*

The Honorable Robert H. Cleland, U

the Eastern District of Michigan, sitting 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

GARY WALSH,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE,

Defendant-Appellee.

Appeal from the United St

for the Western District of Ke

No. 96-00676—James D. Mo

Argued: Novemb

Decided and Filed: Ja

Before: KENNEDY and RY

CLELAND, Distr

____________

COUNSE

ARGUED: David G. TorchiaTORCHIA, Cincinnati, Ohio, f
2 Walsh v. United Parcel Service No. 98-6466

Coleman, BROWN, TODD & HEYBURN, Louisville,Kentucky, for Appellee. ON BRIEF: David G. Torchia,TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, forAppellant. Matthew R. Westfall, Jr., WESTFALL,TALBOTT & WOODS, Louisville, Kentucky, for Appellee.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiff Gary Walsh

(plaintiff) worked as a management pilot for United ParcelService (defendant or UPS). In 1993 plaintiff went ondisability leave due to complications stemming from anearlier car accident. Approximately five months after his yearof paid medical leave ended, plaintiff was terminated.Defendant claims the termination was solely due to plaintiff’sfailure to provide information concerning his disability statusand ability to return to work. As a result of his termination,plaintiff brought this action against defendant, claimingviolations of the Americans with Disabilities Act, 42 U.S.C.§ 12101, et seq., Kentucky’s equivalent provision, Ky. Rev.Stat. Ann. § 344.040, and § 510 of ERISA, 29 U.S.C. § 1140.The district court granted summary judgment in favor of UPSon all claims brought by plaintiff and plaintiff appealed. Forthe reasons set forth below, we AFFIRM the district court’sdecision.

I. Facts

Plaintiff Gary Walsh worked for United Parcel Service as

a management pilot. In November of 1991, plaintiff wasinvolved in an automobile accident in which his wrist wasbroken and his spine was fractured. He returned to work inJanuary of 1992 and continued to work until UPS removedhim from flight status in November of 1993. Plaintiffconcedes that at the time UPS made this decision, his memorywas poor, his hand eye coordination had declined and hecould not think as clearly as before the car accident. Plaintiffacknowledges that his ability to function as a commercial
No. 98-6466 Walsh v. U

airline pilot was impaired and radefendant’s conclusion that he sho

On January 10, 1994, 

neuropsychological evaluation frostated, “My recommendation woumonth medical leave of absence tobtain counseling support and becemotionally stable.” After defendait had Aviation Medical Examiexamine plaintiff as well. Dr. Wrleave of absence would be the best these diagnoses, defendant placed in February of 1994, continuing company’s salary continuation premained on paid leave until Marcof $152,716. 

During plaintiff’s medical leave 

acted as plaintiff’s primary treaLawrence initially believed that plafatigue. As a result, he started indicated that if things went well he return to his job in approximately t1994, Dr. Lawrence sent an update which he indicated that plaintphysically and mentally. Dr. Lawrto see plaintiff in four weeks to evato work and stated, “[a]t this rate, ready for a restricted return to wor

On August 12, 1994, Paula S

medical manager, sent plaintiff a lewas scheduled for a physical on ADr. Wright performed a general coletter to Shearer indicating that plaextreme fatigue continued. Drplaintiff declined his offer to pbecause plaintiff knew he would ntaking Prozac. Dr. Wright stated th
4 Walsh v. United Parcel Service No. 98-6466

he would need statements from all of plaintiff’s treatingphysicians acknowledging that plaintiff was able to return towork before he could clear him to do so. 

On December 7, 1994, Shearer sent a letter to both plaintiff

and Dr. Lawrence requesting information on plaintiff’s workrestrictions, projected return to work date, and treatmentplans. The letter also indicated that work that didn’t requirean active FAA medical certificate was available in theLouisville office and asked that the requested information beprovided as soon as possible. UPS needed newdocumentation from plaintiff, as corporate policy onlyallowed salary continuation for a period of twelve monthswithout new documentation. As a result, Shearer madeadditional requests on December 22, 1994 and January 5,1995 for plaintiff to fill out and return the disability formmentioned in her December 7th letter.

