# Petition for Writ of Certiorari — Gilmore v. General Electric Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1034

## Text

Supreme Court, U.S.
FILED

0)

No. 0 1107 4 JAN - 2 2002

In the OFPICE OF THE CLIBRK
Supreme Court of the Anited States

GREGORY C. GILMORE

Petitioner,
V.
GENERAL ELECTRIC COMPANY;
GE POWER SYSTEMS
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael P. Harvey

Counsel of Record
c/o Michael P. Harvey Co., L.P.A.
311 Northcliff Drive

Rocky River, Ohio 44116
(440) 356-9108

.

ICHAEL P.

Loe

i

QUESTIONS PRESENTED

. Is itnecessary for a disabled employee to request an Americans
with Disabilities Act reasonable accommodation in a certain fashion
o be effective?

3 If a disabled employee refuses an _ unreasonable
iccommodation, does he lose his statutory protection under the
Americans with Disabilities Act?

. Is summary judgment appropriate in any case based solely
ipon a conclusory, hearsay affidavit?

il
PARTIES TO THE PROCEEDING

The only parties are named in the caption of this Petition. The parties

- are:

Petitioner: | Gregory C. Gilmore (“Mr. Gilmore”), an individual.

Respondent: Petitioner states that GE Power Systems (“GE”) (a.k.a.
“Rueter Stokes”), is a wholly-owned subsidiary of
General Electric Company.

ill

TABLE OF CONTENTS

JUESTIONS PRESENTED ..-.-seeeeeeeeresereeserseseseseseres i
ARTIES TO THE PROCEEDING .....--eeeeeeereeeeeeseeererees ii
ABLE OF CONTENTS ...--eccccccccccccesesseseseseeserecess iii
ABLE OF AUTHORITIES ....---eeeccecceeeeceeeeeereseeeeeese iv
YPINIONS BELOW .....ececccecccceeeeceeeeeecesereecseerees 1
URISDICTION ...ccccccccccccccccsccccccccsssscesesesssscers 2
TATUTORY AND ADMINISTRATION PROVISIONS INVOLVED ....- 2
-TATEMENT OF THE CASE ....-eecceceeseceeecssererceeccceees 3

A. NATURE OFTHE CASES ......-eeeeeeeeeeeerresesees 3

B. COURSE OF PROCEEDINGS AND DISPOSITION IN THE
COURTS BELOW .....cceccccc cece cceereeeeeeseres 3

C. STATEMENT OF FACTS .....--eeeeeeererseerercccrces 3

1. For 13 YEARS PRIOR TO HIS DEPRESSION
MR. GILMORE’S WORK WAS EXCELLENT ....----+-> 3

2. GE’s AWARENESS OF MR. GILMORE’S

DEPRESSION ...cccccccccccccccccccccecsesorces 4
3. Mr. GILMORE TOLD GE OF HIS DEPRESSION ...---- 4
4. GE HUMAN RESOURCES FAILED TO RESPOND .....- 5

5. Gr’S REFUSAL TO PROVIDE REASONABLE
ACCOMMODATIONS ......eeeeeeeeeereseseeseee 5

6. GE’s SUMMARY JUDGMENT AFFIDAVIT IS
DEFECTIVE ....-++-- SRE ep eer yee ee eT 5

iV

7. GE FAILED TO FOLLOW ANY OF ITS OWN
a ea ee 6

8. LIFE AND WORK ACTIVITIES AFFECTED BY

MR. GILMORE’S DEPRESSION ........---ccccceees 6
REASONS FOR GRANTING THE WRIT .........cccccccccccecccces 7
I. THIS COURT SHOULD GRANT CERTIORARI TO

CLARIFY REASONABLE ACCOMMODATIONS
OBLIGATIONS UNDER TITLE I OF THE
AMERICANS WITH DISABILITIES ACT ...........ceeeeeee 7

A. BECAUSE THE LOWER COURTS MISCHARACTERIZED
MR. GILMORE’S REQUESTED ACCOMMODATIONS
AS FAILING TO MEET SOME UNIDENTIFIED
THRESHOLD, PETITIONER REQUESTS A WRIT
CPG IEE ho ccwceecesouas +cenbaws vinbabeneens 7

B. THE CIRCUIT COURTS OF APPEALS ARE SPLIT ON
WHETHER THE INTERACTIVE APPROACH
REQUIRED BY THE EEOC REGULATIONS MUST
BE USED UNDER ADATITLEI ...........0ccceeeees 9

C. BECAUSE GE FAILED TO ENGAGE IN ANY UNDUE
HARDSHIP ANALYSIS -- PETITIONER IS ENTITLED TO A
WRIT OF CERTIORARI .......... ah maria a jvveucea ae

II. | THIS COURT SHOULD ALSO GRANT CERTIORARI
TO PROVIDE GUIDELINES TO EMPLOYERS AND
EMPLOYEES ALIKE ON WHEN AN UNREASONABLE OFFER
CAN BE REFUSED WITHOUT JEOPARDIZING THE
STATUTORY PROTECTIONS GUARANTEED UNDER
THE AMERICANS WITH DISABILITIES ACT ...... Oe ee ae

Vv

I. THIS COURT IS REQUESTED TO REAFFIRM
THAT SUMMARY JUDGMENT IS INAPPROPRIATE IN
ANY CASE IF BASED UPON A CONCLUSORY,
HEARSAY AFFIDAVIT ...-cccccccccccccccccecececccces 17

1. THE DISTRICT COURT, AFTER DISCUSSING A
PROPER SUMMARY JUDGMENT STANDARD,
IGNORED IT IN THIS CASE... ccccccccccscccccccces 18

2. A CONCLUSORY, HEARSAY AFFIDAVIT IS IMPROPER
EVIDENCE UPON WHICH TO CIRCUMVENT THE
CONSTITUTIONAL RIGHT TO JURY TRIAL ......-.---- 19

3. AN AFFIANT MUST BE COMPETENT AND
KNOWLEDGEABLE AS TO THE MATTERS IN HIS

AFFIDAVIT ...cccccccccccecccccrecceseresesecers 19

4. DIRECT EVIDENCE OF DISCRIMINATION
Is NOT REQUIRED By THIS COURT AT ANY STAGE. .. 21

"ONCLUSION 3 ...cccccvccccccccccecsssereeeseresssesesesers 23

vi

TABLE OF AUTHORITIES
CASES
Adams v. Metiva, 31 F.3d 375 (6" Cir. 1994) 2.0.2... cee eee eee 18
Ahlers v. Schebil, 188 F.3d 365 (6" Cir. 1999) 2.0.00... cece eee 18
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............. 18
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986) ............ 19
Archer v. Mesaba Aviation, Inc.,200 U.S. App. ............0005. 18

Lexis 6420 (6" Cir. April 3, 2000) ........... cece ee eee cece 18
Baert v. Euclid Beverage Ltd., 149 F.3d 626 (7" Cir. 1998) ......... 10
Barnett v. U.S. Air, Inc. 228 F.3d 1105 (9" Cir. 2001) ........ 9,14,15
Beck v. University of Wisconsin Board of Regents,

FO FSG TID FT Cee. TODD ccc cccscvesesessvessovvesers 10, 13
Bragdon v. Abbott, 118 S.Ct. 2196 (1998) ........... eee eee, 8
Brickers v. Cleveland Board of Education

145 F.3d 846 (6 Cir. 1998) 2.0... . ccc ccc cece c cece ccc cceecece 11
Brown v. Chase Brass & Copper Co.

2001 U.S. App. Lexis 15726 (6" Cir. July 10, 2001) ............. 12
Bultemeyer v. Ft. Wayne Community Schools,

SOD Fe TIE OG. Fe ink chcedcannksnsaccecservininsss 10
Burns v. Coca Cola Enterprises, 222 F.3d 247 (6" Cir. 2000) ........ 11
Cassidy v. Detroit Edison Co., 138 F.3d 629 (6 Cir. 1998) ......... 12
Celotex Corp. v. Catrett, 477 US. 317 (1996) .. 2... .cscceesceees 18
Chapman v. Al Transport, 180 F.3d 1244 (11" Cir. 1999) .......... 22
Chappell v. GTE Products Corp., 803 F.2d 261 (6" Cir. 1996) ....... 20
Connolly, III v. Entex Information Services, Inc.,

2001 U.S. App. Lexis 26802 (9" Cir. May 10, 2001) ............. 15
Daily Press, Inc. v. United Press International,

412 F.2d 126 (6" Cir.), cert denied, 396 U.S. 990 (1969) .......... 20
Deane v. Pocono Med. Ctr., (3. Cir. 1998) 142 F.3d 138,149 ...... 16
EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) ........ 0... eee 9
EEOC v. G-K-G, Inc., 39 F.3d 740 (7" Cir. 1994) ..... peer a NA 17
EEOC v. Yenkin-Magistec Paint Corp.,

SUE RS Ge, Be i soa he nu sae ee i aciaeees 22

iiieaenseneniiaiieiiiiiiiiiiaiaiian

Vii

‘elts v. Optima Health, Inc. 251 F.3d 21 (1* Cir. 2001) ............ 11
‘jellestad v. Pizza Hut of Amer., Inc. 188 F.3d 944 (8" Cir. 1999) ... 10
‘urnco Const. Corp. v. Waters, 438 U.S. 567 (1978) ............4.. 23

xantt v. Wilson Sporting Goods Co. 143 F.3d 1042 (6" Cir. 1998) ... 12
sarcia-Ayala v. Lederle Parenterals, Inc.,

eC Ia cc's cencacunddeesacecevecuneude 11
xeneral Elec. Co. v. Joiner, 118 S. Ct. 512 (1997) ...... 0.0.0... ee. 17
srenier v. Syanamid Plastics, Inc., 70 F.3d 667 (1" Cir. 1995) ...... 13
daglof v. Northwest Rehab., Inc., 910 F.2d 492 (8" Cir. 1990) ...... 17
Jammon v. DHL Airways, Inc., 165 F.3d 441 (6" Cir 1999) ........ 11
SUOON ©. TOCHMNE FVORMCN CO, DOOD oc ccc ccsescecsncesececeees
U.S. App. Lexis 26778 (6" Cir. October 17, 2000) .............. 12
Jumphrey v. Memorial Hospital Assoc.,

eg Sr 9
vette Soto-Oscasio v. Federal Express Corporation,

po Perey SPT eer TT ee rer er re PPT TT TTT TrT ee 11
acques v. Clean-Up Group, Inc. 96 F.3d 506 (1* Cir. 1996) ........ 11
‘endall v. Hoover Co., 751 F.2d 171 (6" Cir. 1994) ............05. 19
‘line v. Tenn. Valley Authority, 128 F.3d 337 (6" Cir. 1997) ....... 22
asher v. Ford Motor Co., 785 F.2d 309 (6" Cir. 1996) ............ 19
Aatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

Pe Sy SE nb Chane ee ek newmeneeséncdesacees iembuaen es 17
Aengine v. Runyon, 114 F.3d 415 (3 Cir. 1997) .............005- 16
Miller v. Citizens Security Group, Inc.,

er igi suc an se ceyavcaccsdaax 19
Aitchell v. Toledo Hosp., 964, F.2d 577 (6" Cir. 1992) ............. 20
Aonette v. Electronic Data Systems Corp.,

er Ge BOE i vise eds dasesnedy skscnasees . 12,14
Aontgomery v. Alcoa, Inc., 2001 U.S. App. Lexis 8096

