NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0582n.06
No. 09-5786
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT MARK A. J ONES, Plaintiff-Appellant,

v. NI SSAN NORTH AMERI CA, I NC., Def endant- Appellee

.

______________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

OP INION

Before: M ARTIN, SUHRHEINRICH, and WHITE , Circuit Judges.
HELE NE N. WHITE , Circuit Judge. Plaintiff Mark J ones appeal s t h e d enial of his

m o t i ons for judgme nt as a matter of law and for a new trial filed afte r the jury returne d a v er d i ct finding that he did not prove that his employ er, Def endant Nissan North Americ a, I nc., discriminated
ag ainst him in violation of the Americ ans Wit h Disabilities Act, 42 U.S.C. § 12101, or the Tenne ssee Disability Act, Tenn. Code An n . § 8 -5 0 -103 et seq . We REVERSE and REMAND for further
proce eding s. F ACTS AND P ROCEDURAL HISTORY Mark J ones beg an working for Nissan in 1997, as an auto assembly production technicia n
at Nissan’s manufa cturing plant in Smy rna, Tenne ssee. J ones initially worke d the night shift on the metal line wher e he used power tools to do welding and g rinding

. L at er , he worke d the “hoodNo. 09-5786

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. install” job on the metal line, working on Niss an Altima car s during the afte rnoon shift. I n April 2003, J ones injured his rig ht elbow while wor king the “hood install” job.
J ones repor

ted his injury to Nissan, and the company provided him with a choice o f t h ree
trea ting phy sicians from whom he could rec eive trea tment. J ones chose Dr. Doug las Weikert, who diag nosed J ones with rig ht l at er al ep i condy litis , or tennis elbow. Dr. Weikert trea ted J ones with thera py and cor tisone shots, and eventually rec ommended surge ry , which Jones had in September
2004. Dr. Weikert restric ted J ones from returning to work until J anuar y 2005, and then rele ased him
to return to work wi t h no restric tions. As J ones’s trea ting phy sician for worke rs’ compensa tion purposes, Dr . Weikert assig ned Jones an anatomica l impairment rating of 3% to his rig ht arm. By 2006, J ones was working the day shift in the trim are a of the body shop. This job, “ body trim f its,” entailed light lifting and did not require the use of power tools. J ones used hand tools – specific ally a light rubber hammer, a chisel, and a plastic finesse tool – to adjust car panel g aps. As

a part of the job, J ones often had to open and close the hoods of various vehicles; some vehicles’ hoods had a hy draulic lift, which allows a hood to hold up its own weig ht, and some did not. J ones made a pproxi mately

$25 per hour . I n J anuar

y 2006, J ones vi sited Dr. Weikert a g ain complaining of discomfort in his arm. Dr. Weikert examined J ones and ag ain rele ased him to return to work with no restric tions as of J anuar y 18, 2006.
J ones’s supervisor, Are a Manag er Guer ry Marsh, found J ones to be a hard worke r and was satisfied with his job perf ormanc e. He never observe d J ones being unable to perf orm , o r h av i n g difficulty with, any of the tasks associate d with his job. J ones never asked for any chang es to be made to his duties; nor did he ever complain that he was having difficulty

. Marsh testified that J ones 2No. 09-5786

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. could do the lifting associate d with the body -trim-fits job and could use all of the tools require d for the job, and that there was nothing that cause d him to believe that J ones could not phy sically perf orm the job.
On J une 8, 2006, J ones’s workers’ compensa tion claim aga inst Nissan for his ri gh t-elbow
in ju r y w a s tr ie d in the Chance ry Court for Wil son County , Tenne ssee, befor e Chance llor C.K. Smit h. The court hear d testimony from J ones and Guer ry Marsh, and considere d Dr. Weikert’s deposition.
At the conclusion of the worke rs’ compensa tion trial, Chance llor Smit h g ave an oral ruling from the be nch, stating , in part:

So on 9/21/04 Dr. W eiker t perfor med surg ery

on the plaintiff here

. . . . As I stated, [the doctor] put him back to wor k full-time with no restrictions. After the surg ery the plaintiff say s – and he seems to be a v ery honest, cre dible witness. There ’s no rea son for me not to believe him. That he’s still having pain and couldn’t probably do the j o b that he was doing at the time of his injury beca use i t require d a lot of l ifting and more use of vi bratory tools. He say s that he doesn’t think he could use tools that – that vibrate a lot. Right now all he has to use is a hammer and a chisel

. An d according to the video, that’s not how one might imag ine one using a hammer and a chisel. I t’s just a pecking

. I n other words, not a

– not a g rea t deal of chiseling g oing on. I t’s just kind of knocking – I forg et what he called it – but kind of knocking trim in or scre w in or something. But it’s very light – light ty pe of use of a ha

mmer and a

chisel.
He say s that – he asked t h e d octor not to put him on any perma nent restric tions beca

use Nissan is – just won’t hardly work y ou if y ou’ve g ot perma nent re s t rictions. But the doctor didn’t say any thing about that. He just said that t h e plaintiff had no r estrictions.
He s ay s the job[ ] he’s on now – and it doesn’t require any heavy li ft i n g, may be sometime a h o od, the trunk, or whateve r, the door, or whateve r that back hatch is behind those vans might be called. But it’s very light b ec au s e t hey have some ty pe of spri n g fed – something that helps raise the hood and so forth. So they ’re not very difficult to raise. But he fee ls like [t here are ] jobs that are there that require a l o t o f heavy lifting and use of power tools or vibratory tools, that he 3No. 09-5786

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. wouldn’t be a

ble to do. He sa id he would attempt to do them if it meant do that or lose his job.
He ’s wo rki ng . . . back at the same job – or back at the same employ er , differ ent job there

. He say s the pain’s constant. I t’s worse when he’s working , and he tires quickly , doesn’t have as much g rip streng th. The only hobby it interfe res with basica lly is throwing a basebal l to his boy s. He’ s a baseba ll coac h. He can’ t throw it as well, he said, as he could before. At the hous e he can’ t lift much. And when he has t o use a scre wdriver to scre w s omething in he has to take breaks. I t’s painful. Can’t use lawn mowers or wee deate rs like he c ould be fore

. The vibration cause s him a lot of pain and hu rt s h i m. Take s a lot of Advil. And he’s on a presc ription of anti-inflammatory

. . . . Since his date of r elea se he’ s missed no work bec ause of this injury

. Fe els like he could c ontinue to do the job that he’s doing

. . . . As the area manag er te stified . . . he had no c omplaint about the work pe rfor mance of the plaintiff. . . .
But I believe that he does have a – a disability to his rig ht arm. And if I didn’t say this, the doctor g ave him a three perc ent rating to his arm acc ording to the AMA Guides, Dr. W ei k er t

. And I fee l like that he has a perma nent partial vocational disability of 30 perc ent to h i s upper rig ht extremity based on the statements I ’ve made above and the fac t that he does have continued pain, can’ t use cer tain vibratory tools, lawn mower, we edeater, c an’t lift as much a s he could be fore

. . . .

. . . But based upon all the evidenc e I ’ve hear d – and I do think he has s o m e restric tions and beca

use of that and the pain and the restric tions that I fee l like he has based upon his testimony , I think he’s entitled to 30 [percent] vocational disability

. Thanks, y ’all. (App. 49-53.) Nissan’s c o u

n s e l th e n asked the chanc ellor to elabor ate on what restric tions he felt J ones had. The c ourt responde d,

I think using – I think tools – like I stated – vibratory too l s , l awn mower, wee deate r, any

thing that woul d vibrate will cause his elbow to hurt. And I think lifting – he’s testified to lifting and rolling motion of his a rm kind of hurts him a

nd throwing balls and st uff like that. I just think that those are leg itimate. And that’s what he testified to. Those are the only ones – and he has constant pain all the time as well. Ha s gri p streng th loss. I think that’s about – I think I ’ve cover ed most 4No. 09-5786

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.
ever y thing. I might have left something out. But I think those are the things that – that I fee l l i k e t h at h e’ s lost as a result of this. And beca use of that I think his vocational disability is substantial, not as substantial may be as the plaintiffs fee l, but I fee l like that it’s something he’s got to live with and deal with the rest of his life, and he should be entitled to [ a] vocational disability rating of 30 per cent. (App. 53-54.) Counsel for Nissan then draf ted a written order , whi ch J ones’s counsel revie wed and the
court signe d on J une 20, 2006. I t incorporated the chanc ellor’s previously stated finding s of fac t and conclusions of law(excerpte d above) and also provide d in part: Plaintiff reta ins a 3% perma nent anatomica l impairment to the rig ht upper extremity

. Ba sed on this rating , his restric tions ag ainst wor k i n g wi th power tools and ag ainst lifting, his ability to return to his pre- injury employ er at or above his pre- injury wag e rate , his education, his job skills, and his employ ability on the open lab o r marke t, Plaintiff r etains a 30% perma nent disability to the rig ht a rm. This entitled Plaintiff to XXXX weeks of benef its at t he st ipulated weekly rate of $ XXXX, al l of which have a ccr ued at the time of trial, and, ther efor e, ar e due a nd pay able in a lump sum of $XXX X.

