Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 1 of 23 PAGEID #: 1712
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`UNITED STATES DISTRICT COURT 
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`Case No. 1:12-cv-611
`Weber, J.
`Bowman, M.J.
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`JOHN YARBERRY,
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`Plaintiff,
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`v.
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`GREGG APPLIANCES, INC.,
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`Defendant.
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`REPORT AND RECOMMENDATION
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`Plaintiff brings this action through counsel against his former employer,
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`defendant Gregg Appliance, Inc. (“hhgregg”) alleging that hhgreeg discriminated against
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`him on the basis of his alleged disability in violation of the Americans with Disabilities
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`Act (“ADA”). This matter is now before the Court on the parties’ cross motions for
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`summary judgment (Docs. 40, 41), as well as their responsive memoranda and
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`supporting documentation. (Docs. 35-39, 42, 46, 47, 48, 49, 51, 54, 55).1 The parties
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`appeared before the Court for oral argument on the cross motions for judgment on
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`February 13, 2014.
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`I. Background and Facts
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`hhgregg hired Plaintiff on October 25, 2010. (Doc. 42, Ex. A, Yarberry Dep.,
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`32:7-10, 33:17-25.) In the Summer of 2011, hhgregg offered Plaintiff a lateral transfer
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`1 The parties have submitted extensive briefing in support of their cross-motions for judgment. The
`undersigned has thoroughly reviewed the entire record before the Court, including all relevant facts,
`arguments and caselaw. Notably, this Report and Recommendation does not address every argument
`raised by the parties in their briefs and at oral argument, but instead, focuses on the arguments and
`caselaw deemed dispositive.
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 2 of 23 PAGEID #: 1713
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`from his Electronic Sales Manager position in Cincinnati, Ohio to the position of
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`Appliance Sales Manager at its Cranberry, Pennsylvania store. (Id. 39:16-40:16.)
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`Plaintiff first reported to work at the Cranberry store on August 1, 2011. (Id. 44:12-15,
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`46:21-25.)
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`In his new position, Plaintiff’s direct supervisor was General Manager Tim Klinsik.
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`(Yarberry Dep. 46:21-23.) Klinsik, who was on vacation at the time of Plaintiff’s transfer,
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`reported to Regional Manager Brett Edger. (Yarberry Dep. 47:1-5.) At the time Plaintiff
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`reported to work in Cranberry, his interactions with Edger had been limited to two or
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`three phone calls and a single email exchange. (Id. 47:6-21.) On August 1, Plaintiff
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`arrived for work at 7:30 a.m. and left at 9:00 p.m. (Id. 47:22-48:7.)
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`Shortly before 1 a.m. on August 2, 2011, Plaintiff began sending text and email
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`messages to Edger. (Yarberry Dep. 59:7-60:5; Edger Dep., 20:1-9, Ex. 15). Plaintiff’s
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`text messages included:
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`• I’ll be there at 7 ish with a game plan for the walkthrough. Gary eck has a long
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`drive from mason, oh. It’s 5 hrs to be exact. Lol.
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`• I’ll be able to sleep finally if I know how [sic] were gonna conquer the entire
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`region of Pittsburgh. But I’m not trying to make Topher call you or anything. Haha
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`• You’re probably a he’ll [sic] of a poker player, Brett. Not saying a peep. Lol
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`• I need to go to the doctor. I might keel over and“[m]y fiancé is trying to find me a
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`doctor. Whole body is shaking.
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`(Yarberry Dep. Ex. 15); (Edger Dep., 20:1-9, Ex. 15.)