Pe SN nic inGeeekn bus dciees eau swe bnens 12
)rthopedic & Sports Injury Clinic v. Wayne Laboratories, Inc.,
A I ee Wa cun canard oeigseessenevcars 19
eeves v. Sanderson Plumbing, 503 U.S. 133 (2000) ............... 23

chmidt v. Safeway, Inc., 864 F. Supp. 991 (D. Or. 1994). ........... 9

Vill

Skalka v. Fernald Environmental Restoration

Management Corp., 178 F.3d 414 (6™ Cir. 1999) .............40. 22
Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) ....... 10
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) ............ 23
Street v. J.C. Bradford & Co, 886 F.2d 1472 (6" Cir. 1999) ......... 19

Taylor v. Phoenixville School District, 184 F.3d 296 (3 Cir. 1999) .. 10
Taylor v. Principal Financial Group, Inc.,

cic e cn ccecus vavereccdvsecsavs 10
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1991) .. 23
Visser v. Packer Engineering, 924 F.2d 655 (7" Cir. 1991) ........ 17
Ward v. Mass. Health Research Institute, Inc.,

es OE 9.5 onde nhs oc eons bien nesonceaes 11
FEDERAL STATUTES
EY CST Ldn cucuuscad dus bier badirskucssrsuseteceded 2
i et Ue a Ge eau s ake ae bee ow hee Aehae eee 2
hg cae ae Sue ee bee bc bh ema ed der Re WERE 7
areca nea wapeinteunereieenreerna 2
42 U.S.C. §12101(a)(2) ......... badass rake dbceteiveeauaueianes 8
ee I ios 5 cd Ses eaveusdnecasbubdavdessadea 2
OE er er or repre re rear rrr er 13
ee ED of cbc bud cutaesdueasdvekevessQuawees 13
oh iis buss vassenuwsence 8, 13, 14
I Ei i deka oe cies esac xd er cavonssstdnnskueduenee 8
es WI ft ie Paces Vewavs s cihancesesaiineecae ens 8

FEDERAL ADMINISTRATION REGULATIONS

29 CFR. pt. §1630; App. § 1630.2(0) ..........0cccceeeeceeeeeeeeeees 8
SCP Moe, WH Ae. GIMIID oon nc voce ececscscseerceees 8
29 C.F.R. §1630.2(0)(iii)(3) ..........0000. Se reat ete 12

pe | ROT PPPOE ET COTE ETT Te ETT ETT eT eT eT ee 13

iX

EDERAL CIVIL RULES
eR I LTE ET OCTET TET OLE COE EL CT ET eT Ere 20

YTHER AUTHORITIES
Vright, Miller, Kane, 10A Fessra!
ee ea SURE AO RAL O RL 20

, PPENDICES

Yctober 1, 2001 Decision of the United States
Court of Appeals for the Sixth Circuit ...................005. 25

ebruary 22, 2000 Memorandum, Opinion

nd Order of the United States District Court,
Jorthern District of Ohio (Eastern Division) .................. 28

"BEST AVAL

l

IN THE
SUPREME COURT OF THE UNITED STATES

GREGORY C. GILMORE
Petitioner,

Vv.

GENERAL ELECTRIC COMPANY;
GE POWER SYSTEMS

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GREGORY C. GILMORE, Petitioner, by the undersigned
counsel, under appropriate rules of this Court, requests that this Court
issue a writ of certiorari to the United States Court of Appeals for the
Sixth Circuit.

OPINIONS BELOW

This is a dispute over whether Mr. Gilmore was terminated by
GE in violation of his rights under Title I of the Americans with
Disabilities Act (“ADA”).

The October 1, 2001 Opinion of the Sixth Circuit Court of
Appeals, which judgment is sought to be reviewed, is printed in
Appendix A to this Petition. The Circuit Court affirmed Summary
judgment, notwithstanding Mr. Gilmore's prima facie case. The Court
found that Mr. Gilmore had not requested a_ reasonable
accommodation because he “[d]id not inform his employer that he
was seeking changes because of his disability.” The Circuit Court also

x
‘ 2

“
<

found that Mr. Gilmore refused a medical leave “[w]ithout further
‘discussion with his supervisor.”

The decision of the United States District Court for the
Northern District of Ohio (Eastern Division) that was reviewed by the
' Sixth Circuit Court of Appeals is reprinted in Appendix B to this
| Petition. The District Court granted Sumiuary judgment to GE,
' although it determined that Mr. Gilmore made out a prima facie case
| of discrimination under the ADA. But, the Court concluded that the
' company offered a non-discriminatory reason for its actions, and
Mr. Gilmore failed to demonstrate pretext, based solely upon the

affidavit of GE’s President.

[JURISDICTION

The Judgment sought to be reviewed was entered by the Sixth
| Circuit of Appeals on October 1, 2001. This Judgment is set forth in
Appendix A. Jurisdiction for the Sixth Circuit and district court was
| invoked through the Americans with Disabilities Act, 42 U.S.C. §§
| 12101-12213 and 28 U.S.C. § 1291. This Court has jurisdiction to
| review the Judgment of the Sixth Circuit Court of Appeals under 28
| US.C. § 1254(1).

STATUTORY AND ADMINISTRATION PROVISIONS
INVOLVED

a) Title I of the Americans with Disabilities Act, 42 U.S.C.
§12101 et seq.

b) EEOC Regulations on ADA Title I, 29 C.F.R pt. 1630.

3

STATEMENT OF THE CASE
A. Nature of the Case

This action arises from GE’s discriminatory harassment,
retaliation, termination and failure to accommodate Gregory Gilmore,
based upon his disability, after more than 13 years of exemplary
service in violation of federal law.

B. Course of Proceedings And Disposition in The Courts

Below

Mr. Gilmore filed an eight-count Complaint against GE on
September 24, 1998 after receiving an EEOC right to sue letter.
Following GE's failure to provide complete discovery to the Plaintiff,
GE filed a Motion for Summary judgment. Mr. Gilmore opposed,
asserting that (1) GE did not meet its Fed. Civ. R. 56 burden because
it ignored the numerous material facts in dispute; (2) Mr. Gilmore
established both the prima, facie and pretext prongs of disability
discrimination, retaliation, harassment and failure to accommodate;
(3) GE ignored Mr. Gilmore’s state claims; and (4) GE’s only evidence
in support of summary judgment, P.J. Marolda’s Affidavit, failed to
comply with Fed. Civ. R. 56. On March 22, 2000, the district court
granted Defendant’s Motion for Summary Judgment in a 23-page
Memorandum, Opinion and Order. Appendix B. On March 22, 2000,
Mr. Gilmore filed a timely Notice of Appeal to the Sixth Circuit which
affirmed on October 1, 2001.

C. Statement of Facts:

1. For 13 Years Prior to His Depression Mr. Gilmore’s
Work Was Excellent.

Mr. Gilmore worked with great success at various GE facilities
from 1984 until fired in 1998. All throughout his career at GE,

4
E

4

including his September 11, 1995 evaluation completed by the
individuals he worked with in the field, he received pesformance
ratings that “exceeded standards.”

2. GE’s Awareness of Mr. Gilmore’s Depression.

Mr. Gilmore first started experiencing depression in late 1995,
early 1996. He regularly treated with physicians, who, to this day,
prescribe anti-depressant and other medications to control his illness.
Several weeks prior to his April 11, 1996 evaluation, Ms. Embrescia,
the supervisor who terminated him, asked him if he had “emotional”
problems; Mr. Gilmore, embarrassed at first, told her no.

3. Mr. Gilmore Told GE’s of His Depression.

One week after his April 11, 1996 evaluation, Mr. Gilmore told
Ms. Embrescia that he suffered from depression. Embrescia became
upset because he had initially denied having emotional problems. He
explained that he was concerned about misconceptions people have
about his illness. Embrescia told him that she “understood”
depression and the side effects of the medications and that she knew
of previous GE employees who had depression. She talked with him
about repressed anger and how depression affects people sexually.
Periodically, Embrescia would ask him if he was doing any better on
his medications.

4. GE Human Resources Failed to Respond.

Ms. Embrescia admitted that Joseph Mooney, HR Manager, as
well as the then President of GE-Reuter Stokes, P.J. Marolda, were
aware of Mr. Gilmore’s depression through her. Neither Marolda nor
Mooney had any discussions with Mr. Gilmore about his depression.
Mooney was supposed to meet with Mr. Gilmore to review his
options; it never occurred over a seven month period.

5
5. GE’s Refusal To Provide Reasonable

Accommodations.

GE never attempted to accommodate Mr. Gilmore’s
depression. Every accommodation he requested was ignored. Mr.
Gilmore asked (1) to be considered for another job inside of GE; (2) to
be moved to a quieter space; (3) for additional training and technical
support; (4) job coaching; (5) for more frequent feedback on his
performance; (6) to come in later in the morning after late travel; and
(7) to reduce his hours as a salaried employee to an eight-hour day
rather than 12 or 16-hour days. ©

Ms. Embrescia mentioned a medical leave once to Mr. Gilmore
on April 18, 1996, the day she was informed of his depression. No one
from GE made any effort to determine any appropriate
accommodations.’

6. GE’s Summary Judgment Affidavit is Defective.

Mr. Marolda’s Affidavit “supporting” GE’s Motion for
Summary Judgment states that ESSROC complained about Mr.
Gilmore specifically during a meeting and asked that he be removed.
Mr. Phelan and Mr. Elghoroury, who were at the ESSROC meeting (as
opposed to Marolda), did not have this recollection. Phelan, who
claimed to take notes that he had with him at his deposition, but
would not produce’, admitted that: (1) ESSROC did not ask that Mr.
Gilmore not return to the site; (2) ESSROC did not ask that he be

'The Circuit Court mischaracterized GE's summary judgment
evidence. There was no evidence GE offered a medical leave “so that he
could regulate his medicines and become a more productive employee.”
App. A, p. 2. In fact, the supervisor only inquired whether Mr. Gilmore
considered a medical leave. App. B, p. 5.

?GE counsel refused to produce the notes after Phelan stated he had
them with him. They were supposed to be sent after counsel reviewed them
- - it never occurred.

6

terminated; (3) Mr. Gilmore did go back to the site on a number of
occasions after the meeting and before his termination; (4) the only
concerns raised were when Mr. Gilmore arrived and left the site and
his feedback; (5) he did not talk to Mr. Gilmore about these alleged
problems at any time; and (6) he did not have any evidence to support
the alleged complaint that came from some unidentified individual.
Marolda was not at ESSROC and had no firsthand discussions with
Gilmore or ESSROC. It was GE’s sole evidence on summary
judgment.

7. GE Failed To Follow Any of Its Own Procedures.

Mr. Gilmore was called on February 22, 1997 and told he was
suspended without explanation. On February 25, 1997, he was asked
to a meeting without explanation and was fired. He learned at this
meeting that over the previous seven months Embrescia and others
were compiling information on him to support the termination. Mr.
Gilmore asked for an opportunity to explain. Marolda’s response was,
“I am not going to discuss that with you.” GE's Positive Action
Procedure was never applied to Mr. Gilmore. At least four steps
should have preceded his termination, including a peer review
process.

