Opinion
Case No. 4:99-CV-98
February 15, 2001
OPINION
Plaintiff, Michael J. Mulholland ("Mulholland"), has sued his former employer, Pharmacia Upjohn, Inc. ("PUI"), alleging that PUI violated the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 to 12213, and the Michigan Persons With Disabilities Civil Rights Act ("PWDCRA"), M.C.L. §§ 37.1101 to .1607, by failing to provide an accommodation. Now before the Court is PUI's motion for summary judgment.
I. Facts
Mulholland first became employed by PUI in January 1980 as a Maintenance Service Worker. In September 1981, PUI promoted Mulholland to the position of Lab Animal Tech. In that position, Mulholland was responsible for caring for research animals and maintaining their environment. Mulholland was promoted again in November 1987 to the position of Biochem Tech. In that position, Mulholland was responsible for administering drugs to and observing various lab animals for the purpose of conducting research on a PUI hair growth product. Mulholland performed his Biochem Tech responsibilities in a satisfactory manner.
At that time, Mulholland's employer was Upjohn Company. Upjohn subsequently became PUI as a result of the merger between Upjohn and Pharmacia, Inc.
On June 15, 1992, Mulholland suffered a serious head injury when he fell from the roof of his house and landed on his head. Mulholland spent two months in the hospital and was later transferred to a rehabilitation center. Mulholland was diagnosed with traumatic brain injury with cognitive impairments, including reduced short term memory, reduced problem solving capability, and extended mental processing time. Mulholland remained in the rehabilitation program until April 1993. Following testing in June 1993, it was noted that Mulholland was still experiencing problems with his short term memory, verbal skills, and word retrieval.
Although Mulholland's accident was not work-related, PUI permitted him to take a paid leave of absence. During Mulholland's rehabilitation, PUI worked with his therapists to determine Mulholland's prospects for return to work. In October 1993, PUI agreed to allow Mulholland to return to work in his former position of Lab Tech but continued to pay him at the higher rate he earned in his former Biomed Tech position. At the time Mulholland returned to work at PUI, he informed PUI of his need for an accommodation in the form of written instructions and directions for performing his job duties. Mulholland's group manager, Bob Hren ("Hren"), assigned Mulholland to a specific group of technicians and instructed the group leader to have a technician work directly with Mulholland in providing assistance and oversight in his performance of his job. ( See Hren Dep. at 11-12, attached to Pl.'s Br. Opp'n.) Hren explained Mulholland's need for extra assistance to members of the group and, in more detail, to Mulholland's specific group leader. ( See id. at 79-80.) Although not specifically done for Mulholland, basic instructions were written on the office chalkboard as well as dates on the animal cages showing when they needed to be changed. In addition, Mulholland was supervised closely to make sure that he understood and correctly completed his job tasks. However, as Mulholland became more familiar with his job duties over time, the level of supervision decreased. Although Mulholland made an occasional mistake, he performed his job in a satisfactory manner and received good performance evaluations. ( See Hren Dep. at 78; 1994-1996 Performance Reviews, Pl.'s Br. Opp'n Ex. 14.)
There is a factual dispute with regard to the reason Mulholland was returned to work in the Lab Tech position rather than the Biomed Tech position. PUI intimates that the reason was that Mulholland's Biomed Tech position and his group were eliminated as a result of The Upjohn Company's decision to discontinue hair growth research and the merger between The Upjohn Company and Pharmacia, Inc. On the other hand, Mulholland has presented evidence indicating that others in Mulholland's group were reassigned to similar positions and Mulholland was not reassigned because PUI was unwilling to allow Mulholland to deal with research animals due to his cognitive limitations. The Court finds this factual dispute to be immaterial to the issues presented in the instant motion.
At all times during his employment with PUI, Mulholland was required to report his hours worked on a timecard, which he turned in every Friday at the end of the week. The procedures for filling out time cards were printed on the time cards. The timecard instructed employees to "[r]eport all time, either worked or not worked, in total hours to the nearest 1/10th." (Mulholland Timecard, Def.'s Br. Supp. Ex. B.) Employees were required to report only the actual number of hours worked on each day during the week. However, because time cards were due on Fridays, employees were required to project the number of hours to be worked on the weekend. ( See Mulholland Dep. at 127, Def.'s Br. Supp. Ex. A.) Mulholland testified that he was told to routinely predict five hours for each Saturday and Sunday he was scheduled to work. ( See id. at 132.)