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`A little over an hour later, Plaintiff entered the Cranberry store, disarmed the
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`alarm, and locked himself inside. (Yarberry Dep. 57:15-58:2, 79:25-80:11; Zimmerman
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 3 of 23 PAGEID #: 1714
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`Dep. 7:24-8:10, 11:4-11 Exs. 14, 28). He sent another text message to Edger stating:
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`“FYI I’m at the store sleeping on a tempur pedic. Lol. My freaking fiancé is driving me
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`nuts.” (Id., Ex. 15.) A few minutes later he sent Edger an email stating:
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`MY FIANCE IS DRIVING ME CRAZY OVER EVERY LITTLE
`DOLLAR IVE [sic] SPENT THIS WEEK AND SHES [sic]
`FREAKING OUT BECAUSE I SPENT $50 FOR PIZZAS FOR
`THE TEAM. SHE JUST DOESN’T GET IT. I’M NOT
`ALLOWED TO USE THE SPA AT THE HOTEL FOR
`“LIABILITY REASONS” AND I CANT [sic] FALL ASLEEP.
`IM [sic] AT THE STORE AND IM [sic] GONNA SLEEP ON A
`TEMPUR PEDIC MATTRESS TIL 6AM, THEN GO BACK TO
`THE HOTEL AND SLEEP. I HAVENT [sic] SLEPT SINCE
`JULY 20TH WHEN THIS CRAZINESS STARTED. ILL [sic]
`LEAVE MY PHONE ON FOR YOU TO CALL ME IF YOU
`NEED ME.
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`(Doc. 42, Ex. C, Bush Aff, ¶¶ 3-4, Ex. 24).
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`Plaintiff then proceeded to access the store’s safe, roam around the store, play
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`games on the floor model computers for several hours, and attempt to sleep on a
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`Tempur-Pedic display mattress. (Yarberry Dep. 55:8-56:3, 56:10-12; Zimmerman Dep.
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`7:24-8:10, 13:4-9, 15:2-13, Ex. 28.) Plaintiff remained in the store into the early hours of
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`August 2, 2011. (Edger Dep. 36:5-12; Bush Aff. ¶ 3, Ex. 25.)
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`Edger first read Plaintiff’s text messages and emails upon waking up around 6:00
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`a.m. on August 2 and was immediately concerned at Plaintiff’s apparent violation of
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`company policy by being in the store alone after hours. (Edger Dep. 21:3-13, 22:2-14.)
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`After attempting to reach Plaintiff by phone without success, Edger and Plaintiff
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`exchanged a series of text messages discussing whether the two could meet in person
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`or talk by phone. (Edger Dep. 26:13- 27:16, 28:8-16, 29:21-30:11, Ex. 15, pp. 4-5.)
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`During that exchange, Plaintiff said, among other things:
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`Hey man I’m sick not coming in today, and
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`Can’t man I’m puking. Didn’t sleep. I wasn’t lying when I said I hadn’t
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`slept for 16 days straight. I’m barely surviving.
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`•
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`•
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`Id.
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`Edger concluded the exchange by telling Plaintiff he should seek medical
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`attention if he felt that was needed. (Edger Dep. 30:19-31:2, Ex. 15, p. 6). At 3:47 p.m.,
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`Plaintiff sent Edger a text message stating that he was taking the day off. (Edger Dep.
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`34:22-35:4, Ex. 15, p. 7). hhgregg allowed him to do so. (Yarberry Dep. 75:11-21.) At
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`6:49 p.m., Plaintiff sent Edger a text stating that he was getting an ambulance ride to
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`the hospital and was going to need the next day off. (Edger Dep. 35:5-17, Ex. 15, p. 7).
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`In addition to the emails and text messages sent to Edger on August 2, 2011,
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`Plaintiff sent a series of emails throughout the day to various other members of hhgregg
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`management. (Bush Dep., 24:11-15; Zimmerman Dep. 7:24-8:4; Bush Aff. ¶¶ 3-4, Exs.
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`26 and 28). His first email, sent at 6:35 a.m., included the following:
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`I AM IN CRANBERRY PA. THIS IS MY FRIST [sic] DAY AT THE STORE,
`I JUST FINISHED ACE TRAINING AND WAS EMPORED [sic] TO COME
`TOT HIS [sic] STORE. I UIPROOTED [sic] MY FIANCE AND I. THE
`ALARM IS GOING OFF BECAUSE I DONT [sic] KNOW HOW TO STOP
`IT. I TRIED TO FIRE 2 FORMER SEARS EMPLOYEES BUT MY RM
`BRETT EDGER WOULDNT [sic] LET ME, HE SAID IT OWOULD [sic] BE
`OK AND THAT THEY WOULD STILL BE HERE. THEYRE [sic] STILL
`HERE. OPLEASE
`[sic] CONTACT ME
`IMMEDIATELY.
