Rule 206 ELECTRONIC CITATION: 2000 FED App. 0203P (6th Cir.) File Name: 00a0203p.06… v. Superior Printing Company ; Local 419m Graphic Communications International Union

*The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0203P (6th Cir.)
File Name: 00a0203p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
C ASEY A. KENNEDY ,
Plaintiff-Appellant,
v.
S UPERIOR P RINTING
C OMPANY ; LOCAL 419M
GRAPHIC C OMMUNICATIONS
INTERNATIONAL UNION ,
Defendants-Appellees.
;>

1
No. 99-3304
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
Nos. 97-01833; 98-01103—James D. Thomas,
Magistrate Judge.
Argued: March 15, 2000
Decided and Filed: June 15, 2000
Before: MERRITT, DAUGHTREY, and MAGILL,*
Circuit Judges.

-- 1 of 6 --

2 Kennedy v. Superior Printing Co., et al. No. 99-3304
1The Honorable James D. Thomas, United States Magistrate Judge
for the Northern District of Ohio. On March 16, 1998, the case was
transferred to Magistrate Thomas pursuant to the consent of the parties for
all further proceedings including an entry of final judgment.
_________________
COUNSEL
ARGUED: Wayne P. Marta, WAYNE P. MARTA CO.,
Cleveland, Ohio, for Appellant. W. Eric Baisden, JONES,
DAY, REAVIS & POGUE, Cleveland, Ohio, Barry R. Laine,
GREEN, HAINES, SGAMBATI, MURPHY & MACALA,
Youngstown, Ohio, for Appellees. ON BRIEF: Wayne P.
Marta, WAYNE P. MARTA CO., Cleveland, Ohio, for
Appellant. W. Eric Baisden, JONES, DAY, REAVIS &
POGUE, Cleveland, Ohio, Barry R. Laine, Dennis Haines,
GREEN, HAINES, SGAMBATI, MURPHY & MACALA,
Youngstown, Ohio, for Appellees.
_________________
OPINION
_________________
MAGILL, Circuit Judge. This appeal arises out of a suit
brought by Casey A. Kennedy (Kennedy) against Superior
Printing Company (Superior) claiming that Superior
wrongfully discharged him and also violated the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq., by
discontinuing a work accommodation that it had previously
granted him and by requiring him to take a medical
examination. Kennedy also brought suit against the Graphic
Communications International Union, Local 419M (Union),
claiming that the Union breached its duty of fair
representation in connection with the Union's representation
of Kennedy in arbitration proceedings against Superior.
Kennedy appeals the district court's1 grant of summary
No. 99-3304 Kennedy v. Superior Printing Co., et al. 11
of Kennedy to bring in further medical documentation
demonstrating the need for accommodation. When those
efforts failed, Superior sent Kennedy a letter indicating that it
would arrange and pay for a medical exam. Superior
scheduled two independent medical examinations, both of
which Kennedy failed to attend. The record shows that
Superior was extremely patient and did everything it could to
assess the medical condition of Kennedy. Superior never
indicated that it would deny Kennedy's request to work
through lunch, it merely wished to assess Kennedy's medical
condition. Under these facts, there is no ADA violation and
Kennedy's claim must be dismissed.
III. CONCLUSION
In sum, we affirm the judgment of the district court.

