Brian Wurzel v. Whirlpool Corporation , 482 F. App'x 1 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0446n.06
No. 10-3629
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Apr 27, 2012
LEONARD GREEN, Clerk
BRIAN WURZEL, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
WHIRLPOOL CORP., )
)
Defendant-Appellee. ) OPINION
______________________________ )
)
Before: BOGGS and MCKEAGUE, Circuit Judges; and GOLDSMITH, District Judge.*
MARK GOLDSMITH, District Judge. Plaintiff Brian Wurzel appeals the district court’s
order granting Defendant Whirlpool Corporation’s motion for summary judgment in this
employment discrimination case, brought principally under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. The district court granted summary judgment, in part, based on
Wurzel posing a direct threat to his own safety and that of others in the plant. Although we employ
a different analysis than did the district court, we ultimately conclude that the record establishes, as
a matter of law, that Wurzel did pose a direct threat. In particular, the record establishes that
Whirlpool’s determination that Wurzel posed a direct threat was based on a reasonable medical
judgment, which relied on the most current medical knowledge and best available objective evidence
and reflected an individualized assessment of Wurzel’s abilities. The record also establishes that
*
The Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of
Michigan, sitting by designation.
there is no evidence of a reasonably based medical judgment supporting the view that Wurzel did
not pose a direct threat. Accordingly, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
I. Facts
Brian Wurzel began working for Whirlpool in 1983. In 2003, Wurzel was employed as a
materials handler at Whirlpool’s Clyde Division manufacturing site. Wurzel’s primary duty was to
drive a tow motor (forklift) to transport boxes containing product literature to and from a
subassembly area. This entailed driving throughout the factory floor among pedestrian co-workers
at a speed of between five and seven miles per hour. Being able to safely operate a tow motor is an
essential function of the materials-handler position.
Whirlpool’s Clyde Division employs over 2,500 employees and contains six operating
assembly lines, all of which include moving machinery. Numerous vehicles are used onsite,
including tow motors weighing 10,000 pounds. Tow motors and pedestrians share space; tow motor
lanes and pedestrian lanes are separated by painted lines only. The site also has other machinery
including presses, drills, cutting machinery, and moving assembly lines carrying large parts and
products. The machines are automated and many of them move at a fast pace.
Wurzel’s medical problems related to this case first began in April 2003 when Wurzel visited
a hospital emergency room because of chest pain. Wurzel Dep. at 43 (R. 35). In May 2003, Wurzel
visited Whirlpool’s Employee Health Center (EHC) with chest pain. Patient Note of 5/15/03 (R. 30-
15). In November 2007, Wurzel was diagnosed with Prinzmetal angina. Wurzel Dep. at 28.
Prinzmetal angina causes spasms in the coronary arteries. Issa Dep. at 9 (R. 38). There is
no way for Wurzel to predict when a spasm will occur, how severe it will be, or how long it will last.
2
Id. at 10; Wurzel Dep. at 40. When he has a spasm, Wurzel experiences tightness in his chest,
shortness of breath, numbness in his left arm, pain in his neck, and sometimes dizziness and fatigue.
Wurzel Dep. at 33-34. When Wurzel begins to experience a spasm, he takes nitroglycerin pills to
relieve his symptoms. Id. at 29. Wurzel was directed to take up to three nitroglycerin pills, five
minutes apart; if his symptoms were not relieved after that, he should go to an emergency room. Issa
Dep. at 76-77, 87. A side effect of nitroglycerin is hypotension, which can also lead to dizziness,
lightheadedness, and fatigue. Id. at 46-47, 77.
Despite his affirmation that he did not know when a spasm would occur, Wurzel contends
that he would be able to stop what he was doing before becoming incapacitated. Wurzel Dep. at 130
(R. 36). At the beginning of a spasm, he would feel something akin to indigestion, and then when
he was not “feeling right” he would “stop and see how things progressed.” Id. at 130, 144. If he felt
safe, then he continued working; if he did not feel safe, he would let his supervisor know that he was
not able to continue working. Id. The parties agree that Wurzel had a clean record driving the tow
motor. Id.Over the course of the relevant time period, Wurzel visited, or was reviewed by, several
doctors, including Dr. Robert Marshall (Whirlpool’s plant physician), Dr. Mark Issa (Wurzel’s
treating cardiologist), Dr. Frederick Stockton (a cardiology specialist who also treated Wurzel), and
Dr. Haridas Biswas (a cardiologist who conducted an independent medical examination on Wurzel).
In November 2007, Wurzel underwent a heart catheterization performed by Dr. Stockton,
who recommended that Wurzel could work with no restrictions. Note of 11/8/07 (R. 42-1 at 35).
Wurzel then met with Whirlpool’s plant physician, Dr. Marshall, for a return-to-work evaluation.
Marshall Dep. at 19-20 (R. 43). Dr. Marshall’s job as plant physician is to treat injured workers and
3
to evaluate workers to confirm that they are medically able to perform their jobs. Id. at 5. At the
meeting, Wurzel informed Dr. Marshall that he had been diagnosed with Prinzmetal angina, and that
he took nitroglycerin pills to relieve his symptoms. Marshall Note of 11/8/07 (R. 37-2 at 23).
Wurzel told Dr. Marshall that he was not having any problems at the time, and that he had to use
nitroglycerin about once every two months, but “that takes care of it.” Id. After confirming that Dr.
Stockton understood Wurzel’s job duties and their safety-sensitive nature, Dr. Marshall returned
Wurzel to his materials-handler job without restriction. Id.On March 11, 2008, Wurzel had an angina spasm and visited the EHC. Wurzel Dep. at 98-
99 (R. 35). Wurzel had not taken his nitroglycerin pills and was instead “trying to fight it.” Id.Wurzel was fatigued, felt that he could not safely operate a tow motor, and went home. Id. In
Wurzel’s return-to-work evaluation with Dr. Marshall two days later, Wurzel told Dr. Marshall that
he had experienced two spasms back-to-back, but that his symptoms resolved after he took
nitroglycerin. Marshall Note of 3/13/08 (R. 37-2 at 24). Dr. Marshall noted his concern that Wurzel
might be at risk for sudden incapacitation, and stated that he would await further information from
Wurzel’s treating cardiologist, Dr. Issa, regarding Wurzel’s status and whether he should be driving.
Id.However, when Wurzel saw Dr. Issa, Wurzel was not entirely forthcoming about his medical
history. He informed Dr. Issa that he had experienced “rare episodes of chest tightness relieved with
nitroglycerin,” but Wurzel “otherwise denied any cardiac symptoms.” Wurzel Dep. at 107 (R. 36);
Issa Notes of 3/13/08 (R. 37-2 at 25). Wurzel did not tell Dr. Issa that he had gone to the EHC
because of a spasm, or that he had left work early due to his own concerns related to fatigue and
safety. Id.; Issa Dep. at 50. Although Wurzel states that he told Dr. Issa that he operated a tow
4
motor, Wurzel Dep. at 109, Dr. Issa testified at his deposition that he did not know what type of
machinery Wurzel operated, nor was he familiar with the Whirlpool plant or Wurzel’s working
environment. Issa Dep. at 57-58. Dr. Issa concluded that Wurzel could return to work without
restrictions, noting that Wurzel was not at any more risk for sudden incapacitation “than any other
[patient] being treated for angina.” Issa Note of 3/13/08 (R. 42-1 at 37).
Despite Dr. Issa’s conclusion, Dr. Marshall remained concerned about Wurzel’s risk for
sudden incapacitation because Dr. Marshall understood that a person with angina is at a higher risk
for incapacitation than a person who has no heart condition at all. Marshall Aff. ¶ 5 (R. 30-14); Issa
Dep. at 56. Dr. Marshall decided, based upon the risk for incapacitation and Wurzel’s working
environment, that Wurzel should be returned to work and be restricted from driving a tow motor or
any other company vehicle. Marshall Aff. ¶¶ 4-5.1 Whirlpool assigned Wurzel to the temporary job
of gatekeeper/tollkeeper until he could successfully bid on a permanent position that did not require
driving. Schultz Aff. ¶ 7.
