Besada v. ECS Southeast, LLP

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
GEORGE BESADA 	)
)
v. 	) 	NO. 3:24-cv-00313
)
ECS SOUTHEAST, LLP 	)
TO: 	Honorable Aleta A. Trauger, United States District Judge
R E P O R T 	A N D 	R E C O M M E N D A T I O N
By Order entered May 23, 2024 (Docket Entry No. 11), this pro se employment
discrimination case was referred to the Magistrate Judge for pretrial proceedings.
Currently pending before the Court is the motion for summary judgment filed by Defendant
ECS Southeast, LLP (Docket Entry No. 33). 	Plaintiff opposes the motion. 	For the reasons set
out below, the undersigned respectfully recommends that the motion for summary judgment be
granted.
I. 	BACKGROUND
George Besada (“Plaintiff”) is a resident of Mt. Juliet, Tennessee. 	He is a former
employee of ECS Southeast, LLP (“Defendant”), having worked there from January 3, 2023, to
May 2, 2023, when he was terminated from employment. 	He brings this lawsuit alleging
employment discrimination on account of a disability in violation of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”).
Plaintiff was hired to be a Field Technician in Defendant’s Field Services Department and
began his employment with an initial 90 day introductory period. 	As a Field Technician, Plaintiff
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was required to drive to construction and other worksites, where he was involved in field
observation, testing, sampling, and inspection of soils, aggregates, concrete, grout, masonry,
asphalt, and structural steel placement. 	The position required extensive travel and driving and
required Plaintiff to provide his own vehicle and to have an acceptable driving record. 	Plaintiff’s
direct supervisor during his employment was Ramy Bekheet (“Bekheet”), who was a Senior
Project Manager at the time.
On the morning of March 14, 2023, Plaintiff was driving to a job site in his personal van
and was involved in a serious, single-vehicle accident when his van left the roadway, hit a wall or
sign, flipped, and sustained significant damage. 	He was injured in the accident and was
transported by ambulance to a local hospital for treatment of injuries to his back, leg, and arms.
A few days later, he went to another hospital’s emergency room for treatment.
Jessica Frederick, Defendant’s Worker’s Compensation and Safety Coordinator, contacted
Plaintiff after the accident to coordinate his future treatment with a physician through Defendant’s
worker’s compensation insurance carrier. 	Plaintiff was examined on March 20 and 23, 2023, by
a medical provider at Concentra Urgent Care. 	As a result, Plaintiff was prescribed physical
therapy and was placed on modified work/activity restrictions, including a restriction on any
driving. 	The Concentra medical provider noted in his March 23rd assessment of Plaintiff that, in
addition to muscular strains and abrasions, Plaintiff had “unspecific syncope type,” due to his
assertion that he may have “blacked out” at the time of the accident, and the provider referred
Plaintiff to a local hospital’s emergency room for assessment of the need for a CT scan. 1
However, the hospital staff declined to perform the scan because Plaintiff had not exhibited any
1 See Docket Entry No. 37-1 at 72-86.
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post-accident symptoms that warranted the scan.2 	On March 30, 2023, Plaintiff was again seen
at Concentra. 	At this time, he was released from medical care to return to work with no
restrictions other than a “no driving” restriction.3 	Because of Plaintiff’s inability to drive during
this time period, Defendant coordinated rideshare transportation for Plaintiff to attend the
Concentra medical visits.
From the time of his accident to his termination, Plaintiff remained employed by Defendant
but was not returned to his Field Technician position because of the no driving restriction.
Instead, Defendant permitted Plaintiff to temporarily perform on-line training and testing work
remotely from his home during this time period. On April 24, 2023, Carol Markum, Defendant’s
Office Administrative Manager, spoke with Plaintiff and followed up with an e-mail about
Plaintiff’s need to get a second medical opinion that lifted the no driving restriction and to provide
documentation of such in order to resume his Field Technician job. Markum gave Plaintiff a
deadline of April 28, 2023, to provide this documentation.4 When this deadline passed without
any documentation from Plaintiff, Markum contacted Plaintiff again about the matter and the need
to provide a release of the no driving restriction. 	On May 5, 2023, Plaintiff was notified by letter
that his employment was terminated, effective May 2, 2023, because of his failure to obtain a
doctors certification releasing him to return to work.5
Believing that he was treated wrongfully by Defendant, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)6 and received a
