Gary Walsh v. United Parcel Service

*The Honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0007P (6th Cir.)
File Name: 00a0007p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GARY W ALSH ,
Plaintiff-Appellant,
v.
UNITED P ARCEL S ERVICE ,
Defendant-Appellee.
;>

1
No. 98-6466
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 96-00676—James D. Moyer, Magistrate Judge.
Argued: November 2, 1999
Decided and Filed: January 6, 2000
Before: KENNEDY and RYAN, Circuit Judges;
CLELAND, District Judge.*
_________________
COUNSEL
ARGUED: David G. Torchia, TOBIAS, KRAUS &
TORCHIA, Cincinnati, Ohio, for Appellant. Tony C.

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2 Walsh v. United Parcel Service No. 98-6466
Coleman, BROWN, TODD & HEYBURN, Louisville,
Kentucky, for Appellee. ON BRIEF: David G. Torchia,
TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, for
Appellant. Matthew R. Westfall, Jr., WESTFALL,
TALBOTT & WOODS, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Plaintiff Gary Walsh
(plaintiff) worked as a management pilot for United Parcel
Service (defendant or UPS). In 1993 plaintiff went on
disability leave due to complications stemming from an
earlier car accident. Approximately five months after his year
of paid medical leave ended, plaintiff was terminated.
Defendant claims the termination was solely due to plaintiff’s
failure to provide information concerning his disability status
and ability to return to work. As a result of his termination,
plaintiff brought this action against defendant, claiming
violations of the Americans with Disabilities Act, 42 U.S.C.
§ 12101, et seq., Kentucky’s equivalent provision, Ky. Rev.
Stat. Ann. § 344.040, and § 510 of ERISA, 29 U.S.C. § 1140.
The district court granted summary judgment in favor of UPS
on all claims brought by plaintiff and plaintiff appealed. For
the reasons set forth below, we AFFIRM the district court’s
decision.
I. Facts
Plaintiff Gary Walsh worked for United Parcel Service as
a management pilot. In November of 1991, plaintiff was
involved in an automobile accident in which his wrist was
broken and his spine was fractured. He returned to work in
January of 1992 and continued to work until UPS removed
him from flight status in November of 1993. Plaintiff
concedes that at the time UPS made this decision, his memory
was poor, his hand eye coordination had declined and he
could not think as clearly as before the car accident. Plaintiff
acknowledges that his ability to function as a commercial

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No. 98-6466 Walsh v. United Parcel Service 3
airline pilot was impaired and raises no argument against
defendant’s conclusion that he should no longer be flying.
On January 10, 1994, defendant received a
neuropsychological evaluation from plaintiff’s doctor which
stated, “My recommendation would be for a two-or-three-
month medical leave of absence to address physical issues,
obtain counseling support and become more physically and
emotionally stable.” After defendant received this evaluation
it had Aviation Medical Examiner Dr. Stephen Wright
examine plaintiff as well. Dr. Wright agreed that a medical
leave of absence would be the best course of action. Based on
these diagnoses, defendant placed plaintiff on medical leave
in February of 1994, continuing his salary through the
company’s salary continuation plan. Plaintiff ultimately
remained on paid leave until March 1, 1995, receiving a total
of $152,716.
During plaintiff’s medical leave Dr. Christopher Lawrence
acted as plaintiff’s primary treating physician. Doctor
Lawrence initially believed that plaintiff’s major problem was
fatigue. As a result, he started plaintiff on Prozac and
indicated that if things went well he hoped that plaintiff could
return to his job in approximately three months. On June 23,
1994, Dr. Lawrence sent an update of plaintiff’s condition in
which he indicated that plaintiff was improving both
physically and mentally. Dr. Lawrence noted that he planned
to see plaintiff in four weeks to evaluate whether he was ready
to work and stated, “[a]t this rate, I anticipate that he will be
ready for a restricted return to work on a limited hour basis.”
On August 12, 1994, Paula Shearer (Shearer), UPS’s
medical manager, sent plaintiff a letter informing him that he
was scheduled for a physical on August 16 with Dr. Wright.
Dr. Wright performed a general company physical and sent a
letter to Shearer indicating that plaintiff’s main complaint of
extreme fatigue continued. Dr. Wright also noted that
plaintiff declined his offer to perform an FAA physical
because plaintiff knew he would not pass while he continued
taking Prozac. Dr. Wright stated that he advised plaintiff that

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4 Walsh v. United Parcel Service No. 98-6466
he would need statements from all of plaintiff’s treating
physicians acknowledging that plaintiff was able to return to
work before he could clear him to do so.
