors who influence the ultimate

decisionmaker. However, our circuit has continued to apply the honest belief rule post-Staub to the actions of the

decisionmaker. See, e.g., Marshall v. The Rawlings Co., 854 F.3d 368, 379 (6th Cir. 2017). If a plaintiff also raises

a cat’s paw theory as to the actions of a biased low-level supervisor (as Gjokaj later does here), our circuit simply

analyzes the two arguments separately. Id. at 379–80. We do the same here.

- 14 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Furnished with this evidence, Simpson issued notices of discipline to Gjokaj, and

scheduled the 9-B Hearing, at which time Gjokaj did not deny his misconduct. And throughout

the remainder of the grievance process, his behavior remained undisputed. Therefore, at the time

Simpson made the decision to terminate Gjokaj, he did so based on Gjokaj’s own admissions as

well as the statements of three employees who interacted directly with Gjokaj during the relevant

time period. This evidence is sufficient to find that, after a reasonable investigation, Simpson

formed an “honest belief” that Gjokaj’s actions warranted termination. Although Gjokaj

attempts to raise a factual dispute by claiming that he never told Lieb, Benitez, or Toland that Dr.

Ottoni had to “cut his finger off,” his argument is irrelevant to the honest belief analysis, which

asks only whether the information available to Simpson at the time of Gjokaj’s firing was

sufficient to support his termination. See Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 380

(6th Cir. 2017).

Finally, Gjokaj has pointed to no evidence supporting either of the other bases for

proving pretext—that his actions following his finger injury did not actually motivate Simpson’s

decision or that they were insufficient to warrant his termination. Although Gjokaj claimed that

he was really discharged because of his back injury, when pressed as to why he thought this,

Gjokaj merely responded that he “d[id]n’t know” and couldn’t “pinpoint it.” R. 47-4, Gjokaj

Dep. at 166–67, PID 1356. Additionally, Gjokaj has not identified any other similarly situated

U.S. Steel employee who engaged in comparable behavior, but was not terminated—the typical

way an employee shows that an employer’s stated reasons for termination were insufficient. See

Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir. 2000). Instead, U.S. Steel’s policy

provides that insubordination—which Gjokaj was cited for twice in addition to

misrepresentation—may be grounds for suspension, and later discharge.

- 15 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Unable to attribute a discriminatory motive to Simpson, Gjokaj argues in the alternative

that Lieb harbored bias against him and that she improperly influenced Simpson’s decision to

fire him. Under this so-called “cat’s paw” theory of liability, if a low-level supervisor is

motivated by actionable animus and influences a decisionmaker to undertake an adverse

employment action against an employee, an employer may be liable for wrongful termination.

See Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). In such cases, the bias of the non-

decisionmaker is imputed to the employer. Here, Gjokaj’s cat’s paw theory is a non-sequitur

because he has presented no evidence that Lieb harbored any bias against him, let alone bias

stemming from his back injury.

Gjokaj claims generally that Lieb “was angered by [his] resistance to her methodology

for minimizing lost time” and that she had a “genuine dislike of him following his back injury

and history of declining medical treatment.” Neither of these accusations is supported by the

record. Gjokaj spends a substantial portion of his brief recounting his theory that U.S. Steel

manipulates the recording of its employees’ “lost time,” or days away from work, in order to

avoid OSHA reporting requirements and escape scrutiny for workplace injuries. But he never

connects this theory to his claims of disability discrimination. In particular, there is no evidence

that Gjokaj expressed any disagreement with Lieb about her lost time “methodology.” Nor did

Gjokaj even have any recordable lost time following his finger injury.

Similarly, Gjokaj presented no evidence that Lieb “disliked” him following his back

injury. To the contrary, Gjokaj admits that he was treated reasonably. While he proclaims that

various plant supervisors made “little remarks” to him in regards to his lifting restrictions post-

back injury, his allegations are vague at best—he cannot remember the date, location, or names

of any of these supervisors. And importantly, Gjokaj testified that none of these remarks were

- 16 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

made by Lieb. To the contrary, there is no evidence that Lieb had any interaction with Gjokaj or

these unnamed supervisors at all in the two years between his back and finger injuries.