2 See Docket Entry No. 39-1 at 15-16.
3 See Docket Entry No. 37-1 at 87-101.
4 Id. at 108.
5 Id. at 109.
6 Plaintiff’s charge of discrimination has not been made a part of the record by either party.
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right-to-sue letter on or about January 25, 2024. 	Plaintiff thereafter filed this pro se lawsuit on
March 18, 2024. 	See Complaint (Docket Entry No. 1). 	In a somewhat sparse complaint that
does not request any specific form of relief, Plaintiff asserts that Defendant failed to accommodate
his disability in violation of the ADA and sets out the following factual allegations:
I was hired by ECS Southeast LLP on January 3, 2023. 	On March 14, 2023, I was
injured in an accident while traveling for work. 	ECS required me to seek care
through their provider, which I did. 	I was discharged May 02, 2023, after
providing my employer a return to work which included driving restrictions. 	My
employer did not engage in the interactive process to find accommodation. 	I
believe I have been discriminated against because of by disability in violation of
the Americans with Disability Act of 1990, as amended.
Id. at 5 and 7.
After Defendant filed an answer (Docket Entry No. 17), the Court entered a scheduling
order that provided for a period of pretrial activity, including a period for discovery. 	The parties
were unsuccessful in an early attempt to settle the case. 	See Docket Entry No. 21. 	A jury trial
has not been demanded by either party, and a trial date has not been set pending the resolution of
Defendant’s dispositive motion.
II. 	MOTION FOR SUMMARY JUDGMENT AND RESPONSE
Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure. 	In support of its motion, Defendant relies upon: (1) a statement of undisputed material
facts (“SUMF”) (Docket Entry No. 35); (2) the declaration Ramy Bekheet (Docket Entry No. 36-
1); (3) the declaration and exhibits attached thereto of Carol Markum (Docket Entry No. 36-2);
and, (4) excerpts from Plaintiff’s deposition transcript and exhibits attached thereto (Docket Entry
Nos. 37-1 and 37-2).
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Defendant contends that Plaintiff’s ADA discrimination claim lacks evidentiary support
and that genuine issues of material fact do not exist that require the claim proceed to a trial for
resolution. 	Defendant asserts that it is undisputed that the ability to extensively drive to and from
worksites is an essential function of the Field Technician job and that Plaintiff could not perform
this function because of the no driving restriction that was in place in the aftermath of the accident.
Defendant further contends that it is undisputed that Plaintiff failed to request or propose any type
of reasonable accommodation that would allow him to perform the Field Technician job with the
driving restriction in place and that it is further undisputed that, prior to his termination, Plaintiff
did not provide a medical release to Defendant that removed the driving restriction. 	Given these
undisputed facts, Defendant argues that Plaintiff cannot show that he was a “qualified individual”
under the ADA. 	Accordingly, Defendant argues that it is entitled to summary judgment as a
matter of law. 	See Defendant’s Memorandum of Law (Docket Entry No. 34) at 8-13.
Plaintiff responds in opposition to the motion with a brief (Docket Entry No. 39) and with
several documents attached to his brief (Docket Entry No. 39-1). 	Although Plaintiff points out
in his response the exhibits upon which he relies for his opposition to the motion for summary
judgment and disputes the declarations of Ramy Bekheet and Carol Markum, he has not filed a
response to Defendant’s SUMF. 	Plaintiff argues that his assessment of “syncope” is a mental
disease that renders him disabled under the ADA. 	He contends that Defendant failed to
accommodate his disability and instead terminated his employment. 	Pointing to the declaration
statement of Bekheet that he denied Plaintiff’s inquiry about using a company vehicle to perform
his job, Plaintiff contends that Defendant has essentially confirmed that it failed to provide Plaintiff
with an accommodation. 	See Response at 4. 	Plaintiff further appears to suggest that Defendant
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should have accommodated him with “alternative transportation.” 	Id. 	Finally, Plaintiff
contends that he should have been provided with a CT scan and that he was not provided with
health insurance coverage while working for Defendant, which he asserts hindered him in
obtaining a medical release from his driving restriction and amounted to discrimination. 	Id. at 4-
6.
In reply, Defendant asserts that Plaintiff has not responded to its SUMF and has not
adequately rebutted its arguments for summary judgment. 	Defendant contends that there is
nothing contained in Plaintiff’s response, including in his supporting evidence, that shows the
existence of genuine issues of material fact. 	See Reply (Docket Entry No. 40). 	Defendant
provides a supplemental declaration of Carol Markum (Docket Entry No. 41) and attachments
thereto (Docket Entry Nos. 41-1 and 41-2) with its reply.