On December 7, 1994, Shearer sent a letter to both plaintiff
and Dr. Lawrence requesting information on plaintiff’s work
restrictions, projected return to work date, and treatment
plans. The letter also indicated that work that didn’t require
an active FAA medical certificate was available in the
Louisville office and asked that the requested information be
provided as soon as possible. UPS needed new
documentation from plaintiff, as corporate policy only
allowed salary continuation for a period of twelve months
without new documentation. As a result, Shearer made
additional requests on December 22, 1994 and January 5,
1995 for plaintiff to fill out and return the disability form
mentioned in her December 7th letter.
Plaintiff did eventually give Dr. Lawrence a disability form
to fill out and send in to UPS, but could not recall how or
when it was sent. Dr. Lawrence mailed the form sometime in
January, but failed to provide a return to work date and only
certified that plaintiff was disabled “from February 1, 1994
through present.” Dr. Lawrence signed the form and dated it
January 5, 1995. When Shearer called Dr. Lawrence on
February 6, 1995, regarding plaintiff’s disability, Dr.
Lawrence apparently indicated that he could not provide any
further information as he had not seen plaintiff since
December 9, 1994. Shearer also called plaintiff on February
6 to notify him that the form was incomplete.
On February 13, 1995, Shearer sent plaintiff another blank
disability form and advised him that it needed to be
completed in order for him to continue his leave. On March
15, 1995, UPS Human Resource Manager Jan Toronzo
(Toronzo) wrote plaintiff, pointing out that he had declined to
take an FAA first class medical exam, which she stated “was
scheduled to determine your ability to perform the functions
of your current position as management captain or your ability
to return to work in a non-flight position.” Toronzo further
No. 98-6466 Walsh v. United Parcel Service 21
concerning plaintiff’s disability status and accommodations
required, and plaintiff never provided this information.
The only other evidence that plaintiff relies on are facts
advanced in his attempt to state a prima facie case against
defendant under ERISA § 510. Accordingly, plaintiff has not
shown evidence of pretext that would permit a reasonable
juror to conclude it overwhelms the nondiscriminatory
reasons UPS advanced for firing him. See Manzer, 29 F.3d at
1084.
Having failed to produce evidence from which a reasonable
jury could conclude that UPS’s legitimate non-discriminatory
reason for terminating him was pretextual, plaintiff’s ERISA
§ 510 claim was properly disposed of by the district court on
summary judgment.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to defendant regarding all claims
brought by plaintiff.

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20 Walsh v. United Parcel Service No. 98-6466
6Although he does not state so, plaintiff is apparently arguing in the
alternative. When a plaintiff claims that the reasons the employer
advanced for firing him or her did not actually motivate the termination,
“the plaintiff admits that the factual basis underlying the employer’s
proffered explanation and further admits that such conduct could motivate
the dismissal.” See Manzer, 29 F.3d at 1084. This is necessarily so
because the employee is arguing that the legitimate reasons the defendant
advanced for the termination weren’t the actual motivating reasons.
requested. Plaintiff’s argument appears to largely be that
under the circumstances it was unfair for defendant to
terminate him. However, the question is not whether it was
fair for defendant to terminate him, or whether defendant
could have considered less drastic alternatives. Rather, the
only question is whether plaintiff’s conduct gave defendant a
sufficient non-discriminatory reason to fire him.
Consequently, plaintiff has not shown that a reasonable jury
could conclude that defendant advanced an insufficient basis
for terminating him.
Finally, plaintiff states that the case is ultimately about
defendant’s motive. In discussing motive, plaintiff is trying
to indirectly attack the credibility of defendant’s proffered
explanation for terminating him.6 However, to successfully
show that a termination was motivated by impermissible
considerations, rather than the non-discriminatory reasons
advanced by the employer, an employee must come forward
with evidence other than that used to established his or her
prima facie case. See Manzer, 29 F.3d at 1084-85. In this
regard, plaintiff alleges that defendant previously claimed that
it needed additional information about plaintiff’s condition,
but now claims that it only needed to know whether or not he
was disabled and what jobs, if any, he would be able to
perform. Assuming this to be true, this is not the type of
conflict in testimony that would preclude summary judgment.
Cf. Tinker v. Sears Roebuck & Co., 127 F.3d 519, 523 (6th
Cir. 1997) (finding that the completely inconsistent reasons
advanced by several individuals to explain plaintiff’s firing
indicated the presence of an issue of material fact). It is
undisputed that UPS consistently requested information
No. 98-6466 Walsh v. United Parcel Service 5
stated in her letter that salary continuation could not be
approved due to plaintiff’s failure to provide appropriate
medical documentation. As a result, she advised plaintiff that
his salary continuation was being discontinued effective
March 1, 1995.