From June to September of 2008, Wurzel experienced numerous spasms while at work.
Shortly before June 10, 2008, Wurzel had five spasms in four days. On June 10, Wurzel’s supervisor
transported Wurzel to the EHC by cart because Wurzel was lightheaded and tired and did not feel
1
Dr. Marshall described Wurzel’s working environment as follows:
. . . Mr. Wurzel was a tow motor driver, and if his thought process or concentration
were impaired for just one second there was a significant risk that he could seriously
injure himself or others at the [Clyde] Division. This is because the tow motors
operate in the same aisle on which pedestrians walk, with only yellow painted lines
separating the pedestrian lanes from the tow motor lanes. Furthermore, some of the
machines operating in the Division are near the aisles used by the tow motor
operators, so there was a chance Mr. Wurzel could hit the machines as well, causing
significant injury to himself.
Marshall Aff. ¶ 4.
5
comfortable walking without assistance to the EHC. Although Wurzel stated that he was beginning
to feel better after taking a nitroglycerin pill, the nurse’s notes state that he appeared very fatigued
and wanted to go home. Notes of 6/10/08 (R. 37-2 at 21); Wurzel Dep. at 153-55. On June 17,
2008, Wurzel’s supervisor again brought Wurzel to the EHC after a spasm. Wurzel had a rapid
pulse, and he experienced additional angina at the EHC. Wurzel went home. Notes of 6/17/08 (R.
37-2 at 21).2 On August 4, 2008, another employee reported that Wurzel was “ready to pass out.”
Wurzel told the employee that he would be fine as soon as he took his medicine. Lopez email of
8/19/08 (R. 42-1 at 22). On August 6, 2008, another employee reported that Wurzel was doubled
over on a bench and “ready to pass out.” Wurzel’s wife took him home that day. Id. On September
5, 2008, Wurzel went to the EHC after what he called a “really bad” bout of angina. Wurzel was red
in the face and short of breath. He left the EHC and went home. Notes of 9/5/08 (R. 37-2 at 21).
On September 26, 2008, Wurzel’s supervisor again brought Wurzel to the EHC after Wurzel had
experienced another bad spasm and taken three nitroglycerin pills. Wurzel was dizzy and fatigued,
so he went home. Notes of 9/26/08 (R. 37-2 at 21); Wurzel Dep. at 182.
After the September 26 spasm, Barbara Dewey, the human resources administrator in charge
of the EHC, told Wurzel that Dr. Marshall would have to clear him to return to work. Wurzel Dep.
at 183-84. On October 2, 2008, Wurzel saw Dr. Roush (a cardiologist filling in for Dr. Issa). Dr.
Roush submitted the same one-page form recommendation that Dr. Issa had submitted previously,
2
As a result of the increased spasms, Dr. Issa increased Wurzel’s dosage of Procardia and
added magnesium oxide. Issa notes of 6/17/08 (R. 37-2 at 33). Dr. Issa’s records reflect that he
understood that Wurzel had “an increase of angina symptoms,” and that these symptoms were on a
daily basis. Issa notes of 6/17/08 (R. 37-2 at 31). However, Wurzel did not inform Dr. Issa that he
had experienced dizziness, fatigue, and lightheadedness in connection with spasms. Issa Dep. at 47,
67-68.
6
stating that Wurzel could return to work with no restrictions, and that Wurzel was not at any greater
risk for sudden incapacitation than any other patient being treated for angina. Roush note of 10/2/08
(R. 37-2 at 44). Wurzel also saw Dr. Marshall on October 2 for a return-to-work evaluation.
Marshall Note of 10/2/08 (R. 37-2 at 42). Dr. Marshall reviewed Dr. Roush’s recommendation, but
remained concerned that Wurzel posed a safety risk.3 Id.; Marshall Aff. ¶¶ 6-7. Accordingly, Dr.
Marshall obtained Wurzel’s permission to follow up with Dr. Issa. Wurzel Dep. at 186. According
to Dr. Marshall, “[a]lthough Dr. Issa stated Mr. Wurzel could return to work, he provided no
confirmation that Mr. Wurzel was not at risk for sudden incapacitation. Accordingly, I allowed Mr.
Wurzel to return to work, but kept the restriction that Mr. Wurzel could not drive a tow motor unless
he was spasm-free for six months.” Marshall Aff. ¶ 7. Wurzel returned to work on October 7, 2008.
In October 2008, Wurzel bid on, and obtained, a position as a multi-process team member
in the paint department. Wurzel Dep. at 191-93; Schulz Aff. ¶ 8 (R. 30-11). The position did not
involve driving a tow motor. After a review of the position’s duties, Whirlpool determined that
Wurzel could perform the job. Restriction Review of 10/8/08 (R. 41-1 at 18). Wurzel’s duties in
the paint department included inspecting the finish on washer cabinets and lids, transferring cabinets
that needed to be painted a different color, and tooling, which involved placing parts on a conveyor
line to be painted, then removing the parts from the conveyor line after they were finished. Schulz
Aff. ¶ 8. Each of these duties was performed on a rotating basis, meaning that Wurzel rotated from
one position to the next every half hour. Wurzel Dep. at 194. Employees are required to rotate so
3
As Dr. Marshall put it, “[a]lthough Mr. Wurzel presented a note from Dr. Roush that he
could return to work and drive a tow motor, the note again stated that Mr. Wurzel was not at any
more risk for sudden incapacitation than any other patient being treated for angina. Again, this did
not alleviate my concerns because it did not confirm Mr. Wurzel, as a person suffering from
angina[,] was not at risk for sudden incapacitation.” Marshall Aff. ¶ 7.
7
as to vary their muscle group usage and avoid excessive muscle fatigue or injury. Id. ¶ 9. Whirlpool
asserts, and Wurzel does not challenge, that the ability to rotate through all of the positions is an
essential function of the job. Id. ¶ 10. Of particular importance, in the “tooling” position, the
conveyor line is low-hanging and moves continuously. Id. ¶ 8. In addition, one of the rotations
required Wurzel to work alone on the upper floor of the plant. Id.Shortly after returning to work, Wurzel experienced at least one additional spasm. On
October 22, 2008, Wurzel visited the EHC complaining of chest pain. He took nitroglycerin and was
driven home by his wife. EHC Record of 10/22/08 (R. 37-2 at 47).4 After this spasm, the EHC
nurse told Wurzel he would have to be cleared by Dr. Marshall before returning to work. Id.Dr. Marshall ordered an independent medical exam (IME) for Wurzel with cardiologist Dr.
Biswas. Marshall Aff. ¶ 8; Dewey letter of 11/4/08 (R. 37-2 at 48). Before Wurzel’s IME, Dr.
Marshall wrote Dr. Biswas to inform him about Wurzel’s condition and symptoms, and that Wurzel
worked in a “manufacturing environment where there are many machines, tow motors, and other
safety sensitive issues at play.” Marshall Letter of 11/4/08 (R. 40-1 at 1-3). Dr. Marshall asked Dr.
Biswas to evaluate “the documentation and physical examination of Mr. Wurzel and make
recommendations with regards to your opinion of his ability to work safely in this type of
environment.” Id. at 2. Wurzel saw Dr. Biswas on November 13, 2008. Notably, Wurzel
specifically denied having dizziness, chest pain, or palpitations “at the time of the evaluation,” and
4
In addition, a “Pre-Transport/Emergency Record” dated October 16, 2008, indicates that
Wurzel visited the EHC after a spasm and was pale and uncomfortable. According to the document,
emergency medical services were called and Wurzel was transported from the EHC to a hospital
emergency room. EHC Record of 10/16/08 (R. 37-2 at 46). In his deposition, however, Wurzel
stated that the report was incorrect and that his shift had not yet started by the time the report stated
that he was in the EHC.
