RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0068p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SUSAN LEWIS,

 Plaintiff-Appellant,

v.

HUMBOLDT ACQUISITION CORPORATION,

INC., dba Humboldt Manor Nursing Home,

 Defendant-Appellee.

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No. 09-6381

Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 07-01054—J. Daniel Breen, District Judge.

Decided and Filed: March 17, 2011 

Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael L. Weinman, WEINMAN & ASSOCIATES, Jackson, Tennessee,

for Appellant. James K. Simms, IV, J. Cole Dowsley, Jr., CORNELIUS & COLLINS,

LLP, Nashville, Tennessee, for Appellee.

MERRITT, J., delivered the opinion of the court, in which CLAY and GRIFFIN,

JJ., joined. GRIFFIN, J. (pp. 6–7), delivered a separate concurring opinion.

_________________

OPINION

_________________

MERRITT, Circuit Judge. It is a well-established rule of this circuit that one

panel cannot overrule the holding of another panel, absent an intervening inconsistent

opinion from the U.S. Supreme Court. Susan Lewis, however, asks this panel to do just

that. She complains that the jury considering her discrimination claim under the

Americans with Disabilities Act (“ADA”) should have been instructed that, in order for

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No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 2

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Lewis’s lawsuit also included a claim under the ADA’s state-law counterpart, the Tennessee

Disability Act, but that claim is not at issue in this appeal.

her to prevail, her disability need only be the “motivating factor” for her termination, as

required by a supermajority of our sister circuits, rather than the “sole” factor, as

required by Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir.

1996). Regardless of whether or not this holding of Monette is correct on the merits, this

panel is powerless to overrule it. Accordingly, we AFFIRM the judgment of the district

court.

I. Background

Susan Lewis, a registered nurse, began working in July 2004 at Humboldt Manor

Nursing Home (“Humboldt Manor”). At some time in September 2005, she alleged that

she developed a medical condition that, “among other things, affected her lower

extremities.” This condition, she alleged, made it difficult for her to walk and entirely

prevented her from working for one month. When Lewis returned to work, she

sometimes used a wheelchair.

Humboldt Manor terminated Lewis on March 20, 2006. Its alleged reason for

her termination was an “outburst” by Lewis at the nurses’ station that occurred on March

15. Three employees of Humboldt Manor testified that during this outburst, Lewis

yelled, criticized her supervisors, and used profanity. Lewis and another employee, Tom

Collins, testified that Lewis was upset but did nothing inappropriate. Lewis believed

that the true cause of her termination was her use of a wheelchair—i.e., her

disability—and that Humboldt Manor had exaggerated the severity of her behavior in

order to use it as a pretext for her termination.

Lewis filed suit in federal district court for wrongful termination under the

ADA.1

 In her proposed jury instructions, Lewis requested that the jury must determine

whether her perceived disability was a “motivating factor” in the termination decision.

The district court, instead, mirroring its jury instructions on Monette v. Electronic Data

Systems Corp., 90 F.3d 1173, 1178 (6th Cir. 1996), told the jury that Lewis could
No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 3

2

The Tenth Circuit appears to be the only other circuit that currently employs the “solely”

standard for ADA discrimination claims. See, e.g., Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144

(10th Cir. 2005); Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996).

3

The Sixth Circuit apparently adopted the “solely” causation standard for ADA claims from the

Rehabilitation Act of 1973, which itself expressly requires sole causation, see 29 U.S.C. § 794(a), due to

the parallel nature of those two statutes. See Monette, 90 F.3d at 1177 (mentioning briefly, as justification

for the “solely” standard, that “[t]he analysis of claims under the [ADA] roughly parallels those brought

under the Rehabilitation Act”).

recover only if her disability was the “sole reason” for the decision to terminate. The

jury found in favor of Lewis on two of the three elements of her ADA claim: it

determined that Humboldt Manor regarded her as disabled and that she was a “qualified

individual” under the ADA. However, the jury found against Lewis on the third

element: it determined that her disability was not the sole reason for her termination.