On March 23, 1995, Toronzo met with plaintiff to discuss
medical documentation, any limitations on his ability to work,
and the possibility of a new job assignment. Both plaintiff
and UPS were represented by counsel at this meeting. At the
meeting plaintiff provided a disability form signed by a Dr.
Vengrow. Dr. Vengrow listed plaintiff’s disability dates and
return to work date as “unknown.” Toronzo told plaintiff that
the form was unacceptable, and they apparently agreed that
additional time would be allowed for Dr. Lawrence to furnish
the necessary information. The deadline agreed upon appears
to have been May 8, 1995. Although UPS compiled a list of
available non-flying jobs prior to its meeting with plaintiff,
UPS never reviewed the list with him, apparently because he
attended the meeting without the return to work release that
the company had anticipated.
Following the meeting, Shearer sent a letter to Dr.
Lawrence on March 27, 1995, requesting information
regarding plaintiff’s condition, ability to return to work, and
medical treatment. Dr. Lawrence responded on March 29,
1995, indicating that he felt plaintiff was stable objectively,
but that subjectively plaintiff felt that he couldn’t go back to
his old job as a pilot. Dr. Lawrence noted that plaintiff
complained of persistent fatigue and chronic pain and was
ineligible to return to work as a pilot, but he stated that he was
offering no active treatment and expected no significant
change in his condition over the next twelve to eighteen
months. As the district court observed, “[the] letter did not
offer a diagnosis, did not release plaintiff to return to work,
did not identify a disability, and did not point out any
potential accommodations which would allow plaintiff to
function either as a pilot or in any other UPS position.”

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6 Walsh v. United Parcel Service No. 98-6466
On April 11, 1995, Shearer sent Dr. Lawrence another
letter, requesting a summary of treatment, ability to return to
work, tentative return date, limitations and restrictions
required, and recommendations for future medical evaluation.
Plaintiff received a copy of this letter as well. Apparently in
response, a letter from Dr. Vengrow was sent to UPS on April
28, 1995. In his sixty word letter Dr. Vengrow indicated that
he could not diagnose a neurologic problem and concluded
that it was beyond the realm of his expertise to suggest that
plaintiff should not be currently working. Dr. Vengrow stated
that the appropriate specialty should be consulted and noted
that he had referred plaintiff to the Mayo Clinic.
Plaintiff never visited the Mayo Clinic as the insurance
carrier refused to authorize the expense. UPS scheduled
plaintiff for an independent medical evaluation with an
orthopedic surgeon on May 16, 1995, to determine what work
plaintiff could perform and what medical restrictions would
be required. Plaintiff canceled, however, stating that he had
jury duty. Toronzo then sent plaintiff a final letter on May 26,
1995, detailing the requests for information that UPS had
made over the last six months and concluding, “I will allow
you another week to provide this information, but you must
know if I have not received appropriate documents by June 5,
1995, your continued employment with United Parcel Service
will cease on that date.” Plaintiff called on or around June 5
to tell Toronzo that he was currently undergoing evaluation
and could not supply the information in time.
On June 6, 1995, defendant sent plaintiff a letter stating that
his employment was terminated for failure to provide
appropriate medical documentation. Sometime after
receiving this letter, plaintiff apparently spoke with James
Darwin, an assistant of Toronzo’s, about the possibility of
going on long term disability. Plaintiff claims he was told
that he was no longer eligible because his employment with
UPS had terminated. On August 31, 1995, plaintiff sent a
letter to Toronzo requesting reinstatement and long term
disability benefits. Plaintiff also attached a letter from Dr.
Stoff, a homeopathic physician. In the letter Dr. Stoff
No. 98-6466 Walsh v. United Parcel Service 19
discriminatory reason for its actions. The burden then shifts
to plaintiff to show either: “(1) that the proffered reasons had
no basis in fact, (2) that the proffered reasons did not actually
motivate the discharge, or (3) that they were insufficient to
motivate discharge.” Manzer v. Diamond Shamrock, 29 F.3d
1078, 1084 (6th Cir. 1995).
Plaintiff argues defendant’s reason for discharging him was
pretextual because it had no basis in fact. However, plaintiff
has come forward with no evidence showing that the basis
which defendant advanced for plaintiff’s discharge was
factually false. See Anderson v. Baxter Healthcare Corp., 13
F.3d 1120, 1124 (6th Cir. 1994) (providing that plaintiff must
produce evidence from which a rational fact finder could infer
that the company lied to have a submissible issue of pretext
for the jury). Over a more than six month period, which
included multiple phone calls, letters, and a meeting where
the parties where represented by counsel, defendant continued
to request information relating to plaintiffs disability.