8
apparently did not inform Dr. Biswas of any history of dizziness, lightheadedness, or fatigue. Biswas
report of 11/13/08 at 2, 3-4 (R. 40-1). Dr. Biswas concluded that Wurzel could return to work
without restrictions:
As far as his returning to work, based on the information that I have at this time
which includes that his carotid arteries are normal and he is having some atypical
chest pain and he is on medications, I do not have any objection to him going back
to work without restrictions.
In conclusion, although the patient has atypical angina or chest pain, whatever it is,
it seems under control and the patient rarely gets these episodes and according to
him, these episodes can be quickly brought under control with the nitroglycerine used
sublingually. From that point of view, I think he can return to work without any
restrictions.
Id. at 3-4. Accordingly, Dr. Marshall authorized Wurzel to return to his paint-department position
in December 2008. Marshall Dep. at 14.
In the beginning of 2009, Wurzel again had spasms at work:
· On January 22, 2009, Wurzel was transported via an in-plant ambulance and stretcher to the
EHC, complaining of chest pain. Wurzel stated that he was not dizzy, but felt fatigued and
went home. EHC Record of 1/22/09 (R. 37-2 at 55).
· On January 30, 2009, Wurzel visited the EHC because he had taken a nitroglycerin pill on
the way to work and wanted his blood pressure checked. Wurzel reported that he was dizzy
and very fatigued. The EHC called Wurzel’s daughter to drive him home. Notes of 1/30/09
(R. 37-2 at 21-22).
· On February 6, 2009, an in-plant ambulance was requested for Wurzel, who went to the EHC
with chest pains. Wurzel obtained relief after taking two nitroglycerin pills, but remained
pale and fatigued. The nurse noted that Wurzel had stated that this was a “bad one,” and that
lately his pain seemed to be worse. The nurse also noted a statement by Wurzel that “[t]here
are days I have taken 9 nitro.” EHC Record of 2/6/09 (R. 37-2 at 56).5
5
The nine-nitroglycerin-pills statement is the source of significant disagreement between the
parties. The statement that the nurse wrote in the record is: “There are days I have taken 9 nitro.”
Dr. Marshall’s affidavit states that he was informed that Wurzel had told the nurse “that he had taken
nine Nitros with no relief,” a significantly worse allegation (since it sounds as if Wurzel had both
taken nine pills at one time and that doing so had not been effective), which seems to be mistakenly
9
Wurzel saw Dr. Issa on February 13, 2009, for an evaluation. Under the “History of Present
Illness” section of his letter, Dr. Issa wrote, “I saw the patient in our Cardiovascular Clinic on
2/13/09 for follow-up. As you may recall, he is a 45-year-old male who is followed for Prinzmetal
angina. The patient at work had three episodes of chest pain, relieved promptly with nitroglycerin
in less than 3 minutes; otherwise, no other cardiac symptoms.” Issa letter of 2/17/09 (R.43-1 at 1).
Based on this information, Dr. Issa concluded that Wurzel’s symptoms were “stable” and that
Wurzel should not be restricted from returning to work. Id. Dr. Issa stated in deposition that he
constructed the medical history from what Wurzel told him. Issa Dep. at 86. However, when Dr.
Marshall subsequently informed Dr. Issa of Wurzel’s recent additional spasms, Dr. Issa maintained
his conclusion that Wurzel could work without restriction. Marshall Notes of 2/19/09 (R. 37-2 at
63-64).6
Despite Dr. Issa’s opinion, Dr. Marshall remained concerned that Wurzel was a safety risk,
particularly because of the working environment at the Clyde Division – involving rapid-pace
machines, tow motors, and conveyor lines – and the frequency of Wurzel’s symptoms. Marshall Aff.
derived from the original statement. Marshall Aff. ¶ 10. Dr. Marshall also states in a later clinic
note that Wurzel had taken nine nitroglycerin pills with no relief on February 6, 2009. There is no
support in the record for this statement. In any case, Wurzel disputes even the original statement by
the nurse. He contends that he has taken a maximum of four to five nitroglycerin pills per day, and
certainly not nine at a time. Wurzel Dep. at 226, 229, 236 (R. 37).
6
Around this time, Wurzel also saw Dr. Stockton, the cardiologist who had performed his
catheterization some years prior. Although Dr. Stockton did not say anything explicitly about work
restrictions, he wrote that “[at t]his point, I would continue to put no specific limitations on Mr.
Wurzel from a cardiac standpoint.” Stockton letter of 2/25/09 (R. 43-1 at 3). Dr. Stockton’s
“History of Present Illness” section did not mention Wurzel suffering any spasms at work and there
is no indication that Dr. Stockton was aware of them.
10
¶ 11; Marshall Notes of 2/19/09. Dr. Marshall was concerned that Dr. Issa and Dr. Biswas “do not
clearly understand the risks that are present in this environment.” Marshall Notes of 2/19/09. Dr.
Marshall was also concerned that Dr. Biswas was not aware of the more frequent occurrence of
Wurzel’s symptoms. Id. Dr. Marshall concluded that he would again contact Dr. Biswas for his
input, and in the meantime Wurzel could return to work, but with significant restrictions, including
no working around machinery, no working at heights, and no driving company vehicles. Id.Because Wurzel’s position in the paint department required him to work at heights and around
conveyor lines and moving machinery, he could not return to his job and was forced to remain on
sick leave. Schulz Aff. ¶ 12.
Dr. Marshall wrote Dr. Biswas on February 19, 2009, informing him of the spasms that
Wurzel had experienced since Dr. Biswas’s November 2008 IME. Marshall Letter of 2/19/09 (R.
43-1 at 9-10). In addressing the incident of February 6, 2009, Dr. Marshall wrote that Wurzel had
“taken nine nitroglycerin with no relief of his symptoms.” Id. at 9. Dr. Marshall also mentioned that
Wurzel’s job caused him to work next to machinery and out of others’ sight. Id. at 10. Dr. Marshall
asked if this new information would change the recommendations Dr. Biswas had made in his
original report. Id. Dr. Marshall also informed Dr. Biswas that he had spoken with Dr. Issa the day
of the letter, and that Dr. Issa still recommended that Wurzel be returned to work without restriction.
Id. at 9.
Dr. Biswas wrote back on March 5, 2009. Biswas Letter of 3/5/09 (R. 43-1 at 11). Dr.
Biswas noted that he was unable to obtain Dr. Issa’s latest records, and thus could not comment on
Dr. Issa’s conclusion that Wurzel could return to work without restriction. Id. As for his own
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opinion, Dr. Biswas wrote that Wurzel’s safety was “paramount and very concerning,” and
explained:
From the limited information available, it appears that Mr. Wurzel’s symptoms are
quite serious. I believe that he should seek the opinion of another cardiologist to
enter into a treating relationship. His returning to work seems to pose some risk for
his health. It is my understanding that Mr. Wurzel’s regular duties include working
next to machinery and working alone out of the line of sight of others. I would
strongly recommend that if Mr. Wurzel returns to work, he should work under close
observation. If this is not possible, then I would recommend that he be kept off work.
Id.Dr. Biswas then reviewed Dr. Issa’s records and on May 8, 2009, wrote a letter to Dr.
Marshall. Biswas Letter of 5/8/09 (R. 43-1 at 12-13). Dr. Biswas notes that it appeared Dr. Issa was
not aware of the severity of Wurzel’s spasms at work because the records did not acknowledge Dr.
Marshall’s communication regarding the severity of the symptoms. Dr. Biswas notes that Dr. Issa
understood that Wurzel had chest pain, but believed that it was mild and promptly relieved with
nitroglycerin. Dr. Biswas recommended that Wurzel communicate with Dr. Issa regarding the
additional instances Dr. Marshall had described. With regard to his own conclusions, Biswas wrote:
As I mentioned in my previous letter, until we clear this situation regarding the
disparity of his symptoms I would recommend that he should be working only under
observation and should avoid working close to any potentially risky area. My
concern is that if he continued to use the nitroglycerin in such excessive number,
such as nine at a time, which can create significant problems in terms of side effects
of this medication . . . . Again, I am recommending that he communicate with Dr.