At oral argument, Gjokaj’s counsel pointed to several purported facts as a means to infer

Lieb’s animus. First, counsel contended that Lieb was “frustrated” with Gjokaj after his back

injury and stated that he was being “difficult” after his finger injury. But these statements

mischaracterize the record. In her deposition, Lieb explains that Dr. Madden “express[ed]

frustration” to her about Gjokaj’s refusal to obtain treatment for his back. R. 47-8, Lieb Dep. at

92, PID 1429. There is no evidence that Lieb herself was frustrated with Gjokaj. Nor, contrary

to Gjokaj’s assertion, did she ever say that Gjokaj was being “difficult.” Rather, that was how

Kovalchik explained Gjokaj’s behavior. Lieb simply informed Kovalchik that she was “having

difficulty getting Nua to agree to come in.” R. 47-7, Lieb Dep. at 102, PID 1409. This was, by

all accounts, a true statement, and not a basis upon which a reasonable jury could infer that Lieb

harbored discriminatory animus.

Second, counsel stated that Lieb made “24 phone calls” on July 24, the evening of

Gjokaj’s injury, including numerous calls to Kovalchik and VanBuren, both employee relations

personnel. Since some of these calls occurred before Gjokaj returned from the hospital and

began exhibiting defiant behavior, a jury could infer, according to Gjokaj, that Lieb contacted

them prematurely to begin the disciplinary process. But Lieb’s phone records show that she

placed only four calls collectively to these two individuals. Moreover, discovery did not reveal

whether Gjokaj was even the subject of these phone calls. Given the absence of any prior

indication of animus, these four phone calls to Kovalchik and VanBuren, standing alone, are also

insufficient to attribute animus to Lieb.

- 17 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Lastly, Gjokaj’s counsel claimed that there was no medical purpose for Gjokaj to return

to the plant medical department after his July 25 appointment with Dr. Ottoni, so Lieb’s directive

requiring him to do so must have been rooted in discriminatory animus. But once Gjokaj

returned, he met with Benitez, who completed a summary of his appointment with Dr. Ottoni and

scheduled him for a follow-up visit with Dr. Madden. This was regular protocol followed by

U.S. Steel, and therefore no basis for inferring that Lieb had an improper motive.

Because Gjokaj has not shown that Simpson’s basis for firing him was false, improperly

influenced by Lieb, or at all connected to his back injury, his discrimination claims fail.

D. Workers’ Disability Compensation Act

Next, Gjokaj argues that U.S. Steel retaliated against him in violation of the WDCA by

firing him after he asserted various rights under the Act. The WDCA provides that “[a] person

shall not discharge an employee or in any manner discriminate against an employee . . . because

of the exercise by the employee . . . of a right afforded by this act.” Mich. Comp. Laws §

418.301(13). However, the rights to which Gjokaj claims he is entitled were either provided by

U.S. Steel or are not protected by the statute.

First, Gjokaj asserts that he had the right to seek reasonable medical treatment and that

U.S. Steel prevented him from doing so. The WDCA does require an employer to “furnish, or

cause to be furnished, to an employee who receives a personal injury arising out of and in the

course of employment, reasonable medical, surgical, and hospital services and medicines . . .

when they are needed.” Mich. Comp. Laws § 418.315(1); see Cuddington v. United Health

Servs., Inc., 826 N.W.2d 519, 523 (Mich. Ct. App. 2012) (per curiam). But U.S. Steel complied

with this statutory provision. After Gjokaj was injured, his supervisor called EMS and Gjokaj

was promptly transported to the nearby hospital. The following day, U.S. Steel scheduled

- 18 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

appointments for Gjokaj to be seen by Dr. Madden, the plant medical doctor, and Dr. Ottoni, an

orthopedic hand surgeon. U.S. Steel then continued to monitor Gjokaj’s condition over the next

several days.

What Gjokaj really argues is that he was entitled to see a doctor of his own choosing. But

that is not a right compensable under the WDCA. To the contrary, in order for Gjokaj’s medical

care to be reimbursable, he was initially required to see U.S. Steel’s choice of provider. See

Mich. Comp. Laws § 418.315(1) (providing that “[a]fter 28 days from the inception of medical

care . . . the employee may treat with a physician of his or her own choice”). And U.S. Steel did

not prevent him from seeing his own doctor, in any event. Cf. Cuddington, 826 N.W.2d at 521.