Nonetheless, plaintiff failed to supply the requested
information. In response plaintiff attempts to argue that he
substantially complied, however at no point did he respond to
defendant’s questions by indicating his disability status or
what accommodations he might require. Consequently,
plaintiff has not come forth with evidence from which a
reasonable jury could find that defendant’s reason for
terminating plaintiff had no basis in fact.
Plaintiff’s claim that his conduct was insufficient to
motivate defendant to discharge him is also unsupported by
the evidence. To support such a claim, an employee must
normally show that other employees who engaged in
substantially identical conduct were not discharged by the
employer. See Manzer, 29 F.3d at 1083. Plaintiff did not
produce evidence that defendant refrained from terminating
other employees in similar circumstances. Plaintiff instead
argues that because he did not wilfully fail to provide the
information requested, his conduct was insufficient to warrant
dismissal. As support, plaintiff points to the fact that
defendant did not have an urgent need for the information it

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18 Walsh v. United Parcel Service No. 98-6466
wouldn’t be interested because he would have to terminate his
employment. When combined with the timing of his firing,
i.e., while he was still under medical evaluation to determine
the extent of his disability, plaintiff contends an inference of
discriminatory motive is raised.
Plaintiff’s evidence of a causal connection between his
firing by defendant and a desire on the part of defendant to
avoid paying LTD benefits is weak at best. For the purpose
of argument, however, we will assume that a prima facie
showing has been made, as it is clear that plaintiff has failed
to show that defendant’s alleged non-discriminatory reason
was pretextual. The Smith v. Ameritech Court addressed the
issue of pretext and how the explanations employers advance
for their actions fit within ERISA § 510 analysis, providing:
If the plaintiff states a prima facie case under § 510,
the employer can rebut the presumption of impermissible
action raised by the prima facie case by introducing
evidence of a legitimate, nondiscriminatory reason for its
challenged action. This shifts the burden back to the
plaintiff to show that the employer’s proffered reason
was mere pretext. Although the plaintiff need not show
that the employer’s sole purpose was to interfere with the
plaintiff’s entitlement to benefits, he must either prove
that the interference was a motivating factor in the
employer’s actions, or prove that the employer’s
proffered reason is unworthy of credence. Summary
judgment is appropriate if plaintiff fails to establish a
prima facie case or fails to rebut the employer’s proffer
of a legitimate, nondiscriminatory reason for its actions.
Id. at 865.
As detailed above, defendant made repeated requests over
a six month period for the medical information necessary to
keep the plaintiff on medical leave. Defendant also met with
plaintiff and plaintiff’s counsel to discuss the information
needed. Defendant has stated that its sole reason for firing
plaintiff was that he failed to produce the requested
information. In so stating, defendant has advanced a non-
No. 98-6466 Walsh v. United Parcel Service 7
concluded that plaintiff was disabled from his profession and
predicted that it would be one to three years before he could
return to working as a commercial pilot. The letter did not
release plaintiff for work or suggest what jobs he might be
able to perform or what accommodations might be required.
On September 11, 1995, Toronzo responded to plaintiff’s
letter, stating that UPS could not consider any information
provided because he was no longer an employee.
Plaintiff filed this action against UPS, claiming violations
of the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101, et seq., Kentucky’s equivalent provision, Ky. Rev.
Stat. Ann. § 344.040, and § 510 of ERISA, 29 U.S.C. § 1140.
Prior to trial UPS moved for summary judgment. The district
court granted defendant’s motion with regard to the ADA
claims and the corresponding claims brought under Ky. Rev.
Stat. Ann. § 344.040. The court found summary judgment
was proper for three reasons. First, the court stated that
plaintiff had not shown that he was a qualified individual with
a disability, having never supplied any information
concerning what accommodations he would require, what
jobs he could perform, or even that he was released to return
to work. Second, the court observed that an employer has a
right to request reasonable medical information from an
individual who claims a disability. The court noted that
plaintiff failed to meet these requests over a period in excess
of six months, not coming up with documentation for his
disability until nearly three months after the deadline. Third,
the court found that plaintiff made no showing of a causal
connection between his disability and his delay in furnishing
the requested information. Given plaintiff’s repeated and
long term consultation with medical professionals and the fact
that he was represented by counsel, the court could not find a
causal connection between plaintiff’s disability and his failure
to produce the requested medical information.