Issa regarding this episode he had in your plant on February 6, 2009, and describe the
symptoms and the number of nitroglycerin he took at that time.
Id. at 13.
On June 11, 2009, Dr. Marshall again wrote Dr. Biswas, asking him to clarify his conclusions
that Wurzel could only work under close observation and should avoid working close to any
12
potentially risky area. Marshall Letter of 6/11/09 (R. 43-1 at 14). Dr. Biswas responded that Wurzel
should “not work alone near areas with an assembly line or moving machinery” and should avoid
working close to moving objects or moving machinery. Biswas Letter of 6/17/2009 (R. 43-1 at 15-
16).
On August 6, 2009, Whirlpool conducted a “Restriction Review” evaluating Wurzel’s job
duties in the paint department in relation to the restrictions recommended by Dr. Biswas and adopted
by Dr. Marshall. Restriction Review (R. 41-1 at 19). Whirlpool determined that Wurzel could not
perform the job functions because one of the rotations required him to work alone and outside the
presence of other employees and all of the positions involve working close to a “moving overhead
conveyor.” Id. On August 13, 2009, Wurzel was informed that Whirlpool had determined that he
could not safely perform the essential functions of the paint department position based on his
restrictions. Schulz Aff. ¶ 14. Wurzel was told that he could bid on any position that he believed
met his restrictions, and if a restriction review determined that he could safely perform the essential
functions of the position, it would be given to him. Id. Otherwise, Wurzel would have to remain
on sick leave, unless he could confirm that he had been spasm-free for six months. Id. Wurzel had
experienced multiple spasms within the prior six months and, thus, went on sick leave. Id. Because
Wurzel had exhausted his 26 weeks of paid sick leave, his leave was without pay. Id. ¶ 15.
Wurzel eventually returned to work without restrictions on March 1, 2010, claiming to have
been spasm-free for six months. EHC Notes of 2/25/10 (R. 47-4).
II. Procedural History
Wurzel filed suit in the United States District Court for the Northern District of Ohio against
Whirlpool in March 2009. Although the amended complaint alleged violations of several state and
13
federal laws, only Wurzel’s claim pursuant to the ADA is before this Court on appeal.7 Whirlpool
filed a motion for summary judgment, which the district court granted in April 2010.
In its decision, the district court noted that the events of the case occurred both before and
after the effective date of the most recent amendments to the ADA and analyzed Wurzel’s claim
under both versions.8 The court characterized the case as involving Wurzel’s two treating
physicians’ opinion that he could return to work without restriction versus the opinion of the plant
physician and an independent medical evaluator that Wurzel could not safely return to work without
restriction, and concluded that Wurzel’s treating physicians were not aware of pertinent information
while plant physician Dr. Marshall was well informed of Wurzel’s symptoms. Id. at 11-12. The
court determined that Wurzel failed to make out a prima facie case of discrimination because Wurzel
did not establish that he was regarded as disabled under either version of the ADA. Specifically as
to the pre-amendment ADA, the court concluded that Wurzel failed to show that Whirlpool regarded
him as having an impairment that substantially limited him from working in a “broad class of jobs,”
a requirement for establishing that he was regarded as disabled under the ADA. See Sutton v. United
Air Lines, Inc., 527 U.S. 471, 491 (1999); Wysong v. Dow Chem. Co., 503 F.3d 441, 452 (6th Cir.
2007). The court concluded that, during the relevant time, the only job from which Wurzel was
restricted was driving a tow motor.
Regarding the post-amendment ADA, the court concluded that Wurzel failed to meet the
“regarded as” requirement that he be “subjected to an action prohibited under [the ADAAA] because
7
The district court concluded that Wurzel had abandoned all but his ADA claim; Wurzel does
not challenge that holding on appeal.
In 2008, the ADA was modified by the Americans with Disabilities Act Amendment Act
8
(ADAAA), Pub. L. No. 110-325, 122 Stat. 3553.
14
of an actual or perceived physical or mental impairment whether or not the impairment limits a major
life activity.” 42 U.S.C. § 12102(3)(A). As part of the determination of whether Whirlpool’s action
against Wurzel was prohibited, the court analyzed whether Wurzel was “qualified.” The court
concluded that Wurzel posed a direct threat to the health and safety of himself and others in the
workplace, and thus was not “qualified.” It also concluded that “actions motivated by bona fide
concerns with worker safety cannot be deemed or found to be prohibited under the ADA, as amended
or otherwise[.]” Based on those premises, the court held that Wurzel had not shown that
Whirlpool’s actions violated the ADAAA. Thus, the court held that Wurzel was not regarded as
disabled under the ADAAA.9 Wurzel timely appealed.
DISCUSSION
I. Standard of Review
This court reviews de novo the order of a district court granting summary judgment. Tucker
v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). A court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). When evaluating a summary-judgment motion,
credibility judgments and weighing of the evidence are prohibited. Rather, the
evidence should be viewed in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986). Thus, the facts and any inferences that can be drawn from those facts [
] must be viewed in the light most favorable to the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986).
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 373 (6th Cir. 2009) (quotation marks omitted).
9
In addition, the court held that, even assuming Wurzel had established a prima facie case,
Whirlpool was entitled to summary judgment because Wurzel had presented no evidence that
Whirlpool’s legitimate, nondiscriminatory reason for its actions was a pretext for discrimination.
Id. at 19. Because we affirm on other grounds, we need not further address this holding.
15
II. Relevant Disability Law
Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the
basis of disability 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). In order to recover on a claim of discrimination under the
ADA, “a plaintiff must show that: 1) he is an individual with a disability; 2) he is otherwise
qualified to perform the job requirements, with or without reasonable accommodation; and 3) he was
discharged solely by reason of his handicap.” Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d
357, 363 (6th Cir. 2007) (internal quotation marks omitted).10
The timing of the relevant events in this case – from May 2003 to August 2009 – means that
there are two relevant standards for defining a disability, in particular a “regarded as” disability. In
2008, the ADA was modified by the ADAAA. The amendments were effective as of January 1,
2009, and do not apply retroactively to conduct occurring before that date. See Milholland v. Sumner
County Bd. of Educ., 569 F.3d 562, 567 (6th Cir. 2009). Accordingly, with regard to events
occurring before January 1, 2009, the ADA applies; with regard to events occurring in and after
10
For the first time at oral argument, Wurzel argued that he presented direct evidence of
discrimination and that the district court need not have engaged in the McDonnell Douglas burden-
shifting analysis. See also EEOC Amicus Br. at 18-19 (making the same argument). The Court need
not make a determination on this point, however. Under either a circumstantial-evidence analysis
(requiring application of the McDonnell Douglas burden-shifting framework) or a direct-evidence
analysis (not requiring the burden-shifting framework), a plaintiff must show that he is otherwise
qualified for the position. See Macy, 484 F.3d at 363 (describing requirements where no burden-
shifting analysis employed); id. at 365 (describing requirements under burden-shifting analysis).
Because this case turns on the issue of Wurzel’s qualifications (specifically, whether Wurzel is a
“direct threat”), the question whether Wurzel has raised a direct-evidence argument or a
circumstantial-evidence argument is not outcome determinative.
16
2009, the amended version of the ADA – i.e., the ADAAA – applies. Compare 42 U.S.C.§ 12102(2)
(2006) with 42 U.S.C. § 12102(3)(A)-(B).