Plaintiff did eventually give Dr. Lawrence a disability form

to fill out and send in to UPS, but could not recall how orwhen it was sent. Dr. Lawrence mailed the form sometime inJanuary, but failed to provide a return to work date and onlycertified that plaintiff was disabled “from February 1, 1994through present.” Dr. Lawrence signed the form and dated itJanuary 5, 1995. When Shearer called Dr. Lawrence onFebruary 6, 1995, regarding plaintiff’s disability, Dr.Lawrence apparently indicated that he could not provide anyfurther information as he had not seen plaintiff sinceDecember 9, 1994. Shearer also called plaintiff on February6 to notify him that the form was incomplete. 

On February 13, 1995, Shearer sent plaintiff another blank

disability form and advised him that it needed to becompleted in order for him to continue his leave. On March15, 1995, UPS Human Resource Manager Jan Toronzo(Toronzo) wrote plaintiff, pointing out that he had declined totake an FAA first class medical exam, which she stated “wasscheduled to determine your ability to perform the functionsof your current position as management captain or your abilityto return to work in a non-flight position.” Toronzo further

No. 98-6466 Walsh v. Uconcerning plaintiff’s disability strequired, and plaintiff never provi

The only other evidence that p

advanced in his attempt to state a defendant under ERISA § 510. Acshown evidence of pretext that wjuror to conclude it overwhelmreasons UPS advanced for firing hi1084.

Having failed to produce evidenc

jury could conclude that UPS’s legireason for terminating him was pre§ 510 claim was properly disposed summary judgment.

III. Conclu

For the foregoing reasons, we A

grant of summary judgment to defebrought by plaintiff.
20 Walsh v. United Parcel Service No. 98-6466

6Although he does not state so, plaintiff is apparently arguing in the

alternative. When a plaintiff claims that the reasons the employeradvanced for firing him or her did not actually motivate the termination,“the plaintiff admits that the factual basis underlying the employer’sproffered explanation and further admits that such conduct could motivatethe dismissal.” See Manzer, 29 F.3d at 1084. This is necessarily so

because the employee is arguing that the legitimate reasons the defendantadvanced for the termination weren’t the actual motivating reasons. 

requested. Plaintiff’s argument appears to largely be thatunder the circumstances it was unfair for defendant toterminate him. However, the question is not whether it wasfair for defendant to terminate him, or whether defendantcould have considered less drastic alternatives. Rather, theonly question is whether plaintiff’s conduct gave defendant asufficient non-discriminatory reason to fire him.Consequently, plaintiff has not shown that a reasonable jurycould conclude that defendant advanced an insufficient basisfor terminating him. 

Finally, plaintiff states that the case is ultimately about

defendant’s motive. In discussing motive, plaintiff is tryingto indirectly attack the credibility of defendant’s profferedexplanation for terminating him.6 However, to successfullyshow that a termination was motivated by impermissibleconsiderations, rather than the non-discriminatory reasonsadvanced by the employer, an employee must come forwardwith evidence other than that used to established his or herprima facie case. See Manzer, 29 F.3d at 1084-85. In thisregard, plaintiff alleges that defendant previously claimed thatit needed additional information about plaintiff’s condition,but now claims that it only needed to know whether or not hewas disabled and what jobs, if any, he would be able toperform. Assuming this to be true, this is not the type ofconflict in testimony that would preclude summary judgment.Cf. Tinker v. Sears Roebuck & Co., 127 F.3d 519, 523 (6thCir. 1997) (finding that the completely inconsistent reasonsadvanced by several individuals to explain plaintiff’s firingindicated the presence of an issue of material fact). It isundisputed that UPS consistently requested information

No. 98-6466 Walsh v. Ustated in her letter that salary capproved due to plaintiff’s failumedical documentation. As a resulhis salary continuation was beinMarch 1, 1995.

On March 23, 1995, Toronzo m

medical documentation, any limitaand the possibility of a new job aand UPS were represented by counmeeting plaintiff provided a disabVengrow. Dr. Vengrow listed plaireturn to work date as “unknown.” the form was unacceptable, and thadditional time would be allowed fthe necessary information. The deato have been May 8, 1995. Althouavailable non-flying jobs prior to UPS never reviewed the list with hattended the meeting without the rthe company had anticipated.