As to the plaintiff’s ERISA § 510 claim, the court found
defendant’s initial argument, that plaintiff’s claim should be
dismissed on summary judgment for failure to exhaust
administrative remedies, unavailing. Defendant then entered

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8 Walsh v. United Parcel Service No. 98-6466
a new motion for summary judgment, arguing that plaintiff
had failed to state a prima facie case. The district court
agreed, finding that plaintiff had produced no evidence
showing it was defendant’s specific intent to fire plaintiff to
prevent him from receiving long term disability benefits due
to him under ERISA. Further, the court found that even if the
plaintiff did present a prima facie case, UPS had articulated
a reasonable non-discriminatory grounds for terminating
plaintiff—his failure to provide medical information
concerning his eligibility for continued leave.
II. Discussion
A. Standard of Review
This court reviews a district court’s grant of summary
judgment de novo. Monette v. Electronic Data Systems
Corp., 90 F.3d 1173, 1176 (6th Cir.1996). Summary
judgment is appropriate when there is no genuine issue as to
any material fact and the moving party is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(c). A fact is material
if its resolution will affect the outcome of the lawsuit. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). If, “the moving party has
carried its burden of showing that the pleadings, depositions,
answers to interrogatories, admissions and affidavits in the
record, construed favorably to the nonmoving party, do not
raise a genuine issue of material fact for trial,” summary
judgment should be granted. Gutierrez v. Lynch, 826 F.2d
1534, 1536 (6th Cir.1987).
B. Plaintiff’s ADA Claim
The Americans with Disabilities Act provides that:
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of
such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms,
conditions, and privileges of employment.
No. 98-6466 Walsh v. United Parcel Service 17
To state a claim under § 510, the plaintiff must show
that an employer had a specific intent to violate ERISA.
In the absence of direct evidence of such discriminatory
intent, the plaintiff can state a prima facie case by
showing the existence of (1) prohibited employer
conduct (2) taken for the purpose of interfering (3) with
the attainment of any right to which the employee may
become entitled.
Id. at 865 (internal citations and quotations omitted). Further,
the Smith v. Ameritech Court found that in making its prima
facie case, a plaintiff must show a causal link between
pension benefits and the adverse employment decision. Id.
This means that for plaintiff’s case, “to survive a defendant’s
motion for summary judgment, plaintiff must come forward
with evidence from which a reasonable jury could find that
the defendant’s desire to avoid pension liability was a
determining factor in plaintiff’s discharge.” Id.
In the case at bar, the district court held that plaintiff failed
to establish a prima facie case. In arriving at this conclusion,
the district court emphasized the fact that, regardless of what
UPS officials may have thought, termination was not a bar to
the plaintiff applying for and receiving LTD benefits.
Further, the court observed that there was no evidence that
plaintiff had ever applied for LTD benefits, but had he
applied, it would have been difficult to see how he would
have qualified, given that he had represented himself as ready,
willing, and able to work in his application for Washington
State unemployment benefits.
Plaintiff disputes the district court’s conclusion, stating that
sufficient evidence existed in the record to create an issue of
material fact as to whether defendant fired plaintiff out of a
desire to avoid paying long term disability benefits. In
support, plaintiff points to the fact that defendant knew that
LTD was a possibility and had even estimated the cost to the
company. Further, plaintiff claims that he asked for LTD
forms in December of 1994 and asked Toronzo about the
possibility of LTD in March of 1995, but was told he

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16 Walsh v. United Parcel Service No. 98-6466
employer incurs additional administrative costs and more importantly is
forced to shoulder long-term uncertainty regarding the composition of its
work force. Further, during the extended leave, the employee loses
valuable work skills, and if the employee ever returns, he or she will likely
require significant retraining. When this is balanced against the potential
benefit derived from the employee returning to work, which must be
significantly discounted by the obvious indeterminacy involved, the cost
exceeds the likely benefit.
Corp., 87 F.3d 1167, 1169 (6th Cir. 1996) (holding that where
plaintiff has failed to present any evidence of the expected
duration of her impairment as of the date of her termination,
a request for medical leave was unreasonable).
Because continued leave was an unreasonable
accommodation, we find that the plaintiff’s ADA claim and
his claim under Kentucky’s equivalent provision, Ky. Rev.
Stat. Ann. § 344.040, were properly dismissed by the district
court on defendant’s motion for summary judgment.
C. Plaintiff’s ERISA Claim
Plaintiff also challenges the district court’s grant of
summary judgment regarding his claim that UPS violated
ERISA § 510, 29 U.S.C. § 1140, by allegedly terminating him
to avoid paying long term disability (LTD) benefits. ERISA
§ 510 makes it unlawful for an employer to:
discharge, fine, suspend, expel, discipline, or
discriminate against a participant or beneficiary for
exercising any right to which he is entitled under the
provisions of an employee benefit plan . . . or for the
purpose of interfering with the attainment of any right to
which such participant may become entitled under the
plan . . . .
