Opinion
Case No. 99-CV-73350-DT.
September 29, 2000.
MEMORANDUM AND OPINION
I. FACTS
Plaintiff Duane Montgomery was offered a full time position as a Program Analyst with Defendants Alcoa, Inc. and Alcoa Fujikara, Ltd (hereinafter "Defendants") on January 14, 1998. Defendants are copperwire and aluminum products manufacturers.
The parties entered into a written employment agreement on January 27, 1998. Plaintiff's benefit package included a salary of $58,008, health and welfare benefits and a 401(k). The agreement outlined the terms of the parties agreement. Plaintiff was responsible for researching and evaluating new technologies, computer programs and information. Plaintiff was instructed to develop a generation cost estimation system. Defendant also required Plaintiff to submit to a drug screening and medical examination as a condition of employment. The examination noted that Plaintiff was an insulin dependent diabetic who was taking 400 mg of Rezulin Troglitazone Tablets, 10 mg of Glucotrol and 10 units of Human Insulin to control his condition. Plaintiff alleged that as a result of his diabetes, he experiences uncontrollable painful seizures, dizziness, sweating, unusual hunger, and a very rapid heartbeat.
During his employment, Plaintiff developed the Y2K Compliant Oracle Cost Estimation System. In order to aid in the development of the new cost estimation system, Plaintiff entered into a personal agreement with Oracle Corporation (hereinafter "Oracle"), a vendor of programming tools. Plaintiff was allowed to download programming tools from Oracle's website.
Plaintiff began to be absent from his work station for extended periods of time. Joseph A. Budzinski, Plaintiff's supervisor, informed Plaintiff on May 5, 1999 that his attendance at work was required from 8:00 a.m. to 5:00 p.m., Monday through Friday. Plaintiff was also told to inform Mr. Budzinski if he could not be at his work station during the assigned times. On May 5, 1999, Plaintiff requested a two week vacation but the request was denied. Defendants contend that the vacation request came at a time when programming/coding was most critical therefore, Plaintiff's vacation request was denied. Between May 5, 1999 and June 2, 1999, Plaintiff was late, absent or left early on three occasions. On June 2, 1999, Mr. Budzinski reminded Plaintiff for the second time that he must be at his work station, Monday through Friday from 8:00 a.m. to 5:00 p.m. On June 3, 4, 7, 8, 10, 14 and 24, 1999, Plaintiff was either late, absent, or left early. On June 24, 1999, Plaintiff informed personnel via e-mail that he would not be at work the remainder of the day. As a result, Plaintiff's employment was terminated on June 25, 1999.
On July 26, 1999, Plaintiff filed this cause of action contending in Count I that Defendants violated the American Disabilities Act, 42 U.S.C. § 12111 et. seq. (hereinafter "ADA") and copyright infringement in violation of 17 U.S.C. § 101 et. seq.
On February 15, 2000, Defendants filed a Motion for Summary Disposition. Oral arguments were heard on April 24, 2000. Defendants argued that Plaintiff was not disabled within the definition of the ADA. Defendants also contended that Plaintiff is not the owner of the Y2K Complaint Oracle Cost Estimation System.
II. STANDARD OF REVIEW
Defendants ALCOA, Inc., and ALCOA Fujikura, Ltd. seek summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether there are issues of fact requiring a trial, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus., Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). A "material" fact exists if there is a "dispute over facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
The moving party has the initial burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment must be entered if the nonmoving party fails to provide sufficient evidence on an essential element to that party's case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The nonmoving party must present more than a mere scintilla of evidence and "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 249, 252 (internal citation omitted). If the nonmoving party fails to present evidence that opposes the moving party, the evidence submitted by the moving party will be taken as true. Id. at 248-49.
III. ANALYSIS A. Diabetes as a Disability Within the Meaning of the ADA
Defendants argue that Plaintiff has failed to show that he is disabled within the meaning of the ADA. Defendants specifically state that Plaintiff admits that diabetes does not substantially affect a major life activity. Plaintiff counters that he clearly has a physical impairment which requires Plaintiff to inject refrigerated Human Insulin, as defined by the ADA.
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individuals in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To prevail on an ADA claim, Plaintiff must prove that (1) he has a disability; (2) he was qualified for the job; and (3) he either was denied a reasonable accommodation for his disability or was subject to an adverse employment decision that was made solely because of his disability. Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996).