. . . I t is there fore , ORDERED, ADJUDGED, and DECREED t h at Plaintiff shall rec over f rom Def endants: (1) XXXX wee ks of perma nent disability benef

its at the wee kly rate of $ XXXX for lump sum of $ XXXX ; (2) future me dical expenses pursua nt to T.C.A. § 50-6-204; and (3) reimburse ment of discre tionary costs totaling $280.00. (App. 44.) ( reda ction in orig inal.) F ollowing the tr ial, J ones re turned to his body -fits job.

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. The awa rd of benef

its was highe r than Nissan was expecting. Nissan initially appea led, but 1
later withdrew its appea l. J ones and his counsel considere d asking the court to chang e or clar ify its ruling , but did not request an a mendment. 2 3 Kitty Boy te, counsel for Nissan in the worke rs’ compensa tion case , emailed the result of the trial to Nissan’s leg al depar tment and to Miles Tate, a repr esenta tive of Nissan’s on-site third-par ty administrator for worke rs’ compensa tion claims. Bo y

t e’ s J une 8, 2006, email summarized the 4
court’s de cision as follows:

I n his Finding s o f Fa ct and Conclusions of L aw, Chance llor Smit h made a point of say ing on the rec ord that he found that Plaintiff was restric ted

. . . from lifting a nd using pow er tools. (App. 28.) On J une 13, 2006, Boy te wrote an email to Ray Coss, Nissan’s in-house counsel, and copied (among others) Ker ry Dove, the depar

tment manag er of safe ty and medical manag ement for Nissan. B oy

te wrote in part,

Ray Coss, Nissan’s in- h o u s e counsel explained why the company thought the awa rd was 1 excessive: “.

. . the judge imposed what we thought wer e unsubstantiated medical restric tions. The judge basica lly was acting like a doctor, we felt, and g ave substantial restric tions, and we think, g ave a substantial

– o r u n d er wo rk ers’ comp law he’s allowed to multipl y the impairment rating by a cer tain fac tor. And he applied a fac tor that usually corr esponded with a no return to w ork.” (Tria l Tr. 346.) On cross-e x amination, J o n es ag ree d that he had stated in a previous deposition that “the 2 judge in the worke rs’ compensa tion trial overstate d the extent of [hi s] injury .” (Tria l T r. 543-44.) J ones’s worke rs’ compensa tion counsel did not testify at trial. J ones testified that it was his 3 understanding that Nissan had “droppe d the appea l befor e we could have a chanc e” t o ask for clar ification. (Tr ial Tr. 539.) L arg e portions of Boy

te’s email, and all other e mails in the recor d, wer e re dacte d as work 4 product. (T rial Tr. 310.) 6No. 09-5786

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. But in his FoF /CoL [Findings of Fa ct/Conclusions of L aw], Chance llor Smit h commented t h at

. . . (2) Plaintiff testified that he (Jones) did not fee l that he was capa ble of p er fo rming any jobs that require d use of power tools, had problems o p erating a scre wdriver when perf orming tasks at home, and could not lift h ea v y objects without experiencing pain and wea kness in his arm, (3) Only Plaintiff knew what he could and could not do safe ly and comforta bly , and since he (Jones) felt that he was unable to perf

orm those tasks, he ([Chancellor] Smit h) felt t h at he was restric ted from perf

orming those ty

pes of tasks. W h en [ Chance llor] Smit h said, “I find him to be restric ted, and there fore I find him t o be 30% disabled[,”] and then asked if there wer e any other issues to be deter mined that he had not mentioned, I asked him what he meant by Plaintiff being restric ted. He went back and said (ag ain) that Plaintiff said he was unable to opera te power tools and unable to lift, and that he (Jones) knew best about what he could and couldn’t do safe ly and comforta bly , and there fore he ([Chance llor] S mith) found him to be restric ted from the use of powe r tools and from lifting. (App. 25.) O n J une 14, 2006, Dove emailed Coss and other s, stating in par t,

. . . I f [J ones] fee ls he cannot perf orm those tasks withou t get t i n g injured and the judge ag ree s, we ne ed to honor that.
I t is my opinion that his r estrictions should be no lifti ng, no use of power tools, and no use of hand tools

. We should move on this ASAP and deter mine if he is working within those restric tions. I am truly conce rned that if his job require s him to perf orm these tasks he may be in harm[’]s way . Pat, please have Wade revie w his jobs ASAP to determine if he is ex cee ding the se re strictions imposed by the j udg e and w e will take a ction from ther e. (App. 23.) (empha sis added.) Dove testified that when he wrote that email messag e, he had not y et

rea d the court’s oral ruling or written order

. He based his understand ing of the court’s ruling on 5 Kitty ’s Boy

te’s email, notwithstanding that Boy te’s email does not state that J ones was restric ted in his use of hand tools on the job.

Dove could not identify the transcr ipt of the court’s statements at trial, and testified that the 5 first time he re ad the c ourt order was whe n prepa

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. I n response to Dove’ s email, Wade Pinkard, a job-place ment coordina tor for Whole Hea lth Manage ment, an entity that provides health providers for the clinic at Nissan, replied on J une 19, 2006,
I n Kitty ’s J une 08 messag e she states Chance llor Smit h found EE [employ ee] to be rest ri cted from lifting and using power tools. I n y our J une 14 messag e y ou opine [permanent] restric tions should be no lifting, no use of power tools, and no use of hand tools. The no use of hand tools is very significant. Should Dr. Kubina revie w and mak e rec ommendations reg arding perma nent restric tions?
I f perma n en t re s trictions are imposed, the EE’s medical file should be broug ht curr ent, and the r estrictions enter ed in KCRS. (App. 22.) ( brac kets in orig inal) (e mphasis added.) That same da y , Dove r esponded, Yes, please g et Dr. Kubina’s opinion and hers should be our officia l stance

. I g ot that from the statement that he could not use a scre wdriver , but I ’m no doctor. Thanks! (A p p . 2 2.) At trial, Dove conce ded that Boy te’s email had not said that J ones could not us e a

scre wdriver , but tha t he “had problems opera ting a scre wdriver when perf orming tasks at home.”
Dove testified that he consulted the leg al depar tment a bout how to g et the restric tions into J ones’s medical rec ord. Dove understood the issue to b e a leg al matter, not a medical one. Ray Coss, Nissan’s in-house counsel met with Dove. Coss interpre t ed t h e court’s order as aff irmatively “orde r[ing Nissan] to impose medical restric tions on Mark J ones.” Coss admitted that whateve r the chanc ellor said about restrictions was not a medical judgme nt, but testified t hat “in the contex t of this worke rs’ comp trial and order , we trea ted [] this as if it was a medical restric tion.” Specifica lly , Coss rea d the court order as say ing “no use of power tools, no lifting, and no use of hand tools.” Coss testified that he rea ched this c onclusion by taking the court’s oral ruling and its written order 8No. 09-5786

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. toge ther, and rea ding them “in totality .” Coss concede d that the court’s ruling did not specific ally
say any thing about the use of hand tools, but stated that that finding was supported by the part of the judge ’s ruling which acknow ledg ed that J ones would be unable to do the metal-line job (the job he had befor e the body trim fits job and the job in which he was injured), and that J ones had used hand
t o ols in that job. Coss also testified that, althoug h the court’s order does not say that J ones is
perma nently restric ted from all lifting, he interpre ted the lang uag e in the court’s written order ref ere ncing a “re striction[ ]

. . . ag ainst lifting,” to mean that J ones was not permitted to lift any thing at all. Coss testified that he informed Dr. Anne Kubina, onsite medical direc tor for Nissan, of his interpre tation of the court’s order , and instructed her to pla ce the perma nent restric tions in J ones’s medical file. Nissan did not ask Dr. Kubina for her medical opinion of J ones’s ability to work; Dr. Kubi n a ex ami ned or even met J ones. Dr. Kubina testified that she had not rea d the court’s order when she enter ed the restric tions. Dr. Kubina had bee n included in the ema il chain descr ibing the
court’s order , howeve r, and she stated that she trusted her source s. Dr. Kubina understood her role
to be “docume nting” the restric tions that the chanc ellor had alre ady assig ned. Acc ording ly , on J uly 18, 2006, Dr. Kubina

made a n entry in J ones’s medic al re cord stating that,
EE was not seen in office , but a rec en t court ruling has cause d him to have new perma nent re strictions.