`IM VERY
`SCARED.
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`(Bush Dep. Ex. 26).
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`At 8:32 a.m., Plaintiff sent an email stating that his fiancé was coming to take him
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`to the hospital to sleep and that he would be okay if he slept. (Bush Aff. ¶ 3; Bush Dep.
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`27:6-22, Ex. 26). At 10:36 a.m., Plaintiff wrote that he was at the Childrens’ Hospital
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`and did not think he needed medication – "just some fun" – and that his fiancé was
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`going to take him to a movie or “maybe get a beer.” (Bush Dep. 49:7-12, 53:19-54:12;
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`Bush Aff. ¶¶ 3-4, Ex. 28, p. 2).
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`One of the recipients of Plaintiff’s early morning emails alerted hhgregg’s
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`National Asset Protection Manager Todd Zimmerman, who then began an investigation
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`into Plaintiff’s conduct. (Zimmerman Dep. 7:8-23). After reviewing the store’s video
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`surveillance footage, Zimmerman asked Edger to instruct Plaintiff to take a drug test.
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`(Edger Dep. 31:8-21). Plaintiff declined, and instead said that he was going to sit and
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`“chillax.” (Edger Dep. 32:14-23).
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`Edger reported Plaintiff’s response to Zimmerman, and Zimmerman then called
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`and spoke to Plaintiff. (Edger Dep. 33:1-8; Zimmerman Dep. 22:12-22; Ex. 15, p. 6.)
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`Zimmerman asked Plaintiff why he was in the store at 2:15 a.m., and Plaintiff began
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`talking rapidly. (Zimmerman Dep. 23:2-24). Plaintiff told Zimmerman that Edger
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`stressed Plaintiff out too much, the hotel’s bed was really rough, there wasn’t anything
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`good on TV, and the hotel would not provide him with a sauna to relieve his stress.
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`Zimmerman asked Plaintiff to stop talking so that he could ask further questions, but
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`Plaintiff repeatedly refused to do so. (Zimmerman Dep. 23:10-24:15, Ex. 28).
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`At that point, Zimmerman suspended Plaintiff pending further investigation.
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`(Zimmerman Dep. 25:6-14). Zimmerman also contacted Human Resources to ensure
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`that they would arrange for Plaintiff to take a drug screen. (Zimmerman Dep. 25:15-
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`26:13). At 12:22 p.m. on August 3, 2011, Zimmerman submitted his written report to
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`hhgregg’s Human Resources Department recommending that Plaintiff not be allowed
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`access to any hhgregg store because he had demonstrated that he did not use his
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`access to the building responsibly and did not cooperate in Zimmerman’s investigation.
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`(Zimmerman Dep. 7:24-8:4, Bush Dep. 49:6-12, Ex. 28).
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`hhgregg’s Associate Relations Manager Cynthia Bush spoke with Edger about
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`the situation on August 2. (Bush Dep. 28:12-22). She received Zimmerman’s
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`investigative report on August 3. (Id. 40:3-24, 49:6-15, Ex. 26). She also reviewed
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`emails that Plaintiff had sent and Plaintiff’s personnel file. (Id. 24:13-17, 28:12-24,
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`29:13-31:6, 64:25-65:3; Bush Aff. ¶3). Bush determined that Plaintiff should be
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`terminated because his after-hours behavior in the Cranberry store and failure to
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`cooperate in hhgregg’s investigation demonstrated a lack of professional judgment and
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`violated the Company’s safety, detrimental conduct, and failure to cooperate policies.
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`(Bush Dep. 60:25-61:23, 69:6-70:2, 92:24-93:24, Ex. 30; Bush Aff. ¶ 5, Bush Aff. Exhibit
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`1;7 see also Zimmerman Dep. 48:3-8, 48:16-49:3).