-- 2 of 6 --

10 Kennedy v. Superior Printing Co., et al. No. 99-3304
the district court. See Dobbs-Weinstein v. Vanderbilt Univ.,
185 F.3d 542, 545 n.2 (6th Cir. 1999).
Kennedy does not contest the proposition that the ADA
permits an employer to conduct a medical examination to
verify that an employee requesting an accommodation is truly
disabled, but, rather, argues that there is a genuine issue of
material fact as to "whether Superior truly sought to have him
medically examined for the purpose of evaluating his
disability." Kennedy argues that a "reasonable jury could
conclude that Superior was more concerned with Mr.
Kennedy's desired accommodation being an 'undue hardship'
to itself rather than being a form of assistance genuinely
needed by him to cope with his disability."
Kennedy has not produced any evidence showing that
Superior did anything other than attempt to confirm
Kennedy's disability. An "employer need not take the
employee's word for it that the employee has an illness that
may require special accommodation. Instead, the employer
has the ability to confirm or disprove the employee's
statement. If this were not the case, every employee could
claim a disability warranting special accommodation yet deny
the employer the opportunity to confirm whether a need for
the accommodation exists." E.E.O.C. v. Prevo's Family
Market, Inc., 135 F.3d 1089, 1094-95 (6th Cir. 1998).
Kennedy's note from January 15, 1995, stating only that
Kennedy had a "problem," was clearly insufficient to establish
that Kennedy had a disability that required reasonable
accommodation. Superior was entitled to require that
Kennedy provide medical documentation sufficient to prove
that he had a condition requiring accommodation. The ADA
"permits employers . . . to make inquiries or require medical
examinations necessary to the reasonable accommodation
process . . . ." 29 C.F.R. pt. 1630, App. § 1630.14(c).
The record clearly shows that Superior made numerous
attempts to acquire medical documentation of Kennedy's
condition and that Kennedy persistently refused to cooperate.
During April and May of 1996, repeated requests were made
No. 99-3304 Kennedy v. Superior Printing Co., et al. 3
2Kennedy also claims that the court erred in denying his motion to
strike certain exhibits introduced by Superior and by sanctioning
Kennedy's counsel under Rule 11. Kennedy's claims are without merit
and we affirm the district court without further comment. Superior's
motion for damages, attorneys' fees and costs is also denied.
judgment holding that his ADA claim is barred by res
judicata. We affirm the judgment of the district court.2
I. BACKGROUND
Kennedy was employed by Superior as a journeyman in its
bindery and was a member of the Union. For several years,
certain employees in the bindery, including Kennedy, worked
through their lunch periods in order to leave work one-half
hour early every day. As a result of personnel problems, the
President of Superior, Jack Glinn (Glinn), replaced the
bindery supervisor and, at Glinn's direction, the new
supervisor informed the bindery employees that they could no
longer leave work early and had to take their lunches at the
scheduled time. Eventually, all employees complied except
for Kennedy. On January 17, 1995, Kennedy provided a note
from his physician, which read as follows: "Patient to benefit
by not stopping for lunch. Appropriate treatment for this
problem is to allow him to work through lunch." Although
the note did not state the nature of Kennedy's "problem,"
Kennedy's impairment arose when his foot was injured
several years earlier in an industrial accident.
Superior permitted Kennedy to continue working though
his lunch period until March of 1996, when Superior
determined that the fifteen-month-old physician's note was
outdated and insufficient. During April and May of 1996,
repeated requests were made of Kennedy to either work his
regularly scheduled shift or bring in further medical
documentation demonstrating the need for accommodation.
Kennedy continuously refused these requests and disciplinary
action was instituted. Oral warnings were given on July 1,
1996, and July 2, 1996, and a written warning was given on
July 3, 1996. On July 24, 1996, Glinn sent Kennedy a letter

-- 3 of 6 --

4 Kennedy v. Superior Printing Co., et al. No. 99-3304
informing him that he was expected to work his regularly
scheduled shift or else submit to a medical exam for which
Superior would pay. In late July 1996, Glinn met with
Kennedy personally to discuss his continued refusals and sent
Kennedy a follow up letter indicating that he would allow
Kennedy to supply the necessary medical documentation from
Kennedy's own doctor.
On December 2, 1996, Superior sent Kennedy a letter
informing him that an independent medical exam was
scheduled for December 31, 1996, and that if Kennedy did not
show up, he would be disciplined. Kennedy did not show up
for this examination and, consequently, was suspended for
three days. Subsequently, Superior sent Kennedy one last
letter, informing him that a second examination was
scheduled and that if he did not attend he would be
terminated. Kennedy again failed to attend the scheduled
examination and, on January 14, 1997, Kennedy was
terminated from his employment with Superior.
As a member of the Union, the terms and conditions of
Kennedy's employment were governed by a collective
bargaining agreement (Agreement). On January 15, 1997,
pursuant to the terms of the Agreement, the Union filed
grievances on Kennedy's behalf. The grievances alleged
wrongful discharge and violation of the ADA. Superior
denied both grievances. While the grievances were
proceeding in arbitration, Kennedy filed a complaint in the
district court, alleging that Superior had wrongfully
discharged him because of his disability and that the Union
had breached its duty of fair representation. Superior filed a
motion to dismiss, or, in the alternative, for summary
judgment.
On February 10, 1998, before a ruling was made in the
pending lawsuit, Arbitrator William J. Miller, Jr. conducted
a hearing on the grievances. Arbitrator Miller concluded:
[Superior] did not violate the Agreement or existing
external law when it required [Kennedy] to receive a
medical examination to determine whether or not he
No. 99-3304 Kennedy v. Superior Printing Co., et al. 9
4Moreover, we note that Kennedy was represented by the union in
the arbitration proceedings. In Gilmer, the Court noted that "because the
arbitration in those cases occurred in the context of a collective-
bargaining agreement, the claimants there were represented by their
unions in the arbitration proceedings. An important concern therefore
was the tension between collective representation and individual statutory
rights, a concern not applicable to the present case." 500 U.S. at 35.
Agreement did not provide its own definition of prohibited
discrimination based on disability or explicitly incorporate
external law to define the anti-discrimination provision.
Therefore, it is not at all unreasonable or surprising that
Kennedy and the arbitrator would discuss the ADA in the
context of arbitrating a dispute involving a claim that the
company violated the anti-discrimination clause of the
Agreement prohibiting disability discrimination. In fact, the
arbitrator noted that "[i]t is the position of the Union that the
parties incorporated external law regarding discrimination in
their Agreement," which the arbitrator deemed "appropriate."
In this context, where an employee brings a wrongful
discharge claim to arbitration under a collective bargaining
agreement that also includes a anti-discrimination provision,
the employee's allegation that the employer violated federal
anti-discrimination law does not necessarily waive the
employee's right to a federal judicial forum for the federal
statutory rights. Absent clearer evidence that Kennedy
actually waived his statutory rights to a federal forum for his
ADA claim, we must find that Kennedy did not waive his
right to bring his ADA claim in federal court.4
B. ADA CLAIM
Because the court below found that Kennedy was barred
from bringing his ADA claim in federal court, it declined to
address the merits of the claim. However, because a grant of
summary judgment is reviewed de novo, this court may affirm
the judgment of the district court on any grounds supported by
the record, even if they are different from those relied upon by