8. Life and Work Activities Affected By Mr. Gilmore’s
Depression.

Mr. Gilmore’s depression caused difficulties with his
communication, sleeping, concentration and decision making. He
experienced shaking, forgetfulness and comprehension problems. He
had a hard time speaking; was anxious and over-reacted to certain
circumstances; and he and his wife were having marital problems as
a result of the depression. The medication and counseling sessions
were helping and continue to help to this day.

7

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI TO
CLARIFY REASONABLE ACCOMMODATIONS
OBLIGATIONS UNDER TITLE I OF THE
AMERICANS WITH DISABILITIES ACT.

A. Because the Lower Courts Mischaracterized Mr.
Gilmore’s Requested Accommodations as Failing to Meet
Some Unidentified Threshold, Petitioner Requests a Writ of
Certiorari.

Both lower courts incorrectly determined that Mr. Gilmore did
not request a reasonable accommodation. Yet, the Sixth Circuit noted
that he did request “altered work schedules, a quieter work space, and
other concessions, not available to similarly-situated employees.”
However, the Sixth Circuit discounted those requests by stating
“nevertheless, in no instance did he inform his employer that he was
seeking such changes because of his disability.” Appendix A, p. 2.
And, the district court incorrectly determined that “[mlJost of the
evidence Plaintiff points to cannot be construed as a request for an
accommodation.” Appendix B, pp. 19-21.

Over a seven month period, Mr. Gilmore requested a reduction
in his travel schedule; additional meetings with his supervisor to
review his performance; another job inside of GE; a move to a quieter
work space; additional training and technical support; job coaching;
approval to come in late on mornings after he traveled late the night
before; and an eight hour rather than twelve or more hour days as a
salaried employee. All of his requests were ignored by GE.

Under the ADA, discrimination includes “not making
reasonable accommodations to the known physical or mental

8

limitations of an otherwise qualified individual with a disability. .. .”
42 U.S.C. § 12112(b)(5)(A). The statute unequivocally establishes a
cause of action for disabled employees whose employers fail to
reasonably accommodate them.

Thus, in the employment context, the law requires an
evaluation of an individual’s ability to work with reasonable
accommodations and an employer's ability to make those
accommodations under the facts of the particular situation. The ADA
was not designed to further isolate, ignore or out of ignorance
mischaracterize people with disabilities. 42 U.S.C. § 12101(a)(2).
Reasonable accommodation may include job restructuring, part-time
and modified work schedules, reassignments to a vacant position,
acquisition or modification of equipment or devices, appropriate
adjustment or modification of examinations, training materials or
policies. .. and other similar accommodations. 42 U.S.C. § 1211(9); 29
C.F.R § 1630.2(0)(2)(ii). -

The ADA authorizes the EEOC to issue regulations
implementing the ADA. See 42 U.S.C. § 12116. The EEOC has stated
that in order to determine an appropriate reasonable accommodation,
“[i]t may be necessary for the [employer] to initiate an informal,
interactive process with the qualified individual with a disability in
need of the accommodation. This process should identify the precise
limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.” 29 C.F.R. pt.
§1630; app. § 1630.2(0)(3). The EEOC views the interactive process as
a mandatory obligation. See 29 C.F.R. pt. 1630, App. § 1630.9.

Title I regulations issued by the EEOC are entitled to judicial
deference because the EEOC was directed by Congress to issue
regulations implementing the statute. See 42 U.S.C. § 12116. Also, the
EEOC was given responsibility by Congress to enforce the law with
respect to private employers. See 42 U.S.C. § 12117(a). This Court in
Bragdon v. Abbott, 118 S.Ct. 2196, 2209 (1998) found that Title III of the

9

ADA entitles the Department of Justice regulations to deference
because Congress gave the Justice Department regulatory and
enforcement responsibility for that Title. Conversely, this Court in
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257-58 (1991) held that the
EEOC’s regulations did not enjoy deferance under Title VII because
the EEOC lacked regulatory authority over Title VII.

The ADA and the EEOC Regulations make it clear that an
interactive process of reaching reasonable accommodations must be
used. While it is the employee's initial responsibility to request an
accommodation in a non-obvious situation, and to notify the employer
of a disability, it is thereafter a mutual responsibility to reach an
appropriate accommodation. Plain English is sufficient and the words
“reasonable accommodation” or “ADA” do not have to be used.
Schmidt v. Safeway, Inc. 864 F. Supp. 991, 997 (D. Or. 1994)
(accommodations required if the employer is aware of the need).

B. The Circuit Courts of Appeals are Split on Whether the
Interactive Approach Required by the EEOC Regulations
Must be Used under ADA Title I.

: The First, Third, Fifth, Seventh, Eighth, Ninth and Tenth »
Circuit Courts of Appeals have held it necessary for an employer to
initiate a dialogue with an employee in order to determine an
appropriate accommodation. The Ninth Circuit has a mandatory
obligation in all cases. See Humphrey v. Memorial Hospital Assoc. 239
F.3d 1128, 1137 (9 Cir. 2001). Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9"
Cir. 2000) held that the interactive process is mandatory for the
employer and triggered by notice of the employee's disability and a
desire for an accommodation. Id. at 1111. Moreover, the Court held
that if the company is aware of the existence of the employee’s
disability, the employer must assist in initiating the interactive
process, including analyzing the particular job involved; consulting
with the individual; consulting with others; and considering the

preferences of the employee. Id.

10

The Ninth Circuit noted a number of Circuits that have held
that an employer cannot prevail on summary judgment if there is any
genuine dispute as to whether the employer engaged in the interactive
process. See Fiellestad v. Pizza Hut of Amer., Inc. 188 F.3d 944, 953 (8"
Cir. 1999) (summary judgment is typically precluded when there is a
genuine dispute as to whether the employer engaged in good faith in
the interactive process of seeking reasonable accommodations); Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 315-18 (3 Cir. 1999) (where
there is a genuine dispute about whether the employer acted in good
faith, summary judgment will typically be precluded); Baert v. Euclid
Beverage Ltd., 149 F.3d 626, 633-34 (7" Cir. 1998) (refusing to grant an
employer summary judgment because disputes of fact remained about
which party caused the breakdown in the interactive process).

The Seventh Circuit in Beck v. University of Wisconsin Board of
Regents, 75 F.3d 1130, 1135 (7" Cir. 1996) held the ADA requires “good
faith” and the party that obstructs or delays the interactive process is
acting in bad faith. In the Eighth Circuit held that when the disabled
individual requests an accommodation it becomes necessary to initiate
the interactive process. Similarly, in Smith v. Midland Brake, Inc., 180
F.3d 1154 (10 Cir. 1999) the Tenth Circuit held that the duty to engage
in the interactive process is triggered once the employee conveys to
the employer a desire to remain with the company despite his
disability. Id. at 1172. Similarly, in Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 315 (3 Cir. 1999) the Third Circuit held that the employer's
duty to engage in the interactive process is triggered once the
employer knows of the disability and the employee's desire for
accommodation and that the employer must meet the employee half
way by requesting additional information quoting Bultemeyer v. Ft.
Wayne Community Schools, 100 F.3d 1281, 1285 (7" Cir. 1996). Also, the
Fifth Circuit in Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165
(5" Cir. 1996) stated that it is the employee's initial request for an
accommodation that triggers the employer's obligation to participate
in the interactive process of determining one.

11

The First Circuit has held that there may be situations in which
a failure to engage in the process of interactive discussions would
constitute a failure to provide reasonable accommodations that
amounts to a violation of the ADA. See Felts v. Optima Health, Inc. 251
F.3d 21, 27 (1" Cir. 2001); Ward v. Mass. Health Research Institute, Inc.,
209 F.3d 29, 33 note 4 (1" Cir. 2000); Jacques v. Clean-Up Group, Inc. 96
F.3d 506, 515 (1* Cir. 1996); Garcia-Ayala v. Lederle Parenterals, Inc. 212
F.3d 638, 648 (1* Cir. 2000) (granting judgment for employee where the
company had rejected the request for an accommodation without
further discussion, although not deciding the interactive process
issue).

The First Circuit also noted in Ivette Soto-Oscasio v. Federal
Express, 150 F.3d 14 (1* Cir. 1998) “indeed, we have held that ‘there
may be situations in which the employer's failure to engage in an
informal interactive process would constitute a failure to provide
reasonable accommodations that amounts to a violation of the ADA.’
Id. at 18 citing Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1* Cir. 1996).
The First Circuit noted “in doing so, we have cautioned that ‘cases
involving reasonable accommodation turn heavily on their facts and
an appraisal of the reasonableness of the parties’ behavior.” Id. at 515.

The Sixth Circuit Court of Appeals, however, has substantively
ignored the interactive process requirements, and in fact, has affirmed
the termination of many litigations simply based on its perception that
the employee did not properly request an ADA accommodation. For
example, in Hammon v. DHL Airways, Inc., 165 F.3d 441 (6 Cir 1999)
the Sixth Circuit affirmed summary judgment for the employer. The
Court found that the plaintiff offered no proof that he asked for an
ADA accommodation. id. at 450. In Brickers v. Cleveland Board of
Education 145 F.3d 846 (6" Cir. 1998) the Court held that the Plaintiff
had to first request an accommodation for which she was qualified.
Id. at 850. There was no discussion of an interactive process. In Burns
v. Coca Cola Enterprises, 222 F.3d 247, 257 (6" Cir. 2000) the Sixth
Circuit held that the employee failed to establish that he requested a

12

ransfer to another position within the company under a company
olicy. In Monette v. Electronic Data Systems, Inc. , 90 F.3d 1173, 1183
6" Cir. 1996) the Sixth Circuit held that the disabled individual bears
he initial burden of proposing an accommodation and showing that
he accommodation is objectively reasonable. In Cassidy v. Detroit
‘dison Co., 138 F.3d 629, 633-34 (6" Cir. 1998) summary judgment for
he employer was affirmed because the employee’s proposal of
general and vague” accommodations such as a transfer to a position
nan allergy-free environment, did not satisfy the employee’s burden
f proving that there was a position within the company for which she
vas qualified, and to which reassignment could have been a
easonable accommodation. Gantt v. Wilson Sporting Goods Co. 143
3d 1042 (6™ Cir. 1998) held that because the Plaintiff made no request
or accommodation, the district court properly found that she failed
o create an issue of fact as to whether or not the company failed to
easonably accommodate her. Id. at 1047. In Brown v. Chase Brass &
Sopper Co. 2001 U.S. App. Lexis 15726 (6" Cir. July 10, 2001) the Court
ffirmed Summary judgment because the employee did not
lemonstrate that any of his requests were met or treated as a request
oran ADA accommodation. In Montgomery v. Alcoa, Inc., 2001 U.S.
App. Lexis 8096 (6" Cir. April 27, 2001) summary judgment was
ipheld for the employer where the employee was found to not have
nformed the company that he was limited by diabetes nor requested
iny accommodations. In Hinson v. Tecumeh Products Co., 2000 U.S.
App. Lexis 26778 (6" Cir. October 17, 2000) the Court affirmed
ummary judgment for the employer finding that the Plaintiff never
equested any accommodation from the company and the company
s not required to speculate as to the extent of the employee’s disability
yr the employee's need or desire for accommodation.