On or about October 21, 1996, Tom Block ("Block), one of Mulholland's supervisors, told Mulholland that he observed Mulholland arrive for work late, take a long lunch hour, and leave work early all on the same day even though his timecard still reflected that Mulholland worked a full eight-hour day. Block reminded Mulholland of the importance of keeping accurate time records and instructed Mulholland to correct his timecard. ( See id. at 149-50.) Subsequently, Block determined that Mulholland had not corrected his timecard as Block had directed.
A few days later, Mulholland was called into a meeting with Block and Sue Charron ("Charron"), a human resources manager. During the meeting either Block or Charron informed Mulholland that they had discovered additional instances where Mulholland had reported more hours than he had actually worked, specifically with regard to certain weekends where Mulholland reported working 5 hours each day for Saturday and Sunday but worked only two or three hours. ( See id. at 157-58.) At the conclusion of the meeting Mulholland was advised that he would be immediately suspended pending further investigation by PUI. On October 25, 1996, Mulholland met with Block, Charron, and Tom Kent ("Kent"), another of Mulholland's supervisors. At that meeting, Mulholland was informed that he was being terminated from PUI for gross misconduct based upon Mulholland's repeated practice of reporting more hours on this timecard than actually worked. When given an opportunity to explain the discrepancy between hours reported and worked, Mulholland told his supervisors that he never thought to correct the difference between his predicted time and time actually worked because by Monday he would forget all about Saturday and Sunday due to his impaired short term memory. ( See id. at 158.) At the conclusion of the meeting, PUI terminated Mulholland's employment.
II. Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S.Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S.Ct. at 2511 (citing Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).
A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the nonmoving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
III. Discussion
PUI contends that it is entitled to summary judgment on Mulholland's ADA and PWDCRA claims on two grounds. First, PUI contends that Mulholland cannot show that he was disabled. Second, PUI contends that Mulholland cannot show that PUI failed to accommodate him. The Court will address each argument in turn. However, as an initial matter, the Court will address Mulholland's argument that summary judgment is inappropriate because PUI's motion is premature. Mulholland suggests that summary judgment is inappropriate at this stage because there has not been an opportunity for full discovery. The Court must reject such a contention in this case because Fed.R.Civ.P. 56(f) provides the means for a non-moving party to demonstrate why summary judgment should be denied on the basis of incomplete discovery. Specifically, the rule requires a party opposing a motion for summary judgment on that ground to submit an affidavit detailing what further discovery would show. See Plott v. General Motors Corn., 71 F.3d 1190, 1196 (6th Cir. 1995). Because Mulholland has not complied with Rule 56(f), the Court rejects the notion that the motion is premature.
A. Existence of Disability
Michigan courts have held that the analysis of claims under the PWDCRA largely parallels the analysis under the ADA. See Chmielewski v. Xermac, Inc., 457 Mich. 593, 601-02, 580 N.W.2d 817, 821 (1998). Accordingly, the Court will conduct a single analysis under the ADA that will apply to both of Mulholland's claims.
In order to establish a prima facie case of disability discrimination, a plaintiff must show that: (1) he has a disability; (2) he was qualified for the job; and (3) he was either denied a reasonable accommodation for his disability or was subject to an adverse employment decision based solely upon his disability. See Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996). PUI's first argument addresses the first element of Mulholland's prima facie case.
The term "disability" includes "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). "Major 1ife activities" are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). For an impairment to "substantially limit" a major life activity, the individual must be unable to perform a major life activity that an average member of society can perform, or the plaintiff must be significantly restricted as to the condition, manner, or duration under which he can perform the major life activity relative to the average member of society. See 29 C.F.R. § 1630.2(j)(1). In determining whether an impairment substantially limits a major life activity, courts must consider: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2); see also Roush, 96 F.3d 840, 843 (6th Cir. 1996). The Supreme Court has summarized the process for determining the existence of a disability as follows:
First, we consider whether [the plaintiff's condition] was a physical [or mental] impairment. Second, we identify the life activity upon which [the plaintiff) relies . . . and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity.
Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2202 (1998).
