           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
                    _________________


                                   ;
                                    
 CASEY A. KENNEDY,
                                    
          Plaintiff-Appellant,
                                    
                                    
                                       No. 99-3304
             v.
                                    
                                     >
 SUPERIOR PRINTING                  
                                    
                                    
 COMPANY; LOCAL 419M

                                    
 GRAPHIC COMMUNICATIONS

         Defendants-Appellees. 
 INTERNATIONAL UNION,
                                    
                                   1
       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.




    *
    The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.

                                 1
2       Kennedy v. Superior Printing Co., et al. No. 99-3304                  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
                             COUNSEL                                          efforts failed, Superior sent Kennedy a letter indicating that it
                                                                              would arrange and pay for a medical exam. Superior
ARGUED: Wayne P. Marta, WAYNE P. MARTA CO.,                                   scheduled two independent medical examinations, both of
Cleveland, Ohio, for Appellant. W. Eric Baisden, JONES,                       which Kennedy failed to attend. The record shows that
DAY, REAVIS & POGUE, Cleveland, Ohio, Barry R. Laine,                         Superior was extremely patient and did everything it could to
GREEN, HAINES, SGAMBATI, MURPHY & MACALA,                                     assess the medical condition of Kennedy. Superior never
Youngstown, Ohio, for Appellees. ON BRIEF: Wayne P.                           indicated that it would deny Kennedy's request to work
Marta, WAYNE P. MARTA CO., Cleveland, Ohio, for                               through lunch, it merely wished to assess Kennedy's medical
Appellant. W. Eric Baisden, JONES, DAY, REAVIS &                              condition. Under these facts, there is no ADA violation and
POGUE, Cleveland, Ohio, Barry R. Laine, Dennis Haines,                        Kennedy's claim must be dismissed.
GREEN, HAINES, SGAMBATI, MURPHY & MACALA,
Youngstown, Ohio, for Appellees.                                                                  III. CONCLUSION
                        _________________                                       In sum, we affirm the judgment of the district court.
                            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




    1
      The 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.
10   Kennedy v. Superior Printing Co., et al. No. 99-3304        No. 99-3304 Kennedy v. Superior Printing Co., et al.                 3

the district court. See Dobbs-Weinstein v. Vanderbilt Univ.,     judgment holding that his ADA claim is barred by         res
185 F.3d 542, 545 n.2 (6th Cir. 1999).                           judicata. We affirm the judgment of the district court.2
  Kennedy does not contest the proposition that the ADA                                 I. BACKGROUND
permits an employer to conduct a medical examination to
verify that an employee requesting an accommodation is truly       Kennedy was employed by Superior as a journeyman in its
disabled, but, rather, argues that there is a genuine issue of   bindery and was a member of the Union. For several years,
material fact as to "whether Superior truly sought to have him   certain employees in the bindery, including Kennedy, worked
medically examined for the purpose of evaluating his             through their lunch periods in order to leave work one-half
disability." Kennedy argues that a "reasonable jury could        hour early every day. As a result of personnel problems, the
conclude that Superior was more concerned with Mr.               President of Superior, Jack Glinn (Glinn), replaced the
Kennedy's desired accommodation being an 'undue hardship'        bindery supervisor and, at Glinn's direction, the new
to itself rather than being a form of assistance genuinely       supervisor informed the bindery employees that they could no
needed by him to cope with his disability."                      longer leave work early and had to take their lunches at the
                                                                 scheduled time. Eventually, all employees complied except
  Kennedy has not produced any evidence showing that             for Kennedy. On January 17, 1995, Kennedy provided a note
Superior did anything other than attempt to confirm              from his physician, which read as follows: "Patient to benefit
Kennedy's disability. An "employer need not take the             by not stopping for lunch. Appropriate treatment for this
employee's word for it that the employee has an illness that     problem is to allow him to work through lunch." Although
may require special accommodation. Instead, the employer         the note did not state the nature of Kennedy's "problem,"
has the ability to confirm or disprove the employee's            Kennedy's impairment arose when his foot was injured
statement. If this were not the case, every employee could       several years earlier in an industrial accident.
claim a disability warranting special accommodation yet deny
the employer the opportunity to confirm whether a need for         Superior permitted Kennedy to continue working though
the accommodation exists." E.E.O.C. v. Prevo's Family            his lunch period until March of 1996, when Superior
Market, Inc., 135 F.3d 1089, 1094-95 (6th Cir. 1998).            determined that the fifteen-month-old physician's note was
Kennedy's note from January 15, 1995, stating only that          outdated and insufficient. During April and May of 1996,
Kennedy had a "problem," was clearly insufficient to establish   repeated requests were made of Kennedy to either work his
that Kennedy had a disability that required reasonable           regularly scheduled shift or bring in further medical
accommodation. Superior was entitled to require that             documentation demonstrating the need for accommodation.
Kennedy provide medical documentation sufficient to prove        Kennedy continuously refused these requests and disciplinary
that he had a condition requiring accommodation. The ADA         action was instituted. Oral warnings were given on July 1,
"permits employers . . . to make inquiries or require medical    1996, and July 2, 1996, and a written warning was given on
examinations necessary to the reasonable accommodation           July 3, 1996. On July 24, 1996, Glinn sent Kennedy a letter
process . . . ." 29 C.F.R. pt. 1630, App. § 1630.14(c).
   The record clearly shows that Superior made numerous              2
attempts to acquire medical documentation of Kennedy's                 Kennedy also claims that the court erred in denying his motion to
                                                                 strike certain exhibits introduced by Superior and by sanctioning
condition and that Kennedy persistently refused to cooperate.    Kennedy's counsel under Rule 11. Kennedy's claims are without merit
During April and May of 1996, repeated requests were made        and we affirm the district court without further comment. Superior's
                                                                 motion for damages, attorneys' fees and costs is also denied.
4      Kennedy v. Superior Printing Co., et al. No. 99-3304      No. 99-3304 Kennedy v. Superior Printing Co., et al.                    9