Following the meeting, Shea

Lawrence on March 27, 1995regarding plaintiff’s condition, abimedical treatment. Dr. Lawrence 1995, indicating that he felt plaintbut that subjectively plaintiff felt this old job as a pilot. Dr. Lawcomplained of persistent fatigue ineligible to return to work as a pilooffering no active treatment and change in his condition over the months. As the district court obseoffer a diagnosis, did not release pdid not identify a disability, anpotential accommodations which function either as a pilot or in any 
6 Walsh v. United Parcel Service No. 98-6466

On April 11, 1995, Shearer sent Dr. Lawrence another

letter, requesting a summary of treatment, ability to return towork, tentative return date, limitations and restrictionsrequired, and recommendations for future medical evaluation.Plaintiff received a copy of this letter as well. Apparently inresponse, a letter from Dr. Vengrow was sent to UPS on April28, 1995. In his sixty word letter Dr. Vengrow indicated thathe could not diagnose a neurologic problem and concludedthat it was beyond the realm of his expertise to suggest thatplaintiff should not be currently working. Dr. Vengrow statedthat the appropriate specialty should be consulted and notedthat he had referred plaintiff to the Mayo Clinic.

Plaintiff never visited the Mayo Clinic as the insurance

carrier refused to authorize the expense. UPS scheduledplaintiff for an independent medical evaluation with anorthopedic surgeon on May 16, 1995, to determine what workplaintiff could perform and what medical restrictions wouldbe required. Plaintiff canceled, however, stating that he hadjury duty. Toronzo then sent plaintiff a final letter on May 26,1995, detailing the requests for information that UPS hadmade over the last six months and concluding, “I will allowyou another week to provide this information, but you mustknow if I have not received appropriate documents by June 5,1995, your continued employment with United Parcel Servicewill cease on that date.” Plaintiff called on or around June 5to tell Toronzo that he was currently undergoing evaluationand could not supply the information in time. 

On June 6, 1995, defendant sent plaintiff a letter stating that

his employment was terminated for failure to provideappropriate medical documentation. Sometime afterreceiving this letter, plaintiff apparently spoke with JamesDarwin, an assistant of Toronzo’s, about the possibility ofgoing on long term disability. Plaintiff claims he was toldthat he was no longer eligible because his employment withUPS had terminated. On August 31, 1995, plaintiff sent aletter to Toronzo requesting reinstatement and long termdisability benefits. Plaintiff also attached a letter from Dr.Stoff, a homeopathic physician. In the letter Dr. Stoff

No. 98-6466 Walsh v. Udiscriminatory reason for its actionto plaintiff to show either: “(1) thano basis in fact, (2) that the proffermotivate the discharge, or (3) that motivate discharge.” Manzer v. Di1078, 1084 (6th Cir. 1995).

Plaintiff argues defendant’s reas

pretextual because it had no basis ihas come forward with no evidenwhich defendant advanced for factually false. See Anderson v. BaF.3d 1120, 1124 (6th Cir. 1994) (prproduce evidence from which a ratithat the company lied to have a sufor the jury). Over a more than included multiple phone calls, letthe parties where represented by coto request information relating Nonetheless, plaintiff failed to information. In response plaintiff substantially complied, however at defendant’s questions by indicatiwhat accommodations he might plaintiff has not come forth with reasonable jury could find that terminating plaintiff had no basis 

Plaintiff’s claim that his con

motivate defendant to discharge hthe evidence. To support such a normally show that other empsubstantially identical conduct wemployer. See Manzer, 29 F.3d 

produce evidence that defendant rother employees in similar circumargues that because he did not winformation requested, his conduct dismissal. As support, plaintiff defendant did not have an urgent n
18 Walsh v. United Parcel Service No. 98-6466

wouldn’t be interested because he would have to terminate hisemployment. When combined with the timing of his firing,i.e., while he was still under medical evaluation to determinethe extent of his disability, plaintiff contends an inference ofdiscriminatory motive is raised.

Plaintiff’s evidence of a causal connection between his

firing by defendant and a desire on the part of defendant toavoid paying LTD benefits is weak at best. For the purposeof argument, however, we will assume that a prima facieshowing has been made, as it is clear that plaintiff has failedto show that defendant’s alleged non-discriminatory reasonwas pretextual. The Smith v. Ameritech Court addressed theissue of pretext and how the explanations employers advancefor their actions fit within ERISA § 510 analysis, providing:

If the plaintiff states a prima facie case under § 510,

the employer can rebut the presumption of impermissibleaction raised by the prima facie case by introducingevidence of a legitimate, nondiscriminatory reason for itschallenged action. This shifts the burden back to theplaintiff to show that the employer’s proffered reasonwas mere pretext. Although the plaintiff need not showthat the employer’s sole purpose was to interfere with theplaintiff’s entitlement to benefits, he must either provethat the interference was a motivating factor in theemployer’s actions, or prove that the employer’sproffered reason is unworthy of credence. Summaryjudgment is appropriate if plaintiff fails to establish aprima facie case or fails to rebut the employer’s profferof a legitimate, nondiscriminatory reason for its actions.