-- 4 of 6 --

8 Kennedy v. Superior Printing Co., et al. No. 99-3304
3The Gilmer Court seemed to be in accord with the distinction drawn
in Gardner-Denver between contractual and statutory rights,
distinguishing Gardner-Denver on the basis that Gardner-Denver
involved the arbitration of contract-based anti-discrimination claims
where the employees there had not agreed to arbitrate their statutory anti-
discrimination claims. See Gilmer, 500 U.S. at 35.
49.3 See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th
Cir. 1999) (holding that an arbitration decision concerning
anti-discrimination clauses in collective bargaining
agreements does not bar subsequent statutory discrimination
lawsuits).
In this case, there is no evidence that Kennedy waived his
right to a judicial forum for his federal statutory rights rather
than simply alleging that Superior violated the anti-
discrimination clause of the Agreement. Although it is
undisputed that Kennedy arbitrated a claim of disability
discrimination and claimed that Superior violated the ADA,
it is not clear that Kennedy agreed to waive his right to a
federal forum for his ADA claim. Workers' statutory claims
for employment discrimination are "not subject to a
presumption of arbitrability." Wright, 524 U.S. at 79. The
presumption of arbitrability of labor disputes "does not extend
beyond the reach of the principal rationale that justifies it,
which is that arbitrators are in a better position than courts to
interpret the terms of a CBA." Id. at 78.
The burden was on Superior to show that Kennedy waived
his statutory rights, not merely that he arbitrated a
discrimination claim under a collective bargaining agreement
that also had a basis in federal law. Superior has not met this
burden. There was no written agreement providing that
Kennedy would submit his ADA statutory claims to binding
arbitration. The only arguable evidence that Kennedy
submitted his ADA claim to arbitration was his grievance in
which he wrote that he was "still claiming ADA protection-
breach of contract." In this case it was not clear what law the
arbitrator would have to consider in order to apply the
Agreement's anti-discrimination clause because the
No. 99-3304 Kennedy v. Superior Printing Co., et al. 5
needed to continue working through his lunch. However,
[Superior] improperly terminated [Kennedy] because
[Kennedy] made himself unavailable for work when he
determined that he would not submit to a medical
examination to determine whether or not he was entitled
to an accommodation of working through his lunch.
[Superior] should immediately schedule [Kennedy] for
an appropriate medical examination to determine
whether or not he is entitled to an accommodation.
Based upon such medical examination, [Superior] will
return [Kennedy] to work with or without an
accommodation related to his being able to work through
his lunch, but without back pay or benefits. If [Kennedy]
fails to avail himself to the medical examination which
is to be scheduled by [Superior], [Superior] will have no
further obligation to [Kennedy].
On April 2, 1998, Kennedy informed the court that he
wished to file an ADA claim. Although Kennedy was granted
leave to file a motion to amend his complaint, he instead filed
a separate action alleging the ADA violation. The two cases
were eventually consolidated. On January 29, 1999, summary
judgment was granted to Superior on the wrongful discharge
and ADA claims and to Union on the breach of the duty of
fair representation claim. The district court held that Kennedy
had produced no evidence showing that the Union had
breached its duty of fair representation and that Kennedy
voluntarily submitted and litigated the ADA claim to an
arbitrator and, thus, that res judicata barred Kennedy's ADA
claim. Subsequently, Kennedy brought the present appeal.
II. ANALYSIS
A. PRECLUSIVE EFFECT OF THE ARBITRATION
Kennedy argues that the district court erred in holding that
his ADA claim is barred by the arbitrator's award and
adjudication. Kennedy asserts that neither the Agreement nor
he waived his right to a federal judicial forum for his statutory
ADA rights and points to Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974), as holding that the arbitration of