29 U.S.C. § 1140. In Smith v. Ameritech, 129 F.3d 857 (6th
Cir. 1997), this Circuit laid out the framework under which an
ERISA § 510 claim should be analyzed, providing:
No. 98-6466 Walsh v. United Parcel Service 9
42 U.S.C. § 12112. Under the act, a qualified individual with
a disability means, “an individual with a disability who, with
or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111. The Act
makes it clear that failure to accommodate an individual’s
disability may qualify as discrimination, defining the term
“discriminate” to include:
not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship
on the operation of the business of such covered entity
. . . .
42 U.S.C. § 12112 (b)(5)(A).
As an aid to determining whether a plaintiff has made the
required showing of discrimination under § 12112, this
Circuit has stated the required analysis in the form of a
multifactor test. To recover for discrimination under the Act,
the plaintiff must show he or she: (1) is an individual with a
disability; (2) is otherwise qualified to perform the job
requirements, with or without reasonable accommodation;
and (3) was discharged solely on account of the disability.
See Monette v. Electronic Data Systems Corp., 90 F.3d 1173,
1177 (6th Cir. 1996) (citing Maddox v. University of
Tennessee, 62 F.3d 843, 846 (6th Cir. 1995), for its
conclusion that the analysis of claims brought under the ADA
roughly parallels that of claims brought under the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (1995)). Monette
further clarified the burdens placed on each party by this
analysis, stating that if the plaintiff has direct evidence that
the employer relied on his or her disability in making an
adverse employment decision:
(1) The plaintiff bears the burden of establishing that
he or she is disabled. (2) The plaintiff bears the burden
of establishing that he or she is “otherwise qualified” for

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10 Walsh v. United Parcel Service No. 98-6466
1McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct.
1817, 1824-25, 36 L.Ed.2d 668 (1973).
the position despite his or her disability: (a) without
accommodation from the employer; (b) with an alleged
“essential” job requirement eliminated; or (c) with a
proposed reasonable accommodation. (3) The employer
will bear the burden of proving that a challenged job
criterion is essential, and therefore a business necessity,
or that a proposed accommodation will impose an undue
hardship upon the employer.
Monette, 90 F.3d at 1186. When a plaintiff seeks to establish
his or her case indirectly, however, the Monette court
recognized that the traditional McDonnell Douglas1 burden
shifting approach continues to apply, stating:
[P]laintiff may establish a prima facie case of
discrimination by showing that: (1) he or she is disabled;
(2) otherwise qualified for the position, with or without
reasonable accommodation; (3) suffered an adverse
employment decision; (4) the employer knew or had
reason to know of the plaintiff’s disability; and (5) the
position remained open while the employer sought other
applicants or the disabled individual was replaced. The
defendant must then offer a legitimate explanation for its
action. If the defendant satisfies this burden of
production, the plaintiff must introduce evidence
showing that the proffered explanation is pretextual.
Under this scheme, the plaintiff retains the ultimate
burden of persuasion at all times.
Id. at 1186-87.
As an initial matter, it is not entirely clear whether
plaintiff’s ADA claim is based on direct or indirect evidence.
Defendant claims to have fired plaintiff not because he was
disabled, but rather because he failed to produce the medical
documentation which UPS required for additional leave. In
support, defendant points to the fact that it was prepared to
No. 98-6466 Walsh v. United Parcel Service 15
5Some Courts have explained the inquiry into the reasonableness of
an accommodation as involving a benefit burden type analysis. See
Cehrs, 155 F.3d at 781 (stating that plaintiff must show that the existence
of a plausible accommodation which costs less than the benefits that
would be received); Monette, 90 F.3d at 1184 (suggesting a cost-benefit
analysis to determine whether a proposed accommodation is reasonable);
Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995)
(observing “it is enough for the plaintiff to suggest the existence of a
plausible accommodation, the costs of which, facially, do not clearly
exceed its benefits.”). Such an analysis could be employed here. When
both the time and likelihood of return to work cannot be roughly
quantified after a significant period of leave has already been granted, the
costs of the requested additional leave outweigh the benefits. The
and a half in length to be reasonable. However, we must still
address the particular accommodation that plaintiff requested.
See Cehrs, 155 F.3d at 782 (noting that the Supreme Court
has made clear that individualized attention is essential in
disability cases).
Plaintiff argues that while he was not specific in his
request, he only needed ninety days for additional evaluation.