. . . Per rec ent judicial ruling , EE now has the following perma nent restric tions: no lifting, no use of

power tools, and no use of ha

nd tools. (App. 41.) Dr. Kubina

conce ded that she “ had no idea about how the restric tions that [she] put in th[ e] medical re cord ma tch[ed] up t o Mark Jones’ ac tual medical c ondition.” 9No. 09-5786

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. After the restric tions wer e documented, Nissan evalua ted whether it h a d a ny jobs J ones could perf orm within the restric tions. Finding none, Nissan informed J ones on J uly 25, 2006, that he was immediately being place d on a medical leave of absenc e. Nissan told J ones that it had place d him 6

on leave beca

use he had perma

nent restric tions and it was unable to find a job for him within those restric tions. A few day s l at er , J o nes returned for a “leave information meeting ,” during which he

was asked to sign a form indicating he was restric ted from lifting, using power tools, and using hand

Nissan’s in-house counsel, Coss, testified that the decision to d ro p Nissan’s appea l in 6 J ones’s worke rs’ compensa tion case occur red the same day

. J ones contends that Nissan dropped its appea l then so that the per manent re strictions that J ones lea rned a bout that day

would be ins tantly final. J ones arg ues that Nissan was conce rned that while t h e ap p ea l was still pending , J ones’s counsel could have g one back to the worke rs’ compensa tion court, and had the court specify that it did not mean to assig n perma nent restric tions, there by undermining the perma nent restric tions Nissan had just imposed. An exchang e betwe en Coss and Jones’s counsel supports this understanding : Q: Appea l[ ing]

. . . the [chance llor’s] decision would mean and Nissan believed that appea ling the judge ’s decision would mean that the worke rs’ compensa tion case was not final, r ight? A: Yes. Q: Okay

. Nissan felt that if the workers ’ co m p ca s e was not final, then that could impact if the pe rmane nt restrictions re mained or not, c orre ct? A: Yes. Q: I f Nissan continued the appea l, Ni ssan felt that Mark J ones’ worke rs’ compensa tion attorney

might try to ge t the perma

nent re strictions lifted, corre ct? A: We expected them to do that. Q: You consider ed that possibility and y ou decide d to drop the appe al, rig ht? A: Yes. (Tria l Tr. 3 4 2 .) Howeve r, Coss later stated that preve nting J ones’s counsel from doing any thing about the restric tions “wa sn’t a consideration” in deciding whether to drop the appea l. (Tria l Tr. 353.) 10No. 09-5786

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. tools. J ones ref

used to sig n the form, explaining “I was not on any restric tions, I could do my job, and I was able to do my job.” J ones was encour ag ed to apply for long- term disability , but did not. After being place d on medical leave , J ones repe atedly contac ted Nissan reque st i n g

unsucce ssfully to have the restric tions lifted and to be allowed to return to his job. Acc ording to Nissan, t here wer e no jobs available during that t i me t hat m et J ones’s restrictions. As of t he st art date of his medical leave on J uly 25, 2006, J ones no longe r rec eived a pay chec k from Nissan, though the company

did pay a portion of his he alth insurance premiums. On Octobe r 14, 2007, citing the need to provide for his famil y , J o n es t o ok a job as a flee t manag er with Americ an Residential Service s that paid him $13 per hour ( $15 per hour by the time of trial). Nissan pol icy p re v ents employ ees on leave to work without obtaining advanc e approval.
J ones testified at trial that he did not se ek Nissan’s permission to w ork beca use “I knew what their view wa s go ing to be. What job could I work with no lifting, no use of power tools, and no hand tools, with me being a labore r? I knew I wasn’t g oing to be able to find something with them

o k ay ing it,

. . .” Nissan lear ned about J ones’s new job in J anuar y 2008 during his deposit i o n . Nissan’s human resour ces department recommende d that J ones’s employ ment be t erminate d, and
J ones wa s fired on January 22, 2008.
J ones filed suit in fede ral court alleg ing discrimination under the Americ ans with Disa b ilities
Act (ADA ), 42 U.S.C. § 12101, and what is now the Tenne ssee Disability Act (TDA) , Tenn. Code
Ann. § 8-50-103. Following discovery , both J ones and Nissan filed motions for summary judgme nt, which the district court denied. At the jury trial held from April 21 to 24, 2009, only J ones prese nted

a case -in-chie f; Nissan did not prese nt other wi t n es s es . At the conclusion of J ones’s case , both 11No. 09-5786

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. parties made oral motions for judgme nt as a matter of law (JM OL ), and responde d to the other side’s motio n . T h e co u rt denied both motions in an oral ruling and denied the parties’ objections to the proposed jury

instructions. The jury

returne d a ver dict for Nissan. 7 On May 8, 2009, J ones filed a

motion for J MOL , or alternatively , a new trial. The district
court denied the motion in a J une 24, 2009, memorandum and order. T h e co u rt rejected J ones’s
“ce rtitude that Nissan perc eived or reg arde d him as disabled and beca use of such misp erception
wrong fully place d him on a medical leave of absenc e” and conclude d that “base d upon the evidenc e
prese nted, a jury could (and presumably did) conclude that Nissan was acting in acc ordanc e with its interpre tation that the Chance ry Court Orde r place d cer tain restric tions on J ones and prec luded him from working on the assembly line, as we l l as i n cer tain other jobs at Nissan.” J ones timely
appea led.
DISCUSSIO N
I

. “Reg arde d As” Disability Discrimination Claim
A. Standard of Re view
We r eview de novo the denial of a Rule 50(b) motion for judgme nt a s a matter of law. See Morgan v. New Y

ork Life Ins. Co. , 559 F.3d 425, 434 (6th Cir. 2009.) “I n enter taining a motion for judgme nt a s a matter of law, the court is to revie w all evidenc e and dr aw a ll reasona ble infer ence s in the l ight most favorable to the non-movi ng party , without making cre dibilit y deter minations or

The jury was asked whether J ones had proved by a pre pondera

nce of the evidenc e that he 7 was discriminated ag ainst in violation of his rig hts under the ADA, and the same question with reg ard to the TD A. The jury answe red no to both questions.