Id. at 865. 

As detailed above, defendant made repeated requests over

a six month period for the medical information necessary tokeep the plaintiff on medical leave. Defendant also met withplaintiff and plaintiff’s counsel to discuss the informationneeded. Defendant has stated that its sole reason for firingplaintiff was that he failed to produce the requestedinformation. In so stating, defendant has advanced a nonNo. 98-6466 Walsh v. U

concluded that plaintiff was disablpredicted that it would be one to threturn to working as a commerciarelease plaintiff for work or suggable to perform or what accommoOn September 11, 1995, Toronzletter, stating that UPS could not provided because he was no longe

Plaintiff filed this action against 

of the Americans with Disabilitie§ 12101, et seq., Kentucky’s equivStat. Ann. § 344.040, and § 510 of Prior to trial UPS moved for summcourt granted defendant’s motion claims and the corresponding claimStat. Ann. § 344.040. The court was proper for three reasons. Fplaintiff had not shown that he was a disability, having never suconcerning what accommodationjobs he could perform, or even thato work. Second, the court observright to request reasonable medindividual who claims a disabiliplaintiff failed to meet these requeof six months, not coming up wdisability until nearly three months the court found that plaintiff madconnection between his disability the requested information. Givelong term consultation with medicathat he was represented by counselcausal connection between plaintifto produce the requested medical i

As to the plaintiff’s ERISA § 5

defendant’s initial argument, that dismissed on summary judgmenadministrative remedies, unavailin
8 Walsh v. United Parcel Service No. 98-6466

a new motion for summary judgment, arguing that plaintiffhad failed to state a prima facie case. The district courtagreed, finding that plaintiff had produced no evidenceshowing it was defendant’s specific intent to fire plaintiff toprevent him from receiving long term disability benefits dueto him under ERISA. Further, the court found that even if theplaintiff did present a prima facie case, UPS had articulateda reasonable non-discriminatory grounds for terminatingplaintiff—his failure to provide medical informationconcerning his eligibility for continued leave. 

II. Discussion

A. Standard of Review

This court reviews a district court’s grant of summary

judgment de novo. Monette v. Electronic Data Systems

Corp., 90 F.3d 1173, 1176 (6th Cir.1996). Summaryjudgment is appropriate when there is no genuine issue as toany material fact and the moving party is entitled to judgmentas a matter of law. See Fed.R.Civ.P. 56(c). A fact is materialif its resolution will affect the outcome of the lawsuit. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986). If, “the moving party hascarried its burden of showing that the pleadings, depositions,answers to interrogatories, admissions and affidavits in therecord, construed favorably to the nonmoving party, do notraise a genuine issue of material fact for trial,” summaryjudgment should be granted. Gutierrez v. Lynch, 826 F.2d1534, 1536 (6th Cir.1987). 

B. Plaintiff’s ADA Claim

The Americans with Disabilities Act provides that:

No covered entity shall discriminate against a qualified

individual with a disability because of the disability ofsuch individual 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. 

No. 98-6466 Walsh v. U

To state a claim under § 510, 

that an employer had a specific In the absence of direct evidencintent, the plaintiff can state showing the existence of (1conduct (2) taken for the purposthe attainment of any right to wbecome entitled. 

Id. at 865 (internal citations and quthe Smith v. Ameritech Court founfacie case, a plaintiff must show pension benefits and the adverse 

This means that for plaintiff’s casemotion for summary judgment, plwith evidence from which a reasothe defendant’s desire to avoid determining factor in plaintiff’s di

In the case at bar, the district cou

to establish a prima facie case. In the district court emphasized the faUPS officials may have thought, tethe plaintiff applying for and Further, the court observed that thplaintiff had ever applied for Lapplied, it would have been diffihave qualified, given that he had repwilling, and able to work in his apState unemployment benefits. 