PUI appears to concede that Mulholland's short term memory loss constituted an impairment under the ADA. PUI argues, however, that Mulholland cannot show that he had a disability because the impairment did not limit a major life activity. Mulholland contends that his impairment substantially limited his performance of the major life activities of learning, mental processes (including thinking and concentrating), and working. Concentrating, itself, is not a major life activity, although it may be a component of another major life activity, such as working or learning. See Linser v. Ohio Dep't of Mental Health, No. 99-3887, 2000 WL 1529809, at *3 (6th Cir. Oct. 6, 2000) (quoting Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999). On the other hand, learning and working are expressly identified as major life activities in the regulations pertaining to the ADA. See 29 C.F.R. § 1630.2(i). In addition, courts have held that thinking also constitutes a major life activity. See EEOC v. Sara Lee Corp., No. 00-1534, 2001 WL 20797, at *3 (4th Cir. Jan. 9, 2001); Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (assuming that "along with learning and sleeping, thinking and interacting with others constitute major life activities"); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999).
1. Thinking and Learning
To establish that he was significantly restricted in the activities of learning and thinking, Mulholland relies on various reports generated between 1992 and April of 1995. The first of these reports is the discharge status report dated September 15, 1992. In that report, Mulholland's attending physician, Dr. Robert Krietsch, noted that Mulholland "[h]ad difficulty pre-planning tasks," was not "consistently able to recall information given from one treatment session to the next," "[r]equired moderate assistance to generate solutions to a problem," and showed "[m]oderately slowed response time during complex tasks." (Discharge Status Report of 9/15/92, Pl.'s Br. Opp'n Ex. 3.) Mulholland also relies on a report dated June 15, 1993, by Dr. Jeffrey Kaylor, a licensed psychologist. Dr. Kaylor's report indicates that "[i]ntelligence testing yielded a Verbal IQ of 93, a Performance IQ of 97, and a Full Scale IQ of 94. This Full Scale IQ falls in the average range." (Letter from Kaylor to Muzlakovich of 6/15/93, Pl.'s Br. Opp'n Ex. 5 ("Kaylor Report").) The Kaylor report also indicates that Mulholland possessed academic skills similar to those of an average high school student, Mulholland's short term memory and capacity for new learning fell within the range indicative of moderate to severe impairment, his "speech was marked by mild but obvious word finding deficits," although his verbal IQ fell in the average range, and his abstract reasoning capacity fell within the normal range. ( Id. at 2.) A subsequent report prepared by Dr. Thomas R. Van Den Abell, a clinical neuropsychologist, based upon an evaluation performed in January of 1994, noted that testing indicated that "Mulholland's learning curve is somewhat suppressed, but he does not reveal rapid decay of recently-learned information"; his nonverbal memory skills were within the normal range for persons of Mulholland's age and education, and that he performed in the normal range for frontal lobe and executive abilities. (Letter from Van Den Abell to Stoltzner of 3/16/94 at 4, Pl.'s Br. Opp'n Ex. 6 ("Van Den Abell Report").) Based upon his observations, Dr. Van Den Abell wrote:
I believe . . . that [Mulholland] has continued to experience some recovery of function in the neurocognitive domain. He continues to reveal subtle linguistic deficits and paraphasic errors in the most complicated of testing situations. His verbal memory appears to be moderately impaired with cortical components of the memory process most involved. Mr. Mulholland reveals delay in learning new verbal information, but no rapid forgetfulness is noted.
( Id. at 5-6.) The final report is the second part of an Initial Evaluation Report summarizing an evaluation of Mulholland performed by the Charles Van Riper Language, Speech and Hearing Clinic at Western Michigan University on March 17, 1995. The report is dated April 12, 1995. The report indicates that the various subtests of the Woodcock-Johnson Psycho-Educational Battery-Revised ("WJR") were performed on Mulholland in order to measure his fluid reasoning and long-term retrieval abilities. ( See 4/12/95 Western Mich. Univ. Initial Evaluation Report-Part Two at 1-2, Pl.'s Br. Opp'n Ex. 7 ("WMU Report").) The report indicates that Mulholland had difficulty transitioning between concepts in the tests for fluid reasoning and grasping concepts and recalling words assigned to particular symbols. ( See id. at 2-3.) The report concluded:
Mr. Mulholland's scores on the WJ-R in the areas of memory and reasoning support his perception and complaint that he has persisting problems with new learning, retrieval, recall and problem solving/logical reasoning. Long-term retrieval seems particularly problematic. These problems are consistent with the residuals of traumatic brain injury.
( Id. at 3.)
In addition, Mulholland cites some handwritten notes, apparently made by Charron, dated July 12, 1996, relating to Mulholland's performance. In the notes, Charron states that Mulholland had recently switched buildings and was not performing basic requirements of his job such as mopping floors, using the correct color felt marker, and putting the correct food on the recording chart. ( See Handwritten Notes of 7/12/96, Pl.'s Br. Opp'n Ex. 15.) In addition, the notes state that
"[Mulholland] leaves you feeling that he's totally absent minded . . . [y]et other times he can be very detailed." ( Id.) The notes conclude by indicating that the problem areas would be discussed with Mulholland and suggestions made, such as using lists, to help him with his memory problems.