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`At 1:03 p.m. on August 3, 2011, Bush sent an email to Edger advising him to
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`discharge Plaintiff and providing him with content for the discharge documentation.
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`(Bush Dep. 42:24-43:9; Edger Dep. 44:4-21, Exs. 20, 27). She subsequently drafted a
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`letter to Plaintiff notifying him of his discharge and sent it to Edger for signature. (Bush
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`Dep. 68:18-69:15, Ex. 30). At 5:00 p.m. on August 3, Plaintiff sent an email to various
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`hhgregg managers –but not Bush – apologizing for his behavior at the Cranberry store
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`and stating that he was in the Western Psychiatric Institute and Clinic. (Yarberry Dep.
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`63:24-64:3, 65:10-15; Ex. 16). One of Plaintiff’s August 3rd emails to senior
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`management contained a request for a leave of absence to undergo treatment. (Bush
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`Dep. Ex. 32). Specifically, he stated: “I plan on being released from the clinic on Friday
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 7 of 23 PAGEID #: 1718
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`or Saturday and maybe taking a day or two off work. I would love nothing more than to
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`still have an opportunity at HH Gregg.” (Bush Dep. Ex. 32).
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`On August 8, 2011, Plaintiff's father sent an email to various hhgregg managers,
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`but did not include Bush, stating that Plaintiff could be released in a few days if he
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`continued to sleep and eat regularly. (Bush Dep. 83:21-84:11; Bush Aff. ¶¶ 3-4, Ex. 34).
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`One of the recipients forwarded the email to Bush, who then contacted Plaintiff’s father
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`by phone to inform him that Plaintiff’s employment had been terminated days earlier.
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`(Bush Aff. ¶ 3; Bush Dep. 84:1-5, 85:7-11, 18-25, Ex. 34.)
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`On August 12, 2011, Dr. Michael Marcsisin emailed a letter to Bush stating that
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`Plaintiff had been hospitalized for treatment of a manic episode that started in mid-July.
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`(Yarberry Dep. 72:16-73:13, Bush Dep. 96:14-97:4; Exhs. 18 and 36). Dr. Marcsisin
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`further stated that Plaintiff's manic episode resulted from Bipolar I Disorder, and that his
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`manic episode likely led to his unusual behaviors prior to hospitalization. Id.
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`On August 16, 2011, Plaintiff called Bush and asked to be reinstated based on
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`his doctor’s statement that his behavior likely was caused by Bipolar Disorder. (Bush
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`Dep. 99:25- 101:11, Ex. 37.) On August 17, 2011, Bush told Plaintiff that the
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`termination decision stood. (Bush Dep. 102:25-103:9, Ex. 37.)
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`Thereafter, Plaintiff filed a charge of discrimination on the basis of disability with
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`the Equal Employment Opportunity Commission. (Doc. 1, ¶ 5). Plaintiff received a
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`Notice of Rights letter from the EEOC on July 2, 2012. Id. Plaintiff then filed the instant
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`action on November 14, 2012, alleging that hhgregg discriminated against him on the
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`basis of his alleged disability in violation of the Americans with Disabilities Act (“ADA”).
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`This matter is now before the Court on the parties cross motions for judgment.
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 8 of 23 PAGEID #: 1719
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`II. Analysis
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`A. Summary Judgment Standard of Review
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`In a motion for summary judgment, “a court must view the facts and any
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`inferences that can be drawn from those facts ... in the light most favorable to the
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`nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
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`2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘if the
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`pleadings, depositions, answers to interrogatories, and admissions on file, together with
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`the affidavits, if any, show that there is no genuine issue as to any material fact and that
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`the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ.
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`P. 56(c)) (internal quotation marks omitted). “Weighing of the evidence or making
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`credibility determinations are prohibited at summary judgment-rather, all facts must be
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`viewed in the light most favorable to the non-moving party.” Id.