III. 	STANDARD OF REVIEW
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” 	Rule 56(a) of the
Federal Rules of Civil Procedure. 	See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). 	A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might
affect the outcome of the suit under the governing substantive law.” 	Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). 	A genuine dispute of material fact exists if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party. 	Harris v. Klare, 902 F.3d
630, 634-35 (6th Cir. 2018).
The moving party has the burden of showing the absence of genuine factual disputes.
Anderson, at 249-50; Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th
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Cir. 2018). 	If the summary judgment movant meets that burden, then in response the non-moving
party must set forth specific facts showing that there is a genuine issue for trial. 	Pittman, 901
F.3d at 628. 	The nonmoving party “is not entitled to trial merely on the basis of allegations;
significant probative evidence must be presented to support the complaint.” 	Goins v. Clorox Co.,
926 F.2d 559, 561 (6th Cir. 1991). 	In other words, to defeat summary judgment, the party
opposing the motion must present affirmative evidence to support his or her claims; a mere
“scintilla of evidence” is insufficient. 	Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 252).
In considering whether summary judgment is appropriate, the Court must “look beyond the
pleadings and assess the proof to determine whether there is a genuine need for trial.” 	Sowards
v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875 (2000). 	In doing so,
the Court must view the evidence and all inferences drawn from underlying facts “in the light most
favorable to the party opposing the motion.” 	See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., Ltd., 475 U.S. 574, 587 (1986).
IV. 	ANALYSIS
In light of Plaintiff’s pro se status, the Court has given him a considerable measure of
leeway in the consideration of his response in opposition to the motion for summary judgment.
Even with this leeway, however, his response is not sufficient to rebut the motion for summary
judgment because there is a lack of evidence in the record that supports Plaintiff’s claim of
unlawful discrimination because of a disability. 	While the Court sympathizes with Plaintiff’s
situation of losing his job, the evidence in the record simply would not permit a reasonable trier of
fact to find that his rights under the ADA were violated when Defendant did not return him to his
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Field Technician job, did not provide an accommodation for him remain in that job, and ultimately
terminated his employment. 	Any factual disputes that exist do not rise to the level of genuine
issues of material fact that must be resolved at trial. 	Accordingly, Defendant is entitled to
summary judgment in its favor.
A. 	Plaintiff’s Response
Like many pro se parties who respond to a motion for summary judgment, Plaintiff has
attempted to support his case as well as possible as a non-attorney. 	Nonetheless, Plaintiff’s
response suffers from shortcomings that cannot be disregarded merely because he is proceeding
pro se.
In his response in opposition to the motion, Plaintiff includes several factual assertions
regarding his claim. 	However, he has not provided an affidavit or declaration that supports these
factual assertions. When opposing a motion for summary judgment, a party cannot rely on
allegations or denials in unsworn filings. 	Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482,
485 (6th Cir. 2010). 	Unsworn factual statements in a response, such as those made by Plaintiff
here, are not sufficient evidence to rebut a motion for summary judgment. 	See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158 n.17 (1970); Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239
n. 1 (6th Cir. 2010); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 969 (6th Cir. 1991).
Additionally, although Plaintiff points out in his response the documents that he contends
support his claim, he has not filed a specific response to Defendant’s SUMF as required by Local
Rule 56.01(c). 	Local Rule 56.01(g) provides that when a party fails to respond to a moving
party’s statement of material facts, “the asserted facts shall be deemed undisputed for the purposes
of summary judgment.” 	Thus, the facts set forth in Defendant’s SUMF, which are supported by
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evidence from Defendant, are properly viewed by the Court as undisputed for the purposes of
reviewing the motion for summary judgment.
B. 	Defendant’s Undisputed Facts
As set out in Defendant’s unrebutted SUMF:
1. Plaintiff was required in the Field-Technician position to drive his personal vehicle
extensively to various construction and other work sites;
2. On March 20, 23, and 30, 2023, Plaintiff was treated by a Concentra Urgent Care Clinic
physician, who placed a continuing “no driving” medical restriction on Plaintiff;
3. Because of the continuing “no driving” medical restriction, Plaintiff could not drive to
job sites as required for his Field Technician position;
4. Defendant allowed Plaintiff temporarily to do certain “light duty” training and testing
work remotely from his home;
5. Defendant denied Plaintiff’s request to use a company vehicle in the light of his
continuing “no driving” medical restriction; and,
6. Plaintiff never provided Defendant with a medical release of his “no driving” restriction
as requested by Defendant.
See SUMF.