According to both Lieb and Dr. Madden, Gjokaj called at 10:00 A.M. on July 25—the morning

after his injury—to inform them that he was at a medical clinic near his home. While Gjokaj

disputes that he ever went to a clinic, he at least acknowledges that he did not come to plant

medical until noon that day, and that he was just “at home” all morning. R. 47-4, Gjokaj Dep. at

87, PID 1340. There is no reason, then, why he otherwise couldn’t have seen a doctor during

this time, or alternatively, at any other time after leaving the plant medical department on July 25

and 26. In any event, Gjokaj admits that he eventually saw a non-U.S. Steel doctor regarding his

finger.

Second, Gjokaj contends that the WDCA affords him the right to refuse unreasonable

treatment. Yet, he offers no support for this contention, claiming only that the district court erred

in construing the WDCA “too narrowly.” Just as with the right to see his own doctor, while

Gjokaj had the right to refuse treatment generally—which Gjokaj knew since he refused surgery

following his back injury—this is not a right compensable under the WDCA. Plus, U.S. Steel

never required him to submit to treatment; rather, it directed him to be evaluated by plant

- 19 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

medical doctors in order for his workplace injury to be compensable by the company. In

essence, Gjokaj seeks to recast his failure to follow medical directives as merely the exercise of

his “right” to refuse treatment. We decline to give this argument credence.

Finally, Gjokaj argues that he should have received a specific loss benefit, i.e.,

compensation, for the partial amputation of his finger. While Mich. Comp. Laws § 418.361(2)

provides employees with a right to compensation for the loss of digits, Gjokaj was not entitled to

monetary payment because his finger was never actually “lost.” After Gjokaj’s finger was

crushed, he described it as “hanging just like 90 degrees, just flopped over.” R. 47-4, Gjokaj

Dep. at 58–60, PID 1333. But after a trip to the hospital, both sides of his finger were stitched up

and his “wound was repaired.” R. 39-19, Hospital Notes at 4, PID 703. Within two months,

Gjokaj’s finger was completely healed. Because Gjokaj never lost his finger, the WDCA does

not entitle him to a specific loss benefit. Gjokaj’s WDCA claim therefore fails.

E. Family and Medical Leave Act

In a reformulation of his WDCA claim, Gjokaj asserts that U.S. Steel interfered with his

rights under the FMLA by prohibiting him from seeing his own doctor and preventing him from

calling in sick after he injured his finger. In order to establish an FMLA-interference claim

under 29 U.S.C. § 2615(a)(1), a plaintiff must demonstrate that: (1) he was an eligible

employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was

entitled to leave under the FMLA; (4) the employee gave notice of his intention to take leave;

and (5) the employer denied the employee FMLA benefits to which he was entitled. Killian v.

- 20 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Yorozu Auto., Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). Gjokaj at least cannot establish that

U.S. Steel denied him either of the rights he asserts entitlement to under the FMLA.2

As discussed in the context of his WDCA claim, Gjokaj was not prevented from seeing

his own doctor. Nor did U.S. Steel refuse to allow him to call in sick. When Gjokaj called plant

medical the morning of July 26, he informed Lieb and Dr. Madden that he felt weak, hadn’t

eaten, and didn’t feel safe to drive. Additionally, he said he had been bleeding a lot during the

night. Concerned with Gjokaj’s symptoms, Dr. Madden offered to send a cab to bring him to

plant medical so that she could evaluate him. Gjokaj testified that he had “no problem” with that

solution. R. 47-4, Gjokaj Dep. at 109–10, PID 1344–45. Rather than being “required to come to

the [plant medical department],” Gjokaj willingly agreed to do so in order to receive medical

treatment.

III

For the foregoing reasons, the district court’s grant of summary judgment to U.S. Steel is

AFFIRMED.

2

Although the district court based its rejection of Gjokaj’s FMLA claim on the third and fourth elements, we are

free to affirm its decision on any grounds supported by the record. See Murphy v. Nat’l City Bank, 560 F.3d 530,

535 (6th Cir. 2009).

- 21 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

RONALD LEE GILMAN, Circuit Judge, concurring. I concur in the conclusion

reached by the lead opinion and in most of its reasoning. But I respectfully disagree with the

lead opinion’s conclusion that Gjokaj’s ADA and PDCRA claims fail to survive summary

judgment because of the application of the “honest-belief rule.” To the contrary, I am of the

opinion that a genuine dispute of material fact exists regarding whether U.S. Steel’s

decisionmaker had an honest belief that Gjokaj misrepresented his medical condition.