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`The requirement that facts be construed in the light most favorable to the
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`Plaintiff, however, does not mean that the court must find a factual dispute where record
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`evidence contradicts Plaintiff’s wholly unsupported allegations. After a moving party
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`has carried its initial burden of showing that no genuine issues of material fact remain in
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`dispute,
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`the burden shifts
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`to
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`the non-moving party
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`to present specific
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`facts
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`demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
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`Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of a factual dispute is not
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`enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v.
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`Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). In order to defeat the motion for
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`summary judgment, the non-moving party must present probative evidence that
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`supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
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`The non-moving party's evidence “is to be believed, and all justifiable inferences are to
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`be drawn in his favor.” Id. at 255 (emphasis added). The court determines whether the
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`evidence requires submission to a jury or whether one party must prevail as a matter of
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`law because the issue is so one-sided. Id. at 251-52.
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` To demonstrate a genuine issue of fact, the opposing party “must do more than
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`simply show that there is some metaphysical doubt as to the material facts .... Where
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`the record taken as a whole could not lead a rational trier of fact to find for the
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`nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587
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`(citation omitted). It is the Plaintiff’s burden to point out record evidence to support his
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`claims. “[T]he Court has no duty when deciding a motion for summary judgment to
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`scour the record for evidence that supports a plaintiff’s claims.” Abdulsalaam v. Franklin
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`County Bd. Of Com’rs, 637 F. Supp.2d 561, 576 (S.D. Ohio 2009) (citing Williamson v.
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`Aetna Life Ins. Co., 481 F.3d 369, 379 (6th Cir. 2007)).
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`B. The Parties Cross-Motions for Summary Judgment
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`As detailed above, Plaintiff’s complaint alleges that Defendant discriminated
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`against him based on his disability in violation of Federal law. Specifically, Plaintiff
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`argues that he has presented directed evidence that he was terminated because of his
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`disability. In this regard, Plaintiff asserts that hhgregg terminated Yarberry for his
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`behavior on August 1 and 2, 2011— behavior indisputably caused by his disability.
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`Plaintiff now moves for partial summary judgment, arguing that the undisputed facts
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`establish that hhgregg denied Plaintiff a reasonable accommodation in violation of the
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`ADA. (Doc. 40).
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`hhgreeg also moves for summary judgment. (Doc. 41). hhgreeg argues that
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`Plaintiff cannot establish a prima facie case of disability discrimination, because he
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`cannot show that hhgregg had knowledge of his disability. Assuming arguendo, that
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`Plaintiff can establish a prima facie case of discrimination, hhgregg asserts that it had a
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`legitimate non-discriminatory reason for terminating Plaintiff’s employment and Plaintiff
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`cannot show that hhgregg’s proffered reason for his termination is a pretext for
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`discrimination.
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`Upon careful review and more fully explained below, the undersigned finds that
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`hhgregg was not aware that Plaintiff was suffering from a disability prior to its decision
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`to terminate his employment. Accordingly, hhgregg’s motion for summary is well-taken
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`and should be granted.
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`C. Defendant is entitled to Judgment as a Matter of law
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`1. Direct and Circumstantial Evidence.
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`Title I of the ADA provides that a covered employer “shall [not] discriminate
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`against a qualified individual on the basis of disability in regard to job application
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`procedures,
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`the hiring, advancement, or discharge of employees, employee
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`compensation,
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`job
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`training, and other
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`terms, conditions, and privileges of
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`employment.” 42 U.S.C. § 12112(a).
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`A plaintiff may establish a prima facie discrimination claim by either direct or
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`circumstantial evidence. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir.
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`2010). “Direct evidence of discrimination is ‘that evidence which, if believed, requires
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`the conclusion that unlawful discrimination was at least a motivating factor in the
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`employer’s actions.’” Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.
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`2003) (en banc). Under the direct method, a claimant relies on evidence that requires
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`no inference or presumption to prove the existence of a fact. Id. If the evidence requires
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`the jury to infer some further fact, it is not direct evidence. Manzer v. Diamond
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`Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994). Once direct evidence of
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`intentional discrimination is shown, the burden shifts to the employer to proffer a non-
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`discriminatory reason for the employer's action. See Monette v. Elec. Data Sys. Corp.,
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`90 F.3d 1173, 1184 (6th Cir.1996) (eliminating the need for further burden shifting
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`where direct evidence is available).