The parties raise numerous arguments related to the district court’s interpretation and
application of the regarded-as disability requirement, under both the ADA11 and the ADAAA.12
However, the court need not address these issues in order to resolve this appeal. Even assuming in
Wurzel’s favor that he was disabled or regarded as disabled, Wurzel cannot prevail under either
version of the statute where the record establishes as a matter of law that Whirlpool’s determination
that Wurzel posed a direct threat was based on a reasonable medical judgment, which relied on the
most current medical knowledge and best available objective evidence and reflected an
individualized assessment of Wurzel’s abilities. Because the district court correctly determined that
11
Wurzel argues that, in addition to the tow-motor restriction, Dr. Marshall expressed
concern about Wurzel’s ability to work at the plant, and that together, these are evidence that
Whirlpool regarded Wurzel as “disabled in a variety of jobs, not just as a Materials Handler.”
Whirlpool responds that Dr. Marshall’s “general expression of concern” does not serve as
evidence that the company regarded Wurzel as disabled in a variety of jobs, citing the facts that the
only restriction placed on Wurzel during this time was the driving restriction, and that Whirlpool
placed Wurzel in another position (in the paint department).
12
Wurzel and his amici (the EEOC and the National Employment Lawyers Association
(NELA)) contend that the district court improperly incorporated a qualification/direct-threat analysis
into the straightforward question of “regarded as” disability. They further argue that the district
court’s analysis of whether Wurzel was a direct threat was an evaluation of Whirlpool’s defense to
liability, an issue that is not a part of the preliminary question of whether Wurzel was disabled and
an issue that is to be considered only after the resolution of the disability issue. EEOC Amicus Br.
at 18; NELA Amicus Br. at 15. The amici contend that the phrase “action prohibited under this
chapter,” as employed by the statute, simply means any adverse action taken by the defendant, and
not (as the district court concluded) an adverse action that also violates the ADAAA. See NELA
Amicus Br. at 10-13; EEOC Rule 28(j) letter of 4/25/11.
Whirlpool defends the district court’s interpretation of the ADAAA, arguing that the adverse-
action interpretation is counter to the plain meaning of the statute. See Appellee’s Br. at 29 (“After
all, an ‘adverse action,’ in and of itself, is not prohibited under the ADAAA.”); id. at 31 (“if the
employer acts because of a legitimate business reason, or because the employee poses a ‘direct
threat,’ the conduct is not discriminatory or ‘prohibited under the ADAAA’”).
17
the record establishes that Wurzel was a direct threat, and we may affirm on any ground supported
by the record, Bazzi v. City of Dearborn, 658 F.3d 598, 606 (6th Cir. 2011), this conclusion resolves
the appeal now before us.
III. “Otherwise Qualified”/“Direct Threat” Analysis
A. Applicable Law
In Estate of Mauro v. Borgess Medical Center, 137 F.3d 398 (6th Cir. 2000), this Circuit set
out the applicable case law:
To prevail under his Americans with Disabilities Act claim, [a plaintiff] must
show that he is “otherwise qualified” for the job at issue. See [Doe v.] Univ. of [Md.
Med. Sys.], 50 F.3d [1261,] 1266 [(4th Cir. 1995)]. A person is “otherwise qualified”
if he or she can perform the essential functions of the job in question. See Bradley
[v. Univ. of Tex. M.D. Anderson Cancer Ctr.], 3 F.3d [922,] 924 [(5th Cir. 1993)].
A disabled individual, however, is not “qualified” for a specific employment position
if he or she poses a “direct threat” to the health or safety of others which cannot be
eliminated by a reasonable accommodation. See 42 U.S.C. § 12111(3); University
of Md., 50 F.3d at 1265.13
. . . Our analysis . . . [entails] one question: Did [the plaintiff’s] activities [at
his job] pose a direct threat or significant risk to the health or safety of others?
Mauro, 137 F.3d at 402. See also Holiday v. City of Chattanooga, 206 F.3d 637, 648 n.4 (6th Cir.
2000) (“The ADA provides that a disabled individual is not ‘qualified’ for a specific employment
position if he poses a ‘direct threat’ to the health or safety of others that cannot be eliminated by a
reasonable accommodation.”).
13
As a plaintiff bringing a “regarded as” claim, Wurzel would not be entitled to the benefit
of a reasonable accommodation. See 42 U.S.C. § 12201(h) (2009). Thus, the question of his
qualification must be decided without regard to any potential accommodation. See Baker, 414 F.
App’x at 774-76 (in evaluating whether “regarded as” plaintiff was otherwise qualified, plaintiff
would not have been entitled to any reasonable accommodations). To the extent Wurzel’s
allegations should also be construed as an actual-disability claim (as Wurzel argued in his reply
brief), we note that Wurzel has never sought any accommodation, making reasonable
accommodation a non-issue in this case.
18
There are four factors to be considered in a direct-threat analysis: (i) the duration of the risk,
(ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will
occur, and (iv) the imminence of the potential harm. 29 C.F.R. § 1620.2(r); Mauro, 137 F.3d at 402.
With regard to the risk presented, “[a]n employer . . . is not permitted to deny an employment
opportunity to an individual with a disability merely because of a slightly increased risk. The risk
can only be considered when it poses a significant risk, i.e. high probability, of substantial harm; a
speculative or remote risk is insufficient.” Id. at 403.14
With regard to the employer’s evaluation of an employee’s direct-threat risk, “the employer
must conduct an individualized inquiry into the individual’s actual medical condition, and the
impact, if any, the condition might have on that individual’s ability to perform the job in question.”
Holiday, 206 F.3d at 643. In addition, the risk assessment must be based on “medical or other
objective evidence.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998). See also 29 C.F.R. § 1630.2(r)
14
There is some question as to which party maintains the burden of proof. The Sixth Circuit
has not yet ruled on this issue, and the courts of appeals decisions addressing it are not uniform.
Compare EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 571-72 (8th Cir. 2007) (employer must
prove direct threat) with LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998)
(plaintiff must prove the absence of a direct threat). See also Borgialli v. Thunder Basin Coal Co.,
235 F.3d 1284, 1291-94 (10th Cir. 2000) (describing cases on both sides); Rizzo v. Children’s World
Learning Ctrs., 213 F.3d 209, 223 (5th Cir. 2000) (“[T]he ADA is not a paragon of legislative
drafting. Particularly impenetrable is the statutory allocation of burden of proof regarding an
employee’s qualifications and the threat that disabled employees might pose to health and safety.”);
EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) (Plaintiff’s “qualification” requirement
means that he has the burden to show that he can perform the essential functions of the job and not
be a direct threat to others; but where “the issue of direct threat is not tied to the issue of essential
job functions but is purely a matter of defense, on which the defendant would bear the burden.”).
However, we need not resolve the issue of whether the burden is Wurzel’s as part of his obligation
to show that he is a “qualified” individual with a disability (by showing that he is not a direct threat
to safety in the workplace), or whether the burden is Whirlpool’s as part of an asserted affirmative
defense (that the plaintiff was a direct threat to safety). Regardless of which party possesses the
burden of proof on this point, as explained below, the district court’s conclusion that Wurzel
presented a direct threat is correct as a matter of law.
19
(“This assessment shall be based on a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence.”). Courts are to assess the
objective reasonableness of the views of the employer and/or employer’s medical professionals who
made the direct threat-decision. Bragdon, 524 U.S. at 650.