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. weig hing the evidenc e.” Jack son v. FedEx Corporate Servs., Inc. , 518 F.3d 388, 392 (6th Cir. 2008) (citations omitted). J udg ment as a matter of law become s appropr iate when “a party has been fully hear d on an issue and there is no leg ally sufficie nt evidentiar y basis for a rea sonable jury to find for that party on t h at i s s u e. ” Fe d. R. Civ. P. 50(a) (1). Rule 50(b) motions may be based upon a challeng e to the fac ts a s found by the jury or upon purely leg al g rounds. See K & T Enters., Inc. v. Zurich Ins. Co. , 97 F.3d 171, 175 ( 6th Cir. 1996). Denial of a Rule 59 motion for a new trial is revie wed for abuse of discretion. See Tuttl e v. Metro. Gov’ t of

Nashville , 474 F.3d 307, 323 (6th Cir. 2007). We have interpre ted Rule 59 to mean that a new trial is require d only when “a jury has rea ched a seriously err oneous result as evidenc ed by [] (1) the verdic t being ag ainst the weight of the evidenc e; (2) the damag es being ex cessive; or (3) the trial being unfair to the moving party in some fashion, i.e. , the proce eding s being influence d by prejudice or bias.” Mike ’s Train House, Inc. v. Lionel, L.L.C

. , 472 F.3d 398, 405 (6th Cir 2006) (citation and internal quotation marks omitte d ). I f a rea sonable juror could have rea ched the challeng ed verdic t, “a new trial is imprope r.” Taylor v. TECO Barge Line, Inc ., 517 F.3d 372 (6th Cir. 2008) (citation and internal q u o t at i o n marks omitted). “[C] ourts are not fre e to rew eig h the evidenc e and set aside the jury verdic t mere ly beca use the jury could have draw n differ ent infere nces

or conclusions or beca

use judges fe el t hat other results are more rea sonable.” Barnes v. OwensCorning Fiberglas Corp ., 201 F.3d 815, 821 (6th Cir. 2000) (citation and internal quotation marks omitted).
B. Relevant Disability L aw

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. Under the ADA, “[n] o cover ed entity shall discriminate ag ainst a qualified individual with

a disability beca

use of the disability of such individual in reg ard to job application proce dures, the hiring , advanc ement, or discharg e o f em ploy ees, employ ee compensa tion, job training , and other terms, conditions, a

nd privileg es of employ

ment.” 42 U.S.C. § 12112(a)

. I n order to “ rec over on 8

a claim of discrimination unde r the [ADA], a plaintiff must show that: 1) he is an individual with

a disability ; 2) he i s ‘o t h er wi s e qualified’ to perf orm the job require ments, with or without

rea sonable a ccommodation; and 3) he was discharg ed sol ely by rea son of hi s handica p.” Macy v. Hopkins Cnty. Sch. Bd. of Educ ., 484 F.3d 357, 363 ( 6th Cir. 2007). The first step is deter

mining whether the plaintiff has a disability

. See Monette v. Elec. Data Sys. Corp. , 90 F.3d 1173, 1185 ( 6th Cir. 1996). I n this reg ard, the ADA pr ovides: (2) Disa bility “The term “disability ” mea ns, with respec t to an individual-- (A) a phy sical or mental impairment that substantially limit s one or more of the major life a ctivities of such individual; (B ) a r ecor d of such a

n impairment; or (C) being regarded as hav ing such an impairment

.

The TDA provides, “The re shall be no discrimination in the hiring , firing , and other terms 8 and condit i o n s o f em p l o y m ent of

. . . any private employ er . . . based solely upon any phy sical, mental or visual disability of the applicant,

. . .” Tenn. Code Ann. § 8-50-103( b). The elements of the TDA and the ADA are “ver y simil ar,” thus, a claim broug ht under the TDA is analy zed “under the same pri n ciples as those utiliz ed for the [ADA].” See Benne tt v. Nissan North America, Inc. , 2009 WL 837726 at *7 (Tenn. Ct. App. 2009) (unpublish ed ); S a s s er v. Quebe cor Pri nting ( USA) Corp. , 159 S.W .3d 579, 584 (Tenn. Ct. App. 2004). 14No. 09-5786

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. 42 U.S.C.§ 12102 (2008) (empha sis added)

. I n this case , J ones claims he falls under§ 12102(2)( C) 9

– that is, he claims not that he actua lly was disabled, but that he was so reg arde d by Nissan. “I t is 1 0

not enoug h that the employ er reg arde d that individual as somehow disabled; rathe r, th e plaintiff must show that the employ er reg arde d the individual as disabled within the meaning of the ADA.” Ross

v. C a mpbell Soup Co. , 237 F.3d 701, 709 (6th Cir. 2001) (citations and quotations omitted). Combini ng the requirements of subsections (A) and (C) of § 12102, J ones m ust show that Nissan
reg arde d him as having a phy sical or mental impairment that substantially limit s one or more of his major life a ctivities. As the Supreme Court explained, There are two appar ent way s in which indivi d u als may fall within this statutory definition: (1) a cover ed entity mistakenly believ es t h at a person has a phy sical impairment that substantially limit s one or more major life activities, or (2) a cover ed entity mistakenly believes that an actua l, nonlimit ing impairment substantially limit s one or more major life activities. I n both c ases, it is nece ssary that a cover ed entity enter tain misperce ptions about the individual – it must believe either that one has a substantially limit ing impairment that one does not have or that one has a substantially

limit ing impair

ment when, in fa ct, the impairment is not so limi ting. Sutton v. United Air Lines , 527 U.S. 471, 489 (1999), supersede d by statute on other grounds, se e n.9. J ones arg ues that he falls in the second cate g ory , that he had a phy sical impairment that did not substantially

limit him in a major life ac tivity

.

I n 2008, the ADA was modi fied by the Americans with Disabilities Act Ame n d m ent Act 9 (“A DAAA” ), Pub. L

. No. 110-325, 122 Stat. 3553. The ADAAA broade ned the definit i o n o f disability in § 12102. Howeve r, this court has deter m i n ed that the ADAAA does not apply to pre- amendment conduct, m aking it inapplicable to this case . See Milholland v. Sumner Cnty. Bd. of Educ ., 569 F.3d 562, 567 ( 6th Cir. 2009). Tenne ssee has an equivalent “re g arde d as” provision. See Tenn. Code Ann. § 4-21- 1 0 102(3)( A)(iii). 15No. 09-5786

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. The rele vant major life activities in this case are lifting and “per forming manual tasks,” a
cate g ory that this court has found includes the use of hand tools, vibrating power to o l s , et c. See
W ysong v. Dow Chemical Co. , 503 F.3d 441, 450 (6th Cir. 2007) (lifting a major life activity ); Kiphart v. Saturn Corp ., 251 F.3d 573, 584 (6th Cir. 2001) (ability to perf orm manual tasks (including using “hand power tools” and “air vibrating power tools”) a major life activity ). I n order for Jones to be “substantially limit ed,” he would have to be : (i) Unable to p er fo rm a major life activity that the aver ag e person in the g ener al population can perf

orm; or (ii) Significa

ntly restric ted as to the condition, manner or duration under which an individual can perf orm a particula r m ajor life activity as compar ed to the condi t i o n , manner , or duration under which the averag e person in the g ener al population can pe rfor m that same major life activity

. W ysong , 503 F.3d a t 450 (citing 29 C.F.R. § 1630.2(j)(i))

. 1 1
Wit h respe ct to “re g arde d as” discrimination, this court explained in Holi d a y v. City of Chattanooga , 206 F.3d 637 (6th Cir. 2000), that an employ er is re q u i re d to conduct an “individualized inquiry ” into the plaintiff’s actual medical c ondition : The ADA mandates an individualiz ed inquiry in deter mining whether an employ ee’ s disability or other condition disqua lifies him f rom a particula

r position. I n order to properl y ev al u ate a job applicant on the basis of his persona l char acte ristics, the employ er must conduct an individualiz ed inquiry into the individual’s actua l medical condition, and the impact, if any , the condition might have on that individual’s ability to perfor m the job in question. Id. at 643.

Alterna tively , the major life activity of “wor king” may be at issue here

. The definition for 1 1 “substantially limit s” specific to working is: “sig nificantly restric ted in the ability to perf orm either a class of jobs or a broad rang e of jobs in various classes as compar ed to the aver ag e person having compar able training , skills and abilities.” W ysong , 503 F.3d at 451 (6th Cir. 2007) (citing 29 C.F.R. § 1630.2(j)(3) (i)). 16No. 09-5786

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. C. The Parties’ Posit ions
J ones arg ues that the undisputed materia l fac ts establish that Nissan reg arde d him as having a subst antially -limiti ng i m p ai rm en t t hat he did not have. J ones m aintains that he did not actua lly have the phy sical limit ations Nissan place d in his medical rec ord, citing in support that he had been satisfac torily perf

orming all the phy sical tasks associate d with his job until he was remove d, that no doctor ever assig ned him any restric tions, that he did n o t t es t i fy at the worke rs’ compensa tion hear ing that he could not lift at all or use any power or hand tools a t a ll, that the chanc ellor’s order ref ere nced his “ability to return to his pre- injury employ er,” that the chanc ellor was not qualified to impo s e m ed i ca l restric tions, and that even Nissan thought that the restric tions it contends the chanc ellor imposed wer e “c ompletely unsubstantiated.” 1 2
J ones contends that Nissan’s interpre tation of the chanc ellor’s ruling is n o t a le g a ll y s u f f ic ient evidentiar y basis upon which a jury could rely beca use Nissan relied on unsubstantiated restric tions, and did not conduct an individualiz ed inquiry into Jones’s actua l me dical condition a s require d by Holiday , 206 F.3d at 643. He arg ues that Ni s s an’s “interpr etation” of the chanc ellor’s order was i n correct as a matter of law beca use 1) the chanc ellor did not aff irmatively order Nissan t o d o
any thing other than pay worke rs ’ co m p en s at i on benef its, 2) t he order did not state t hat J ones was restric ted from all lifting or using hand tools (the order did not even include the words “hand tools”), and 3) the order

never stated that Jones was unable to do his job.

