Alan Demyanovich worked for 20 years for Cadon Plating & Coating, which applies coatings in the automobile industry. Mr. Demyanovich developed heart problems in 1999, but returned to work and worked another ten years. In 2009, his heart condition worsened. He took substantial time off. In February, 2010, he again asked for FMLA leave. His boss believed they did not have enough employees to qualify for FMLA coverage, so he denied the request. He told Mr. Demyanovich that he was a "liability." Later that evening on Feb. 23, the boss told the worker that he was terminated.

One would think that based on timing alone there would be sufficient evidence to deny summary judgment. But, the district court granted summary judgment. The plaintiff appealed and won. The Sixth Circuit found that the stated reasons for the termination, 1) that Mr. Demyanovich was permanently disabled and 2) he was subject to termination because he had he’d been absent beyond the limit allowed by the employer, were not true. 

Regarding the ADA claim, the court found that the only evidence that Cadon could accommodate the worker was Mr. Demyanovich’s own testimony. The lower court apparently believed that the plaintiff needed something more than his own testimony. 

But, said the Sixth Circuit, the employer could not have known on Feb. 23 that Mr. Demyanovich might be permanently disabled. Indeed, said the court, the court should look at his disability at the time of the termination, not at the time of the plaintiff’s deposition. And, in actuality, the evidence suggested that the worker could perform various light-duty positions at Cadon. And, said the court of appeals, the Plaintiff has not actually dropped to a zero point attendance level, as provided in the employer’s own rules. Looking at the evidence from the non-movant’s point of view, as the court must, Mr. Demyanovich still had between one and two points left on the attendance point system. So, he was not actually subject to termination, yet. 

And, added the court, the term "liability" may well constitute direct evidence of intent to interfere with his FMLA eligibility. The Sixth Circuit ignored the lower court’s suggestion that Mr. Demyanovich needed something more than his own testimony regarding ADA accommodation. The higher court simply found there was sufficient evidence from which a reasonable jury could conclude that Cadon could have accommodated the plaintiff’s disability. The plaintiff was performing his duties satisfactorily at the time of the termination. 

See the decision in Demyanovich v. Cadon Plating and Coatings, LLC, No. 13-1015, 2014 WL 1259603 (6th Cir. 3/28/14) here.