Plaintiff disputes the district cour

sufficient evidence existed in the rmaterial fact as to whether defenddesire to avoid paying long term support, plaintiff points to the facLTD was a possibility and had evecompany. Further, plaintiff claimforms in December of 1994 and possibility of LTD in March of 
16 Walsh v. United Parcel Service No. 98-6466

employer incurs additional administrative costs and more importantly isforced to shoulder long-term uncertainty regarding the composition of itswork force. Further, during the extended leave, the employee losesvaluable work skills, and if the employee ever returns, he or she will likelyrequire significant retraining. When this is balanced against the potentialbenefit derived from the employee returning to work, which must besignificantly discounted by the obvious indeterminacy involved, the costexceeds the likely benefit. Corp., 87 F.3d 1167, 1169 (6th Cir. 1996) (holding that whereplaintiff has failed to present any evidence of the expectedduration of her impairment as of the date of her termination,a request for medical leave was unreasonable). 

Because continued leave was an unreasonable

accommodation, we find that the plaintiff’s ADA claim andhis claim under Kentucky’s equivalent provision, Ky. Rev.Stat. Ann. § 344.040, were properly dismissed by the districtcourt on defendant’s motion for summary judgment.

C. Plaintiff’s ERISA Claim

Plaintiff also challenges the district court’s grant of

summary judgment regarding his claim that UPS violatedERISA § 510, 29 U.S.C. § 1140, by allegedly terminating himto avoid paying long term disability (LTD) benefits. ERISA§ 510 makes it unlawful for an employer to:

discharge, fine, suspend, expel, discipline, ordiscriminate against a participant or beneficiary forexercising any right to which he is entitled under theprovisions of an employee benefit plan . . . or for thepurpose of interfering with the attainment of any right towhich such participant may become entitled under theplan . . . .

29 U.S.C. § 1140. In Smith v. Ameritech, 129 F.3d 857 (6thCir. 1997), this Circuit laid out the framework under which anERISA § 510 claim should be analyzed, providing:

No. 98-6466 Walsh v. U42 U.S.C. § 12112. Under the act, a disability means, “an individual wor without reasonable accommoessential functions of the emploindividual holds or desires.” 42 Umakes it clear that failure to accodisability may qualify as discrim“discriminate” to include:

not making reasonable accom

physical or mental limitations oindividual with a disability wemployee, unless such covered that the accommodation would imon the operation of the business . . . .

42 U.S.C. § 12112 (b)(5)(A).

As an aid to determining wheth

required showing of discriminatCircuit has stated the required amultifactor test. To recover for disthe plaintiff must show he or she: disability; (2) is otherwise qualrequirements, with or without reaand (3) was discharged solely on See Monette v. Electronic Data Sys

1177 (6th Cir. 1996) (citing MTennessee, 62 F.3d 843, 846 conclusion that the analysis of claimroughly parallels that of claiRehabilitation Act of 1973, 29 U.Sfurther clarified the burdens placanalysis, stating that if the plaintifthe employer relied on his or headverse employment decision:

(1) The plaintiff bears the bur

he or she is disabled. (2) The pof establishing that he or she is “
10 Walsh v. United Parcel Service No. 98-6466

1McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct.

1817, 1824-25, 36 L.Ed.2d 668 (1973). 

the position despite his or her disability: (a) withoutaccommodation from the employer; (b) with an alleged“essential” job requirement eliminated; or (c) with aproposed reasonable accommodation. (3) The employerwill bear the burden of proving that a challenged jobcriterion is essential, and therefore a business necessity,or that a proposed accommodation will impose an unduehardship upon the employer. 

Monette, 90 F.3d at 1186. When a plaintiff seeks to establish

his or her case indirectly, however, the Monette court

recognized that the traditional McDonnell Douglas1 burden

shifting approach continues to apply, stating:

[P]laintiff may establish a prima facie case ofdiscrimination by showing that: (1) he or she is disabled;(2) otherwise qualified for the position, with or withoutreasonable accommodation; (3) suffered an adverseemployment decision; (4) the employer knew or hadreason to know of the plaintiff’s disability; and (5) theposition remained open while the employer sought otherapplicants or the disabled individual was replaced. Thedefendant must then offer a legitimate explanation for itsaction. If the defendant satisfies this burden ofproduction, the plaintiff must introduce evidenceshowing that the proffered explanation is pretextual.Under this scheme, the plaintiff retains the ultimateburden of persuasion at all times. 

