Jacqueline Harrison v. Soave Enter., LLC ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0526n.06
No. 19-1176
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JACQUELINE HARRISON, ) Sep 10, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant
)
)
v.
) ON APPEAL FROM THE
PARTS ) UNITED STATES DISTRICT
SOAVE ENTERPRISES L.L.C. and
) COURT FOR THE EASTERN
GALORE L.L.C.
) DISTRICT OF MICHIGAN
Defendants-Appellees )
Before: GUY, BUSH, and MURPHY, Circuit Judges.
JOHN K. BUSH, Circuit Judge. The Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101 et seq., celebrating its thirtieth anniversary this year, embodies our national commitment
to equality of opportunity in the workplace for the disabled. This appeal concerns the definition
of a qualifying “disability” in light of the 2008 amendments that broadened coverage under the
Act.
Jacqueline Harrison appeals the district court’s grant of summary judgment to Soave
Enterprises and Parts Galore (collectively, Defendants) on her ADA claim. The district court held
that Defendants might be “employers” subject to the requirements of the Act but granted them
summary judgment on the ground that Harrison failed to introduce direct evidence that she was
either “actually” disabled or “regarded as” disabled by those entities. We conclude that a dispute
of fact exists over whether Soave and Parts Galore can be liable to Harrison under the ADA, and
we disagree with the district court’s conclusion that Harrison failed to adduce sufficient evidence
Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.
of an “actual” or “regarded-as” disability under the 2008 amendments to the ADA, known as the
ADA Amendments Act of 2008 (ADAAA). We thus REVERSE the district court’s grant of
summary judgment and REMAND for the district court’s assessment of the remaining elements
of Harrison’s ADA claim.
I.
In December 2005, Harrison became a manager of Parts Galore, a self-service used auto
parts salvage yard. In 2007, she moved to a second location, “Parts Galore II,” where she also
served as a manager. At these facilities customers can pay a two-dollar entrance fee, which allows
them to harvest and purchase parts from scrap cars and trucks located throughout many acres.
Harrison inspected the yard two to three times a day in a John Deere “Gator” vehicle. As part of
those inspections, she checked for improperly placed cars, monitored employees, and assessed
holes in the fence to help prevent theft.
In 2014, Parts Galore hired Stephan A. “Tony” Murell as Regional Manager. He prepared
a preliminary report that documented problems at Parts Galore II. The underperformance at the
facility included holes along the fence (linked to possible incidents of theft), poorly inspected
vehicles (with dangerous parts (i.e., jacks) not having been removed), slacking employees, and a
deficient video feed monitor.
Following the report, Murell mandated changes at Parts Galore II. Among other things, he
required Harrison to randomly spot-check five cars each day prior to their placement in the yard.
This was to ensure that all dangerous car parts had been properly removed. To conduct the spot
checks, Harrison had to look under each car’s hood and ensure that all of the engine fluids had
been drained, and then inspect beneath the vehicles to confirm the removal of the catalytic
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converters. The latter duty required Harrison to physically kneel down and view the underbelly of
the car.
The new inspection procedure posed difficulties for Harrison, for in 2010 or 2011, Harrison
had suffered a torn ACL injury after falling in the shower. Knee surgery repaired her torn
meniscus, but she elected not to have her ACL repaired, as it would have required her to stop
taking medication that she needed and her doctor informed her that she could function without the
additional repair. Following her surgery Harrison continued to experience pain, which she
managed by taking medication as needed. However, she was no longer able to kneel to look
beneath the cars to perform the daily spot-check inspections.
To address Harrison’s inability to kneel, Parts Galore supplied her with a mirror on an
extension arm, which she used to view the undercarriage of cars and confirm that the catalytic
converter had been removed. The mirror allowed Harrison to perform all of her work-related
duties without any limitation. Harrison also testified that she could perform many personal
activities around her home and neighborhood. These included window washing, floor scrubbing,
cleaning toilets, picking up parts, picking up batteries, participating in the community, cleaning up
neighborhoods, and delivering turkey. Harrison never requested any other accommodation to
perform her duties at Part Galore. In fact, she declared in her deposition that “[t]here was no part
of my job that I could not do.” She also testified that at the time of her termination of employment
(August 26, 2015), she was neither being treated for her ACL injury by a medical professional,
nor had any doctor-imposed medical or physical restrictions on her activities.