-- 5 of 6 --

6 Kennedy v. Superior Printing Co., et al. No. 99-3304
discrimination claims under collective bargaining agreements
containing anti-discrimination provisions does not bar de
novo review of federal statutory rights in federal court. The
district court's grant of summary judgment is reviewed de
novo. See GTE North, Inc. v. Strand, 209 F.3d 909, 915 (6th
Cir. 2000).
There can be no dispute in this case that the Agreement did
not compel employees to arbitrate federal statutory anti-
discrimination claims and, thus, waive their rights to a federal
judicial forum. In Wright v. Universal Maritime Serv. Corp.,
525 U.S. 70 (1998), the Supreme Court held that if a union
were to waive members' statutory rights at all, then at the very
least, the waiver must be "clear and unmistakable." Id. at 80
(quotations and citation omitted). In Bratten v. SSI Serv.,
Inc., 185 F.3d 625 (6th Cir. 1999), the Sixth Circuit held that
"a statute must specifically be mentioned in a[n] [Agreement]
for it to even approach Wright's 'clear and unmistakable'
standard." Id. at 631. The court held that under the "clear and
unmistakable" standard, "the ADA and other statutory claims
must be expressly recounted in the [Agreement]." Id. The
court reasoned that "including a provision in a collective
bargaining agreement that prevents discrimination against
employees under a federal statute is not the same as requiring
union members to arbitrate such statutory claims." Id. at
631-32 (emphasis in original) (citation omitted). See also
Penny v. United Parcel Serv., 128 F.3d 408 (6th Cir. 1997)
(holding that "an employee whose only obligation to arbitrate
is contained in a collective bargaining agreement retains the
right to obtain a judicial determination of his rights under a
statute such as the ADA").
In this case, the Agreement has only a general anti-
discrimination provision that prohibits various forms of
discrimination against employees, including discrimination
based on disability. The Agreement defines a grievance as
"any controversy or dispute arising from the interpretation
and/or application of the terms and work conditions under this
labor agreement" and provides that any decision by the
No. 99-3304 Kennedy v. Superior Printing Co., et al. 7
arbitrator "shall be binding upon the parties." The "No
Discrimination" provision states that:
The parties to this Agreement agree to continue their
policy of no discrimination against any Employee
because of race, creed, color, age, disability, sex or
national origin regards [sic] to employment,
advancement, working conditions, rates of pay,
acceptance into union membership, or selection for
apprenticeship openings.
Nowhere does the Agreement reference the ADA. Therefore,
under Wright and Bratten the Agreement cannot be construed
as waiving Kennedy's rights to a judicial forum for his ADA
claim.
Superior argues that even if the Agreement did not compel
Kennedy to submit his ADA claim to arbitration, he
voluntarily submitted the ADA claim to binding arbitration,
and, thus, waived his right to a judicial forum. An individual
is permitted to waive his rights to a federal forum for federal
statutory claims. In Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991), the Court permitted mandatory arbitration
of statutory claims, stating that by "agreeing to arbitrate a
statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in
an arbitral, rather than a judicial, forum." Id. at 26 (citation
and quotation omitted). In order for such a waiver to be
effective, however, it must be shown that the employee
waived statutory rather than merely contractual rights. In
Gardner-Denver, the Court said that "an individual does not
forfeit his private cause of action if he first pursues his
grievance to final arbitration under the nondiscrimination
clause of a collective-bargaining agreement." 415 U.S. at 48.
The reason for this is that "[i]n submitting his grievance to
arbitration, an employee seeks to vindicate his contractual
right under a collective-bargaining agreement. By contrast, in
filing a lawsuit under Title VII, an employee asserts
independent statutory rights accorded by Congress." Id. at

-- 6 of 6 --