The “ completely

unsubstantiated” labe l comes fr om the testimony of Ray Coss, Nissan’s 1 2 i n -house counsel, explaining why the company thought the worke rs’ compensa tion awa rd wa s excessive. 17No. 09-5786

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. Nissan does not dispute J ones’s arg uments about his actua l medical condition, but counter s that it c ould not have “disreg arde d a court order ,” and that its imposition of workplac e restric tions

was mere ly an attempt to comply with the chance l l o r’s ruling

. Nissan arg ues that it did not trea t J ones as if his elbow injury wer e substantially limit ing, as evidenc ed by the fac t that Nissan returne d
J ones to wo rk af

t er J o n es returne d from the injury in J anuar y 2005 and only place d him on leave afte r the Chance ry Court is s u ed i t s J une 2006 order

. Nissan stresses that its employ ees did not harbor any my

ths, fea rs, or stereoty

pes about J ones’s medical condition, nor did they even consider the chanc ellor’s order to be a medical judgme nt, the reby positioni ng this case outside the rea lm of
reg arde d-as discrimination case s. Nissan insists that t h i s is not a disability -discrimination case beca use Nissan did not believe that J ones was unable to do the job. R at h er , it believed that the chanc ellor had de clar ed Nissan c ould not permit J ones to do his job. 1 3 Nissan responds to J ones’s arg ument that the chancellor’ s ruling is not a lega lly suffic i en t evidentiar y basis for the jur

y ’s ver dict by

citing various cases for the proposit ion that court orders

At one point, in the string of e-ma ils, Dove wrote: 1 3
It is my opinion that his restrictions should be no lifti ng, no use of power tools, and no use of hand tools

. We should move on this ASAP and deter mine if he is working within those restric tions. I am truly conce rned that if his job require s him to perf orm these tasks he may be in harm[’]s way . Pat, please have Wade revie w his jobs ASAP to deter

mine if he is exceedi n g t h ese restric tions imposed by the j udg e and we will take ac tion from there

. The implication here is that Dove was actua lly conce rned about J ones’s safe ty , i.e., that he thought he was actua lly disabled from the position. Nissan has retre ated from that position and has defe nded the ca se on the ba sis that it di d not believe J ones was, in fac t, disabled from the pos ition, and was simply rely ing on its interpr etation of the c hance llor’s order

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. must be complied with pr omptly

. Concerning its int erpr etation of the order , Nissan arg ues that so long as i t s ac t i o n s wer e based on an “honest belief” rathe r than discriminatory animus, it did not discriminate. F inally , Nissan arg ues t hat t his court should not make a ny deter minations about the chanc ellor’s order as a matter of law b eca use in the disability -discrimination context, the order is rele vant only as the basis for Nissan’s actions, and a jury is entitled to decide whether it provides a valid, non-discriminatory rea son. The c ourt instructed the jury , consistent with Nissan’s position: All pe rsons who are subject to an order of a court have an obliga tion to comply and to follow the court’s order

. A person subject to a court o rd er may not ignor e or violate that orde r.

. . . . [] “if y ou find that Def endant honestly believed it was acti n g as require d by Chance llor Smit h’s ruling and that it honestly believed that beca use of t h e ru l i ng Plaintiff could not perf

orm the essential functions of an available job at Nissan, then y ou may not conclude tha t Defe ndant ac ted for a discriminatory

rea son. (Tria l Tr. 657.) D. Analy sis This is an aty

pic a l r e g a rded- as discrimination case in that the purported source of the phy sical restric tions Nissan imposed on J ones was a state-c ourt order rathe r than Nissan’s own conclusions about J ones’s capa

biliti es. Thus, this c ase turns on the leg itimacy of Nissan’s interpre tation of the
court order to impose ability restric tions on J ones and whether Nissan had an independe nt obliga tion
to asce rtain Jones’s medical condition and c apabilities.
1. J ones wa s entitled to J udg ment as a Ma tter of L aw

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. The centr al issue is the leg itimacy of the nondiscriminatory rea son offe red by Nissan for its actions – that it r elied on the order of the worke rs’ c ompensation cha ncellor. This de fense fails as

a matter of law beca

use 1) as a matter of law and fac t, the order did not require that Nissan take the actions it took; 2) there was no g enuine i s s u e whether Nissan independe ntly assessed J ones’s
p hy sical capa

biliti es; and, 3) there was no g enuine issue whether Nissan made the rea sonabl e assessment and inquiry

require d to assert a

n honest-belief

defe nse. a. The order

did not require tha

t Nissan impose medical re strictions on J ones Nissan’s defe nse, and the district court’s denial of J ones’s post-trial motions, was based on the premise that Nissan imposed unsubstantiated medical restric tions on J ones beca use it be lieved the chanc ellor’s decision and order re q u i re d i t to do so. We will assume arg uendo that if an employ er is order ed by a court to impose restric tions on an employ ee’ s work activities, the employ er
cannot be found to have violated the ADA simply by obey ing the court’s order , the theory being that the employ er has imposed the restric tions without reg ard to its perc eption of the employ ee’ s phy sical disabiliti es, and in c ompliance with the court order

. Or, stated diffe rently , the employ er’ s view of the employ ee’ s disability is not th e cause of the restric tions beca use the employ er was oblige d to impose the restric tion in any event due to the court orde r. I n the instant case , howeve r, notwithstanding Nissan’s arg uments to the contra ry , it is clea

r bey ond pera dventure that the cha n ce l l o r’s order did not direc t Nissan to restric t J ones from continuing in the trim-fit position he was perf orming at the time of the worke rs’ compensa tion trial. The orde r only

direc ts Nissan to pay

cer tain benef its.

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. Fur ther, even if, as Nissan arg ues, the findings o f t he worke rs’ compensa tion chanc ellor

co u l d amount to an order to impose restric tions, Nissan employ ees continually revised t h e chanc ellor’s finding s without reg ard to what the chanc ellor actua lly stated. Most g laring ly , Nissan conclude d that J ones was restric ted from using “hand tools,” despite the fac t that the chanc ellor did not make a sing le finding with reg ard to Jones’s ability to use hand tools in his job. Thus, it cannot fairly be said that Nissan imposed the medical restric tions in compliance with the court order

. At best, Nissan imposed the restric tions based on its conclusion that the order require d it to do so. b. There was no g enuine issue whe ther Nissan c onducted a n individualiz ed inquiry

. The law is clea

r that an emp l o y er ca nnot simply rely on a third-par ty ’s assessment that an employ ee is disabled. Holiday , 206 F.3d at 643, explains that an employ er is require d to conduct an “individualized inquiry ” into the plaintiff’s actual medical condition

. The rec ord ref lects a complete lack of evidenc e that Nis s an t o ok any steps to asce rtain J ones’s actua l medical condition. I n fac t, Nissan acknow ledg ed that it conducte d no such inquiry beca use it determined that it did not ma tter whether J ones was medically disabled. Nissan’s ow n phy sician neve r saw J ones or even evalua ted his medical file and instead place d medical limit ations on J ones citing a “re cent judicial ruling .” Coss ad m i tted that whateve r the chanc ellor said about restric tions was not a medical judgme nt “i n t h e classica l sense,” but stated that never theless, “in the context of this worke rs’ comp trial and order , we
trea ted [] this as if it was a medica l restriction.” Nissan arg ues that it did not have to inquire into J ones’s true medical condition beca use it did not base its decision on whe ther it reg arde d J ones as medically unable to per form his job functions 21No. 09-5786