A. Harrison’s Termination
On her last day at Parts Galore, Murell indicated to Harrison that she was being “terminated
because [she] can no longer do [her] duties because [of] a torn ACL.” Murell offered no other
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reason for the termination. In his deposition Murell admitted that he had told Harrison that her
ACL injury was the reason for her termination, but claimed that the actual reasons her employment
ended, which he did not tell her, were because of a “multitude of [her prior] offenses and incidents
of behavior.”
B. Procedural History
1. Harrison’s EEOC Complaint
Following her termination, Harrison filed a charge with the Equal Employment
Opportunity Commission (EEOC) against Ferrous Processing and Trading Company, the party
responsible for her hiring at Parts Galore. She alleged that she was fired because of her race, sex,
and/or disability. Neither Soave nor Parts Galore was named on this complaint. The EEOC issued
Harrison a right-to-sue letter.
2. District Court Proceedings
Harrison then filed a two-count complaint in the Eastern District of Michigan against Soave
and Parts Galore. In Count I, Harrison alleged that her termination violated the ADA, classifying
her torn ACL and “medical obesity” as qualifying disabilities. In Count II, Harrison alleged that
Soave had violated the Elliott-Larsen Civil Rights Act (ELCRA), based on its alleged weight
discrimination against her. Central to Harrison’s claims was the statement Murell had made that
she “[could] no longer perform [her] managerial duties because [of a] torn ACL.”
Upon completion of discovery, Defendants moved for summary judgment on both counts.
They argued that (1) Harrison was directly employed by neither Soave nor Parts Galore; (2) she
was not a qualified person with a disability under the ADA; (3) she had not required, nor had she
requested, a reasonable accommodation for her alleged disability, which rendered her ADA claim
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moot; and (4) her deposition admissions (relating to the fact she was never diagnosed as medically
obese) rendered her ELCRA claim moot.
The district court granted summary judgment for Defendants. The court concluded that
Ferrous, Parts Galore, and Soave were “so intertwined that they constitute[d] a single employer”
under the ADA and thus Parts Galore and Soave were capable of being named in the complaint.
Harrison v. Soave Enters., No. 16-14084, 2019 WL 296699, at *2 (E.D. Mich. Jan. 23, 2019)
(citing Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 993 (6th Cir. 1997)). Nonetheless,
the court granted summary judgment for several reasons. First, the court held that Harrison had
failed to present medical evidence of her knee condition as to create a genuine issue for trial that
she was either “actually disabled” or “regarded as” disabled under the ADA. Id. at *3. Second,
the court held that, even if Harrison had alleged a sufficient disability, she “extinguish[ed] any
potential claim of [her employer’s] refusal to accommodate,” given that she advanced “[no]
evidence that Defendants refused [her] requested accommodation.” Id. Third, although the court
concluded that Harrison had evidence for a prima facie case of weight discrimination under the
ELCRA, the court held that she failed to offer any proof that Murell’s legitimate rationale for her
firing—Harrison’s inconsistency in performing car spot checks—was pretextual. Id. at *4.
Harrison now appeals only her ADA claim. She argues that, in concluding that she was
not disabled under the ADA, the district court incorrectly applied an analysis from Black v.
Roadway Express, Inc., 297 F.3d 445, 450 (6th Cir. 2002), which has been superseded by the 2008
amendments to the ADA. Harrison further contends that the district court erred in its determination
that she failed to prove that Defendants “regarded” her as disabled and terminated her because of
that perception. Alternatively, Harrison argues that even if her claim based on direct evidence of
discrimination fails, the district court failed to conduct burden-shifting analysis based on indirect
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evidence. See Ferrari v. Ford Motor Co., 826 F.3d 885, 891–92 (6th Cir. 2016), abrogated on
other grounds by Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 319 (6th Cir. 2019)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
II.
We review de novo a district court’s grant of summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
Summary judgment is appropriate 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).
Under this standard, the moving party “bears the initial burden of establishing an absence of
evidence to support the non[-]moving party’s case.” Copeland v. Machulis, 57 F.3d 476, 478–79
(6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Here, Defendants bear
this burden as the parties moving for summary judgment. If they meet their burden of production,
the burden shifts to the non-moving party, to advance “significant probative evidence tending to
support the complaint.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citation
omitted). We assess “the facts and any inferences [that can be] drawn from the facts in the light
most favorable to the non-moving party.” Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th
Cir. 2012) (en banc).
III.