Accordingly, the district court entered judgment in favor of Humboldt Manor. Lewis

now appeals on a single issue: whether the district court erred by instructing the jury on

the “solely” causation standard.

II. Analysis

The ADA prohibits discrimination “on the basis of” disability. 42 U.S.C.

§ 12112(a). Of the ten circuits that have considered the contours of this causation

standard, eight currently apply a “motivating factor” (or a “substantial cause”) test; that

is, a plaintiff must prove that his disability was only a motivating factor of the adverse

employment action in order to prevail. See, e.g., Pinkerton v. Spellings, 529 F.3d 513,

518–19 & n.30 (5th Cir. 2008) (collecting cases). The current law in the Sixth Circuit,2

however, is that a plaintiff must prove that his disability was the “sole reason” for the

adverse employment action. See Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178

(6th Cir. 1996) (“To recover on a claim of discrimination under the [ADA], a plaintiff

must show that . . . he was discharged solely by reason of his handicap.”) (emphasis

added).3 Lewis challenges the district court’s use of the “solely” standard in its

instructions to the jury. In essence, she asks this panel to overrule Monette and join

sides with the supermajority of the circuits.
No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 4

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To avoid the inefficiency of appealing to a panel that could not grant her the remedy that she

seeks, Lewis could have filed a petition requesting that her appeal initially be heard en banc, rather than

by this panel. See Fed. R. App. P. 35. Although en banc hearings are “not favored,” they may be ordered

when “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a)(2). One such

example is a case in which a panel decision “conflicts with the authoritative decisions of other United

States Courts of Appeals that have addressed the issue.” Fed. R. App. P. 35(b)(1)(B). Of course, after this

panel issues its opinion, Lewis may still move for rehearing en banc. See Fed. R. App. P. 40.

“A panel of this Court cannot overrule the decision of another panel. The prior

decision remains controlling authority unless an inconsistent decision of the United

States Supreme Court requires modification of the decision or this Court sitting en banc

overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685,

689 (6th Cir. 1985). This principle also has been codified in the Sixth Circuit Rules. See

6th Cir. R. 206(c) (“Reported panel opinions are binding on subsequent panels. Thus,

no subsequent panel overrules a published opinion of a previous panel. Court en banc

consideration is required to overrule a published opinion of the court.”).

The parties do not cite any U.S. Supreme Court decision that is inconsistent with

this circuit’s use of the “solely” standard, nor has our own independent research

uncovered any. Moreover, on four separate occasions already, panels of judges on this

circuit have refused to overrule Monette’s “solely” standard; each time, those panels

cited Salmi to explain that their hands were tied. See Macy v. Hopkins County Sch. Bd.

of Educ., 484 F.3d 357, 364 n.2 (6th Cir. 2007) (explaining that the panel was “bound

by Monette” whether its reasoning “was correct or not”); Hedrick v. W. Reserve Case

Sys., 355 F.3d 444, 454 (6th Cir. 2004); see also Layman v. Alloway Stamping & Mach.

Co., 98 F. App’x 369, 375–76 (6th Cir. 2004) (unpublished); McLeod v. Parsons Corp.,

73 F. App’x 846, 858 (6th Cir. 2003) (unpublished). Lewis provides no reason in her

brief why this panel can overrule Monette when so many others held that they could not.

Accordingly, Sixth Circuit rules prevent this panel from overruling Monette’s

holding that for a plaintiff to prevail on a discrimination claim under the ADA she must

prove that she was terminated “solely” because of her disability. Unless that holding is

overruled by the full Sixth Circuit sitting en banc or is undermined by an inconsistent

decision from the U.S. Supreme Court, it remains good law in this circuit. Lewis’s jury

instructions, which were based on Monette, were proper.