None of Mr. Gilmore’s requests were discussed with him by
inyone at GE, and no effort was made by GE to participate in an
nformal, interactive process, or for that matter, any process to decide
| proper accommodation for him pursuant to his numerous requests
yver seven months. See EEOC Regulations, 29 C.F.R. §1630.2(0)(iii)(3).

13

Mr. Gilmore was supposed to meet with the head of GE’s Human
Resources Department, Mr. Moody, to discuss the company’s
employee assistance program, and possible options concerning leave,
but GE never followed through. The appropriate reasonable
accommodation would have been best determined through a flexible,
interactive process, that involved both parties to the situation. See
Grenier v. Syanamid Plastics, Inc., 70 F.3d 667 (1° Cir. 1995); Beck v.
University of Wisconsin Board of Regents, 75 F.3d 1130, 1137 (7™ Cir.
1996) (“the ADA, in its implementing regulations, require that the
parties engage in an interactive process to determine what precise
accommodations are necessary.”

C. Because GE Failed to Engage in Any Undue Hardship
Analysis -- Petitioner is Entitled to a Writ of Certiorari.

GE did not undertake any efforts to determine any “significant
difficulty or expense” on any of Mr. Gilmore’s requested
accommodations. The ADA defines discrimination to include “not
making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified with a disability who is an
applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” 42 U.S.C. §
12112(b)(5)(A); 29 C.F.R. § 1630.9. The point of the ADA is to integrate
people with disabilities into the economic and social mainstream, not
isolate them from the workplace.

The Act defines “undue hardship” as an action requiring
significant difficulty or expense when considered in light of various
factors 42 U.S.C. § 12111(10)(A). The factors include the nature and
cost of the accommodation, the size and resources of the covered
entity, and the effect of the accommodation on the operations of the
covered entity. 42 U.S.C. § 12111(10). Some courts have held that
undue hardship analysis is fact intensive and rarely suitable for
resolution on summary judgment. See Humphrey 239 F.3d at 1139. In

14

any event, most courts put the burden on the employer to show that
a proposed accommodation would cause an undue hardship. Barnett
228 F.3d at 1113. See also 42 U.S.C. § 12112(b)(5)(A).

The Sixth Circuit held in Monette v. Electronic Data Systems
Corp., 90 F.3d 1173, 1198 (6" Cir. 1996) that once the plaintiff makes a
prima facie case suggesting the existence of possible reasonable
accommodations for which the costs did not clearly exceed the
benefits (which Mr. Gilmore did), the employer bears the duty to
establish that such accommodation would constitute an undue
hardship to the employer. Mr. Gilmore suggests that even this very
conservative reading of the statute has been ignored in practice by the
Sixth Circuit.

Only “lip service” is paid to the employer's undue hardship
burden if the Court ignores the reasonable accommodation interactive
process as the EEOC mandates. Petitioner suggests to this Court that
the Sixth Circuit is largely out of step with the other Circuits and
employers aware of this situation ignore their responsibility under law
with impunity.

II.

THIS COURT SHOULD ALSO GRANT
CERTIORARI TO PROVIDE GUIDELINES TO
EMPLOYERS AND EMPLOYEES ALIKE ON WHEN
AN UNREASONABLE OFFER CAN BE REFUSED
WITHOUT JEOPARDIZING THE STATUTORY
PROTECTIONS GUARANTEED UNDER THE
AMERICANS WITH DISABILITIES ACT.

This Court should also grant certiorari to provide guidelines
io employers and employees alike on when an unreasonable
accommodation offer can be refused without desi» ying the statutory
protections guaranteed under the Americans with Disabilities Act.

15

In Connolly, III v. Entex Information Services, Inc., 2001 U.S. App.
Lexis 26802 (9" Cir. May 10, 2001) the employee complained that the
company failed to enter into a good faith interactive effort to provide
a reasonable accommodation. However, the company had offered —
Connolly a medical leave of absence; reduced the number of tickets
assigned to him at one time; and made other workplace changes.
Connolly, however, argued that he was not given the reassignment that
he desired, and the Court noted that Entex was not required to give
him the reassignment of his choice. Citing Barnett v. U.S. Air, Inc. 228
F.3d 1105, 1110 (9 Cir. 2001). “The goal is to identify an
accommodation that allows the employee to perform the job
effectively, not to provide the job of the employee’s choice. See Id.

Conversely, as the Third Circuit explained Taylor v. Phoenixville
School District, 184 F.3d 296 (3 Cir. 1999) that since the regulations
required an interactive process to identify appropriate
accommodations, it would make little sense to insist that the employee
must have arrived at the end product of the interactive process before
the employer has a duty to participate in that process. Id. at 316. The
Third Circuit also noted that interactive process avoids or reduces
litigation. “We take this opportunity to observe that this protracted
(and very much ongoing) litigation would likely have been
unnecessary had the parties taken seriously the precepts announced
in our opinion in Mengine.” Id. citing Deane v. Pocono Med. Ctr. (3™ Cir.
1998) 142 F.3d 138, 149 (3"*. Cir. 1998). The Court also noted that “as
we explained in Mengine, the process must be interactive because each
party holds information the other does not have or cannot easily
obtain. We noted that ‘employers will not always know what kind of
work the worker with the disability can do, conversely, the worker
may not be aware of the range of available employment opportunities,
especially in a large company.” Taylor, Id. citing Mengine v. Runyon,
114 F.3d 415, 420 (3 Cir. 1997).

An off-hand remark mentioning a medical leave is not, in and
of itself, an offer of a reasonable accommodation. It was not truly

16

meant to accommodate Mr. Gilmore’s depression. It was meant to
remove him from the workplace when he did not want nor need
isolation. And, only much later in the briefing did GE finally seize
upon this point which the Sixth Circuit exploited in affirming
summary judgment. Obviously, the lower courts ignored the fact that
there was no interactive process, and ignored Mr. Gilmore's requests
for accommodation. Employees should not have to continually
propose reasonable accommodations in the face of employer silence,
and then risk losing a lawsuit on summary judgment. Until, and if,
the employer engages in a good faith interactive process of trying to
find an accommodation, which proposal involves keeping the
employee in the workplace as long as he can perform the essential
functions of the job with or without an accommodation, then the
employer's obligations are satisfied. And, only then should the
employee who rejects such accommodations be outside of the
protections of the statute. But, the statement “did you consider a
medical leave”, which the employee does not want to take, not only
for financial and practical problems, but so as not to be stigmatized,
cannot be construed by a court as constituting a reasonable
accommodations and satisfying the employer's burden, particularly

on summary judgment.

In conclusion, this Court is asked to make it clear that the
purpose of the Americans with Disabilities Act is to find ways to
integrate the disabled into the workforce, not isolate them further.
This Court is asked to conclude that if an employee refuses a
reasonable accommodation after a good faith interactive process, that
employee risks being outside of the scope of protections offered by the
ADA. But, when an employee is offered an unpaid medical leave and
does not want nor need to take it, that employee should not be
considered outside of the scope of the Act’s protection unless it was
the end product of a good faith interactive process which concludes in
accommodation or an undue hardship analysis.

17

II.

THIS COURT IS REQUESTED TO REAFFIRM
THAT SUMMARY JUDGMENT IS
INAPPROPRIATE IN ANY CASE IF BASED UPON
A CONCLUSORY, HEARSAY AFFIDAVIT.

This Court has consistently emphasized that on a motion for
summary judgment, federal courts must view the evidence in the light
most favorable to the non-moving party, with all disputed facts and
inferences drawn in favor of that party and against the moving party.
See e.g., General Elec. Co. v. Joiner, 118 S. Ct. 512, 517 (1997); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Summary judgment should seldom be used in cases alleging
employment discrimination. Haglofv. Northwest Rehab., Inc., 910 F.2d
492, 494 (8 Cir. 1990). “Caution is required in granting summary
judgment especially under a statute that allows a trial by jury... .”
Visser v. Packer Engineering, 924 F.2d 655, 660 (7 Cir. 1991). Judge
Posner of the Seventh Circuit in EEOC v. G-K-G, Inc., 39 F.3d 740 (7"
Cir. 1994), noted that “The McDonnell-Douglas standard was intended
to make it easier for plaintiffs in discrimination cases to resist

summary judgment.” Id. at 747.

A judge is not to “weigh the evidence to determine the truth of
the matter, but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial is presented when there is sufficient “evidence on which
the jury could reasonably find for the plaintiff.” Id. at 252. In Archer
v. Mesaba Aviation, Inc.,200 U.S. App. Lexis 6420 (6" Cir. April 3, 2000)
(not recommended for full text publication), the court stated,
“Significantly, credibility judgments or weighing of the evidence are
prohibited during consideration of a motion for summary judgment.”
Id. citing Ahlers v. Schebil, 188 F.3d 365, 369 (6 Cir. 1999). “When the
non-moving party presents direct evidence refuting the moving
party’s motion for summary judgment, the court must accept the

i8

evidence as true.” Archer, Id. citing Adams v. Metiva, 31 F.3d 375, 383
(6" Cir. 1994). A court may only inquire into the implausibility of
inferences from circumstantial evidence on summary judgment; it may
not inquire into the credibility of direct evidence. Id. citing Adams, 31
F.3d at 382.

1. The District Court, After Discussing A Proper Summary
Judgment Standard, Ignored it in This Case

GE, as the moving party, failed to properly support its motion
for summary judgment by demonstrating a lack of evidence to support
the nonmoving party’s case or the absence of a material factual
dispute on Mr. Gilmore's eight counts. Celotex Corp. v. Catrett, 477 U.S.
317, 323-25 (1996).

The district court discounted, ignored, weighed and
distinguished Mr. Gilmore's pretext, accommodation and retaliation
_ evidence while ignoring completely GE’s responsibility, as the moving
"party, to establish the absence of any genuine issues of material fact or
Plaintiff's lack of evidence. The district court, on pages 6 through 8 of
its Memorandum, recited the summary judgment standard, yet
ignored it. Summary judgmentis appropriate only where “There is no
issue as to any material fact and the moving party is entitled to
judgement as a matter of law.” Lasher v. Ford Motor Co., 785 F.2d 309
(6" Cir. 1996). A fact is material if its proof establishes or refutes one
of the essential elements of the cause of action asserted by the parties.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6™ Cir. 1994). There is a
genuine issue for trial when the evidence presents sufficient
disagreement to require submission to a jury. Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). Where a non-movant presents
evidence, more than his own pleadings and affidavits, which Mr.
Gilmore did, which raises doubt as to the existence of a fact sufficient
to require submission to the jury of a dispute over the fact, summary
judgment is inappropriate. Street v. J.C. Bradford & Co, 886 F.2d 1472
(6™ Cir. 1999).

19

2. AConclu idavit Is Im r Eviden
Upon Which to Circumvent the Constitutional Right to

Conclusory affidavits cannot be used to defeat summary
judgment. In Orthopedic & Sports Injury Clinic v. Wayne Laboratories,
Inc., 922 F.2d 220 (5 Cir. 1991), the court rejected such an affidavit
stating:

White’s affidavit is wholly or almost wholly
conclusory and is not supported by sufficient facts. . .
We have recognized that there is a level of
conclusoriness below which an affidavit must not sink
if it is to prove the basis for a genuine issue of a
material fact.

Id. at 224-25; see also Miller v. Citizens Security Group, Inc., 116 F.3d 343,
346 (8" Cir. 1997) (conclusory affidavits cannot create genuine issues
of material fact).