Applying these standards, courts of appeals have affirmed summary judgment in favor of a
defendant where the record evidence demonstrated that the plaintiff was a direct threat in his factory
workplace. In Moses v. American Nonwovens, Inc., 97 F.3d 446, 447-48 (11th Cir. 1996), cert.
denied, 519 U.S. 1118 (1997), the Eleventh Circuit explained that an epileptic worker with a
significant risk of seizures on the job who worked close to fast-moving and high-temperature
machinery was a direct threat. The court rejected the worker’s argument that there was no actual risk
of harm as long as he followed instructions and worked “downstream” from the equipment. Id. at
448. In Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 886-87 (9th Cir. 2001), the
plaintiff, a diabetic who had experienced hypoglycemic episodes where he could not communicate
for a period of time and was sometimes lightheaded, operated the equipment that produced, stored,
and transferred liquid chlorine. The court acknowledged the plaintiff’s arguments that he lost
consciousness only once in his lengthy tenure and that the potential for harm was small because of
the safety features of the equipment he used. Id. at 893-94. However, the court concluded that the
plaintiff nevertheless posed a significant risk under the direct-threat framework, noting the plaintiff’s
history and the fact that “a significant physical or mental lapse by [plaintiff] as a result of a diabetic
episode could result in substantial harm to his co-workers and others.” Id. at 894. Finally, in
Darnell v. Thermafiber, Inc., 417 F.3d 657, 661 (7th Cir. 2005), the Seventh Circuit concluded that
a plaintiff with uncontrolled diabetes and a resulting risk of passing out on the job presented a direct
20
threat where employees were required to climb tall ladders, operate dangerous machinery, and help
lift 80-pound pieces of fiberboard in a hot environment. The court reached this conclusion despite
plaintiff’s arguments that the single doctor who evaluated him was not thorough enough and that he
had worked at the plant for ten months without incident. Id. at 660, 662.
B. Decision Below and Parties’ Arguments
The district court concluded that Wurzel did not meet the qualification requirement because
he posed a direct threat to his and others’ safety. With regard to the first two factors – duration of
risk and nature and severity of potential harm – the court noted that Prinzmetal angina is a life-long
condition, and that, if Wurzel were to suffer a spasm “while driving a tow motor or working alone
in proximity to moving machinery or at a height from which a fall could cause injury, the
consequences for his own well-being and others[’] can hardly be disputed.” With regard to
likelihood of occurrence, the court concluded that the unforeseeability of a spasm and the
unpredictability of its effects meant that “the odds are great” that Wurzel or someone else would
have been injured had he continued to drive a tow motor, or work alone near moving machinery or
at heights. Id. at 17. With regard to imminence, the court concluded that “[w]hile the risk of injury
in this case might not have been in every instance and at every moment immediate, it was sufficiently
likely to occur that at any given moment it might have been imminent, as the law understands that
term in this context.” Id. at 18.
On appeal, Wurzel contends that the law requires that a defendant’s belief that an employee
presents a direct threat must be objectively reasonable and based upon the available medical
evidence reflecting an individual assessment of the employee. Wurzel contends that Whirlpool’s
belief that he presented a direct threat was flawed because:
21
(i) Dr. Marshall, a family physician, discounted the opinions of Wurzel’s
treating physicians – cardiology specialists – without speaking with them or
getting information from them, and
(ii) Dr. Marshall relied on the opinion of Dr. Biswas that Wurzel could not safely
return to work, which was problematic because:
(a) Dr. Biswas, an independent medical examiner, was unfamiliar with
the Whirlpool plant, did not have Wurzel’s medical records before he
met with him, and made all of his determinations based upon one
interview with Wurzel and Wurzel’s “paperwork,”
(b) Dr. Biswas first concluded that Wurzel could work without
restrictions, and only changed his mind after Dr. Marshall asked him
to reconsider,
(c) Dr. Marshall gave Dr. Biswas the incorrect information that Wurzel
had taken nine nitroglycerin pills in one day, information upon which
Dr. Biswas relied when changing his recommendation, and
(d) Dr. Biswas testified that had he done an in-person interview with
Wurzel, his determination may have been affected.
In addition to echoing Wurzel’s arguments, the EEOC argues that the district court erred by
ignoring Wurzel’s testimony indicating that he always knows when a spasm is about to begin and
that, despite having spasms, he has never had an accident. The EEOC also argues that both of
Wurzel’s treating cardiologists testified that he was highly unlikely to become incapacitated without
warning, and that the chance that Wurzel would become suddenly incapacitated raises a genuine
issue of material fact, rather than establishing significant risk as a matter of law.
With regard to Wurzel’s arguments concerning Dr. Marshall’s decisionmaking process,
Whirlpool responds that Dr. Marshall did speak to, and elicit information from, Wurzel’s treating
physicians – he reviewed the records of Dr. Issa and Dr. Stockton, and consulted with Dr. Issa
multiple times. With regard to Dr. Biswas not having Wurzel’s medical records before he met with
22
him, Whirlpool notes Dr. Biswas’s testimony that it was not uncommon to perform an IME without
reviewing the medical records beforehand, and notes that, in any case, Wurzel does not take issue
with the results of that IME. Whirlpool points out that Wurzel’s treating physicians were also not
familiar with the Whirlpool plant; only Dr. Marshall was. Whirlpool also argues that Wurzel was
not forthcoming with Dr. Issa and Dr. Stockton about his symptoms, meaning they had an inaccurate
understanding of how Prinzmetal angina affected Wurzel specifically. Concerning the nitroglycerin
pills, Whirlpool points to Dr. Biswas’s testimony that, even if Wurzel had not taken nine
nitroglycerin pills, his opinion about Wurzel’s symptoms being a safety concern would not have
changed.
Whirlpool further contends that the district court’s reasoning was sound. In response to the
point that, despite having spasms at work, Wurzel had never had an accident, Whirlpool contends
that an employer is not required to wait for a serious injury to occur before concluding that a worker
is a direct threat. Whirlpool also argues that Wurzel’s physicians did not state that it was highly
unlikely that Wurzel would become incapacitated without warning, rather one (Dr. Stockton) did not
address it and another (Dr. Issa) simply stated that, in his experience, he had never seen it happen.
In any case, Whirlpool stresses, Wurzel did become incapacitated on several occasions.
C. Analysis
Applying the standards set out above, we conclude that Whirlpool was entitled to summary
judgment because the evidence before the district court establishes, as a matter of law, that
Whirlpool’s determination that Wurzel posed a direct threat was based on a reasonable medical
judgment, which relied on the most current medical knowledge and best available objective evidence
and reflected an individualized assessment of Wurzel’s abilities. We also conclude that there is no
23
evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a
direct threat.
As an initial matter, Dr. Marshall – the individual who gave Whirlpool its information about
the risks Wurzel’s condition posed – engaged in a sufficient process. He was familiar with Wurzel’s
job duties and knew that they included (initially) operating a tow motor, and (later) working in a
position where he had to be in close proximity to moving machinery and an automatic conveyor belt,
and where one essential rotation entailed working out of the sight of others. Dr. Marshall obtained
much individualized information about Wurzel’s medical condition. He saw Wurzel himself,
reviewed the medical records from the plant’s EHC, obtained the medical opinions of Wurzel’s
treating cardiologists, Dr. Issa and Dr. Stockton, and, in light of the differences of opinion between
medical professionals, sought out the opinion of an independent medical examiner. As Dr. Marshall
was the plant physician, he had access to updated information as Wurzel’s condition changed,
meaning his medical knowledge of Wurzel’s condition was current. In addition, he followed up with
Wurzel’s other physicians in order to make them aware of his better understanding of Wurzel’s job
environment and changes in Wurzel’s condition. Cf. Hutton, 273 F.3d at 891-94 (“individualized
assessment of each factor” had occurred in case where company had the input of several physicians
who had examined plaintiff and information about the plant atmosphere and plaintiff’s job duties).
Further, the result was reasonably reached. Dr. Marshall adopted the ultimate recommendation of
independent medical examiner Dr. Biswas that Wurzel should “not work alone near areas with an
assembly line or moving machinery” and should avoid working close to moving objects or moving
machinery. Biswas Letter of 6/17/2009 (R. 43-1 at 15-16). These restrictions were reasonably
supported by Wurzel’s extensive history of spasms in the workplace, which entails at least eleven
24
instances, at least five of which required visiting the plant emergency room, and the majority of
which required Wurzel to leave work and go home. Wurzel’s spasm history also includes at least
one incident where he was found by another employee doubled over on a bench, “ready to pass out,”
another incident where he required an in-house ambulance and stretcher to bring him to the plant’s
EHC, and several others where he needed an escort to get to the EHC. In addition, Wurzel’s own
admission that he was at times dizzy and fatigued in connection with these spasms, and that he could
not predict when one would occur or how severe it would be lends support to the reasonability of
the restrictions. These restrictions were then evaluated in relation to Wurzel’s specific job duties in
the paint department. See Restriction Review (R. 41-1 at 19). Whirlpool determined that Wurzel
could not do the job because one of the rotations required him to work alone and outside the
presence of other employees and all of the positions involved working close to a “moving overhead
conveyor.” Id. Cf. Hutton, 273 F.3d at 891-94 (company closely examined plaintiff’s medical
restrictions and specific job duties before concluding that he could not fill any position).