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. but, rather , on its honest belief re g arding the meaning of the c hance llor’s order . Nissan insists t hat it did not reg ard Jones as disabled a nd believed he could do the job, as e vidence d by the fa ct that it let him perf

orm his job unti l the chanc ellor’s decision. But that is irrele vant; J ones does not claim
h e wa s re g arde d as disabled befor e the chanc ellor’s decision. He claims that as a result of t h e chanc ellor’s decision, Nissan reg arde d him as unable to perf orm his job. Nissan responds that afte r the chanc ellor’s decision it still believed J ones was able to pe rfor m his job, but also believed it wa s require d to impose medical restric tions consistent with the chanc ellor’s finding s . Co s s a c k nowledg ed that he treated the chanc ellor’s findings as medical re s trictions and directed that the restrictions be place d in J ones’s file. Thus, Nissan attempts to draw a distinction betwee n misperce ptions of an empl o y e e ’ s me dical condition and misperce ption of his leg al status. We reje ct that eff ort in the context of this case . Her e the misperce ption motivating Nissan was that the chanc ellor conclude d that J ones could not use hand tools and could do no lifting at all. I t is clea r that had a doctor used the same words as the chanc ellor used, Nissan would have been obliga ted to look bey ond its perc eption of the doctor’s conclusions and make an individualiz ed assessment of J ones’s abilities. See Holiday , 206 F.3d at 643-44, and case s cited ther ein. The question then is whether when an employ er takes action based on a third p arty ’s judgme nt reg arding the employ ee’ s phy sical ability to perf orm the job, it is excused from making an individualiz ed inquiry

if it perce ives that it is required to follow the third pa rty ’s judg ment without
reg ard to the acc urac y of that judgme nt. Nissan arg ues that in such a case the employ er is not acting based on prejudice , my

ths or prec onceive d notions about an employ ee’ s phy sical abilities, but rathe r 22No. 09-5786

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.
o n i t s understanding , albeit possibly mistaken, of its obliga tions separ ate and apar t from i t s
perc eptions of the employ ee’ s phy sical capa biliti es. Nissan thus seeks ref ug e behind the chanc ellor’s conclusions by casti n g t hem as leg al, rathe r than medical, conclusions. But the chanc ellor’s
statements wer e neither; t h ey wer e finding s in support of the chanc ellor’s ruling

. I n making these finding s, the chanc ellor did not impose restric tions on J ones; the chanc ellor simply stated, in response
to Nissan’s counsel’s reque st for clar ification, what the chanc ellor found to be the injury ’s eff ect on J ones’s ability to perf

orm various tasks. Whether this is labeled as a medical deter mination or some other ty pe of deter

mination, this deter

mination conce rns J ones’s phy sical ability to perf orm his job.
Were employ ers permitted to infer an inability to do the job based on worke rs’ compensa tion finding s of fac t, the purposes of the ADA would be undermined. Although Nissan disavo ws s h aring the chancel l o r’ s view of J ones’s limit ations, it never theless drew unfounded infere nces from those
fin d ings, leading it to impose unsupported medical restric tions on J ones. This constitutes discrimination under the ADA. Although the basis for the judgme nt may have been the chanc ellor’s ruling , it is undisputed that Nissan reg arde d J ones as having phy sical/medica l restric tions rende ring him unable to perf

orm his job. c. The re w as no g enuine issue whe ther Nissan is entitled to the honest-be lief def ense. Nissan has consistently defe nded this action on the basis that it honestly believed that it was require d to impose restric tions by the chanc ellor’s order

. The district court reje cted J ones’s post-trial motion on the basis that the jury rea sonably conclude d that Nissan did not reg ard Jones as disabled

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. but honest l y b eli eved it was required to impose the di squalify ing medical restrictions based on the chanc ellor’s orde r. We there fore turn to the “hone st belief” r ule. 1 4
The g ener al rule provides that “so long as the employ er honestly believed in the proff ered

rea son for its employ

ment action, the employ ee cannot establish prete x t even if the employ er’ s rea son is ulti mately

found to be mistaken, f

oolish, trivial, or ba seless.” Smith v. Chrysler Corp. , 155 F.3d 799, 806 (6th Cir. 1998). Howeve r, this circ uit employ s a modified honest-belief approa ch. See Clay

v. United Parcel Serv., Inc ., 501 F.3d 695, 714 (6th Cir. 2007). I n contra st to the “bar e” honest-belief
approa ch descr ibed above, in this circ uit “the employ er must be able to establ ish its rea sonable relianc e on the particula

rized fac ts that wer e befor e it at the time the decision was made” in order to avoid the finding that its claimed nondiscriminatory rea son was pre text ual. Id

. (apply ing approa ch
to rac e dis crimination reta liation claim); see also Mick ey v. Z eidler T ool & Die C o. , 155 F.3d 799,
806-07 (6th Cir. 1998) (in the ADEA context), Smith , 1 55 F.3d at 806-07 (ADA ). This Court has explained:
I n deter

mining whether an employ er “re asonably relied on the particula rized fac ts then befor e it, we do not require that the decisional proce ss used by the employ er be optimal o r t h at i t left no stone unturned. Rather, the key inquiry is whether the employ er made a rea sonably informed and considere d decision befor e taki n g an adver se employ

ment action.” [ Smith , 155 F.3d at 807] (citing [ Texas Dep’ t of Cmty. Affairs v. ] B urdine , 450 U.S. [248, 256 (1981)]). Although we will not “m i cr o -m anag e the proce ss used by employ ers in making their employ ment

As a preliminary matter, it is un cl ear whether a defenda nt is entitled to the benefit of t he 1 4 rule bey ond the summary judgme nt stag e of the proce eding s. See Clay v. United Parcel Serv., Inc., 501 F.3d 695, 714 (6th Cir. 2007) (“The honest-belief rule is, in eff ect, one last opportunity for the defe ndant to preva il on summary judgme nt.”). But see W eimer v. Honda of Am. Mf g
. Inc. , 356 F. App’x 812, 817-18 (6th Cir. 2009) (district court did not commit reve rsible err or by instructing the jury on honest-belief

rule in F ML A ca se). 24No. 09-5786

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. decision s , ” we also will not “blindly assume that an employ er’ s descr iption of its rea sons is honest.” Id

. There fore , “[w]hen the employ ee is able to produce sufficie nt evidenc e to establish that the employ er failed to m ak e a reasonably informed and considere d decision befor e taking its adver se employ ment action, there by making its decisional proce ss ‘unworthy of cre dence ,’ then any relianc e place d by the employ er in such a proc ess ca

nnot be said to be hone stly held.” Id . at 807-08.
W right v. Murray Guard, Inc ., 455 F.3d 702, 708 ( 6th Cir. 2006). Nissan’s relianc e on its interpre tation of the court order as aff irmatively requiring it to impose the restric tions on J ones runs afoul of the honest-belief rule. Coss, Nissan’s in-house counsel, testified that Nissan “did our best to try to understand [t he order ],” and descr ibed how he co n cluded afte r

rea ding the finding s of fac t and conclusions of law “take n toge ther and rea d in totality ,” that the court order aff irmatively order ed Nissan to impose the restric tions. I n closing arg ument, counsel for Nissan
arg ued that Coss consulted with other lawy ers, and was methodical and delibera te in his consideration of the orde r. Howeve r, not withstanding Coss’s char acte rizations of hi s own and Nissan’s efforts, t here is

no leg ally sufficie nt evidentiar y basis to support that conclusion. All the evidenc e supports that Nissan did not eng ag e in a rea sonably informed and considere d decision. Neither the court’s oral ruling nor the written order direc ted Nissan to impose restric tions on J ones. Ker ry Dove, the individual at Nissan who first articula ted the “no lifting,” “no use of power tools,” and “no use of hand tools” restric tions, had not rea d the chanc ellor’s order when he proposed the restric tions. Had Dove rea d the order befor e

rec ommending restric tions for J ones, he would have rea liz ed that the order did not mention hand tools,

nor even state that J ones was “having problems” using a scre wdriver , the understanding on which he testified he based that restric tion. The chanc ellor actua lly stated that when using a scre wdriver at home