A. Harrison’s Employers
Parts Galore and Soave first argue that neither entity was an employer of Harrison, and
therefore neither may be held liable for her employment-related claims. The district court rejected
this argument, stating that although Harrison testified that neither Parts Galore nor Soave
Enterprises was her employer, “companies can be so intertwined that they constitute a single
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employer.” Harrison, 2019 WL 296699, at *2. On appeal, Parts Galore and Soave Enterprises
argue that the evidence of corporate interwovenness cited by the district court was not enough to
allow a reasonable jury to find that those companies were also subject to liability given her
admission that she was employed only by Ferrous. We disagree.
Harrison testified only as to which business she considered to be her formal employer.
However, neither the ADA’s plain language nor our precedent limits liability solely to such formal
employers. Start with the statutory text. It states that no “covered entity shall discriminate against
a qualified individual on the basis of disability” in various terms and conditions of employment.
42 U.S.C. § 12112(a) (emphasis added). The ADA defines “covered entity” to include “an
employer.” Id. § 12111(2). And it defines “employer” as a “person engaged in an industry
affecting commerce” with a certain number of employees as well as “any agent of such person.”
Id. § 12111(5)(A). Nowhere does this statutory text require the “covered entity” that engages in
the illegal discrimination to be the formal employer of the disabled individual who is subjected to
the discrimination. Cf. Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New
England, Inc., 37 F.3d 12, 16–18 (1st Cir. 1994).
Likewise, our case law has noted that an “employer” under the ADA is not always limited
to the company with whom the aggrieved employee has a direct employment relationship.
Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997) (noting that there
can be circumstances in “which a defendant that does not directly employ a plaintiff may still be
considered an ‘employer’ under [the ADA]”). In these situations, we follow three approaches to
examine whether two companies constitute one employer. Id. Under the first, we examine
“whether two entities are so interrelated that they may be considered a ‘single employer’ or an
‘integrated enterprise.’” Id.; see, e.g., York v. Tenn. Crushed Stone Ass’n, 684 F.2d 360 (6th Cir.
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1982). The second approach “consider[s] whether one defendant has control over another
company’s employees sufficient to show that the two companies are acting as a ‘joint employer’
of those employees.” Swallows, 128 F.3d at 993; see, e.g., Carrier Corp. v. NLRB, 768 F.2d 778(6th Cir. 1985). The third addresses “whether the person or entity that took the allegedly illegal
employment action was acting as the agent of another company, which may then be held liable as
the plaintiffs’ employer.” Swallows, 128 F.3d at 993; see, e.g., Deal v. State Farm Cnty. Mut. Ins.
Co. of Tex., 5 F.3d 117 (5th Cir. 1993).
We conclude that a reasonable jury could find that Soave and Parts Galore are subject to
liability under this framework. Among other evidence concerning the relationship between the
entities, the individuals who were involved in the decision to terminate Harrison (and thus who
engaged in the alleged “discriminat[ion] against” her, 42 U.S.C. § 12112(a)) actually worked for
Parts Galore or Soave, not Ferrous. Tony Murell, the primary person who made the decision to
fire Harrison, was employed by Parts Galore. See Harrison, 2019 WL 296699, at *3. And Marcia
Moss, who was present with Murell during Harrison’s termination, was employed by Soave as its
Human Resources Director. See id. Soave and Parts Galore make no claim that they do not
otherwise qualify as “employers” under the relevant statutory definition (which requires that they
be engaged in an industry affecting commerce and have the required number of employees). See
42 U.S.C. § 12111(5)(A). And the definition of employer encompasses an employer’s “agent”—
like Murell and Moss for Parts Galore and Soave, respectively. While Soave argues that Moss had
no role in the actual termination decision, a dispute of fact exists on that issue. And a factual
dispute exists over whether the different entities are “so interrelated” that they would be considered
a “single employer” or “integrated enterprise.” We therefore hold that Soave and Parts Galore are
potentially subject to liability under the ADA.
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B. Qualifying Disabilities
To prevail on a claim of discrimination under the ADA, a plaintiff must show that she “(1)
is disabled, (2) [is] otherwise qualified to perform the essential functions of the position, with or
without accommodation, and (3) suffered an adverse employment action because of…her
disability.” Ferrari, 826 F.3d at 891.