Fed. R. Civ. P. 56(e) specifies that an affidavit be made on
personal knowledge, setting forth such facts as would be admissible
in evidence. Affidavits composed of hearsay, conclusions and
opinions do not satisfy Rule 56(e) and must be disregarded. Daily
Press, Inc. v. United Press International, 412 F.2d 126 (6" Cir.), cert denied,
396 U.S. 990 (1969).

3. An Affiant Must Be Competent And Knowledgeable As
To The Matters In His Affidavit

Marolda’s Affidavit attempts to authenticate all GE documents.
To the extent that documents are authenticated by an affidavit, the
affiant must be a person through whom the exhibits could be admitted
into evidence. GE cannot qualify Marolda as the records custodian
merely because he is the Reuter-Stokes President, particularly because

20

he was there the entire time. Such a move, at best, is a sham and, at
worst, is a fraud on the court.

“To be admissible in evidence, statements in an affidavit must
be limited to facts and the facts alleged must be based upon personal
knowledge.” Wright, Miller, Kane, 10A Federal Practice & Procedure,
§2738, p. 486. “To be admissible, hearsay statements in an affidavit
and parol evidence must fall within an appropriate exclusionary
portion of the rules of evidence in order to be considered on summary
judgment.” Id., §2738, pp. 478-79. “Thus, ultimate or conclusory facts
and conclusions of law, as well as statements made... .‘on information
and belief’ cannot be utilized under summary judgment motions.” Id.
at §2738, pp. 486-89. An affidavit containing rumors, conclusory
allegations and subjective beliefs are insufficient to establish a party’s
position as a matter of law. Mitchell v. Toledo Hosp., 964, F.2d 577, 585
(6" Cir. 1992); Chappell v. GTE Products Corp., 803 F.2d 261-268 (6" Cir.
1996) (“Mere personal beliefs and conjectionary speculations are
insufficient in an affidavit.”)

Mr. Gilmore motioned the district court to strike paragraphs
one through eight from the Affidavit of Mr. P.J. Marolda because they
are based on hearsay and wholly lacking in evidentiary foundation.
The Motion was denied. Mr. Marolda was (1) not the President of GE
Reuter-Stokes for much of the time period he discusses, and he had no
involvement with Mr. Gilmore; (2) in paragraphs three and four Mr.
Marolda paraphrases from a written performance appraisal done by
another person; (3) in paragraph five, he states, “I received a
memorandum from W.W. Phelan... which stated that ESSROC, a key
Reuter-Stokes customer, had complained to him . . . and ESSROC
strongly objected to the conduct. ...” Mr. Marolda has no personal
knowledge. He based this paragraph on thirdhand information
provided by Mr. Phelan who, during his deposition, could not even
remember who gave him the information in the first place. Mr.
Phelan’s memo was not substantiated by ESSROC; (4) in paragraph
six, Mr. Marolda references someone else’s telephone call to Mr.

21

Gilmore; (5) in paragraph eight, he claims that all the documents
attached to GE’s Motion for Summary Judgment are “true and
accurate copies of documents which are contained in a file maintained
by me or under my custody and control and in the regular course of
business.” Mr. Gilmore’s file was not maintained by Mr. Marolda.
The January, 1997 performance appraisal was handed to Gilmore just
before being fired; (6) memos from Mr. Glesius and Mr. Forland were
not kept in the ordinary course of business; they were specifically
prepared for Ms. Embrescia and were not maintained until this
litigation commenced; (7) the voice-mail message from Ms. Embrescia
to Mr. Marolda, Ms. Embrescia’s notes, Mr. Forland’s memo, and the
feedback from Mr. Forland are all improperly authenticated, contain
hearsay and are improperly designated as “business records.”

4. irect Eviden Discriminati Is N
Required B i A

In Kline v. Tenn. Valley Authority, 128 F.3d 337, 342-47 (6" Cir.
1997) the Sixth Circuit decided that a plaintiff need only present a
prima facie case under the McDonnell-Douglas test and evidence of the
employer's prevarication to raise an inference of discrimination. The
district court decided that the process used to choose another
employee over Kline did not discriminate by race. The Sixth Circuit
reversed holding that the district erred in holding that Kline was
required to produce “direct” evidence of discrimination in addition
to proving the prima facie case. “The import of the Kline decision is
that once a plaintiff has disproved the reasons offered by the
defendant, the fact finder is permitted to infer discrimination.” Id. at
347. The Sixth Circuit has adhered to the Kline standard in other cases
as well. In Skalka v. Fernald Environmental Restoration Management
Corp., 178 F.3d 414, 421 (6" Cir.) (petition for cert filed), 60 U.S.L.W.
3292 (1999), the court affirmed a jury verdict where the primary
evidence was proof of fraud in the company’s ranking policy. In
EEOC v. Yenkin-Magistec Paint Corp., 112 F.3d 831, 835 (6" Cir. 1997),
the court held that the law allows a fact finder to infer intentional

22

discrimination for proof of the prima facie case coupled with the
disbelief of the proper reasons for the employer's actions.

But, the Sixth circuit ignored its precedent in this case. GE’s
indefensible and vacuous excuse against the backdrop of Mr.
Gilmore’s prima facie case warranted at least a permissive inference
of discrimination. Chapman v. Al Transport, 180 F.3d 1244, 1250 (11"
Cir. 1999). However, the district court’s “pretext plus” approach to
Mr. Gilmore’s evidence judicially preempted the fact-sensitive
question of an employer's intent that this Court and Congress
— entrusted to ajury. Congress has expressly provided for jury trials in
ADA cases. As the court in Kline noted, “The district court placed a
nearly impossible burden on Kline requiring direct evidence of
discrimination. Rarely can discriminatory intent be ascertained
through direct evidence because rarely is such evidence available. St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson
Plumbing, 503 U.S. 133 (2000). This is the reason for the
McDonnell-Douglas-Burdine burden of proof mechanism, allowing a
plaintiff to prove its case through circumstantial evidence.” Kline, 128
F.3d at 347.

Mr. Gilmore’s prima facie case should not have been discarded
merely because the lower courts did not like his pretext evidence. A
prima facie case under McDonnell-Douglas raises an inference of
discrimination. It is presumed that these acts, if otherwise
unexplained, are more likely than not based upon impermissible
factors. Furnco Const. Corp. v. Waters, 438 U.S. 567, 575 (1978). This
Court in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 250
(1991) stated that the defendant has the burden, by a preponderance
of the evidence, to show legitimate nondiscriminatory reasons for the
challenged employmentaction. The court held that, “The defendant's
explanations for its legitimate reasons must be clear and reasonably
specific. This obligation arises both from the necessity of rebutting the
inference of discrimination arising from the prima facie case and from
the requirement that the plaintiff be afforded ‘a full and fair

23

opportunity’ to demonstrate pretext.” Id. at 258. Mr. Gilmore was not
given the appropriate inferences and presumption of the truth of his
allegations. Had the lower courts done so, this case would have been
presented to a jury for determination.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that
this Court grant its Petition for a Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit.

ti dal Ph

/ Michael ¥. Harvey

_ Attorney for Petitioner
Michael P. Harvey Co., L.P.A.
311 Northcliff Drive
Rocky River, Ohio 44116-1344
Phone: (440) 356-9108
Fax: (440) 356-9128

E-mail: MPHarveyCo@aol.com
Web: MPHarveylaw.com

25

FILED
October 01 2001

LEONARD GREEN, Clerk
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION

Sixth Circuit Rule 28(g) limits citation to specific
situations. Please see Rule 28(g) before citing a
proceeding in a court in the Sixth Circuit. If
cited, a copy must be served on other parties and
the Court.

This notice is to be prominently displayed if this
decision is reproduced.

APPENDICES
United States Court of Appeals for the Sixth Circuit
No. 00-3382

GREGORY C. GILMORE,
Plaintiff-Appellant,

V.

GENERAL ELECTRIC COMPANY, GE POWER SYSTEMS,
Defendant-Appellee

Decided: October 1, 2001
Before: BOGGS, DAUGHTREY, and WALLACE,*** Circuit Judges.
PER CURIAM. The plaintiff, Gregory Gilmore, filed this

action in district court following his termination from employment
with GE Reuter Stokes, a division of defendant General Electric Co.

***The Hon. J. Clifford Wallace, United States Court of Appeals for
the Ninth Circuit, sitting by designation.

26

His principal allegation was that he had been fired in violation of the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, simply
because he suffered from depression. GE denied any discriminatory
motive in its decision and moved for summary judgment in its favor.
The district court granted that motion, determining that Gilmore had
made out a prima facie case of discrimination under the Americans
With Disabilities Act, but concluding both that the defendant had
offered a non-discriminatory reason for its action and that Gilmore
was unable to advance a genuine issue of material fact supporting a
determination that GE’s decision was a pretext for prohibited
discrimination,

On appeal, Gilmore argues that the district court erred in
_ making factual findings in the face of disputed evidence, that the
district court improperly weighed the plaintiff's pretext evidence and
inappropriately held Gilmore to a “pretext plus” burden of proof, and
that the summary judgment ruling erroneously dismissed related state
law and retaliation claims. For the reasons set out in the district
court's extensive and well-reasoned memorandum opinion, however,
we conclude that summary judgment was properly entered in this
case.

|

As noted by the district judge, the fact that Gilmore failed to
suggest any reasonable accommodation for his disability is
particularly damaging to hiscase. Admittedly, he sought altered work

schedules, quieter working space, and other concessions not available

to similarly-situated employees. Nevertheless, in no instance did he
inform his employer that he was seeking changes because of his
disability. In fact, he concedes that he hid from the defendant the fact
that his depression might have been affecting the quality of his work

“because of all the social stigma associated with [his condition.]”

Furthermore, when his employer offered him a medical leave so that

he could regulate his medicines and become a more productive

employee, Gilmore declined the offer without further discussion with

his supervisor.

27

The district judge meticulously examined Gilmore’s claims and
the evidence offered in support of them. She also correctly applied the
appropriate law to those allegations in a thorough opinion. Because
no jurisprudential or precedential purpose would be served by again
reciting the facts, law, and analysis recounted by the district judge, we
decline to issue an additional detailed opinion, and, instead, AFFIRM
the grant of summary judgment to the defendant on the basis of the
district court opinion filed on February 22, 2000.

28

FILED
00 FEB 22 PM 3:06

NORTHERN DISTRICT OF OHIO
CLEVELAND

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

(Dated February 22, 2000)

GREGORY C. GILMORE,

)
)
Plaintiff ) Case No. 1:98 CV 2185
) |
v. ) Memorandum of
) Opinion and Order
GENERAL ELECTRIC COMPANY, )
GE POWER SYSTEMS, )
)
Defendant )
Introduction

This matter is before the Court upon defendant’s Motion for
Summary Judgment (Doc. 38). This case arises out of defendant's
alleged failure to accommodate plaintiff and his termination from
employment allegedly on the basis of his depression. For the
following reasons, the Motion is GRANTED.

29
Facts

Plaintiff, Gregory Gilmore, filed this lawsuit against defendant,
General Electric Company, GE Power Systems. Plaintiff began his
employment with GE Reuter-Stokes (hereafter, Reuter-Stokes) in Ohio
in 1994 as a Senior Engineer. (P.J. Marolda aff.)" Prior to that plaintiff
had been employed by GE Nuclear Energy in Wilmington, North
Carolina as an engineer since 1990 and had worked for GE as a
student since 1984. (Pitf. Depo. At 7; pltf. Aff.)