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. J ones had to take brea

ks, and it cause d him pain; but the same opinion stated J ones had no trouble with the hand tools he uses in his job – a light rubber hammer and a chisel. There is absolutely nothing in the decision that can rea sonably be understood as finding that J ones wa s unable to perf orm the t rim fits job. I ndeed, the opinion makes clea r that while Jones would likely be unable to pe rfor

m the job he was doing when he was injured, he was at the time of trial, succe ssfully perf orming the trim fits job.
Nor was t h e s i gn ificanc e of J ones’s ability to use hand tools unnoticed by Nissan. Wade Pinkard, a job-place ment coordina tor questioned Dove’ s interpre tation of Boy te’s email, espec ially his conclusion that J ones could not use ha nd tools:
I n Kitty ’s J une 08 messag e she states Chance llor Smit h found EE to be restric ted from lifting and u s ing power tools. I n y our J une 14 messag e y ou opine [permanent] restric tions should be no lifting, no use of power tools, and no use of hand tools. The no use of ha

nd tools is very

signific ant.
Dove responde d that Pinkard should obta in D r. Kubina’s opinion a nd that her opinion should be the
company ’s officia l stance

. Neve rtheless, despite his own uncer tainty about his conclusions, Dove then
went t o the leg al depar

tment to see how to g et his restric tions into J ones’s medical rec ord, and met with Coss.
Coss interpre ted the court’s order as aff irmativel y ‘o rder [i ng Nissan] to impose medical restric tions on Mark J ones.” But Coss’s stated rationale for t h e re s t ri ct i o ns of no lifting, no use of
power tools, and no use of ha

nd tools was no more roote d in evidence than Dove’s. Coss concede d that the cour

t’s ruling did not specifica lly say any thing a bout the use of ha

nd tools, but t estified that his conclusion was supported by t h e part of the judge ’s ruling that acknow ledg ed that J ones was having pain i n his metal-line job, and that J ones had used hand tools in that job. Coss’s conclusion

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. is not the result of rea sonable relianc e on particula rized fac ts. The metal-line job was J ones’s position when he was injured, not the job J ones was perf orming at the time Coss was deter mining restric tions.
Nor did the opinion state any thing about hand tools in J ones’s old metal-line job. The opinion states that J ones probably could not do the metal-line job ag ain beca use it “re quired a lot of lifting and more use of vibratory tools.” (emphasis adde d).
Coss also testified that, though the court’s order does not say th at J o n es i s perma nently restric ted from al l l i fting , he interpre ted the lang uag e in the chanc ellor’s written order (dra fted by Nissan’s own attorney

) ref ere ncing a “re strict i o n [ ]

. . . ag ainst lifting,” to mean that J ones was not permitted to lift any

thing at all. There is simply no rea son for Nissan to i n t er p re t t he phrasing it selec ted in this narr ow way . The chanc ellor had stated that J ones “ca n’t lift as much as he could befor e,” but also distinguished the j ob that J ones could no longe r do – “the job he was doing at the time of his injury ,” which “re quired a lot of lifting and more use of vibratory tools” – from the job he

was doing at the time of

the worke rs’ compensa tion tria l – “Rig ht now all he has to use is a hammer and a chisel. . . . But it’s very . . . light ty pe use of a hammer and a chisel.

. . . and it doesn’t require
any heavy lifting, may

be sometime a hood,

. . . it’s ve ry light . . . they ’re not very difficult to r aise.”
Fur ther, Dr. Weikert, J ones’s Nissan- chosen phy sician, had rele ased him back to work with no restric tions, li fting or otherw ise. Also strikingly contra dictory to Nissan’s interpre tation of the chanc ellor’s ruling and order is the statem ent in the order , draf ted by Nissan’s worke rs’ compensa tion counsel, stating that the worke rs’ compensation awa rd i s based on s ev er al fac tors, including J ones’s “ability to return to his
pre- injury employ er a t or above his pre-injury wag e ra te.” 27No. 09-5786

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. No rea sonable jury could conclude that Niss an had an honest belief based on a “re asonably informed and considere d decision” that the chancellor had order ed Nissan to impose restric tions on J ones such that he could no longe r do the job the chanc ellor found he was able to do and assumed he would continue doing

. For the fore g oing rea sons, we conclude that the district court err ed in deny ing J ones’s motion for judgme nt as a matter of law and rema nd for a d et er m i n at i o n /new trial limit ed to the issue of damag es. 1 5
Although our decision that J ones is entitled to judgme nt as a m at t er of law rende rs it

1 5 unnece ssary to rea ch most of his additional arg uments, we never theless observe that for the rea sons set forth above, t he verdict and judgment were ag ainst t h e gre at weig ht of t he evidence, and were J ones not entitled to a JM OL , he would cle arly be entitled to a ne w trial.
Fur ther, the Court’s instructions did not fairly prese nt the issue to the jury

. The district court instructed the jury that it wa s oblige d to f ind in Nissan’s favor if it c oncluded that Nissan honestly believed it wa s acting as required by the chancellor’ s ruling and honestly believed tha t beca use of t h at ru l i n g J ones could not perf orm the essential functions of his job, but ref used to g ive J ones ’s reque sted instruction, explaining that an honest belief is one made afte r a “re asonably informed and considere d decision.” Thus, that the jury was instructed on the honest-belief rul e an d u l t imately found for Nissan does imply a leg itimate conclusion that Nissan is entitled to the benef it of the rule. The jury ’s verdic t did not contain any particula rized finding and the dis t ri ct court’s instructions improperly char acte rized the rule, completely omitti ng the importan t rea sonable-r eliance -onparticula rized-fa cts require ment that applies in this circ uit and ignor ing that “[w]hen the employ ee is able to produce sufficie nt evidenc e t o establish that the employ er failed to make a rea sonably informed and considere d decision befor e taking its adver se employ ment action, there by making its decisional proce ss ‘un wo rt h y o f credenc e,’ then any relianc e place d by the employ er in such a proce ss cannot be sa id to be honestly held.”
Moreove r, this incomplete instruction coupled with the i nstruction that “[a]ll persons who are subject to an order of a court have an obliga tion to comply and to f ollow the court’s order ” and “[a] person subject to a court order may not ignor e or violate that order ” allowed the jury to infer that the order indeed require d Ni s s an to impose the medical restric tions. J ones objected to the i n s t ru ct i o n , arg uing that beca use the order did not oblige Nissan to impose the restric tions the instruction would be prejudicia l. The court acc epted Nissan’s arg ument that the true meaning of the 28No. 09-5786

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. 2. L imitations -on-r emedies instruc tion
J ones arg ues that the district court err ed in instructing the jury reg arding limit ing damag es based on his acc epting other employ ment without seeking Nissan’s permission. J ones arg ues that the jury instructions based upon McKennon v. Nashville Banner Publ’g Co. , 513 U.S. 352 (1995),

are prejudicia l and should be excluded from any new trial on damag es. I n McKennon , the Supreme
Court established the “af ter-a cquire d evidenc e” defe nse, wh i ch allows a defe ndant employ er to show that an employ ee would have been terminated any way had the employ er known of wrong ful conduct by the employ ee plaintiff. 513 U.S. at 362. I f t h e defe nse applies, it g ener ally bars the employ ee from obtaining front pay and reinstateme nt, and limit s backpa y . See Thurman v. Y

ellow Freight Sys., Inc ., 90 F.3d 1160, 1168 ( 6th Cir. 1996).
I n the instant case , the district court instructe d the jury : As a g ener al rule, back pay damag es, if any , ap ply from the time Plaintiff suffe red an adver se action until the date of y our verdic t. Howeve r, in this case . . . Def endant contends that rega rdless of any claimed disability or perc eption of disability , it would have made the decision to terminate P l aint iff on J anuar y 25, 2008, beca

use of conduct the Def

endant discovere d afte r it place d Plaintiff on leave

. Specifica lly -- specifically , Def endant claims that when it beca me awa re of the Plaintiff working for an other employ er in violation of the Def endant’ s rule prohibiting unauthorized work w h il e o n le a ve without permission, Def endant would have ma de the de cision to terminate Plaintiff' s employ ment at that point in tim e.

order did not matter, only Nissan’s understanding of the order

. Bu t , i n this context, J ones was entitled to have the jury instructed that the order did not, in fac t, require that Nissan impose medical restric ti o n s . I n t h e absenc e of such an instruction the jury was permitted to believe, based on Nissan’s in-house attorney ’s testimony , that the order actua lly require d that the medical restric tions be imposed. The meaning of the order was not a question of fac t. Although Nissan’s honest belief might have b ee n h ad t here been adequate evidenc e to cre ate a g enuine issue, surely the true leg al signific ance of the order would be rele vant to this issue, espec ially wher e Nissan’ s main actor a nd witness on this iss ue wa s a lawy er. 29No. 09-5786