This Court must consider whether a genuine dispute of material fact exists with regard to whether Plaintiff was disabled within the meaning of the ADA in light of Defendants' argument. A disability is defined by the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). A "physical or mental impairment" is defined as "[a]n physiological disorder or conditions" affecting one or more of the various body systems. 29 C.F.R. § 1630.2(h)(1) (1995). "Major life activities" include "functions such as caring for oneself, performing manual tasks, walking, seeking, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i) (1995).
"Substantially limits" means inability to perform, or a severe restriction on the ability to perform as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1) 1995). To determine whether an impairment substantially limits a major life activity, a court must consider "(i) [t]he nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (ii) [t]he permanent or long term impact, or the expected permanent or long term impact of resulting from the impairment." 29 C.F.R. § 16302(j)(2) (1995).
The Sixth Circuit considered whether diabetes was a disability under the ADA in Gilday v. Mecosta County, 124 F.3d 760, 762 (6th Cir. 1997). The court relied upon the guidelines of the EEOC in stating that the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices. Id at 762 quoting from 29 C.F.R. § 1630 App. 1630(2)(j). Although the Sixth Circuit has not expressly been overruled, the United States Supreme Court recently stated that the rationale that a "condition must be judged in its uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA." Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2147 (1999). Under the uncorrected or unmitigated standard, all diabetics would be disabled. The court also stated that such an approach would lead to the inability of courts and employers to consider the negative side effects suffered by an individual resulting from the use of mitigating measures, even where those are very severe. Id. at 2147. "The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting." Id at 2149.
Plaintiff stated that Rezulin was required to control his seizures. Without the medication, Plaintiff experienced uncontrollable side effects such as dizziness, sweating, unusual hunger, shakiness, and a very rapid heartbeat. To counteract the side effects of the Rezulin, Plaintiff injected refrigerated insulin and consumed certain foods. When Plaintiff was not allowed to inject the insulin, he was subjected to uncontrollable seizures. When the Rezulin was taken off the market, Plaintiff injected insulin and rested.
Plaintiff's condition viewed in its corrected stated is not a disability. Plaintiff testified in his deposition that he was "basically able to do anything any other person is able to do with this one restriction that I do need to take what I call a time out to do some diabetes maintenance." (See Plaintiff's Dep., pp 24.) Plaintiff testified that there are no jobs that he is not allowed to have or shouldn't have because of diabetes as long as he had flexibility to do a time out. Plaintiff also stated that he was "performing all the work they were able to throw at [him]." Id at 42.
Based upon evidence presented to this Court, Plaintiff failed to show that his condition in its corrected stated substantially limited any of his major life activities. There is no genuine issue of material fact regarding whether Plaintiff was disabled under the ADA.
B. Reasonable Accommodation.
Plaintiffs claims that as a result of his diabetes he was often required to rest by lying down. As there was no place to lie down at the office he left the office to lie down at home. Defendants contend that Plaintiff never requested a reasonable accommodation under the ADA. Defendants claim that Plaintiff never asked to be accommodated by leaving work to lie down at home. Plaintiff argues that there was no need to request additional accommodations because Defendants had already provided the necessary reasonable accommodations to allow him to work at home. The reasonable accommodations included a laptop computer with remote modem access for working from home during periods of sickness and a modified work schedule to allow for the injection of refrigerated insulin and for recovery periods from sickness. Defendants also provided a pager and MCI phone card for communications during periods of sickness. Plaintiff also stated that he notified Defendants of his diabetic condition in the Alcoa Medical and Occupational Health History.
In Gantt v. Wilson Sporting Goods, 143 F.3d 1042, 1046 (6th Cir. 1998), plaintiff similarly admitted that she never made a request for an accommodation because there was no need. Plaintiff was terminated after failing to return from a leave of absence. Plaintiff asserted that she did not request an extended leave because she did not understand that she was on a leave of absence and the company knew of her injury. The court found that the plaintiff had made no request for accommodation and had therefore failed to create a question of fact as to the company's failure to accommodate. Id. at page 1047. It is "unlawful for a covered entity not to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." 29 C.F.R. § 1630.9(a). However, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. Id. at 1045 quoting from 29 C.F.R. pt. 1620 App. § 1630.9. The burden of requesting an accommodation is unquestionably on the employee.