However, plaintiff has made no credible showing why the
nearly year and a half leave defendant gave him was somehow
an inadequate period for him to obtain an evaluation. Further,
the evaluation that plaintiff received from his homeopathic
physician, months after his termination, still did not indicate
a time frame or circumstances under which plaintiff could
return to work. The ADA was designed to eliminate
discrimination against individuals with disabilities so that
they could become productive members of the workforce.
See 42 U.S.C. § 12101; 29 C.F.R. pt.1630 (1996). However,
when the requested accommodation has no reasonable
prospect of allowing the individual to work in the identifiable
future, it is objectively not an accommodation that the
employer should be required to provide. See cases cited in
supra note 4. We therefore hold that when, as here, an
employer has already provided a substantial leave, an
additional leave period of a significant duration, with no clear
prospects for recovery, is an objectively unreasonable
accommodation.5 Cf. Hudson v. MCI Telecommunications

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14 Walsh v. United Parcel Service No. 98-6466
4See, e.g., Nowak v. St. Rita High School, 142 F.3d 999, 1004 (7th
Cir. 1998) (finding that, “[t]he ADA does not require an employer to
accommodate an employee who suffers from a prolonged illness by
allowing him an indefinite leave of absence.”); Ralph v. Lucent Techs.,
135 F.3d 166, 172 (1st Cir. 1998) (reviewing a preliminary injunction
granted by the district court and agreeing with the court’s decision that a
very limited four weeks leave time might be required as a reasonable
accommodation, even after plaintiff had been given 52 weeks of leave
with pay); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225-26 (11th
Cir. 1997) (stating that where plaintiff had been on salary continuation for
10 months already, defendant had no obligation to maintain this benefit
for the remaining two months the company allowed when the defendant
could not show that he would likely be able to return to work at the end
of this period); Monette, 90 F.3d 1173, 1187 (holding that it is not a
reasonable accommodation to require employers to keep employees on
medical leave indefinitely in the hope that a position that they can perform
will come available); Hudson v. MCI Telecommunications Corp., 87 F.3d
1167 (6th Cir. 1996) (finding that while a reasonable allowance of time
for medical care may constitute a reasonable accommodation, defendant
was not required to wait indefinitely for plaintiff, who had failed to
present any evidence of expected return date at time of termination, to
recover); see also Micari v. Trans World Airlines, 43 F. Supp.2d 275,
281-82 (E.D. NY. 1999) (observing that where medical leaves have
stretched beyond one year, courts have found that an employee cannot
perform the essential functions of his or her job as a matter of law);
Powers v. Polygram Holding, 40 F. Supp.2d 195, 200 (S.D. NY. 1999)
(noting that cases in which courts have concluded that the length of
requested medical leave is an unreasonable accommodation as a matter of
law usually involved requests for close to a year or more).
last medical evaluation which defendant received from a
homeopathic physician, months after the deadline set by
defendant, only contained a vague estimate of the date that
plaintiff could return to his job as a pilot, placing it at one to
three years in the future. Further, the letter did not release
defendant for work or suggest what other jobs he might be
able to perform or what accommodations might be required.
Our review of case law in this and other circuits disclosed
no cases where an employer was required to allow an
employee to take a leave of absence for well in excess of a
year—let alone indefinitely—as a reasonable accommodation
to the employee’s disability.4 This suggests that it would be
very unlikely for a request for medical leave exceeding a year
No. 98-6466 Walsh v. United Parcel Service 11
2See Monette, 90 F.3d at 1187 (finding in a failure to accommodate
case that the defendant’s explanation for the replacing plaintiff—that he
was on medical leave, unable to perform his job, and was the only
customer service representative in the building—was direct evidence that
defendant relied on plaintiff’s disabled status in replacing him); but see
Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 781
(6th Cir. 1998) (applying the Monette court’s indirect evidence test in a
case involving the termination of an employee for failure to properly fill
out required company paperwork for an extended leave of absence).
give plaintiff an alternate job as soon as it could determine
what plaintiff’s disability was. Plaintiff, on the other hand,
claims that the reasonable accommodation which his
disability required was additional time for evaluation and
treatment, the very thing defendant was unwilling to give.2
However, regardless of whether the direct or indirect
evidence test is used, plaintiff’s claim must fail. As the
Monette Court stated, the plaintiff bears the initial burden of
establishing that the accommodation he or she seeks is
reasonable. Id. at 1187; c.f. Gaines v. Runyon, 107 F.3d 1171,
1175–76 (6th Cir. 1997) (observing that in order for a plaintiff
to establish a prima facie handicap discrimination case based
on a failure to accommodate, plaintiff must show that he is a
qualified individual with a handicap, i.e., “[one] who, with or
without reasonable accommodation, can perform the essential
functions of the position in question without endangering the
health and safety of the individual or others . . . .”). In
Monette, the plaintiff proposed that as a possible
accommodation he be kept on indefinite medical leave until
another position opened up. The court concluded:
[E]mployers simply are not required to keep an employee
on staff indefinitely in the hope that some position may
become available some time in the future. Moreover,
employers are not required to create new positions for
disabled employees in order to reasonably accommodate
the disabled individual. Accordingly, Monette has failed
to establish that his proposed accommodation is a
“reasonable” one under the statute.