At issue in this appeal is the first element. Under this element, a plaintiff can prove a
qualifying “disability” by demonstrating that she (1) is “actually disabled,” meaning the individual
possesses “a physical or mental impairment that substantially limits one or more major life
activities of such individual”; (2) has “a record of such an impairment”; or, (3) is “regarded as
having such an impairment.” 42 U.S.C. § 12102(1), (3).
Harrison pursues the first and third avenues of element one—that she is “actually disabled”
or that she was “regarded” by Defendants “as having such an impairment.” Id. § 12102(1), (3).
The district court found Harrison’s evidence insufficient to create a jury issue under either
approach. However, in doing so, the district court erroneously relied on Black v. Roadway Express,
Inc., 297 F.3d 445, 450 (6th Cir. 2002), which applied a stricter standard for establishing disability
that no longer governs following the 2008 amendments to the ADA.
1. “Actually Disabled” under Section 12102(1)(A).
To prove that she is “actually disabled” under § 12102(1)(A), a plaintiff must show “a
physical or mental impairment that substantially limits one or more major life activities.” The
statute enumerates a non-exhaustive list of “major life activities,” which include “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
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working.” 42 U.S.C. § 12102(2)(A). And, importantly, in accordance with the directives offered
by the Code of Federal Regulations, this court has held that “the term ‘major’ shall not be
interpreted strictly to create a demanding standard.” Hostettler v. Coll. of Wooster, 895 F.3d 844,
853 (6th Cir. 2018) (quoting 29 C.F.R. § 1630.2(i)(2)). We adopted this less-strict interpretation
because, “[i]n keeping with the remedial purposes of the ADAAA, ‘[t]he definition of disability’
under the ADA ‘shall be construed in favor of broad coverage.’” Id. (quoting 42 U.S.C.
§ 12102(4)(A)). “That is because the primary concern of the ADA is ‘whether covered entities
have complied with their obligations and whether discrimination has occurred,’ not whether an
individual’s impairment is a disability.” Id. (quoting 29 C.F.R. § 1630.2(j)(1)(iii)).
Under the applicable ADA regulations, we “determine whether a disability substantially
limits major life activities” through comparison of “the person claiming a disability to ‘most people
in the general population.’” Id. (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). “‘An impairment need not
prevent, or significantly or severely restrict . . . a major life activity’ to be substantially limiting.”
Id. at 853–54 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Similar to the term “major life activities,”
“[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and
“is not meant to be a demanding standard.” Id. at 854 (quoting 29 C.F.R. § 1630.2(j)(1)(i)).
Indeed, a plaintiff need not show that her disability renders her unable to work, see
Morrissey v. Laurel Health Care Co., 946 F.3d 292, 300 (6th Cir. 2019), and a plaintiff need not
even tell her employer about her specific diagnosis. See id. Rather, it is enough that a plaintiff
simply tells her employer that she has certain limitations in relation to her work “because she
suffer[s] from a disability as defined by the ADA.” Id. (“[Plaintiff] told [her employer] that she
could not work more than twelve hours per shift because she suffered from a disability as defined
by the ADA. That was enough.”); see also Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th
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Cir. 1999) (“An employer has notice of the employee’s disability when the employee tells the
employer that he is disabled.” (citation omitted)); Cady v. Remington Arms Co, 665 F. App’x 413,
417 (6th Cir. 2016) (“[T]he employee need not use the word ‘disabled,’ but the employer must
know enough information about the employee’s condition to conclude that he is disabled. Relevant
information could include, among other things, a diagnosis, a treatment plan, apparent severe
symptoms, and physician-imposed work restrictions.” (internal citation omitted)).
Therefore, framed properly in light of post-2008 ADA law, “the question before us is
whether [Harrison] submitted enough evidence to show that she is substantially limited in her
ability to [kneel or walk].” Morrissey, 946 F.3d at 300. And, ultimately, based on our case law
that properly applies the post-2008 ADA standards for disability, we conclude that Harrison has
sufficient evidence to allow a reasonable jury to find “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).
In Morrissey, for instance, we concluded that the plaintiff had submitted enough evidence
to show that she was substantially limited in her ability to walk, stand, lift or bend, even with her
admission that she “did not have a specific limitation on the distance she could walk, the amount
of time she could stand, the amount of bending she could do, or the amount of weight she could
lift.” 946 F.3d at 300. It was enough that plaintiff alleged that, “after an eight-to twelve-hour
shift, she had difficulty walking, standing, lifting and bending,” and “she had so much trouble
bending over that it was difficult to put on her underwear.” Id. (emphasis added). We also found
significant that plaintiff’s daughter submitted an affidavit in which she stated that her mother “did
not walk at all or walked with a slight hunch and a pained expression after completing a day of
work.” Id.