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` “Circumstantial evidence, on the other hand, is proof that does not on its face
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`establish discriminatory animus, but does allow a factfinder to draw a reasonable
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`inference that discrimination occurred.” Id. A plaintiff who lacks direct evidence of
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`discrimination may establish a prima facie case of discrimination through circumstantial
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`evidence under the burden-shifting frame work of McDonnell Douglas. Under the
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`burden-shifting framework of McDonnell Douglas, the plaintiff must first establish a
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`prima facie case under the relevant statute. McDonnell Douglas, 411 U.S. at 802, 93
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`S.Ct. 1817. “A plaintiff's burden in establishing a prima facie case is not intended to be
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`an onerous one.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1114
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`(6th Cir. 2001).
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`To make out a prima facie case of disability discrimination through indirect
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`evidence under Title I, a plaintiff must show that “1) he or she is disabled; 2) otherwise
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`qualified for the position, with or without reasonable accommodation; 3) suffered an
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`adverse employment decision; 4) the employer knew or had reason to know of the
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`plaintiff's disability; and 5) the position remained open while the employer sought other
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`applicants or the disabled individual was replaced.” Macy v. Hopkins Cnty. Sch. Bd. of
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 12 of 23 PAGEID #: 1723
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`Educ., 484 F.3d 357, 365 (6th Cir. 2007) (quoting Monette v. Elec. Data Sys. Corp., 90
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`F.3d 1173, 1186 (6th Cir. 1996)). Once the plaintiff has established a prima facie case,
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`the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason
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`for the employment decision. If the defendant makes the appropriate showing, the
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`burden shifts back to the plaintiff to demonstrate that the defendant's proffered reason
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`was a pretext for discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
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`252–55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
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`Pursuant to this framework, the Court will first determine whether Plaintiff has
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`stated a prima facie case of disability discrimination for his termination and/or his claim
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`for failure to accommodate. If he does, the Court will then determine whether
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`Defendant has proffered a legitimate, non-discriminatory reason for its conduct. If
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`Defendant satisfies these criteria, the Court will inquire as to whether a reasonable
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`finder of fact could find that Plaintiff has shown that the proffered reasons were a pretext
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`for disability discrimination or retaliation. If Plaintiff has produced evidence from which a
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`jury could conclude that Defendants' proffered reasons for their actions were a pretext
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`for discrimination or retaliation, Defendants' motion for summary judgment must fail.
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`2. Prima Facie Case
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`Plaintiff asserts that he has direct evidence of discrimination. Notably, Plaintiff
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`contends that hhgregg admits that it terminated Yarberry for his behavior on August 1
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`and 2, 2011— behavior Plaintiff asserts was indisputably caused by his disability.
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`Plaintiff’s contention is not well-taken in this regard. As noted by hhgregg, the
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`distinction between misconduct and the medical condition that reportedly caused it is a
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`legitimate and outcome determinative distinction in this case. Notably, the Sixth Circuit
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 13 of 23 PAGEID #: 1724
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`has distinguished between “discharging someone for unacceptable misconduct and
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`discharging someone because of the disability,” allowing that only the latter violates
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`anti-discrimination statutes. Chandler v. Specialty Tires of Am. (Tennessee), Inc., 134
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`F. App'x 921, 926 (6th Cir. 2005) (quoting Maddox v. Univ. of Tenn., 62 F.3d 843, 847
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`(6th Cir.1995)). Thus, Plaintiff’s contention requires the Court to reach a conclusion by
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`making an inference. As noted above, if the evidence requires the jury to infer some
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`further fact, it is not direct evidence. Manzer, 29 F.3d at 1081.
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`In any event, Plaintiff also asserts that he can establish his discrimination claims
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`based on circumstantial evidence. As detailed above, to make out a prima facie case of
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`employment discrimination through indirect evidence under Title I, a plaintiff must show
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`that “1) he or she is disabled; 2) otherwise qualified for the position, with or without
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`reasonable accommodation; 3) suffered an adverse employment decision; 4) the
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`employer knew or had reason to know of the plaintiff's disability; and 5) the position
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`remained open while the employer sought other applicants or the disabled individual
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`was replaced.” Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir.