In addition, none of Wurzel’s (or the EEOC’s) arguments provides reason to conclude that
the result was not reasonably reached.
With regard to the argument that Whirlpool wrongly discounted the opinions of Wurzel’s
treating cardiologists, Whirlpool’s decision to favor the recommendation of its own plant physician,
Dr. Marshall, and the final recommendation of the independent medical examiner and cardiologist,
Dr. Biswas, over the recommendations of Wurzel’s treating cardiologists, Dr. Issa and Dr. Stockton,
was reasonable. As explained below, Wurzel’s treating cardiologists did not have current and
complete information when making their recommendations – and there is evidence that one of them
would have changed his recommendation, had he had complete information.
25
Leading up to Dr. Issa’s March 2008 conclusion that Wurzel could return to work without
restrictions, Wurzel had informed Dr. Issa that he had experienced “rare episodes of chest tightness
relieved with nitroglycerin” and “otherwise denied any cardiac symptoms.” Thus, Dr. Issa did not
know that, actually, Wurzel had recently experienced three spasms, had gone to the EHC because
of a spasm, and had left work early due to fatigue and safety concerns.
In October 2008, Dr. Issa again concluded that Wurzel could return to work. Although Dr.
Issa’s records correctly reflect that Wurzel had experienced “an increase of angina symptoms” and
that these symptoms were on a daily basis, Dr. Issa was not aware that Wurzel had experienced
dizziness, fatigue, and lightheadedness in connection with his recent increased spasms.15 Dr. Issa
testified in his deposition that dizziness or lightheadedness is not a common symptom of Prinzmetal
angina,16 and had he known that Wurzel was experiencing those symptoms, he would have
considered performing other testing, adjusting Wurzel’s medication, or monitoring for an arrhythmia.
Issa Dep. at 67-68. Notably, Dr. Issa stated that, had he known Wurzel was experiencing dizziness,
lightheadedness, and/or fatigue, it would have changed his prior opinion that Wurzel was able to
return to work:
15
Around this time, Wurzel also saw Dr. Rousch, a substitute for Dr. Issa, who issued Wurzel
the same back-to-work note (verbatim) that Dr. Issa had issued several months before. The record
does not establish what Dr. Rousch knew about Wurzel’s condition in October 2008, but there is no
reason to believe that Wurzel was any more forthcoming with Dr. Rousch in October 2008 than he
was with his regular doctor that same month.
16
This point illustrates the mistake of another Wurzel argument – Dr. Issa did not testify that
it was unlikely that Wurzel would be incapacitated (dizzy, lightheaded, or fatigued) without warning.
Rather, Dr. Issa testified that it was unlikely for an individual with Prinzmetal angina to experience
lightheadedness, dizziness, or fatigue. Issa Dep. at 11, 100. The fact that Wurzel did experience
those (atypical) symptoms was something that Dr. Marshall knew and Dr. Issa did not, demonstrating
Dr. Marshall’s better contemporaneous understanding of Wurzel’s condition.
26
Q: . . . had you known that Mr. Wurzel was experiencing dizziness,
lightheadedness, fatigue, in connection with his spasms, would that have
changed your opinion of his ability to return to work?
A: Would have, yes.
Id. at 69. In addition, Dr. Issa stated that his opinion about Wurzel’s condition would have changed
had he known that Wurzel was found slumped over a work bench at the plant. Id. at 89.
In February 2009, Dr. Issa again recommended that Wurzel be returned to work without
restriction. Again, Dr. Issa did not appear to be aware of the severity of Wurzel’s symptoms.
Although Dr. Issa’s medical history stated that “[t]he patient at work had three episodes of chest
pain, relieved promptly with nitroglycerin in less than 3 minutes; otherwise, no other cardiac
symptoms,” in reality, (i) Wurzel had stated that his pain was getting worse lately and that one of his
episodes in particular had been “a bad one,” (ii) a single nitroglycerin pill did not relieve the
symptoms promptly in at least two of his three most recent crises, and (iii) Wurzel had had to leave
work each time.
Wurzel’s other treating cardiologist, Dr. Stockton, also saw Wurzel in February 2009.
Although Dr. Stockton did not say anything explicitly about work restrictions, he wrote that “[at t]his
point, I would continue to put no specific limitations on Mr. Wurzel from a cardiac standpoint.” To
the extent this statement can be understood as a release to work without restrictions, Dr. Stockton
did not appear to know very much about any of Wurzel’s spasm history. The “History of Present
Illness” section in Dr. Stockton’s notes did not mention Wurzel suffering any spasms at work at all,
and there is no indication whether Dr. Stockton was aware of them.
27
In light of all of the information that Wurzel’s treating cardiologists were missing at the
various times that they recommended he be allowed to work with no restrictions,17 Dr. Marshall’s
discounting of their opinions was eminently reasonable.18
With regard to Wurzel’s argument that the independent medical examiner, Dr. Biswas, had
originally concluded that Wurzel could work without restrictions and only changed his mind after
Dr. Marshall asked him to reconsider, Dr. Marshall’s action was reasonable. As was the case with
his treating physicians, Wurzel did not accurately inform Dr. Biswas of the extent of his condition
when Dr. Biswas examined him in November 2008. Wurzel told Dr. Biswas that he rarely
experienced chest pain, and when he did, his symptoms “c[ould] be quickly brought under control
with the nitroglycerine.” Dr. Biswas’s original no-restriction recommendation was based upon this
flawed information. When Dr. Marshall contacted Dr. Biswas in February 2009, he updated Dr.
Biswas as to Wurzel’s current job duties, and as to spasm incidents that had occurred since Dr.
Biswas had seen Wurzel last, reasonable action for a physician looking for a thorough evaluation
from a fellow physician.
It is true that one of the things that Dr. Marshall told Dr. Biswas was the problematic
information that Wurzel had “taken nine nitroglycerin with no relief of his symptoms.” As
mentioned in the fact section above, Wurzel taking nine nitroglycerin pills is a disputed fact which
17
In addition, Dr. Issa was unfamiliar with the environment at the plant, unaware what
machines Wurzel used when he operated a tow motor, and unaware what his job duties were when
he had his paint department job. Issa Dep. at 57-59. Dr. Issa stated at deposition that this
information did not matter to him because he did not feel that Wurzel needed any restrictions. Id.
at 59-60, 96-97.
18
Notably, even Wurzel’s physicians who, at some point, concluded that he could return to
work do not offer testimony that, after being made aware of all of the evidence, they felt he could
have returned to work.