In August 1995, plaintiff was assigned to the Environmental
Products Team and reported directly to Karen Embrescia,
Environmental Team Manager, and Chris Foreland, CEMS Product
Line Manager. In late 1996, Forland was replaced by Hesh Elghoroury
to whom plaintiff then reported indirectly. (Id.) Embrescia’s direct
supervisor was P.J. Marolda, who was the President of Reuter-Stokes
by early 1997. (Embrescia at 13). Prior to this time, plaintiff was
directly managed by Frederick Glesius who evaluated plaintiff's
performance in August 1995 wherein plaintiff received an “exceeds”
performance and a performance trend of “increasing”. (Glesius depo
at 4, 7-8; Ex. U).

*Plaintiff has filed a Motion to Strike paragraphs one through eight
of Marolda’s Affidavit (Doc. 55). The Motion is denied as to paragraphs one
and two as there is no evidence the affiant does not have personal
knowledge of these facts. The Motion is denied as to paragraph three to the
extent it merely incorporates the April 1996 appraisal which is also offered
into evidence by plaintiff and as an exhibit to Embrescia’s deposition. The
Motion is denied as to paragraph 4 for the same reason. The Motion is
denied as to paragraph 5 to the extent that it incorporates the Memorandum
attached to the affidavit and which was sent personally to Marolda. As to
paragraph 6, the Motion is denied as immaterial regarding the referenced
telephone call as this is attested to in plaintiff's own affidavit and the
remainder is on Marolda’s personal knowledge. The Motion is denied as to
paragraph 8 to the extent that the referenced documents are properly
incorporated by affidavit or deposition elsewhere in these proceedings and
for the foregoing reasons properly submitted with Marolda’s affidavit.

(Embrescia Ex. A).

|

30

appraised his performance from August 1995 through April 1996 and
states in pertinent part:

Greg is technically knowledgeable, however, he is very
reluctant and unwilling to share information. Greg
responds with one word response that gives one little
or no information. Other times he responds I don’t
know or questions the question asked of him. One
must continually dig and probe each step of the way to
search for what Greg knows or what he may need to
come up with an answer. One must keep offering
statements to try to get information from Greg. His
responses have been extremely judgmental, critical or
condescending. It becomes very time consuming and
tiring to communicate and work with Greg. When
someone questions Greg to better understand how he
has reached a conclusion or get clarify, he responds by
getting upset, angry and walks out of the meeting.
This has impacted the team in a negative sense as other
team members try to avoid him rather than to
continually coax or coddle him to support team work.
Customer feedback has also indicated communication
issues with Greg. Greg’s disruptive behavior has made
it very difficult as a team to meet the challenges of the
Stak-Trackers re-engineering project, implementing the
engineering changes and focusing on customer
demands for warranty upgrades as well as new units.

I am capable of immediately reversing this horrible
trend. I shall immediately change. I wish this written
appraisal had been given immediately to me at the first

Embrescia rated his performance as
“unsatisfactory” and his performance trend as “declining.” (Id.) In
the “employees comments” section, plaintiff responded,

@

31

I am capable of immediately reversing this horrible
trend. I shall immediately change. I wish this written
appraisal had been given immediately to me at the first
of the year when this behavior began. I was told orally
in the appraisal meeting that the poor behavior began
in the first of 1996. I would like another written
appraisal in 3 months.

(Id.) As part of the appraisal, plaintiff was given a “Performance
Improvement Plan: which listed four items:

Greg needs to change his communication style such that he
does not continue to conduct himself in a manner which is
disruptive to others.

Greg needs to change his communication style that he does not
continue to conduct himself in a manner that is obstructive to
others and unwilling to share information.

Greg needs to be a team player; less rigid and more flexible in
his dealings with others.

Greg needs to stop talking down to others, or implying
stupidity in others in his communications with peers,
subordinates, leaders and customers.

(Id.)

Plaintiff was diagnosed with depression’ in January 1996 and
began treatment immediately with medication. Plaintiff had been
experiencing difficulty concentrating, working, sleeping and getting
out of bed as well as dizziness and impaired judgment in the latter

*Plaintiff’s affidavit characterizes his diagnosis as “severe
depression” while his doctor's expert report states the diagnosis as “ mild to
moderate endogenous depression.” (Ex. 4A).

32

(pltf. aff.). The medication did not correct all of the difficulties
plaintiff had been experiencing. (pltf. depo. At 130).

Several weeks prior to his April 1996 evaluation, plaintiff met
with Embrescia and she asked him whether he had emotional
problems. Plaintiff told her he did not. Plaintiff did not tell her about
his depression because he was “very reluctant to talk about it” and
“didn’t see any need to tell her.” One week after the April 1996
evaluation, and because of the evaluation, plaintiff met with
Embrescia and told her he was suffering from depression and that he
was taking medication. (pltf. depo. At 38-42. 46-48). Embrescia took
notes at their meeting. Embrescia’s notes, submitted by both plaintiff
and defendant, reflect that plaintiff did not tell her specific symptoms
of his depression which he apparently characterized as “seasonal lack
of the sun.” He stated that he had to “live one day at a time” and it
“takes everything from him to get out of bed in the morning.” He also
indicated that he “felt most of [his] problems were either due to
[Embrescia], Chris [Forland] or Fred [Glesius]. (Ex. J) (Embrescia
depo. Ex. J). Embrescia inquired whether he considered a medical
leave. (Id.) Plaintiff declined the offer because he was fearful for his
job. Plaintiff did not ask for reduced hours or for coaching for his
communication skills at that point. (pltf. depo. At 48, 72).

Embrescia evaluated plaintiff again in January or February
1997. Although his performance was still rated as “unsatisfactory,”
his performance trend was “stable.” (Embrescia depo. Ex.).

P.J. Marolda received a memorandum from W. W. Phelan, the
Vice President of Marketing and Sales for Reuter-Stokes, dated
February 19, 1997. (Marolda aff.; Ex. C). The memorandum concerns
ESSROC, “a key Reuter-Stokes customer.” (Marolda aff.). Phelan
"relates in the memorandum that he met with ESSROC the previous
day regarding the status of a project and was informed that “ESSROC
is not satisfied with the performance of Greg Gilmore.” ESSROC
indicated that plaintiff's poor performance was badly affecting Reuter-

33

Stokes’ image. After the meeting, Phelan met privately with Hesh
Elghoroury, the Reuter Stokes project manager, who indicates that
plaintiff was “arriving late and leaving early” and that there was “not
good communication between [plaintiff] and ESSROC’s site
personnel.” (Ex. C).

On February 22, 1997, Embrescia telephoned plaintiff at his
home and informed him that was suspended with pay as a result of a
serious customer complaint. (Marolda aff; pltf. aff.). Marolda decided
to terminate plaintiff's employment after consulting Embrescia,
Gelsius, Elghoroury and Joseph Mooney, the Human Resources
Manager, regarding the recent customer complaint and plaintiff's
overall performance. (Marolda aff.). Marolda notified plaintiff on
February 25, 1997 that he was terminated for unsatisfactory
performance and attitude. (Id.; pltf. aff).

Plaintiff thereafter filed this Complaint setting forth eight
claims. Count One alleges that defendant's harassment and
termination on the basis of his disability violate the Americans with
Disabilities Act (ADA). Count Two alleges that defendant's failure to
reasonably accommodate plaintiff violated the ADA. Count Three
alleges that Title VII has been violated because plaintiff was treated
differently in compensation and in terms and conditions of
employment because of his disability. Count Four alleges retaliation
because he asserted his ADA rights. Count Five alleges defamation.
Count Six alleges that the defamation caused him intentional infliction
of emotional distress. County Seven also appears to allege
defamation. Count Eight alleges a violation of the Ohio Revised Code,
wrongful discharge and breach of implied contract.

Standard of Review
Summary Judgment is appropriate when no genuine issues of

material fact exist and the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)

34

such genuine issues of material facts rests with the moving party:

[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of
the basis for its motion, and identifying those portions
of “the pleadings, depositions, answers to
interrogatories, and admission on file, together with
affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.

| Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P.56(c)). A fact is “material
) only if its resolution will affect the outcome of the lawsuit.” Anderson
| v. Liberty Lobby, 477 U.S. 242, 248 (1986).

Once the moving party has satisfied its burden of proof, the

| burden then shifts to the nonmoving party. Federal Rule of Civil
| Procedure 56(e) provides:

When a motion for summary judgment is made and
supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of
[his] pleadings, but [his response], by affidavits or as
otherwise provided in this rule, must set forth specific
facts showing that there is genuine issue for trial. If he

does not respond, summary judgment, if appropriate,
shall be entered against him.

The court must afford all reasonable inferences and construe the
evidence in light most favorable to the nonmoving party. Cox v.
Kentucky Dep't of Transp., 53 F.3d 146, 150 (6" Cir. 1995) (citation

omitted); see also United States v. Hodges X-Ray, Inc. 759 F.2d 557, 562
(6™ Cir. 1985). However, the nonmoving party may not simply rely on

(citing Fed R. Civ. P. 56(c)); see also LaPoint v, UAW, Local 600, 8 F.3d
376, 378 (6" Cir. 1993). The burden of showing the absence of any

35

its pleadings, but must “produce evidence that results in a conflict of
material fact to be solved by a jury.” Cox, 53 F.3d at 150.

Summary judgment should be granted if a party who bears the
burden of proof at trial does not establish an essential element of his
case. . American Biodyne, Inc., 48 F.3d 937, 941 (6" Cir. 1995) (citing
Celotex, 477 U.S. at 322). Accordingly, “the mere existence of a scintilla
of evidence in support of plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the
plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6" Cir. 1995) (quoting
Anderson, 477 U.S. at 52 (1986)). Moreover, if the evidence is “merely
colorable” and not “significantly probative,” the court may decide the
legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50
(citation omitted).

Discussion

4. Counts 1 and 8 (ADA and Ohio’s anti-discrimination
statute)

As with other employment discrimination cases, “[u]nder the
ADA, in the absence of direct evidence of disability discrimination, a
plaintiff may seek to establish a prima facie case of discrimination.
Once established, a prima facie case shifts the burden to the employer
to offer a legitimate, nondiscriminatory reason for its action. If the
employer articulates such a reason, the plaintiff must then show that
the reason given by the employer is pretextual in order to prevail.”
Sullivan v. River Valley School District, 197 F,3d 804, 810 (6 Cir. 1999),
citing §§42 U.S.C. 12101 et seq.; Monette v. Electronic Data Sys. Corp., 90
F.3d 1173, 1178, 1184-86 (6™ Cir. 1996); and McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed. 25 668 (1973).

To establish his prima facie case of discrimination under the
ADA, plaintiff must show that (1) he is a disabled person within the
meaning of the Act, (2) he is otherwise qualified to perform the

36

essential functions of his job with or without reasonable
accommodation, (3) he suffered an adverse employment decision due
to his disability, (4) the employer knew or had reason to know of the
plaintiff's disability and (5) the position remained open while the
employer sought other applications or plaintiff was replaced. Walsh
v. United Parcel Service. - F.3d -, 2000 WL 10605 (6" Cir. 2000).