PUI contends that Mulholland may not rely on the various reports to establish a disability because they were generated several years before October 1996, when Mulholland was terminated, and are thus not relevant to the issue of disability at the time Mulholland was terminated. In addition, PUI contends that other evidence demonstrates that Mulholland was not substantially limited in the major life activities of learning and thinking in October 1996. For example, PUI points out that Mulholland learned the duties of his new position with PUI after returning from the accident and performed his job duties in an adequate manner, with only an occasional reprimand for a mistake. ( See Mulholland Dep. at 95, 208-09.) In addition, on three separate occasions between 1994 and 1996, Mulholland wrote to his supervisors indicating his interest in and capabilities of performing his former research position. ( See Letter from Mulholland to Gorman of 7/14/94; Letter from Mulholland to Hadick of 9/30/96; Letter from Mulholland to Diani of 10/4/96, Def.'s Br. Supp. Exs. C-E.) In his September 30, 1996, letter to Dr. Hadick, Mulholland stated:
I am currently attending courses at [Kalamazoo Valley Community College] to complete my Associates Degree. I have complete recall of my prior position in research, and am very capable of performing the various functions relevant to that type of position. I would really like the opportunity to work in that capacity again.
(Letter from Mulholland to Hadick of 9/30/96, Def.'s Br. Supp. Ex. D.) Finally, PUI notes that, as indicated by Mulholland in his letter to Dr. Hadick, Mulholland was attending classes at a community college at or around the time he was terminated in pursuit of his associates degree.
With regard to the activity of learning, the Court concludes that Mulholland has failed to present sufficient evidence to create a genuine issue of material fact that his impairment significantly restricted his ability to learn. There is no question that Mulholland's learning abilities were diminished as a result of his accident. Dr. Kaylor, one of Mulholland's treating psychologists, found in his June 15, 1993, evaluative report that Mulholland's "short term memory and capacity for new learning fell in the range indicative of moderate to severe impairment." (Kaylor Report at 2.) In another report issued approximately one year later, Dr. Van Den Abell noted that Mulholland performed in the moderately impaired range on tests of his learning capacity. Finally, a report issued on April 12, 1995 — approximately one and one-half years prior to Mulholland's discharge — stated that test scores supported Mulholland's perception of problems with new learning, retrieval, and recall. However, a "condition does not automatically qualify as a disability' simply because it is documented by a medical study, diagnosed by a doctor, or capable of being medically treated. Rather, it must be a 'disability' for the individual plaintiff as defined by the [ADA]." Williams v. City of Charlotte, 899 F. Supp. 1484, 1488 (W.D.N.C. 1995). The evidence does not demonstrate that Mulholland's abilities were "significantly restricted" as compared to the average person in the general population. See Williams v. Channel Master Satellite Sys., Inc,, 101 F.3d 346, 349 (4th Cir. 1996). Following his initial return to work, Mulholland required significant supervision and direction in order learn and complete his job responsibilities. Mulholland also required general written instructions in order to complete tasks. However, over time, the level of supervision decreased significantly as Mulholland learned his job responsibilities and Mulholland performed his job duties in an adequate manner, with the exception of an occasional mistake. There is no evidence that Mulholland was unable to learn or perform any aspect of his job during the three-year period following his return to PUI. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 508 (7th Cir. 1998) (stating that while there is no requirement of a link between a limitation and a plaintiff's work to establish a disability, "the relationship between the plaintiff's limitations and the workplace will become relevant . . . when the employer's duty to make reasonable accommodation is considered"); Lane v. Wal-Mart Stores. Inc., No. CIV. CCB-99-763, 2000 WL 1481638, at *5 (D.Md. Aug. 28, 2000) (noting the plaintiff's failure "to point to evidence demonstrating any significant impact her learning disability had on her ability to learn and perform her job during her employment at Wal-Mart"). Mulholland's own evidence suggests that he was not disabled for purposes of the ADA/PWDCRA. For example, in his June 15, 1993, report, Dr. Kaylor stated that Mulholland had a "Full Scale" IQ of 94, which fell within the average range. ( See Kaylor Report at 1-2.) Dr. Kaylor described Mulholland's academic abilities as similar to those of the average high school student. ( See id. at 2.) In addition, Dr. Kaylor stated that Mulholland's verbal IQ was in the average range and his nonverbal skills were superior to his verbal skills. ( See id.) Approximately one year later, Dr. Van Den Abell observed that although Mulholland's learning curve was "somewhat suppressed," he showed no signs of difficulty recalling recently-learned information. (Van Den Abell Report at 4.) In addition, Dr. Van Den Abell observed that Mulholland's nonverbal memory skills were "well within the normal range of Mr. Mulholland's age group and educational attainment." ( Id. at 4.) Based upon the test results and his observations, Dr. Van Den Abell concluded that Mulholland "would be able to perform his job at his previous level of competence with the exception of problemsolving skills in unique situations." ( Id. at 6.) Finally, although not directly related to his work performance, during the period following his return to PUI, Mulholland was taking classes at a local community college toward his associates degree. There is no indication in the record that Mulholland required any special assistance in his classes or was unable to successfully complete them. Cf. Phillips v. Wal-Mart Stores, Inc., 78 F. Supp.2d 1274, 1283 (S.D.Ala. 1999) (finding that the plaintiff failed to establish that he was substantially limited in his ability to learn where the plaintiff only stated that it took him a long time to learn the store layout and he would forget what he was doing on particular tasks and a clinical neuropsychologist concluded that the plaintiff could learn new job skills).