Id. at 1186-87. 

As an initial matter, it is not entirely clear whether

plaintiff’s ADA claim is based on direct or indirect evidence.Defendant claims to have fired plaintiff not because he wasdisabled, but rather because he failed to produce the medicaldocumentation which UPS required for additional leave. Insupport, defendant points to the fact that it was prepared to

No. 98-6466 Walsh v. U

5Some Courts have explained the inq

an accommodation as involving a beneCehrs, 155 F.3d at 781 (stating that plaintof a plausible accommodation which cowould be received); Monette, 90 F.3d at 

analysis to determine whether a proposed Borkowski v. Valley Cent. School Dist., 6(observing “it is enough for the plaintifplausible accommodation, the costs of exceed its benefits.”). Such an analysis cboth the time and likelihood of return quantified after a significant period of leacosts of the requested additional leave 

and a half in length to be reasonabladdress the particular accommodatiSee Cehrs, 155 F.3d at 782 (notinhas made clear that individualizedisability cases). 

Plaintiff argues that while he 

request, he only needed ninety dayHowever, plaintiff has made no cnearly year and a half leave defendaan inadequate period for him to obtthe evaluation that plaintiff receivphysician, months after his termina time frame or circumstances unreturn to work. The ADA wadiscrimination against individualthey could become productive mSee 42 U.S.C. § 12101; 29 C.F.R. when the requested accommodprospect of allowing the individual future, it is objectively not an employer should be required to prsupra note 4. We therefore holemployer has already provided additional leave period of a significprospects for recovery, is an accommodation.5 Cf. Hudson v. 
14 Walsh v. United Parcel Service No. 98-6466

4See, e.g., Nowak v. St. Rita High School, 142 F.3d 999, 1004 (7th

Cir. 1998) (finding that, “[t]he ADA does not require an employer toaccommodate an employee who suffers from a prolonged illness byallowing him an indefinite leave of absence.”); Ralph v. Lucent Techs.,135 F.3d 166, 172 (1st Cir. 1998) (reviewing a preliminary injunction

granted by the district court and agreeing with the court’s decision that avery limited four weeks leave time might be required as a reasonableaccommodation, even after plaintiff had been given 52 weeks of leavewith pay); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225-26 (11th

Cir. 1997) (stating that where plaintiff had been on salary continuation for10 months already, defendant had no obligation to maintain this benefitfor the remaining two months the company allowed when the defendantcould not show that he would likely be able to return to work at the endof this period); Monette, 90 F.3d 1173, 1187 (holding that it is not a

reasonable accommodation to require employers to keep employees onmedical leave indefinitely in the hope that a position that they can performwill come available); Hudson v. MCI Telecommunications Corp., 87 F.3d

1167 (6th Cir. 1996) (finding that while a reasonable allowance of timefor medical care may constitute a reasonable accommodation, defendantwas not required to wait indefinitely for plaintiff, who had failed topresent any evidence of expected return date at time of termination, torecover); see also Micari v. Trans World Airlines, 43 F. Supp.2d 275,281-82 (E.D. NY. 1999) (observing that where medical leaves havestretched beyond one year, courts have found that an employee cannotperform the essential functions of his or her job as a matter of law);Powers v. Polygram Holding, 40 F. Supp.2d 195, 200 (S.D. NY. 1999)(noting that cases in which courts have concluded that the length ofrequested medical leave is an unreasonable accommodation as a matter oflaw usually involved requests for close to a year or more). last medical evaluation which defendant received from ahomeopathic physician, months after the deadline set bydefendant, only contained a vague estimate of the date thatplaintiff could return to his job as a pilot, placing it at one tothree years in the future. Further, the letter did not releasedefendant for work or suggest what other jobs he might beable to perform or what accommodations might be required.