The ADA “defines a disabled person as one who (1) has a
physical or mental impairment that substantially limits one or more
of the major life activities of such individual, (2) has a record of such
impairment, or (3) does not have an impairment, but is regarded as
having one.” Sullivan, 197 F.3d at 810, citing § 42 U.S.C. 12102(2).

The Sixth Circuit has stated that Ohio's handicap
discrimination law does not simply parallel the ADA. Gray v.
Champion International Corp., No. 96-3762, 1997 WL809969 (6" Cir.
1997). Ohio Revised Code § 4112.02 provides:

It shall be unlawful discriminatory practice; (A) For an
employer, because of...handicap...to discharge without
just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire,
tenure, terms, conditions, or privileges of employment,
or any matter directly or indirectly related to
employment.

In Gray, the court stated,

We have read that law to require that, to survive summary
judgment:

[T]he plaintiff must show that there is a genuine issue
of material fact that: 1) she is handicapped, 2) action
was taken by her employer, at least in part because she
is handicapped, and 3) she can safely and substantially

37

perform the essential functions of the job in question
with reasonable accommodations.

Id. at *3, citing Blakenship v. Martin Marietta Energy Sys., Inc. 83 F.3d 155
(6 Cir. 1996). The court further noted, “The second part of this test
requires [plaintiff] to show that [defendant] acted directly because of
his disability, rather than because of conduct caused by his disability.”
Id.

Defendant argues that plaintiff was not disabled. Defendant
asserts that plaintiff cannot show that the major life activity of
working was substantially limited inasmuch as he has testified that he
has been employed continuously as an engineer for another company
for two years since his discharge from Reuter Stokes.

Plaintiff was discharged from his employment with defendant
in February 1997 and began the new employment in May 1997. (pletf.
depo. At 195). However, this does not establish that plaintiff was not
impaired during the time at issue in this lawsuit.

Defendant points to other deposition testimony of plaintiff
arguing that he has not shown that any of his complaints were the
result of his depression. However, the Court finds that there is
enough evidence showing that plaintiff had a mental impairment that
substantially limited one or more of his major life activities.

Some courts have held depression to qualify as a disability for
purposes of the ADA. However, the inquiry made in each case is
whether the depression limits the plaintiff's ability to perform a major
life activity. See Schneiker v. Fort Insurance Co., - F.3d-,

2000 WL 10251 (7" Cir. 2000), Winkle v. Southwestern Bell Telephone Co.,
195 F.3d 415-8 (8" Cir. 1999) and Oblas v. American Home Assurance Co.,
No. 98-9350, 1999 WL 759026 (2™ Cir. 1999).

38

In his affidavit plaintiff avers that his doctor diagnosed his
depression in January 1996 and

After seeking Dr. Jankowski, I realized some of the
problems I was experiencing in the latter part of 1995
were related to my depression, but I did not realize it
then. The problems I was experiencing including
difficulty concentrating, working, sleeping, dizziness,
difficulty getting out of bed, and my judgment was
severely becoming affected. I also had difficulty in my
marital relations and experienced many other
problems.

(pltf. aff.). Plaintiff's wife also attested that plaintiff had trouble
sleeping, could not get out of bed, could not concentrate, communicate
or socialize and was listless. (Tina Woods Gilmore aff.). Plaintiff
avers that although he began to improve after his doctor prescribed
Prozak, he had to change medications and dosages numerous times.
Plaintiff avers that he currently takes anti-depressant medications.
(pltf. aff.) The Court finds that plaintiff has presented enough
evidence to satisfy the element of the prima facie requiring that he be
disabled. Although not specifically listed in the non-exclusive list of
major life activities in the Code of Federal Regulations interpreting the
ADA, the Court finds that sleeping is a major life activity and it
appears plaintiff's work was impaired because he could not
concentrate or communicate and that his judgment was impaired.

Next, defendant contends that Reuter-Stokes lacked knowledge
of plaintiff's disability. However, defendant's argument relies
exclusively on the fact that defendant did not know of plaintiff's
disability prior to his April 1996 evaluation. Defendant argues that the
“relevant time” for determining whether defendant had knowledge
is April 1996 when Embrescia prepared plaintiffs performance
evaluation and allegedly formed the intent to discharge plaintiff.
Defendant asserts that it “had no knowledge of [plaintiff's] claimed

39

disability at the time [plaintiff] alleges that the discriminatory animus
arose.” (Motion at 14, Reply at 3 and Reply fn.1).

However, the Court does not look to whether defendant knew
in April 1996 that plaintiff was depressed but rather whether it had
knowledge when it allegedly failed to accommodate him and
terminated plaintiff allegedly on the basis of his disability. This
element of the prima facie case is satisfied as defendant had
knowledge of plaintiff's depression at these times.

The final element of the prima facie case which defendant
asserts has not been met is that which requires that plaintiff be
replaced. However, defendant states plaintiff “was not replaced by
any employee at Reuter-Stokes and there are no plans to replace him.
See Marolda affidavit.” (Motion at 15). However, Marolda’s affidavit
does not address whether or not plaintiff was replaced. In response,
plaintiff points to a February 1997 letter written by W.W. Phelan,
defendant's Vice President of Marketing and Sales, to John Powell, a
representative of ESSROC, which states that Reuter-Stokes no longer
employed the individual whom ESSROC was dissatisfied with and
further states, “In addition to continuing to provide day-to-day
support, both on-site and at our Twinsburg, Ohio facility by our CEMS
Project Manager, Hesh Elghoroury and our technical support team, we
have hired a GE Field Engineer to further enhance our technical on-
site support capability to meet ESSROC’s expectations.” (Phelan Ex.
AA). Defendant does not address this evidence and this Court will
assume that plaintiff satisfies this element.

Plaintiff having satisfied prima facie case, defendant asserts a
nondiscriminatory reason for plaintiff's discharge. Defendant states
plaintiff “was discharged because of a serious customer complaint,
unsatisfactory performance and attitude.”

40

Plaintiff makes the following arguments in support of his
contention that the reasons for his termination were actually a pretext
for discrimination.

Plaintiff asserts that the customer complaint was a pretext.
Plaintiff argues that ESSROC had prior complaints concerning
defendant's product, Stak-Tracker, so that this could not have been a
legitimate basis for terminating plaintiff. Plaintiff points to the
deposition testimony of Hesham Elghoroury who testified that
defendant was having problems with Stak-Tracker, Fred Glesius’
testimony that defendant was having a “tremendous number of
problems with Stak-Tracker and that the operational problems with
the product were not plaintiff's fault and Warren Phelan’s testimony
that there were numerous complaints about the operations of the Stak-
Tracker in general. Additionally, plaintiff argues that plaintiff,
himself, had complained to defendant about Stak-Tracker just prior to
his April 1996 evaluation. Plaintiff averred that he was “assigned to
provide field service of the Stak-Tracker which did not work properly.
I was constantly required to deal with angry customers (e.g., ESSROC)
who had spent a lot of money on a system that simply did not work.”
(pltf. aff.).

The Court does not find this to show pretext. Marolda’s
affidavit testimony is that he terminated plaintiff based, inter alia, on
“this latest customer complaint” communicated to him by the
memorandum from W.W. Phelan. The Phelan memorandum indicates
that the ESSROC was dissatisfied with plaintiff's “ performance” at the
site including the time he was spending on site, that plaintiff was
arriving late and leaving early and that there was not good
communication between plaintiff and ESROC’s site personnel.
(Phelan Ex. 2). Therefore, the fact that the technical or operational
aspects of the product itself at the site were unsatisfactory does not
contradict the evidence that ESSROC communicated its
disappointment in plaintiff's performance on the site.

41

Second, plaintiff argues that the negative April 1997 shortly
after receiving an excellent performance rating in September 1995 by
Glesius is evidence of pretext. In this regard, plaintiff asserts that he
received the poor evaluation after Embrescia suspected he had
medical problems and posits, “Is it only a coincidence that his
performance allegedly dipped after [defendant] confirmed he had
depression and after he complained to the President of GE about the
product?” (brief at 30).

This does not show pretext. Plaintiff is not alleging that the
April 1996 review was discriminatory but complains that the ADA
was violated when defendant failed to accommodate him after he told
Embrescia about his depression following the April 1996 evaluation
and when defendant terminated him in February 1997. Furthermore,
plaintiff testified that while Embrescia asked him prior to the April
1996 review whether he was having emotional problems, he denied it
and he was determined not to “reveal the secret” of his depression.
Thus, there is no evidence that Embrescia had any knowledge of a
disability at the time she completed the April 1996 review. In
addition, if defendant decided to punish plaintiff after he complained
about the product, this is not violative of the ADA and, thus, does not
show pretext.

Third, plaintiff argues that defendant never followed its own
progressive discipline policy before it terminated him. Plaintiff points
to his own affidavit testimony regarding the GE handbook and a
progressive disciplinary procedure, submits a document entitled
“Positive Action Procedure” (Ex. G) and points to deposition
testimony of various of the defendant's representatives which plaintiff
believes verifies that such a policy exists. However, there is no
indication as to whether any policy or procedure was part of an
employee handbook or whether it formed any contractual obligation
or was merely a policy.

42

Assuming such a progressive discipline was in effect which
defendant was required to follow (or which it regularly followed for
other employees), plaintiff does not explain how defendant did not
adhere to this policy. Further, the evidence shows that in the April
1996 evaluation plaintiff was placed on a four point “performance
improvement plan.” Plaintiff discussed the evaluation with his
supervisor. Plaintiff avers that at the time of his termination he was
also handed the 1997 performance appraisal which indicates
unsatisfactory performance with a stable performance trend. This
appraisal, plaintiff points out, had no performance improvement plan.
However, in the absence of any explanation from plaintiff as to how
defendants violated a progressive disciplinary policy, no pretext is
shown.

Fourth, plaintiff argues that defendant was motivated to find
an event which could justify terminating plaintiff as evidenced by the
facts that Embrescia was not qualified to be in her position because
she had only completed high school and did not understand the
technical aspects of the projects plaintiff was working on, the customer
complaint was not investigated, when plaintiff was notified of his
suspension and termination he was told which customer complained
about him, plaintiff's final 1997 evaluation was handed to him at his
termination meeting, following his termination he was escorted off
defendant's premises and he was not given an opportunity to respond
to the alleged ESSROC concerns.

For the following reasons, the Court does not find that any of
these arguments establish pretext.

Plaintiff cannot show pretext by undermining Embrescia’s
abilities. Even assuming she is not as technically able as plaintiff, her
evaluation shows that she praised his technical skills while criticizing
his interpersonal skills.

43

evaluation shows that she praised his technical skills while criticizing
his interpersonal skills.

Plaintiff asserts that the customer complaint was not
investigated. However, the following evidence submitted by plaintiff
does not support this assertion.

Plaintiff points to Phelan’s* deposition testimony that without
his notes he was not sure which individual from ESSROC made the
complaint and that he was not sure John Powell (ESSROC’s director
of purchasing) was at the meeting where plaintiff's performance was
discussed even though in Phelan’s memorandum he stated that
Powell had made the complaint. This does not undermine Phelan’s
credibility given that he stated in his deposition that he had made
notes regarding the meeting but that he did not have them with him
and a letter drafted the day after the meeting to Powell states that
Phelan meet with him regarding the complaint.