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Similarly, in Hostettler, we concluded that plaintiff had sufficiently shown that her mix of
postpartum depression and separation anxiety, which impeded her ability to work full-time and
required her to ask for a modified work schedule from her employer, constituted a “disability”
under the post-2008 ADA. 895 F.3d at 853–54. In doing so, we dismissed defendant’s contention
that because plaintiff’s panic attacks were limited to several minute spans at a time, they did not
substantially limit any major life activity. Id. at 854. Instead, we found the episodic nature of the
disability to “make[] no difference under the ADA,” as “long as the impairment ‘would
substantially limit a major life activity when active,” id. (quoting 42 U.S.C. § 12102(4)(D)); and
in that case, the attacks substantially limited plaintiff’s ability to “care for herself, sleep, walk, or
speak, among others.” Id.; see 42 U.S.C. § 12102(2).
Under the directives of our case law and based on the regulations that direct us to construct
the term “substantially limits” “broadly in favor of expansive coverage,” 29 C.F.R. §
1630.2(j)(1)(i), we conclude that Harrison has satisfied the first element of a prima facie case of
disability discrimination under the ADA. First, Harrison has shown that she has a “physical . . .
impairment.” 42 U.S.C. § 12102(1)(A). Namely, Harrison presented evidence that in 2010 she
suffered an injury to her right knee in the shower, resulting in a damaged meniscus and torn ACL.
Thereafter, Harrison was required to have surgery on her meniscus, though she elected not to have
her ACL repaired, as it would have required her to stop taking medication that she needed and her
doctor informed her she could function without the surgery. The meniscus surgery required her to
take two days off of work, undergo a full treatment of physical therapy, and be under the short-
term supervision from a physician. These circumstances qualify Harrison’s knee injury as a
physical impairment under the ADAAA. See 42 U.S.C. § 12102(4)(A); Barlia v. MWI Veterinary
Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018) (“Congress amended the ADA in 2008 to state
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that the term [disability] should be construed ‘in favor of broad coverage . . . , to the maximum
extent permitted by the [ADA’s] terms.’” (quoting 42 U.S.C. § 12102(4)(A)).
Second, similar to our evaluation of the plaintiffs’ evidence in Hostettler and Morrissey,
we conclude that Harrison has sufficient proof to show that her physical impairment “substantially
limits” a major life activity. 42 U.S.C. § 12102(1)(A), (2)(A). Namely, Harrison testified
categorically that because of her torn, unrepaired ACL, she cannot kneel to this day. Indeed, the
record shows that she was unable to kneel to look under cars, so she was provided a mirror for her
to undertake this task. The statute provides a non-exhaustive list of “major life activities,”
including “standing, lifting, [and] bending,” 42 U.S.C. § 12102(2)(A), and regulations add
“sitting” and “reaching” as additional examples, 29 C.F.R. § 1630.2(i)(1)(i). Kneeling fits
comfortably within this list. Moreover, a reasonable juror could determine that the majority of the
general population can kneel and does not share Harrison’s physical limitation. 29 C.F.R. §
1630.2(j)(l)(v) (“The comparison of an individual’s performance of a major life activity to the
performance of the same major life activity by most people in the general population usually will
not require scientific, medical, or statistical analysis.”). Therefore, because Harrison’s physical
impairment—her knee injury—“substantially limits one or more major life activities,” the district
court erred in holding as a matter of law based on the record as it stands that Harrison was not
“actually disabled” under § 12102(1)(A). There is a genuine dispute regarding whether she was
“actually disabled” under § 12102(1)(A), which necessitates our reversal of the district court’s
summary judgment based on this issue.
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2. “Regarded As” Disabled under Section 12102(1)(C).
Harrison also has sufficient evidence for a reasonable jury to find that she has a qualifying
ADA “disability” under the “regarded as having [] an impairment” by her employer prong, see 42
U.S.C. § 12102(1)(C)), given Defendants’ knowledge of her knee injury.