The record does not indicate whether Mulholland actually obtained his associates degree. Although PUI cites page 224 of Mulholland's deposition as evidence that he obtained such a degree, the Court was unable to locate any reference to that subject at or near the cited page.
The Court also concludes that Mulholland has failed to establish that his impairment severely restricted his ability to think. Mulholland's evidence relating to his ability to think is primarily the same evidence that he relied upon with regard to his ability to learn. Mulholland has also offered evidence showing that he occasionally forgot to perform certain job duties or failed to perform them properly. However, Mulholland's own testimony shows that after the first year or so back on the job, instances when Mulholland forgot to do something or made a mistake occurred infrequently. ( See Mulholland Dep. at 95, 208-09.) The July 22, 1996, notes, apparently made by Charron, do tend to show that Mulholland made mistakes by forgetting to perform basic tasks. Even so, the notes indicate that Mulholland had recently changed buildings and was perhaps not completely familiar with his responsibilities in the new building. In addition, the proposed corrective action was to have Mulholland's supervisors make suggestions to him to help him address his memory problem, such as keeping checklists. There is no indication in the record that Mulholland's forgetfulness had been a problem in the eighteen months preceding the incidents reflected in the notes or that it continued to be a problem after that time. In spite of his evidence of occasional forgetfulness, Mulholland has failed to show that his impairment substantially limited his ability to think. See EEOC v. Sara Lee Corp., No. 00-1534, 2001 WL 20797, at *3 (4th Cir. Jan. 9, 2001) (concluding that the plaintiff failed to establish substantial limitation on her ability to think despite evidence that the plaintiff forgot the location of her doctor's office, forgot things two or three times a week and had to write them down, and sometimes forgot to take a second daily dosage of anti-seizure medicine).
2. Working
Mulholland also argues that his mental impairment limited his ability to work. A plaintiff who claims that an impairment substantially limits his ability to work must demonstrate that he is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). In making this determination, courts may consider:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).29 C.F.R. § 1630.2(j)(3); see also McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 372-73 (6th Cir. 1997) (citing regulations). A plaintiff who is precluded from working in a particular job is not considered disabled. See McKay, 110 F.3d at 373. "If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton v. United Airlines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 2151 (1999).
Mulholland contends that he is significantly restricted in the ability to work because he cannot perform jobs which require him to remember and learn new tasks, problem solve in unique, non-repetitive circumstances, or work without close supervision. In particular, Mulholland points out that he is unable to work in his prior research position. However, Mulholland has offered no evidence showing that he is precluded from performing a significant number of jobs either in a class of jobs or in a broad range of jobs in various classes that would otherwise be available to Mulholland based upon his training, knowledge, skills, or abilities. See Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 253-54 (6th Cir. 2000) (affirming district court's determination that the plaintiff was disabled because his injury precluded him from performing at least 50% of the jobs he was qualified to perform). The fact that Mulholland cannot perform his former research position is not sufficient to establish an inability to work because he has not shown that his skills are not transferrable to any other types of jobs which he may be able to perform. Furthermore, Mulholland's claim that his ability to work is substantially impaired is refuted by the fact that after returning to PUI he performed his job for three years in a satisfactory manner and obtained new employment within months after his discharge in which his job duties were similar to those of his position with PUI. ( See Mulholland Dep. at 8-15.) Furthermore, Mulholland has performed his new job with few problems during the three years he has held the position. Given these facts, Mulholland cannot be considered substantially impaired in the activity of working. See Richards v. Am. Axle Mfg., Inc., 84 F. Supp.2d 862, 870 (E.D.Mich. 2000) (rejecting the plaintiff's claim of disability based upon substantial impairment of the ability to work because the plaintiff obtained new employment after her discharge that was similar to her previous employment and was having no problems performing that job); Stauffer v. Bayer Corp., No. 3:96-CV-661RP, 1997 WL 588890, at * 10 (N.D. Ind. July 21, 1997) (finding that the plaintiff's disorder posed no significant barrier to employment where she obtained new employment within six weeks of resigning from her former employer and had maintained continuous employment since that time).