Plaintiff also asserts that Phelan did nothing to investigate the
complaints pointing to his testimony that he had never had a customer
lie te. him and so he “took it at his word.” However, plaintiff fails to
point to the remainder of Phelan’s testimony that defendant's project
managers reinforced the statement. Phelan’s memorandum also
stated that he spoke independently with the project managers who
confirmed plaintiff's performance at the site.

Plaintiff also points to Phelan’s testimony that ESSROC did not
specifically ask that plaintiff not return to the site or that he be
terminated, that he did not want to aggravate the ESSROC situation
by having plaintiff return to the site but that plaintiff did return to the
site before his termination, that the only concerns raised were that
plaintiff was arising late and leaving early and failing to provide

*Phelan authored the memorandum to Marolda regarding the
customer complaint.

44

these problems with plaintiff, that he did not know how many times
it occurred, that when plaintiff went out to the sites he was not
required to punch in and out and that Phelan did not recommend
plaintiff's termination. None of this testimony undermines
defendant's judgment in deciding to terminate plaintiff. It is
irrelevant whether ESSROC wanted plaintiff fired. Moreover, this
Court is not permitted to decide whether termination for the concerns
raised (i.e., arriving late, leaving early and failing to provide feedback)
was fair. Tobbit & Castlement, 123 F.3d 899, 898 (6 Cir. 1997) (citations
omitted) (” An age discrimination action is not’a device which permits
the jury to examine an employer's reasons for discharge and
determine that the employer's business judgment or policies do not
appeal to its sensibilities.””)

Similarly, plaintiff points to Hesh Elghoroury’s deposition
testimony that ESSROC did not request that plaintiff be terminated,
there was no written job description for his position, he was unaware
of any complaints about plaintiff's communication problems prior to
the meeting with ESSROC, he did not remember seeing any written
reports complaining about plaintiff, there was no specific dates given
as to plaintiff's arriving or leaving the site and the entire team was
frustrated with the Stak-Tracker project and plaintiff had expressed
his concerns. Nor does this testimony bolster plaintiff's assertion that
the ESSROC complaint regarding plaintiffs personal performance was
somehow unfounded.

Plaintiff asserts pretext is shown because he was notified of his
suspension and termination he was not told which customer
complained about him, his final 1997 evaluation was handed to him
only at his termination meeting and following his termination he was
escorted off defendant's premises. Plaintiff does not explain how
these show pretext.

Finally plaintiff asserts that defendant did not allow him to
respond to the customer complaint. However, the testimony plaintiff

45

points to actually shows that the customer complaint had merit.
Plaintiff points to his deposition testimony that at times he was
waiting at the hotel for something to happen in the office before there
was any work to be done at the site, that part of the problem was a
very snowy winter that year, and that he was not getting enough sleep
and so could not get up early enough to get to the site on time and that
at times he received conflicting instructions from his supervisors. If
anything, this shows admission that he was not always at the site
when expected.

For the foregoing reasons, plaintiff has not created an issue of
fact as to whether defendant's reason for his termination was
pretextual and Counts One (ADA) and Eight (Ohio Revised Code) fail.
Count Eight also alleges wrongful discharge in violation of public
policy, breach of implied contract and common law discrimination.
This portion of the claim fails for the same reasons discussed above.

Moreover, plaintiff's own affidavit testir .y calls into
question whether he believed he was terminz’ . because of his
disability. He avers:

According to the GE “Integrity - The Spirit and the
Letter” if an employee has an environmental concern,
he should talk to a GE manager. Since I had already
talked to my immediate manager and two indirect
managers, I went to their boss, Mark Savoff. After
being told that the only problem with Stak-Tracker was
me, then later after being fired, I explained the Stak-
Tracker problems to the ombudsman - - without

response.

I believe GE went after me by giving me a poor
evaluation in April, 1996, then let me languish for a
few months to set up a bogus customer complaint

ee.

46

situation that eventually they claimed led to my
termination.

(pltf. aff. 9] 102, 103). Therefore it appears that plaintiff himself
believed he was targeted for complaining about Stak-Tracker.

5. Count 2 (ADA-Failure to Accommodate)

In Penny v. United Parcel Service, 128 F.3d 408, 414 (6" Cir. 1997)
the Sixth Circuit stated, “To prevail ona failure to accommodate claim,
an employee must shown: (1) that he is disabled; (2) that he is
qualified for the job with or without reasonable accommodation; and
(3) that he was denied a reasonable accommodation.” (citations
omitted).

The initial burden of requesting an accommodation is on the
employee. Gant v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6"
Cir. 1998). Furthermore, the employee must show that the
accommodation is “objectively reasonable.” Keys v.Joseph Beth
Booksellers, Inc., No. 97-6511, 1999 WL 97003 (6" Cir. 1999, citing
Monette v. Electronic Data Sys. Corp. 90 F.3d 1173 (6 Cir. 1996). This
burden “need not be onerous. For the purposes of a prima facie
showing, a plaintiff must merely suggest the existence of a plausible
accommodation, the costs of which, facially, do not clearly exceed its
benefits.” Keys at *1.

Plaintiff argues that defendant refused to provide him a
reasonable accommodation. However, most of the evidence plaintiff
points to cannot be construed as a request for an accommodation. For
instance, plaintiff vaguely asserts that defendant failed to “support”
him and after he admitted his depression defendant did nothing to
help him; he avers that following the April 1996 appraisal he
requested of Embrescia an interim written performance appraisal
three months hence and for immediate feedback which he did not
receive; he asserts that he never got enough technical support in the

47

field but relies on his deposition testimony related to his job
reassignment in September 1995; he points to his own testimony that
in hindsight he would have asked for some technical support and that
he felt Embrescia should have been more concerned or sympathetic
with his performance problems; and he asserts that he was given more
job duties. However, there is no articulated request for an
accommodation. See Keys, supra (plaintiff's request to his supervisors
that “they work with him until he could get his condition under
control” was insufficient to show plaintiff proposed an
accommodation.)

Additionally, plaintiff asserts that he asked Embrescia’s
approval to look for another job within the company. However, his
testimony shows that he got her required approval. (pltf. depo. at 53,
59-60, 62). Plaintiff points to his deposition testimony regarding
reducing his hours. However, the testimony does not show that he
actually asked for his accommodation. (Id. At 74). Plaintiff points to
his testimony that Chris Forland said he felt plaintiff needed
instruction on how to talk to the customers. (Id. At 87). However, the
testimony does not show that plaintiff requested this accommodation
and, in fact, he testified that he never investigated the availability of
courses or seminars offered by defendant because he did not have the
time to take a class. (Id.) Plaintiff asserts that defendant should have
given him job coaching or set up a class for him somewhere.
However, the testimony does not show that plaintiff requested
coaching and, in fact, his testimony is, “At the time I don’t know
whether I wanted it or not.” Rather, he states in hindsight, “I believe
I needed coaching.” (Id. At 88). Clearly, the ADA does not allow for
accommodations requests to be stated after the fact.

Plaintiff testified that he asked that if he arrived home very late
from traveling that he not be required to work first thing in the
morning. However, plaintiff testified that he did not remember
requesting this in relation to his depression. In fact, plaintiff testified
that he “was very, very reluctant to talk and discuss [his] depression

48

because of all the social stigma associated with it.” (pltf. depo at 37,
74-76). Plaintiff also testified that he asked Embrescia for a quieter
office but she would not move him even though there were empty
offices. However, plaintiff also testfied that he did not indicate that he
needed a quieter space because of his depression inasmuch as he did
not want to discuss his medical problems with Embrescia. (Id. at 53,
85-86). Although plaintiff seems to assume that Embrescia should
have known that these requests were necessary due to the problems
caused by his depression, plaintiff had an obligation to sufficiently
relate these accommodations to his disability.

Finally, plaintiff also avers “In terms of accommodations, I
think that GE could have provided me with job coaching to improve
my communication skills, accommodation on travel, being able to
come in later, moving me to a quieter place, given me some time for
my medications to work, giving me more frequent feedback more
feedback from supervisors who knew my job qualifications and who
I was working with. I did not get any of this.” However, this
averment does not show that plaintiff actually asked for the specific
accommodations.

For these reasons, plaintiff has not shown that he was denied
a reasonable accommodation which he requested.

(3) Count 4 (ADA-Retaliation)

“To Present a prima facie case of retaliation under the ADA, a
plaintiff must demonstrate: (1) that he was engaged in protected
activity; (2) that he was the subject of an adverse employment action;
and (3) that there is a causal link between the protected activity and
the adverse employment action.” Wellman v. Wheeling and Lake Erie
Railway Company No. 97-3084, 1998 WL 25005 (6 Cir. 1998), citing
Canitia v. Yellow Freight System, Inc. 903 F.2d 1064, 1066 (6" Cir. 1990).
“A plaintiff may prevail on a retaliation claim even when the
employer prevails on the original charge of discrimination that serves

49

as the basis of the alleged retaliation.” Wellman at “1, citing Jennings
v. Tinley Park Community Consol. School District, 796 F.2d 962 (7 Cir.
19886). However, he is still required to come forward with evidence
of pretext to rebut the employer’s articulation of the legitimate, non-
discriminatory reasons already discussed. Id.

Defendant argues only that plaintiff fails to offer any evidence
that he engaged in protected activity. In his brief, plaintiff responds
in full.

GE briefed Plaintiff's Retaliation and state law claims
in one page. Inasmuch as this is a Motion for
Summary Judgment for which Defendant GE has the
burden of establishing that there are no genuine issues
of material fact in dispute; that there is no evidence to
support the non-moving party’s case; and that the
record taken as a whole could not lead a rational finder
of fact to find for the non-moving party, GE has failed
in their burden and these claims must go forward.

(pltf. brief at 34). However, in a summary judgment proceeding, the
moving party need only shown an absence of evidence to support the
nonmoving party's case. Celotex Corp., 477 U.S. at 323. The party in
opposition must when set forth specific facts showing that there is a
genuine issue for trial and may not rest upon his pleadings. Anderson,
477 U.S. at 256. Therefore, defendant has satisfied its burden by
pointing to the absence of evidence that plaintiff engaged in protected
activity. Plaintiff's failure to set forth specific facts showing that he
did so engage renders summary appropriate on this claim. Celotex
Corp., 477 U.S. at 323 (where the nonmoving party “has failed to make
a sufficient showing on an essential element of [his] case with respect
to which [he] has the burden of proof,” summary judgment is
appropriate.)

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(4) Counts 5-7 (defamation, intentional infliction of
emotional distress

Defendant argues that plaintiff's defamation claims fail
because he admitted at deposition that he did not know if Embrescia
made the statements alleged and he admitted that he could produce
no evidence that the security guard made the statements alleged.
These claims fail for the reasoning set forth immediately above.

(5) Count 3 (Title VII)

The parties do not address this claim. However, it fails
because Tittle VII only prohibits discrimination in employment on the
basis of an individual's race, color, religion, sex or national origin. 42
U.S.C. § 2000e-2. Plaintiff has only alleged discrimination based on his
disability.

Conclusion

For the foregoing reasons, defendant’s Motion for Summary
Judgment is granted.

IT ISSO ORDERED.

s/Patricia A. Gaughan

PATRICIA A. GAUGHAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1088%3A1. Public record. Not legal advice.