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`2007) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)).
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`1. Plaintiff was not “regarded as” having a disability
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`hhgregg argues first that Plaintiff cannot satisfy the first element of a prima facie
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`case, which requires Plaintiff to be disabled within the meaning of the ADA. A person is
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`“disabled” for the purposes of the ADA if he has:
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`(A) a physical or mental impairment that substantially limits one or more of
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`the major life activities of such individual;
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`(B) a record of such an impairment; or
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 14 of 23 PAGEID #: 1725
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`(C) being regarded as having such an impairment
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`42 U.S.C. § 12102(1).
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`An individual meets the requirement of “being regarded as having such an
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`impairment” if the individual establishes that he or she has been subjected to an action
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`prohibited under this chapter because of an actual or perceived physical or mental
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`impairment whether or not the impairment limits or is perceived to limit a major life
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`activity. 42 U.S.C.A. § 12102 (3)(A)(West).
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`Plaintiff’s complaint alleges that hhgregg regarded him as disabled because “only
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`after learning that he did not test positive for any drugs which may explain his erratic
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`behavior did it terminate his employment.” (Doc. 1, ¶ 27.). hhgregg, however, asserts
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`that at the time Bush made the decision to terminate Plaintiff, there is no evidence that
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`Plaintiff was “regarded as” suffering from a disabling impairment. In response to
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`hhgregg’s motion for summary judgment, Plaintiff argues that it is undisputed that he
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`suffers from bipolar disorder, an impairment that imposes a substantial limitation on
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`major life activities.
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`This argument, however, fails to establish that Bush terminated Plaintiff’s
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`employment “because of an actual or perceived physical or mental impairment whether
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`or not the impairment limits or is perceived to limit a major life activity.” Id. As more
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`fully discussed below, the record does not indicate that Bush was aware of Plaintiff’s
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`Bipolar Disorder at the time she made the termination decision. (See Bush Dep. 47-48,
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`54, 61, 66-68, 92, 93).
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 15 of 23 PAGEID #: 1726
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`2. hhgregg did not have knowledge of Plaintiff’s disability prior to his
`termination.
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`Even assuming Plaintiff could establish the that he suffered from a disability as
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`defined by the ADA, hhgregg further argues that Plaintiff cannot establish the fourth
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`element of prima facie case of disability discrimination, i.e. the employer knew or had
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`reason to know of the plaintiff's disability.
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`It is well established in the Sixth Circuit that an employee cannot be considered
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`to have been fired “on the basis of disability” unless the individual decision-maker who
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`fired the individual had knowledge of that disability, see Burns v. City of Columbus,
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`Dep't of Pub. Safety, Div. of Police, 91 F.3d 836, 844 (6th Cir.1996) (holding that plaintiff
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`could not establish a prima facie case of disability discrimination because he had failed
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`to show that the members of a review board that made the ultimate decision to
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`terminate him knew of his disability); Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d
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`1178, 1181–82 (6th Cir.1993) (holding that because “it was the Board of Directors, and
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`not the president, who suspended plaintiff,” plaintiff could not state a claim of disability
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`discrimination where “[t]here is no showing that the Board had any knowledge of
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`plaintiff's mental illness”); Moloney v. Home Depot U.S.A., Inc., 2013 WL 460684, No.