28
finds some support in the record, and Wurzel taking nine pills at a time with no relief is a fact simply
not supported by the record. It is further true that both Dr. Marshall and Dr. Biswas mention this fact
as a part of their explanation for restricting Wurzel. However, this point does not affect the analysis
in this case. Although Wurzel disputes having taken nine pills, he did testify that he had taken a
maximum of four to five nitroglycerin pills per day. And, Dr. Marshall states in his affidavit that,
had Wurzel never taken as many as nine pills in a day, but only four or five, his opinion about
Wurzel’s symptoms being a safety concern would not have changed. Wurzel Aff. ¶ 14. In addition,
both Dr. Marshall and Dr. Biswas relied on additional non-problematic grounds for their
conclusions. As Dr. Biswas explained in his deposition, he also relied upon the severity of Wurzel’s
symptoms and the fact that they had gotten worse since his original report, the fact that Prinzmetal
angina “itself” can potentially cause one to pass out, and the fact that Wurzel would be working in
close proximity to machinery. Biswas Dep. at 59, 64 (R. 40). Likewise, Dr. Marshall also relied
upon the increasing frequency of Wurzel’s symptoms over time, the presence of dangerous
machinery in Wurzel’s work environment, and Wurzel’s essential work duties involving close
contact with the machinery and working out of others’ sight. Marshall Aff. ¶ 15.19
19
Whirlpool effectively refuted Wurzel’s other arguments that Dr. Biswas (i) was unfamiliar
with the Whirlpool plant, (ii) did not have Wurzel’s medical records before he met with him, and
(iii) made his determinations after conducting only one interview with Wurzel and reviewing his
paperwork. Whirlpool’s various responses – all amply supported by the record – demonstrate that
(i) all the physicians except for Dr. Marshall were unfamiliar with the Whirlpool plant, (ii) it is
common practice to perform an IME without reviewing the medical records beforehand, and (iii)
criticizing Dr. Biswas’s IME procedures is of little importance in light of the fact that Wurzel does
not take issue with the results of the IME.
As for the final argument – that Dr. Biswas testified that, had he done an in-person interview
with Wurzel, his determination may have been “affected” – this claim is unpersuasive. In the
relevant exchange, Dr. Biswas confirmed that he had interviewed Wurzel in person only once and
did not re-interview him. In response to counsel’s question whether, if he had in fact interviewed
Wurzel a second time, “could [it] have affected your recommendation,” Dr. Biswas responded “It
29
Having concluded that Whirlpool engaged in a sufficient process, and that the conclusions
it reached were objectively reasonable based upon Wurzel’s medical condition, the remaining
question is whether these conclusions about Wurzel’s condition meet the standard for posing a direct
threat. Applying the four-part standard of Mauro and 29 C.F.R. § 1620.2(r), we hold that the district
court did not err in concluding that Whirlpool’s decision reflected that Wurzel posed a direct threat.
With regard to the first factor, duration of the risk, the district court rightly noted the fact that
Wurzel’s condition was life-long. While it is true that Wurzel was apparently spasm-free for at least
six months subsequent to Whirlpool’s decision, at the time of the decision, Wurzel and his
physicians had not yet achieved that kind of control over his condition, and there was no indication
that they would. With regard to the second factor, nature and severity of the potential harm, the
district court’s simple analysis – that “were plaintiff to suffer a spasm while driving a tow motor or
working alone in proximity to moving machinery or at a height from which a fall could cause injury,
the consequences for his own well-being and others can hardly be disputed” – is apt. With regard
to the third and fourth factors – the likelihood that the potential harm will occur and the imminence
of the potential harm – Wurzel and the EEOC focus their arguments on the fact that Wurzel had
never had an accident and Wurzel’s own testimony that he would be able to sense when a spasm was
may.” Biswas Dep. at 62. This response by Dr. Biswas was the only practical response to a general
question about whether doing something different could have yielded something different. But this
allowance means nothing without the fact (or even allegation) that Wurzel would have presented
contradictory or new information in a second interview. This innocuous testimony by Dr. Biswas
stands in sharp contrast to the testimony of Dr. Issa that had he known that Wurzel was experiencing
dizziness, lightheadedness, and fatigue, his opinion would have been different. See Issa Dep. at 67-
68. Dr. Issa’s admission that his opinion would change was significant because the record evidence
establishes that, in fact, Wurzel was experiencing dizziness, lightheadedness, and fatigue, exposing
the fact that Dr. Issa’s conclusion was based upon incomplete or mistaken information. Dr. Biswas’s
testimony shows no such thing.
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coming and take steps to safely stop what he was doing.
These arguments do not defeat summary judgment on this point. Wurzel’s deposition
testimony does not establish that Dr. Marshall’s conclusion was unreasonable. Wurzel’s deposition
is internally contradictory and conflicts with other record evidence. Although Wurzel did state that
he knew when an attack was imminent, Wurzel Dep. at 129-30, he also testified that there was no
way to know when a spasm was about to happen. Id. at 40. Although Wurzel testified that he
thought he could stop what he was doing in advance of a spasm and that he had never had an
accident, id. at 129-31, Wurzel had also been found in the workplace doubled over a bench, close
to passing out. Thus, Wurzel’s testimony does not serve as an indicator that Dr. Marshall’s medical
judgment about him was not reasonably based on an individualized inquiry into his condition.
On the work-history point, it is true that some courts have noted the fact that an employee
has an injury-free record, or a safe driving history, in concluding that the employee has established
a genuine issue of material fact on the direct-threat question. See EEOC Amicus Br. at 27-28.
However, courts evaluating individuals whose conditions might cause them to be incapacitated tend
to focus on the risk related to the workplace. Compare Moses v. Am. Nonwovens, Inc., 97 F.3d 446,
447-48 (11th Cir. 1996), cert. denied, 519 U.S. 1118 (1997) (an epileptic working near dangerous
fast-moving and high-temperature machinery was a direct threat) and Dark v. Curry, 451 F.3d 1078,
1086-87 (9th Cir. 2006) (driver with epilepsy who had once passed out in the work vehicle, but had
not gotten into an accident, was not qualified without an accommodation) with Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1247-49 (9th Cir. 1999) (employee, a cashier who suffered from fainting
episodes, successfully raised an issue of material fact as to the question of direct threat) and Lovejoy-
Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219-21 (2d Cir. 2001) (convenience store clerk
31
with epilepsy did not pose a direct threat to herself or others). As someone who worked close to
dangerous automatic machinery and, at times, out of the sight of other employees who might be able
to assist in an emergency, Wurzel’s job environment certainly falls in the potentially dangerous
category. When one also considers the facts that Wurzel had once previously been found on the
worksite doubled over and close to passing out, and that numerous times he had required the
assistance of a fellow employee to get him to the EHC in a medical emergency, the factors
concerning likelihood and imminence of harm are unmistakably met.
For the above reasons, we conclude that no reasonable juror could find that Whirlpool’s
determination that Wurzel posed a direct threat to his own safety and that of others in the plant was
not based on a reasonable medical judgment, which relied on the most current medical knowledge
and best available objective evidence and reflected an individualized assessment of Wurzel’s
abilities. Nor could a reasonable juror find that there was evidence of a reasonably based medical
judgment supporting the view that Wurzel did not pose a direct threat.20
20
To the extent Wurzel’s citation to two cases that are not binding precedent for this court
– Justice v. Crown Cork & Seal Co., 527 F.3d 1080 (10th Cir. 2008) and EEOC v. Burlington
Northern. & Santa Fe Railway Co., 621 F. Supp. 2d 587 (W.D. Tenn. 2009) – is meant to bolster
his direct-threat argument, these cases are readily distinguishable. The Burlington court determined
that the defendant was not entitled to summary judgment where the company determined he could
not return to work without examining the plaintiff or even consulting with any physicians who had.
See 621 F. Supp. 2d at 602. In contrast, here Dr. Marshall had frequent and regular contact with
Wurzel and Dr. Biswas examined Wurzel. In Justice, the Tenth Circuit concluded that the question
of direct threat could not be resolved at the summary judgment stage where there existed serious
questions about the objectivity of the single medical professional, a physical therapist, who
concluded that the plaintiff could not return to work. 527 F.3d at 1091-92. In particular, the physical
therapist’s only information about the nature of the plaintiff’s job duties and workplace came from
a tour that may not have been an accurate depiction. Id. at 1084, 1090. In contrast, here, both Dr.
Marshall and Dr. Biswas reached the same conclusion regarding Wurzel’s abilites; nor is there any
evidence that either physician received tainted information about Wurzel’s workplace or duties.
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CONCLUSION
The district court did not err in granting summary judgment, as the record establishes that
Wurzel posed a direct threat. Because this Court may affirm on any ground supported by the record,
on this basis alone, we AFFIRM.
33