C. 	Disability Discrimination Claim under the ADA
The ADA prohibits an employer from discriminating “against a qualified individual on the
basis of disability 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.” 	42 U.S.C. § 12112(a). 	Adverse actions taken by an employer against an
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employee because of the employee’s disability are unlawful. 	See Lewis v. Humboldt Acquisition
Corp., 681 F.3d 312, 317-21 (6th Cir. 2012) (en banc). 	Discrimination under the ADA also
includes an employer’s refusal to grant a “reasonable accommodation” for an employee's
disability. 	Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 811 (6th Cir. 2020).7
Under the ADA, the term “qualified individual” means “an individual 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(8). 	Thus, if an individual's disability
renders the individual, with or without a reasonable accommodation, unable to perform the
essential functions of the job at issue, the individual is not a “qualified individual” protected by
the non-discrimination provisions of Section 12112. 	See Stanley v. City of Sanford, Fla.,
___U.S.___, 145 S. Ct. 2058, 2065 (2025); Wagner v. Sherwin-Williams Co., 647 Fed.App'x 645,
647 (6th Cir. 2016). 	As the Sixth Circuit Court of Appeal succinctly stated in Marshall v. Wayne
Cnty., 2023 WL 2707222 (6th Cir. Mar. 30, 2023):
The ADA protects only those individuals who can perform the essential functions
of their job. 	See 42 U.S.C. § 12112(a); id. § 12111(8); Cleveland v. Pol'y Mgmt.
Sys. Corp., 526 U.S. 795, 801 (1999). 	When a plaintiff cannot perform those
functions, even with reasonable accommodations, the ADA's protections do not
apply. 	Pol'y Mgmt. Sys. Corp., 526 U.S. at 806.
2023 WL 2707222 at *5.
This is exactly the scenario presented by the instant case. Plaintiff does not dispute that the
ability to drive a vehicle, sometimes extensively, to and from worksites is an essential function of
the Field Technician job. Plaintiff also does not dispute that the no driving restriction prevented
7 In its motion, Defendant does not raise an argument about whether Plaintiff has a
“disability” within the meaning of the ADA and, thus, the Court presumes for the purposes of this
motion that he satisfies this threshold requirement for his ADA claim.
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him from performing this essential function of the Field Technician job. 	In such a situation, an
ADA plaintiff simply cannot succeed on his claim. 	See Wagner, 647 Fed.App'x at 647 (store
manager who was removed from his position because of a permanent driving restriction was not
discriminated against under the ADA because the ability to drive was an essential job function).
Even though he acknowledges that he could not perform an essential function of the Field
Technician job because of the driving restriction, Plaintiff complains that Defendant failed to offer
him a reasonable accommodation. 	Plaintiff bears the burden of presenting evidence that he
requested an accommodation that is reasonable on its face. 	Blanchet v. Charter Commc'ns, LLC,
27 F.4th 1221, 1229 (6th Cir. 2022); Walsh v. United Parcel Serv., 201 F.3d 718, 725 (6th Cir.
2000) (“The burden of establishing that the proposed accommodation is reasonable remains with
the plaintiff . . .”).
Plaintiff cannot meet this burden because he cannot point to an accommodation that he
actually requested that was reasonable and that would have permitted him to perform the essential
functions of the Field Technician job. 	From the evidence that is in the record, it appears that the
only accommodation actually requested by Plaintiff was to either be provided with a company
vehicle to drive or to be provided with some type of rideshare or alternative transportation to the
work sites.8 	However, neither of these proposed accommodations was a reasonable one. As long
8 The Court notes that Plaintiff fails to present any actual affirmative evidence of his request
for an accommodation. 	Instead, he appears to (1) not dispute the declaration statement from
Bakheet that Plaintiff made a request to use a company vehicle, presumably because Plaintiff’s
own vehicle was inoperable due to the accident and (2) suggest that he requested “alternative
transportation.” 	See Response at 4.
To the extent that his reference to “alternative transportation” implies that he sought such an
accommodation, Defendant specifically disputes that Plaintiff ever requested that Defendant
provide him with rideshare transportation to perform his Field Technician job. 	See Supplemental
Declaration of Carol Markum (Docket Entry No. 41) at ¶ 6. 	Because such a request by Plaintiff
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as the driving restriction remained in place, it would have been unreasonable, and certainly unsafe
to Plaintiff and to others, for Plaintiff to have driven any vehicle, let alone a company vehicle.