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`11–10924, at *1 (E.D.Mich. Feb. 7, 2013) (“[B]ecause Keith Stevens made the decision
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`to terminate Plaintiff's employment, ... it is Stevens's knowledge, as the decision-maker,
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`that is relevant.”); see also Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1185 (11th
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`Cir.2005) (“Once the issue is framed clearly, it is evident that an employee cannot be
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`fired ‘because of’ a disability unless the decision-maker has actual knowledge of the
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`disability.”); Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932–33 (7th Cir.1995)
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 16 of 23 PAGEID #: 1727
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`(holding that lack of knowledge of decision-maker is fatal to a prima facie case under
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`the ADA because “it is intuitively clear when viewing the ADA's language in a
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`straightforward manner that an employer cannot fire an employee ‘because of’ a
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`disability unless it knows of the disability”)
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`Thus, as the ADA demands that the employee's disability be “known” to the
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`employer for liability to attach, a plaintiff must generally also have informed his employer
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`of his disability and requested an accommodation prior to the time at which an employer
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`takes adverse action against a disabled employee. See Monette, 90 F.3d at 1186 n. 13
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`(requiring a plaintiff to show “actual or constructive knowledge of the disability as part of
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`a prima facie case”) (internal quotation marks omitted); Crocker v. Runyon, 207 F.3d
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`314, 319-20 (6th Cir.2000) (employer has no obligation to offer accommodation where
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`employee never requested one) (citing Kaltenberger v. Ohio College of Podiatric Med.,
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`162 F.3d 432, 437 (6th Cir.1998)).
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`Here, the undersigned agrees that Plaintiff has failed to carry his burden of
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`showing that Cynthia Bush, the sole decision-maker2 with respect to Plaintiff’s firing,
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`knew of his disability. As detailed above, Bush determined that Plaintiff should be
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`terminated because his after-hours behavior in the Cranberry store and failure to
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`cooperate in hhgregg’s investigation demonstrated a lack of professional judgment and
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`violated the Company’s safety, detrimental conduct, and failure to cooperate policies.
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`(Bush Dep. 60:25-61:23, 69:6-70:2, 92:24-93:24, Ex. 30; Bush Aff. ¶ 5, Bush Aff. Exhibit
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`2  Plaintiff argues that Associate Relations Manager Cynthia Bush was not the sole decision maker
`regarding Plaintiff’s termination because she spoke to and consulted with Regional Manager Brett Edger,
`Human Resource Officer Charles Young, and legal counsel. However, while she may have consulted
`with others, both Bush’s and Edger’s testimony clearly indicates that Bush made the decision to terminate
`Plaintiff. (Bush dep. at 60, Edger dep. at 51).  
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`Case: 1:12-cv-00611-HJW-SKB Doc #: 56 Filed: 04/08/14 Page: 17 of 23 PAGEID #: 1728
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`1;7 see also Zimmerman Dep. 48:3-8, 48:16-49:3). Specifically, at 1:03 p.m. on August
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`3, 2011, Bush sent an email to Edger advising him to discharge Plaintiff and providing
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`him with content for the discharge documentation. (Bush Dep. 42:24-43:9; Edger Dep.
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`44:4-21, Exs. 20, 27). She subsequently drafted a letter to Plaintiff notifying him of his
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`discharge and sent it to Edger for signature. (Bush Dep. 68:18-69:15, Ex. 30.)
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`In his emails and text messages to hhgregg prior to his termination, Plaintiff
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`repeatedly attributed his behavior to a lack of sleep, his recent move and stress related
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`to his engagement. (Yarberry Dep. 59:7-60:6, 70:23-72:2; Edger Dep. 36:5-20; Bush
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`Dep. 12:4-15, Exs. 15, 24-25.) Plaintiff asserts, however, that his text messages
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`contained sufficient information to establish that hhgregg had knowledge of his
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`disability. As early as the morning of August 2, 2011, Plaintiff contends that hhgregg
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`and several of its employees, including Bush and Edger, knew that Yarberry was
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`suffering from a medical condition. In a text message that morning, Yarberry told Edger
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`that he had not slept in 16 days and he needed to “go to the doctor.” (Yarberry Dep. Ex.
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`15).
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`In an email to Edger, which Edger forwarded to Bush, Yarberry said that his
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`fiancée was concerned for his health and wanted him to check into a hospital. (Bush
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`Dep. Ex. 25). The email also stated: “I lieterally[sic] havent[sic] slept since July 19th . . .
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`.” (Bush Dep. Ex. 25). Further, on August 3, 2011, around 4:30 p.m3., Yarberry’s
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`fiancée spoke with Edger and informed him that Yarber