Plaintiff's testimony demonstrates that an accommodation was never requested.
Q. When you had to leave to lie down as you described, did you explain to anyone why you were leaving?
A. I don't think anyone asked me why I was leaving. I was informed just to notify that I was leaving.
Q. Did you ever specifically just ask for a place to lie down?
A. I don't think that opportunity ever presented itself. I was fully aware of the facilities at the Allen Park, Michigan location. I didn't see any location where it was available to me to lay down.
Q. Did you ever ask for them to set up a place, though, where you could lay down if necessary or where someone could lay down.
A. The opportunity never presented itself to me.
In light of the fact that Plaintiff made no request for this accommodation, there is no genuine issue of material fact that Defendant failed to reasonably accommodate Plaintiff.
C. Copy Right Infringement
Defendants argue that summary judgment is appropriate as to Plaintiffs' claim of copyright infringement because Plaintiff is not a valid owner of the copyright. Defendants claim that Plaintiff assigned all rights to any inventions to Defendants. Secondly, Defendants contend that Plaintiff's claim is barred by the Work Made for Hire Doctrine pursuant to 17 U.S.C. § 101. Plaintiff argues, in contrast, that he was not employee but an independent contractor because Defendant failed to provide the software needed to develop a cost estimation system. Plaintiff contends that the failure to provide the necessary work tools voided the employment agreement.
To sustain a case of copyright infringement, the plaintiff must prove (1) ownership of a valid copyright and (2) copying by the defendant of constituent elements of the work that are original. Hi-Tech Video Productions, Inc. v. Capital Cities/ABA, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995). The registration certificate establishes a prima facie case of originality of the copyrighted article in the holder thereof and a prima facie presumption as to all of the facts stated therein. 17 U.S.C. § 410(c), Blumcraft of Pittsburgh v. Newman Brothers, Inc., 373 F.2d 905, 906 (6th Cir. 1967). The presumption is rebuttable placing the burden on the party challenging the copyright. Hi-Tech, 58 F.3d at 1095.
Defendants contend that Plaintiff is not the owner of the Cost Estimation System. In response to Defendants' contention, Plaintiff presents a certificate of registration of the Y2K Compliant Oracle Cost Estimation System. As stated previously pursuant to 17 U.S.C. § 410(c), a certificate of registration creates a rebuttable presumption of validity of copyright. Defendants argue that all rights to any inventions were assigned to Defendants and that the work for hire doctrine precludes any claim for copyright infringement. In support of their contention that all rights to the invention were assigned, Defendants offer Paragraph 5 of the Employment Agreement which states:
Employee shall promptly disclose to Alcoa Fujikura, Ltd. all discoveries, inventions, and improvement, patentable or unpatentable, conceived or made by employee, individually or jointly with any other person or persons, during the period of his employment within the Company (whether or not during working hours) relating in any manner to the business activities of Alcoa Fujikura Ltd., whether such discovery, invention, or improvement be a machine, apparatus, process, composition, article or other subject. All such discoveries, inventions, and improvements shall be the sole and exclusive property of Alcoa Fujikura Ltd. in respect to any and all countries, their territories and possessions.
Plaintiff and Defendants executed an employment agreement on January 27, 1998 which contained the above-outline provision. Such a provision is sufficient to rebut the validity of a certificate of registration dated July 6, 1999 more than one year after Plaintiff signed a employment agreement with the assignment provisions. There is an inference that Plaintiff knew at the time he registered the copyright that he had no rights to the computer program.
Defendants make a second argument that any claim is barred by the Work Made for Hire doctrine pursuant to 17 U.S.C. § 101. A "work for hire" is (1) work prepared by an employee within the scope of his or her employment; or (2) a work specifically ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101.
In response, Plaintiff argues that he was not an employee but an independent contractor at the time he created the Y2K Compliance Cost Estimation System. The United States Supreme Court has stated that the term "employee" in the work for hire provision must be construed through the application of the general common law of agency. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740-41 (1989). The Court set forth a nonexclusive list of factors relevant to the determination of "employee" status: (1) the hiring party's right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; 5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; and (12) the provision of the employee benefits; and the tax treatment of the hired party. Id. at 751-52.
The Hiring Party's Right to Control the Manner Means by Which the Product Is Accomplished .