Likewise, it would not have been a reasonable accommodation for Defendant to have required
other employees to take over Plaintiff’s driving responsibilities or to have paid for a rideshare
service or for another person to drive Plaintiff to the worksites. 	See Swank v. CareSource Mgmt.
Grp. Co., 2015 WL 5853748, at *5 (N.D. Ohio Sept. 30, 2015) (rejecting the ADA plaintiff’s
argument that her former employer could have accommodated her inability to perform driving
functions of her job by requiring other employes to take over the plaintiff’s driving duties). 	An
employer is “not required to assign existing employees or hire new employees to perform” an
employee's essential job functions. 	Bratten v. SSI Services, Inc., 185 F.3d 625, 622 (6th Cir.
1999). 	It is further axiomatic that an accommodation is per se unreasonable if it involves
removing an essential function from a job, EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir.
2015), which in the instant case was Plaintiff’s ability to drive a vehicle on his own.
In the end, there is no proof in the record that Plaintiff could perform the essential function
of driving that was required for the Field Technician position or that he proposed a reasonable
accommodation that would have permitted him to perform this function. 	Accordingly, his ADA
claim cannot succeed, whether the claim is premised upon the alleged lack of an accommodation
or his ultimate termination due to the driving restriction. 	See Wagner, 647 Fed.App'x at 647;
Ford Motor Co., 782 F.3d at 766; Earheart v. Cent. Transp. LLC, 2022 WL 1445220, at *8
(M.D.Tenn. May 6, 2022) (Richardson, J.) (because the plaintiff, who was under a driving
would have been unreasonable, even if presumed to have been made, any factual dispute that exists
about whether such a request was made does not amount to a genuine issue of material fact.
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restriction, failed to offer argument or proof that he could drive a company vehicle, which was an
essential functions of his job, the defendant employer was entitled to summary judgment on claim
that plaintiff was terminated from employment in violation of the ADA); Anderson v. ProCopy
Techs., Inc., 23 F.Supp.3d 880 (S.D. Ohio 2014) (defendant employer was entitled to summary
judgment on ADA discrimination claim because evidence showed that the plaintiff’s driving
restriction prevented him from performing essential functions of his job and he failed to request a
reasonable accommodation).
To the extent that Plaintiff contends that Defendant bears liability under the ADA because
it failed to engage in the interactive process, this contention fails to save his lawsuit. 	To be sure,
“once an employee requests an accommodation, the employer has a duty to engage in an interactive
process.” 	Blanchet v. Charter Communications, LLC, 27 F.4th 1221, 1232 (6th Cir. 2022)
(quoting Hostettler v. Coll. of Wooster, 895 F.3d 844, 857 (6th Cir. 2018)). 	However, an
employer’s alleged failure to engage in the interactive process is only an independent violation of
the ADA if the plaintiff proposes a “reasonable accommodation.” 	Rorrer v. City of Stow, 743
F.3d 1025, 1041 (6th Cir. 2014). 	Because there is no evidence in the record that Plaintiff ever
proposed a reasonable accommodation to Defendant, he cannot succeed on an interactive process
claim. 	See Swank v. CareSource Mgmt. Grp. Corp., 657 Fed.App'x 458, 467 (6th Cir. 2016)
(“because [the plaintiff] did not propose a reasonable accommodation to [the defendant employer]
that would address her stated limitations, her interactive-process claim fails as a matter of law.”)
Finally, Plaintiff contends in his response that Defendant’s failure to provide him with
health insurance during his employment constituted discrimination against him. 	See Response at
4-5. 	However, this contention is not made anywhere in Plaintiff’s complaint and was not raised
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by Plaintiff as a basis for his ADA claim. 	Although factual allegations concerning his health
insurance may be relevant as background information, an independent and alternative ADA claim
that is premised upon Plaintiff’s inability to receive health insurance through Defendant is not a
part of this lawsuit.
R E C O M M E N D A T I O N
For the reasons set out above, the Court respectfully RECOMMENDS that the motion for
summary judgment filed by Defendant ECS Southeast, LLP (Docket Entry No. 33) be GRANTED
and that this action be DISMISSED WITH PREJUDICE.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen
(14) days of service of this Report and Recommendation and must state with particularity the
specific portions of this Report and Recommendation to which objection is made. 	See Rule
72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). 	Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District
Court's Order regarding the Report and Recommendation. 	See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 	Any response to the objections
must be filed within fourteen (14) days after service of objections. 	See Federal Rule 72(b)(2) and
Local Rule 72.02(b).
Signed By:
J. Gregory Wehrman
United States Magistrate Judge
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