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12 Walsh v. United Parcel Service No. 98-6466
Id. at 1187. The burden of establishing that the proposed
accommodation is reasonable remains with the plaintiff,
regardless of whether plaintiff has direct or indirect evidence
in support of his or her ADA claim. See Id. at 1883,1186-87.
This logically flows from the fact that the plaintiff is always
required to show that he or she is qualified for the position,
with or without reasonable accommodation. See 42 U.S.C.
§ 12112(b)(5)(A).
Because it is clear that in this case, plaintiff’s request for
additional leave was not a reasonable accommodation, we
must affirm the district court. Plaintiff was given a year of
paid disability leave by UPS. Following that leave, plaintiff
was given more than six additional months of unpaid leave to
provide UPS with information concerning his alleged
disability. As the district court observed, no information was
forthcoming, and plaintiff, who saw multiple doctors and was
represented by counsel, made no showing that the delay was
attributable to his disability.
Plaintiff claims that the accommodation he was asking for
was more time for diagnosis and treatment by his doctors. It
is possible that his June 5, 1995 phone call to Toronzo,
requesting additional time for diagnosis would qualify as a
request for accommodation. Plaintiff is also correct that this
Circuit has recognized that a medical leave of absence can
constitute a reasonable accommodation under appropriate
circumstances. See, e.g., Cehrs v. Northeast Ohio
Alzheimer’s Research Institute, 155 F.3d 775 (6th Cir. 1998),
(finding a genuine issue of material fact as to whether an
eight-week leave of absence followed by a request for an
additional one-month leave was a reasonable accommodation
under the ADA). However, plaintiff’s request, to the extent
it was made, was unreasonable.
Plaintiff attempts to rely on Cehrs for the proposition that
an indefinite leave of absence, no matter how potentially
lengthy, can never be found to be objectively unreasonable.
We disagree with plaintiff’s reading of Cehrs. In Cehrs, the
plaintiff had just taken a roughly eight week leave of absence
No. 98-6466 Walsh v. United Parcel Service 13
3Significantly, the Court’s statements indicate that it believed that in
some instances the employer would have the burden of showing that the
employee’s proposed accommodation was unreasonable. See Cehrs, 155
F.3d at 782-783 (discussing inquiry into the reasonableness of an
accommodation in the same manner as the question of whether the
proposed accommodation unduly burdens an employer). To the extent
that the Cehrs Court suggested the employer must show that the
accommodation proposed by the employee is unreasonable, it misread
Monette. Monette makes it plain that whether a requested accommodation
is reasonable and whether it unduly burdens the employer are separate
inquiries. See Monette, 90 F.3d at 1183, 1184 n.10 and 1187. (stating the
language of § 12112 makes it clear that while the employer has the burden
of persuasion on whether an accommodation would impose an undue
hardship, the disabled individual has the initial and separate burden of
showing a proposed accommodation is objectively reasonable). The
Monette Court did acknowledge that the inquiry into undue burden and
reasonableness are similar. The Court distinguished them on the grounds
that the inquiry into reasonableness requires, “a factual determination
untethered to the defendant employer’s particularized situation,” whereas
the question of whether a reasonable accommodation imposes an undue
burden is evaluated with regard to “the employer’s specific situation.” Id.
at 1184 n.10.
for treatment of her Psoriasis. At the end of this period,
plaintiff’s physician determined that another months
treatment was needed, and estimated that plaintiff could
return to work on a part time basis by March 1, 1994. Id. at
778. The defendant ostensibly denied the request because the
plaintiff had not properly filled out the required paperwork.
Observing that the defendant had allowed other employees to
take medical leave under similar circumstances, the court
found that a genuine issue of fact existed as to whether the
granting of further medical leave would unduly burden the
defendant, or would have constituted a reasonable
accommodation to the plaintiff.3 Id. at 783.
Thus, the Cehrs Court was confronted with a situation
where a request for a definite and relatively short leave was
made, accompanied by a reasonable prospect of recovery.
Clearly, the case at bar presents a much different scenario. In
this case, plaintiff knew of his injury for years, was on salary
continuation for a year, and unpaid medical leave for five
months before being terminated. As noted above, even the

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