B. Reasonable Accommodation
PUI also contends that it is entitled to summary judgment even if Mulholland could establish that he was disabled because Mulholland cannot show that PUI failed to provide a reasonable accommodation. The Court agrees. Mulholland contends that due to his mental impairments he required specific written instructions. In particular, Mulholland claims that Block should have given him written instructions about the proper way to correct his timecard and that he should have received instructions about how to account for lunches not being taken and making corrections to his timecard following a weekend where he worked less than the number of hours projected. Mulholland claims that he simply was not aware of procedures for properly filling out timecards.
The problem with Mulholland's argument is that the timecards contained one simple instruction that governed all cases: time worked or not worked should be recorded to the nearest 1/10th. PUI did not terminate Mulholland because he made a mistake that could have been prevented by sufficient instructions. Rather, it determined that Mulholland intentionally falsified his time by reporting more than he actually worked. On the day after Block observed Mulholland leaving work early, he met with Mulholland and told him that his timecard had to reflect the hours actually worked. ( See Block Dep. at 148, attached to Def.'s Reply Br.) PUI subsequently terminated Mulholland when it discovered that he had been reporting excessive hours on weekends and during the week. Mulholland claims that due to his memory problems, he could not remember by Monday how many hours he had worked on Saturday and Sunday and, thus, forgot to correct his Friday prediction of weekend time. However, his actions refute such a claim. The weekend following his discussion with Block, before anyone questioned his weekend hours, Mulholland departed from his prior practice of routinely reporting five hours for each weekend day by only reporting three hours for each day, which was the number of hours actually worked. ( See Block Dep. at 185, Charron Dep. at 246, attached to Def.'s Reply Br.) In addition, Mulholland's actions demonstrate that he was aware of the excessive reporting even on weekdays. Prior to his discussion with Block, Mulholland had been arriving late on Mondays due to a change in his wife's work schedule. Following the discussion with Block, Mulholland requested vacation time for Mondays to accommodate his late arrivals, indicating that he was aware that he had not accurately reported his time on previous Mondays as required. ( See Charron Dep. at 218-19.) These actions show that Mulholland was aware that his reporting practice was not proper and refute his claim that he needed additional accommodation. Therefore, PUI is entitled to summary judgment.
C. Discharge Based on Disability
Apart from his failure to accommodate claim, Mulholland contends that he can demonstrate that PUI violated the ADA/PWDCRA by discharging him based on his disability. PUI objects to such an argument because Mulholland did not plead such a claim in his complaint. Rather, Mulholland has only alleged a failure to accommodate claim. Having reviewed Mulholland's complaint, the Court concludes that the only claim alleged is a failure to accommodate claim. Because Mulholland did not allege a discriminatory discharge claim, he cannot now raise a claim not pled in his complaint because PUI has not had fair notice of the claim. Furthermore, Mulholland has not filed a motion for leave to amend his complaint to add a new claim and his response to PUI's motion cannot serve as a motion for leave. "Filing a motion is the proper method to request leave to amend a complaint." Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (citing Fed.R.Civ.P. 7(b)(1)). In addition, "[a] motion for leave to amend should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment." Id. (citing Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th Cir. 1999)). Finally, Mulholland has not shown any reason why he was prevented from amending his complaint at an earlier stage in this case. Therefore, the Court will not consider Mulholland's argument regarding discriminatory discharge.
Conclusion
For the foregoing reasons, the Court will grant PUI's motion for summary judgment.
An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant's Motion For Summary Judgment (docket no. 32) is GRANTED
and Plaintiff's complaint is DISMISSED.
This case is closed.