Although Plaintiff was hired to design a cost estimation program, he was assigned to supervisors, Joseph Budzinski and Cary Patterson, to oversee his work product. Numerous e-mails provided by Plaintiff demonstrate that his supervisors were intricately involved in the production of the cost estimation system. Defendant's right to control was also evidenced by Defendant's ability to deny Plaintiff's requested vacation time based upon the needs of the organization.
The Source of the Instrumentalities and Tools .
Plaintiff states that Defendants did not provide him with the necessary software to create the cost estimation system. However, Plaintiff does not dispute that the program was developed on company time and with company computers. A review of the communications between Plaintiff and his supervisor show that the system was also developed with significant input from his supervisors. As Plaintiff states in his Response and Counter-Motion for Summary Disposition, the level of interaction between Plaintiff and his supervisor is evidenced by the one hundred and twenty-nine e-mails between Plaintiff and Cary Patterson.
The Location of The Work
Plaintiff's assigned work location was 999 Republic Drive in Allen Park, Michigan. Plaintiff was assigned to work at the Republic Drive location from 8:00 a.m. to 5:00 p.m. on Monday through Friday. Any work done at home via the laptop issued to Plaintiff from the Defendants was in an effort to accommodate Plaintiff's medical issues.
The Duration of the Relationship Between the Parties .
Plaintiff was employed by the Defendants from February 27, 1998 through June 25, 1999.
The Extent of the Hired Party's Discretion over When and How Long to Work
Defendants asserted its right to determine Plaintiff's work schedule, when it terminated Plaintiff for allegedly failing to comply with the assigned schedule which is the subject of this lawsuit.
The Method of Payment .
Plaintiff was paid as a salary employee according to the terms of his employment agreement in consideration of the promises and agreements as well as for the services and labor performed. Plaintiff testified in his deposition that his position with the Defendants was the only job where he was not a consultant. It was the only job that paid him salary and benefits. Plaintiff received a regular W-2 and taxes were withheld.
The Hired Party's Role in Hiring and Paying Assistants .
Plaintiff asserts that Paul E. Dickey was "introduced" as a additional member of Plaintiff's team to assist Plaintiff in programming activities. However, as Plaintiff suggests Mr. Dickey was hired by Defendants and not by Plaintiff. Plaintiff offered no evidence that he participated in or independently hired Mr. Dickey.
Whether the Work Is Part of the Regular Business of the Hiring Party
Defendant is a manufacturer of copper-wire and aluminum products who hired Plaintiff to designed a cost estimation system which would enable each Alcoa location to "talk to each other" and "share the same information" while at the same time allowing each location to do individual customization.
The Provision of the Employee Benefits .
As a part of Plaintiff's employment package, he was entitled to receive a salary, participate in the health, welfare and 401(k) plans. Plaintiff was also entitled to paid vacation time. In fact, Plaintiff complained that he did not receive paid vacation-time when requested. As stated earlier, Plaintiff testified in his deposition that his position with Defendants was the only job where he was not a consultant. It is the only job that paid him salary and benefits. Plaintiff received a regular W-2 and taxes were withheld.
No one factor is determinative. However, in looking at the factors in totality, Plaintiff was an employee at the time the Y2K Compliant Oracle Cost Estimation System was created. Defendant had a right to control Plaintiff's work and did so through the close supervision of Cary Patterson and Joseph Budzinski. Plaintiff's assigned work location was 999 Republic Drive in Allen Park, Michigan. Although, Plaintiff was allowed to work at home through the use of a laptop, the laptop belonged to Defendant and the program was created during work time in Defendants' facility. Plaintiff also worked for Defendants for over a year. Independent contractors are usually hired on a periodic basis. Hi-Tech, 58 F.3d at 1098. Plaintiff also received salary in the amount of $58,008, benefits, 401(k), health and welfare benefits and a regular W-2 form.
The factors taken in their totality suggest that Plaintiff was an employee at the time the cost estimation system was created and not an independent contractor. Defendants have produced sufficient evidence to show that there is no genuine issue of material fact regarding whether Plaintiff was the owner of the copyright. The work created by Plaintiff was for hire and in the scope of his employment and therefore, ownership of the copyright vests in the Defendants.
Based upon the aforegoing reasons,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Docket No. 28, Filed 2/14/00) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Complaint is DISMISSED WITH PREJUDICE.