Our review of case law in this and other circuits disclosed

no cases where an employer was required to allow anemployee to take a leave of absence for well in excess of ayear—let alone indefinitely—as a reasonable accommodationto the employee’s disability.4 This suggests that it would bevery unlikely for a request for medical leave exceeding a year

No. 98-6466 Walsh v. U

2See Monette, 90 F.3d at 1187 (findi

case that the defendant’s explanation for was on medical leave, unable to perfocustomer service representative in the buidefendant relied on plaintiff’s disabled sCehrs v. Northeast Ohio Alzheimer’s Rese(6th Cir. 1998) (applying the Monette cocase involving the termination of an empout required company paperwork for an give plaintiff an alternate job as swhat plaintiff’s disability was. Plclaims that the reasonable accdisability required was additionatreatment, the very thing defendan

However, regardless of wheth

evidence test is used, plaintiff’s Monette Court stated, the plaintiff establishing that the accommodareasonable. Id. at 1187; c.f. Gaines 

1175–76 (6th Cir. 1997) (observing to establish a prima facie handicap on a failure to accommodate, plainqualified individual with a handicawithout reasonable accommodationfunctions of the position in questiohealth and safety of the individuMonette, the plaintiff proposeaccommodation he be kept on indanother position opened up. The c

[E]mployers simply are not requion staff indefinitely in the hope become available some time in employers are not required to cdisabled employees in order to rethe disabled individual. Accordito establish that his proposed “reasonable” one under the statu
12 Walsh v. United Parcel Service No. 98-6466

Id. at 1187. The burden of establishing that the proposedaccommodation is reasonable remains with the plaintiff,regardless of whether plaintiff has direct or indirect evidencein support of his or her ADA claim. See Id. at 1883,1186-87.

This logically flows from the fact that the plaintiff is alwaysrequired to show that he or she is qualified for the position,with or without reasonable accommodation. See 42 U.S.C.§ 12112(b)(5)(A). 

Because it is clear that in this case, plaintiff’s request for

additional leave was not a reasonable accommodation, wemust affirm the district court. Plaintiff was given a year ofpaid disability leave by UPS. Following that leave, plaintiffwas given more than six additional months of unpaid leave toprovide UPS with information concerning his allegeddisability. As the district court observed, no information wasforthcoming, and plaintiff, who saw multiple doctors and wasrepresented by counsel, made no showing that the delay wasattributable to his disability. 

Plaintiff claims that the accommodation he was asking for

was more time for diagnosis and treatment by his doctors. Itis possible that his June 5, 1995 phone call to Toronzo,requesting additional time for diagnosis would qualify as arequest for accommodation. Plaintiff is also correct that thisCircuit has recognized that a medical leave of absence canconstitute a reasonable accommodation under appropriatecircumstances. See, e.g., Cehrs v. Northeast OhioAlzheimer’s Research Institute, 155 F.3d 775 (6th Cir. 1998),(finding a genuine issue of material fact as to whether aneight-week leave of absence followed by a request for anadditional one-month leave was a reasonable accommodationunder the ADA). However, plaintiff’s request, to the extentit was made, was unreasonable. 

Plaintiff attempts to rely on Cehrs for the proposition that

an indefinite leave of absence, no matter how potentiallylengthy, can never be found to be objectively unreasonable.We disagree with plaintiff’s reading of Cehrs. In Cehrs, the

plaintiff had just taken a roughly eight week leave of absence

No. 98-6466 Walsh v. U

3Significantly, the Court’s statement

some instances the employer would have employee’s proposed accommodation wa

F.3d at 782-783 (discussing inquiry iaccommodation in the same manner as proposed accommodation unduly burdenthat the Cehrs Court suggested the e

accommodation proposed by the employMonette. Monette makes it plain that whet

is reasonable and whether it unduly burinquiries. See Monette, 90 F.3d at 1183, 1

language of § 12112 makes it clear that whof persuasion on whether an accommodhardship, the disabled individual has the showing a proposed accommodation is Monette Court did acknowledge that the reasonableness are similar. The Court disthat the inquiry into reasonableness requntethered to the defendant employer’s pathe question of whether a reasonable accburden is evaluated with regard to “the em

at 1184 n.10.

for treatment of her Psoriasis. Aplaintiff’s physician determined treatment was needed, and estimreturn to work on a part time basis 778. The defendant ostensibly denplaintiff had not properly filled ouObserving that the defendant had atake medical leave under similar found that a genuine issue of fact granting of further medical leave defendant, or would have caccommodation to the plaintiff.3 I

Thus, the Cehrs Court was co

where a request for a definite and made, accompanied by a reasonaClearly, the case at bar presents a mthis case, plaintiff knew of his injucontinuation for a year, and unpamonths before being terminated.