Through the 2008 amendments, Congress liberalized the “regarded as having an
impairment” avenue of proving a disability under § 12102. Prior to the 2008 amendments, a
plaintiff was required to show that her employer (1) “mistakenly believe[d] that [she] ha[d] a
physical impairment that substantially limits one or more major life activities” or, alternatively,
that the employer (2) “mistakenly believe[d] that an actual, nonlimiting impairment substantially
limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999);
accord Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008). Under both scenarios,
it was “necessary that [an employer] entertain misperceptions about the individual;” or in other
words, the employer had to “believe either” that the employee “ha[d] a substantially limiting
impairment that [she] [did] not have or that [she] ha[d] a substantially limiting impairment when,
in fact, the impairment is not so limiting.” Sutton, 527 U.S. at 489; accord Daugherty, 544 F.3d
at 704. However, in 2008, Congress deliberately relaxed the standard “because it believed that
Sutton (among other Supreme Court decisions) unduly ‘narrowed the broad scope of protection
intended to be afforded by the ADA,’” and thereby “eliminat[ed] protection for many individuals
whom Congress intended to protect.” Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308,
318 (6th Cir. 2019) (quoting ADA Amendments Act of 2008, Pub. L. 110-325, § 2(a)(4), 122 Stat.
3553 (2008)). Accordingly, the “regarded as” provision of the ADA now states that, for an
employee to make out a “regarded as” claim, the employee must establish: “that he or she has been
subjected to an action prohibited under this chapter because of an actual or perceived physical or
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mental impairment whether or not the impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). There is a limitation to this provision,
however: “regarded as” impairments “shall not apply to impairments that are transitory and
minor.” Babb, 942 F.3d at 319 (quoting 42 U.S.C. § 12102(3)(B) (emphasis added)). Therefore,
the “transitory and minor” limitation acts as an affirmative defense of which the employer bears
the burden of proving. Id.Ultimately then, “to state the threshold condition of a ‘regarded as’ ADA claim, an
employee need only show that [her] employer believed [she] had a ‘physical or mental
impairment,’ as that term is defined in federal regulations.” Id. “The employer may then rebut
this showing by pointing to objective evidence ‘that the impairment is (in the case of an actual
impairment) or would be (in the case of a perceived impairment) both transitory and minor.’” Id.(quoting 29 C.F.R. § 1630.15(f)); see Baum v. Metro Restoration Servs., Inc., 764 F. App’x 543,
547 (6th Cir. 2019); Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016);
Bailey v. Real Time Staffing Servs., 543 F. App’x 520, 523 (6th Cir. 2013).
Applying the clarified “regarded as” standard to Harrison’s case, we conclude that a
genuine dispute of material fact exists with respect to Harrison’s perceived disability, and her
employer’s perception of such. The record indicates that Harrison’s employers knew about her
injury because: (1) when requesting the accommodation for her injury—the mirror—Harrison
referenced her ACL injury to validate the request; and (2) during her firing, Murell referenced
Harrison’s ACL injury. This is more than enough evidence from which a reasonable juror could
find that in December 2015, Defendants genuinely believed that Harrison had a knee injury that
affected her ability to kneel and work—therefore, representing a disability that we deem would
qualify as a “physical impairment” under the ADA given it affected Harrison’s “musculoskeletal”
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system. 29 C.F.R. § 1630.2(i)(1)(ii). Furthermore, given that Harrison testified that she injured
her knee in 2011, the five-year span between the injury and her termination suggests that the
impairment was neither “minor” nor “transitory.” 29 CFR § 1630.15(f). Although Defendants
highlight that (1) Harrison could perform other household tasks and (2) Harrison testified that she
had no other limitations across other activities, these facts do not necessarily rebut the notion that
Harrison’s employers still could have “perceived” her “as having an impairment” and fired her
because of that perceived limitation. This is particularly true, given the updated standard under
the ADA, which no longer requires the employer to believe the “impairment limits…a major life
activity.” 42 U.S.C. § 12102(3)(A).
In light of the above, we hold, in the alternative, that Harrison has sufficient evidence for
a reasonable jury to find that she satisfied the “regarded as” avenue of a qualifying ADA disability.
IV.
We conclude that a reasonable jury could find that Parts Galore and Soave are liable to
Harrison under the ADA. And given our holdings that Harrison has presented sufficient evidence
to create a genuine dispute of material fact regarding whether she is “actually disabled” or
“regarded as” disabled under § 12102(1)(A) and (C), we REVERSE the district court’s grant of
summary judgment in favor of Defendants. Therefore, we REMAND this case for further
proceedings consistent with this opinion.
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