I would nevertheless affirm the district court’s grant of summary judgment to U.S. Steel

because Gjokaj has failed to demonstrate a causal connection between his back injury and his

termination. Similarly, he has not pointed to any evidence in the record to support the “cats-

paw” theory of liability on which he relies for his argument that the reasons given for his

termination were intended to mask unlawful discrimination.

The lead opinion concludes that Simpson, the decisionmaker responsible for Gjokaj’s

termination, had an honest belief that termination was justified because Gjokaj had (1) failed to

follow medical directives by twice showing up late to the Plant Medical Department (PMD), and

(2) made misrepresentations about his medical condition to PMD staff. I agree with the lead

opinion’s analysis insofar as it relates to Gjokaj’s tardy arrivals to the PMD. Gjokaj does not

dispute that he arrived late on both occasions.

But whether Simpson had an honest belief that Gjokaj had misrepresented his medical

condition is a much closer question. First, the lead opinion concludes that Gjokaj admitted to

making this representation during the grievance proceedings, but I find the record far from clear

on this point. Simpson’s handwritten notes from those proceedings relay that Gjokaj said: “I

didn’t tell [Lieb] the finger tip was cut off. I never said it was cut off.” After a recess, Gjokaj’s

union representative stated that “Nua wants to explain why he said his finger was cut off.”

- 22 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

Gjokaj then went on to say that “I might have said that [be]cause I thought it was cut off” and

that “It’s still cut off to me. L[o]sing it was different.” The union representative added both that

“In [Gjokaj’s] mind, his finger was cut off” and that “he likes to joke a lot.” A reasonable juror

could conclude that Gjokaj actually denied making the alleged misrepresentation, and that his

statement that he “might have said that” did not amount to an admission.

Second, and relatedly, Gjokaj explains on appeal that “amputation” is an ambiguous term

because it could mean either a surgical amputation, in which the bone is severed, or a partial

amputation, in which the skin is almost severed but the bone remains intact. He thus argues that

any statements that he made about his finger being “cut off” were not misrepresentations because

his finger was actually partially amputated. His statement about how his finger was “still cut off

to me” could make sense in this context to a reasonable juror.

The medical evidence could also be viewed by a reasonable juror to support this

conclusion. Dr. Ottoni’s notes indicate that a “partial amputation” occurred. Likewise, the result

of Dr. Madden’s x-ray confirmed the partial amputation of the distal portion of the tip of

Gjokaj’s finger. Benitez’s deposition testimony indicates that he understood that a partial

amputation had occurred. Gjokaj argues that the PMD staff should have known both that Dr.

Ottoni did not perform a surgical amputation and that Gjokaj’s statements about his finger being

cut off were true insofar as they referred to a partial amputation. In this context, a reasonable

juror could find that Simpson did not have an honest belief that a misrepresentation had

occurred.

I also note that there is no indication that Gjokaj conceded, or even came close to

conceding, that he “might have said” that his finger was cut off due to an infection resulting from

grease and dirt specifically. This statement was instead attributed to him by Benitez and Toland.

- 23 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

If Gjokaj had admitted to it, my conclusion might be different. But Gjokaj has offered a

plausible explanation for anything that he “might have said.”

Finally, Gjokaj points out that U.S. Steel failed to produce several documents that could

have shed light on whether the alleged misrepresentations occurred and on how the

decisionmakers viewed those alleged misrepresentations. Benitez’s medical-summary notes,

which would have been taken contemporaneously with Gjokaj’s PMD visit, are either missing or

were not made. In addition, Lieb requested statements from Benitez and Toland, but never

requested a statement from Dr. Madden, to whom a misrepresentation was also allegedly made.

Dr. Madden’s notes from Gjokaj’s visit contain a “clarification” that “there was never an

amputation of the bone,” but the notes do not explain why the “clarification” was entered, nor do

they refer to any misrepresentation or statement by Gjokaj.

I acknowledge that Gjokaj admitted in his deposition to telling Dr. Madden that he could

count only to 9.5. Gjokaj explained, however, that he said so in the context of explaining that he

had not yet lost his finger, but worried that he might lose it after Dr. Ottoni gave him an

uncertain prognosis. According to Gjokaj, having his finger cut off—i.e., partially amputated—

and losing it were different, as he mentioned in his grievance hearing. U.S. Steel has offered

nothing to contradict this explanation with regard to what Dr. Madden actually heard.