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. I f Def endant proves by a preponde ranc e of the evidenc e that it would have made the same decision and would have te rminated Plaintiff on J anuar y 25, 2008, beca use it discovere d Plaintiff was working while on leave , y ou must limit an awa rd of bac k pay

from the time Plaintiff was pla ced on le ave until J anuar y 25, 2008. Next, front pay

damag es under

ADA a nd TDA. Damag es also may be awa rded on the ADA and the TDA for what is called front pay . An[] awa

rd of front pay compensa tes Plaintiff for the loss of future wag es and employ

ment benef

its that have been cause d by the Def endant’ s discriminatory conduct. The purpose of front pay is to restore Plaintiff to the position he would have be en in abse nt the discrimination. There for e, i f y ou find the Def endant would have terminated Plaintiff on J an u ar y 25, 2008, afte r it discovere d Plaintiff was working while on leave in violation of company policy , y ou may not awa rd front pay damag es. I f, however, y ou decide that Def

endant has not proven that it would have terminated Plaintiff on J anuar y 25, 2008, then y ou should consider the issue of front pay

. (Tria l Tr. 661-62.)
J ones contends that McKennon does not apply in this case beca use his alleg ed wrong doing

occur red afte r Nissan’s adver se action, and only occur red beca use of it. He stresses that Nissan’s

own improper conduct was the nece ssary prec ursor to his being forc ed to find other employ ment. Nissan counter s that McKennon states that it applies even whe re t h e employ er does not find out about the wrong doing until (a s here ) eng ag ing in disc overy in a subsequent action by the plaintiff employ ee f

or discrimination. Nissan’s arg ument does not addre ss the main issue here . I t is clea r under McKennon that the plaintiff employ ee is not excused by the fac t that the defe ndant employ er did not find out about the employ ee’ s wrong doing until well after the fac t. What is not clear is if McKennon applies t o

an empl oy ee’ s wrong doing that did not occur until afte r som e sort of adverse action was already

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. tak en b y t h e employ er ag ainst the plaintiff employ ee. Although it appea rs to be an issue of first impression in t h i s ci rcuit, sever al courts have addre ssed, and sharply divided on, whether
McKennon ’s rule applies to post-termination wrong doing. See McKenna v. City of Philadelphia , 636 F. Sup p . 2 d 4 46, 459 & n.4 (E.D. Pa. 2009) (collec ting case s). Two circ uit courts have conclude d that post-employ ment misconduct could be the basis for apply ing McKennon ’s afte racquir ed evidenc e defe nse. S ee S ellers v. Mineta , 358 F.3d 1058, 1064 (8th Cir. 2004) (“a n employ ee’ s post-termination conduct can, in some circ umstances, limit an employ ee’ s reme dies for

a wrong ful discharg e”) ; Medloc k v. Ortho Biotech , Inc ., 164 F.3d 545, 555 (10th Cir.), cert. denied , 528 U.S. 813 (1999) (ac knowledg ing “the possibili ty that in appropr iate circ umstances the logic of
McKennon m ay permit cer tain limit ations on relief based on post-termination conduct” but aff irming district court’s ref

usal to g ive McKennon instruction wher e alleg ed misconduct arose “as

a direc t result of reta liatory termination”); see also McKenna , 636 F. Supp. 2d at 461 ( McKennon ’s holding “that a plaintiff’s pre- termination misconduct must be considere d in e valuating equitable damag es” should be extended to post-termination conduct) ; Cohen v. Gulfstream Traini ng Acad.,
Inc. , 2008 WL 961472 at *3 (S.D. Fla. 2008) (unpublished) (n o t i n g that the post-termination conduct “dire ctly flows from the conduct that occur red p re -t er m i n ati on”). Other courts have conclude d that, beca

use McKennon was premised on an employ ee- employ er rela tionship, any misconduct occur

ring outside that rela tionship falls outside of the rea ch of the rule. See , e. g. , Sigmon v. Parker Chapin Flattau & Klimpl , 901 F. Supp. 667, 682-83 (S.D.N.Y. 1995); Ryde r v. W estinghouse Elec. Corp ., 879 F. Supp. 534, 537-38 (W.D. Pa. 1995); Carr v. W oodbury Cnty. Juv. Det. Ctr ., 905 F. Supp. 619, 627-28 (N .D. I owa 1995)

. 31No. 09-5786

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. Compli cating matters somewhat, J ones’s wrong ful conduct does not fit neatly into the posttermination cate g ory . Although his violatio n o f Nissan’s proce dures did occur afte r Nissan’s
wrong ful discrimination ag ainst him, J ones was on medical leave and still an employ ee at the time.
Acc ording ly , the logic of the case s ref using to apply the McKennon rule becaus e of a lack of employ ment rela tionship do not apply . Howeve r, ca ses like Medloc k and McKenna which allow that the McKennon rule might be applicable , but counsel ag ainst apply ing it to limit rec overy wher e the misconduct can be attributable to the defe ndant’s prior illega l action are rele vant. See Medloc k , 164 F.3d a t 555 (aff

irming ref usal to g ive McKennon instruction w here alleg ed misconduct arose “as a direc t result of reta liatory discrimination”); McKenna , 636 F. Supp. 2d at 462 (“a plaintiff’s 1 6 post-termination wrong doing must not be a ttributable to the defe ndant’s conduc t”). 1 7
J ones testified that he applied for other jobs without permission beca use he did not rec eive

a pay chec k while on medical leave fr om Nissan, and he neede d to support his family

. He also

I n Medloc k , the plaintiff “touche d and curse d at Def endant’ s counsel” at his unemploy ment 1 6 compensa tion benef

its hear ing. I n deter

mining that the “nec essar

y balanc ing of equities” cut ag ainst a McKennon instruction, the court noted, “I t is not difficult to envision a defe ndant g oading a former employ ee into losing her temper, only to claim later that cer tain forms of relief should be unavailable becau s e i t wo u l d have discharg ed the plaintiff based on her inability to control her temper.” 164 F.3d a t 555. The McKenna court found that the plaintiff’s use of marijuana and his resulting conviction 1 7 wer e sufficie ntly causa lly rela ted to the defe ndant city ’s discrimination that it would be inequitable to restric t t h e p l ai n t i ff’s back pay as a result of the conviction. As the court put it, “[h] ad [t he plaintiff] not been wrong fully terminated, he would have continued to ha ve bee n employ ed by

the P hiladelphia police depar tment and would have had the insurance and the salary to trea t hi s depre ssion.” The plaintiff had arg ued that he had never used marijuana until afte r his firing , and attributed it to the exacer

bation of his depre ssion, which he had had to stop trea ting beca use he had no medical insura

nce a fter be ing f

ired. See M

cKenna , 636 F. Supp. 2d at 463. 32No. 09-5786

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. testified that he did not seek p ri o r authorization from Nissan beca use he alre ady knew what Nissan’s answe r would be. The level of causa tion in this case is compar able to Medloc k , and less 1 8

attenuate d than in McKenna

. Were it not for Nissan’s wrong ful imposit ion of medical restric tions rende ring J ones medically unfit for any position at Nissan, J ones would not h av e b ee n i n the position of seeking employ ment without Nissan’s p er mission, in violation of its rules. Wit hout Nissan’s wrong ful conduct, J o n es wo u ld not have violated any rule. We there fore conclude that it was err or to g ive the McKennon instruction limi ting damag es. 1 9
CONCLUSION
Acc ording ly , we REVERSE , direc t the district cou r t to enter judgme nt in J ones’s favor , and
REMAND for a

deter mination/new trial on the issue of damag es.

J ones testif

i ed that he did not seek permission from Nissan to acc ept a position with 1 8 Americ an Residential Servic es bec ause “ I knew what their view wa s g oing to be

. What job could I work with no l ifting, no use of power tools, and no hand tools, with me being a labor er? I knew I wasn’t g oing to be able to find something with them okay ing it . . .” Although J ones made these arg uments in his objections to the jury instructions, the district 1 9 court re jected the m without ex planation. (Tr ial Tr. 471-76, 595.) 33