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III. Conclusion

For these reasons, we AFFIRM the district court’s judgment in favor of

Humboldt Manor.
No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 6

_____________________

CONCURRENCE

_____________________

GRIFFIN, Circuit Judge, concurring. I join in the majority opinion because our

precedent currently requires a plaintiff bringing a discrimination claim under the ADA

to show that her disability was the “sole reason” for the adverse employment action. See

Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007); Hedrick v. W. Reserve Care Sys., 355

F.3d 444, 452 (6th Cir. 2004); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th

Cir. 1996). Because that precedent is binding on this panel, the majority correctly

concludes that we are compelled to affirm the judgment of the district court. Salmi v.

Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); see also 6th Cir. R.

206(c) (explaining that “[r]eported panel opinions are binding on subsequent panels”).

I write separately because our precedent on this issue of exceptional importance is

misguided and contrary to the overwhelming authority of our sister circuits.

Accordingly, the question appears appropriate for rehearing en banc. See Fed. R. App.

P. 35(b)(1)(B). 

We lifted the “sole reason” requirement from the Rehabilitation Act’s “solely by

reason of her or his disability” language, see 29 U.S.C. § 794(a), and imported it into the

ADA, reasoning in a footnote in Maddox v. University of Tennessee, 62 F.3d 843 (6th

Cir. 1995), that “[t]he analysis of claims under the Americans with Disabilities Act

roughly parallels those brought under the Rehabilitation Act.” Monette, 90 F.3d at 1177-

78 (citing Maddox, 62 F.3d at 846 n.2). As a super-majority of our sister circuits have

held, however, the plain language of the ADA does not support application of the

Rehabilitation Act’s “sole reason” standard. See Pinkerton v. Spellings, 529 F.3d 513,

518-19 & n.30 (5th Cir. 2008) (collecting cases); see also Macy v. Hopkins County Sch.

Bd. of Educ., 484 F.3d 357, 364 n.2 (6th Cir. 2007) (“It appears that every other circuit

save one that has addressed the issue has held that an employee may recover under the

ADA if the employee’s disability was a ‘motivating factor’ in the employer’s decision,
No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 7

and that the employee need not establish that he or she was fired ‘solely’ because of his

or her disability.”). 

In construing a statute, “[i]t is elementary that the meaning . . . must, in the first

instance, be sought in the language in which the act is framed, and if that is plain, and

if the law is within the constitutional authority of the lawmaking body which passed it,

the sole function of the courts is to enforce it according to its terms.” Caminetti v.

United States, 242 U.S. 470, 485 (1917); accord United States v. Washington, 584 F.3d

693, 695 (6th Cir. 2009). “If the words are plain, they give meaning to the act, and it is

neither the duty nor the privilege of the courts to enter speculative fields in search of a

different meaning.” Caminetti, 242 U.S. at 490. Indeed, the Supreme Court has

admonished “time and again that courts must presume that a legislature says in a statute

what it means and means in a statute what it says there.” Arlington Cent. Sch. Dist. Bd.

of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (citation and internal quotation marks

omitted). 

Here, the ADA prohibits discrimination “on the basis of disability,” 42 U.S.C.

§ 12112(a), (formerly “because of”) and “by reason of such disability,” id. at § 12132.

Our sister circuits have observed that, among other things, these provisions “do not

contain the word ‘solely,’ or any other similar restrictive term,” McNely v. Ocala

Star-Banner Corp., 99 F.3d 1068, 1073 (11th Cir. 1996), and that “[t]he elimination of

the word ‘solely’ from the causation provision of the ADA suggests forcefully that

Congress intended the statute to reach beyond the Rehabilitation Act to cover situations

in which discrimination on the basis of disability is one factor, but not the only factor,

motivating an adverse employment action,” Parker v. Columbia Pictures Indus., 204

F.3d 326, 337 (2d Cir. 2000). I agree with these courts and were I allowed, I would hold

that our “sole reason” standard is contrary to the plain language of the ADA.