This court has previously concluded that, in order to invoke the honest-belief rule, an

employer must conduct a reasonable investigation into the employee’s alleged misconduct. See

Smith v. Chrysler Corp., 155 F.3d 799, 808 (6th Cir. 1998). Although this reasonable

investigation need not be perfect or involve interviews of every possible witness, see Seeger v.

Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 286 (6th Cir. 2012), Dr. Madden’s testimony

is especially important in my view because she not only allegedly heard the misrepresentations,

- 24 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

but also performed the x-ray that confirmed the true condition of Gjokaj’s finger. U.S. Steel’s

failure to obtain a statement from Dr. Madden undercuts its argument that Simpson had an

honest belief that the misrepresentation occurred, especially given that a genuine dispute of

material fact exists with regard to whether Gjokaj actually admitted to having made any

misrepresentations.

I therefore believe that Gjokaj has established the existence of a genuine dispute of

material fact with regard to whether Simpson had an honest belief that Gjokaj had

misrepresented his medical condition. But even if I am mistaken in my analysis, I see no need to

decide this difficult question. Instead, I believe that this case can be decided on much clearer

grounds.

The district court granted summary judgment to U.S. Steel on Gjokaj’s ADA and

PDCRA claims upon concluding both that (1) the honest-belief rule applied; and (2) Gjokaj had

failed to show that Lieb, or any other supervisors who influenced Gjokaj’s termination, harbored

any animus against Gjokaj based on his disability. The lead opinion analyzes the lack of

evidence of discrimination in the context of discussing Gjokaj’s cats-paw theory. I agree with

that analysis, and I write to explain my belief that the lack of animus is the crux of this case.

Gjokaj’s claims of disability discrimination are based on his back injury, which occurred

almost two years before his finger injury and resulted in the need for an accommodation. I

believe that Gjokaj has waived any claim based on his finger injury by failing to adequately raise

the issue in his brief. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618 n.9 (6th Cir.

2014). And in any event, Gjokaj’s finger injury cannot constitute a disability because it was a

short-term impairment that was expected to heal, and that in fact did heal completely within two

- 25 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

months. See Cardenas-Meade v. Pfizer, Inc., 510 F. App’x 367, 370 (6th Cir. 2013) (noting that

short-term restrictions typically do not qualify as a disability).

To prevail on his disability-discrimination claim, Gjokaj therefore has to demonstrate that

discriminatory animus based on his back injury was a “but for” cause of his termination. See

Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 306 (6th Cir. 2016). Yet Gjokaj has produced

no evidence to establish a causal link between his back injury and his termination. Gjokaj does

not assert that Simpson himself ever exhibited any signs of discriminatory animus based on

Gjokaj’s back injury. Although Gjokaj claimed in his deposition that various supervisors made

disparaging remarks toward him based on his lifting restrictions, he could recall only a few

specific remarks and was unable to remember the names of the supervisors who made them.

These vague allegations cannot support an inference of discrimination because Gjokaj failed to

attribute these remarks to any supervisors who were involved in the decision to terminate him.

Furthermore, when asked what evidence he had that U.S. Steel harbored animus towards

him based on his lifetime lifting restriction, Gjokaj insisted that “I just know that’s why it

happened.” As the district court noted, such speculation is insufficient to raise an inference of

discrimination. See Wexler v. White’s Fine Furniture, 317 F.3d 564, 584 (6th Cir. 2003) (en

banc).

Gjokaj also conceded that U.S. Steel accommodated his back injury by placing him on

lifting restrictions. U.S. Steel never asked him to exceed those restrictions and found work for

Gjokaj to perform within those limitations. And U.S. Steel essentially promoted Gjokaj by

accepting him into an advanced training program after he had injured his back. Gjokaj was

successfully participating in the program at the time of his termination. These facts indicate that

U.S. Steel did not terminate Gjokaj because of his back injury.

- 26 -

Case No. 16-2658, Gjokaj v. U.S. Steel Corp.

I would thus affirm the district court’s grant of summary judgment based on Gjokaj’s

failure to meet the but-for causation requirement. For the same reasons, I agree with the lead

opinion’s conclusion that Gjokaj’s cats-paw theory fails because, even assuming that Lieb played

a role in Gjokaj’s termination, Gjokaj failed to produce any evidence that Lieb ever made any

discriminatory remarks or otherwise exhibited animus relating to his back injury. I therefore

concur in the judgment rendered by the lead opinion.

- 27 -