informing him that he was expected to work his regularly         Agreement did not provide its own definition of prohibited
scheduled shift or else submit to a medical exam for which       discrimination based on disability or explicitly incorporate
Superior would pay. In late July 1996, Glinn met with            external law to define the anti-discrimination provision.
Kennedy personally to discuss his continued refusals and sent    Therefore, it is not at all unreasonable or surprising that
Kennedy a follow up letter indicating that he would allow        Kennedy and the arbitrator would discuss the ADA in the
Kennedy to supply the necessary medical documentation from       context of arbitrating a dispute involving a claim that the
Kennedy's own doctor.                                            company violated the anti-discrimination clause of the
                                                                 Agreement prohibiting disability discrimination. In fact, the
   On December 2, 1996, Superior sent Kennedy a letter           arbitrator noted that "[i]t is the position of the Union that the
informing him that an independent medical exam was               parties incorporated external law regarding discrimination in
scheduled for December 31, 1996, and that if Kennedy did not     their Agreement," which the arbitrator deemed "appropriate."
show up, he would be disciplined. Kennedy did not show up
for this examination and, consequently, was suspended for           In this context, where an employee brings a wrongful
three days. Subsequently, Superior sent Kennedy one last         discharge claim to arbitration under a collective bargaining
letter, informing him that a second examination was              agreement that also includes a anti-discrimination provision,
scheduled and that if he did not attend he would be              the employee's allegation that the employer violated federal
terminated. Kennedy again failed to attend the scheduled         anti-discrimination law does not necessarily waive the
examination and, on January 14, 1997, Kennedy was                employee's right to a federal judicial forum for the federal
terminated from his employment with Superior.                    statutory rights. Absent clearer evidence that Kennedy
                                                                 actually waived his statutory rights to a federal forum for his
  As a member of the Union, the terms and conditions of          ADA claim, we must find that Kennedy did4not waive his
Kennedy's employment were governed by a collective               right to bring his ADA claim in federal court.
bargaining agreement (Agreement). On January 15, 1997,
pursuant to the terms of the Agreement, the Union filed          B. ADA CLAIM
grievances on Kennedy's behalf. The grievances alleged
wrongful discharge and violation of the ADA. Superior              Because the court below found that Kennedy was barred
denied both grievances. While the grievances were                from bringing his ADA claim in federal court, it declined to
proceeding in arbitration, Kennedy filed a complaint in the      address the merits of the claim. However, because a grant of
district court, alleging that Superior had wrongfully            summary judgment is reviewed de novo, this court may affirm
discharged him because of his disability and that the Union      the judgment of the district court on any grounds supported by
had breached its duty of fair representation. Superior filed a   the record, even if they are different from those relied upon by
motion to dismiss, or, in the alternative, for summary
judgment.
  On February 10, 1998, before a ruling was made in the              4
pending lawsuit, Arbitrator William J. Miller, Jr. conducted           Moreover, we note that Kennedy was represented by the union in
a hearing on the grievances. Arbitrator Miller concluded:        the arbitration proceedings. In Gilmer, the Court noted that "because the
                                                                 arbitration in those cases occurred in the context of a collective-
    [Superior] did not violate the Agreement or existing         bargaining agreement, the claimants there were represented by their
                                                                 unions in the arbitration proceedings. An important concern therefore
    external law when it required [Kennedy] to receive a         was the tension between collective representation and individual statutory
    medical examination to determine whether or not he           rights, a concern not applicable to the present case." 500 U.S. at 35.
8       Kennedy v. Superior Printing Co., et al. No. 99-3304                  No. 99-3304 Kennedy v. Superior Printing Co., et al.           5

49.3 See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th                   needed to continue working through his lunch. However,
Cir. 1999) (holding that an arbitration decision concerning                     [Superior] improperly terminated [Kennedy] because
anti-discrimination clauses in collective bargaining                            [Kennedy] made himself unavailable for work when he
agreements does not bar subsequent statutory discrimination                     determined that he would not submit to a medical
lawsuits).                                                                      examination to determine whether or not he was entitled
                                                                                to an accommodation of working through his lunch.
   In this case, there is no evidence that Kennedy waived his                   [Superior] should immediately schedule [Kennedy] for
right to a judicial forum for his federal statutory rights rather               an appropriate medical examination to determine
than simply alleging that Superior violated the anti-                           whether or not he is entitled to an accommodation.
discrimination clause of the Agreement. Although it is                          Based upon such medical examination, [Superior] will
undisputed that Kennedy arbitrated a claim of disability                        return [Kennedy] to work with or without an
discrimination and claimed that Superior violated the ADA,                      accommodation related to his being able to work through
it is not clear that Kennedy agreed to waive his right to a                     his lunch, but without back pay or benefits. If [Kennedy]
federal forum for his ADA claim. Workers' statutory claims                      fails to avail himself to the medical examination which
for employment discrimination are "not subject to a                             is to be scheduled by [Superior], [Superior] will have no
presumption of arbitrability." Wright, 524 U.S. at 79. The                      further obligation to [Kennedy].
presumption of arbitrability of labor disputes "does not extend
beyond the reach of the principal rationale that justifies it,                   On April 2, 1998, Kennedy informed the court that he
which is that arbitrators are in a better position than courts to             wished to file an ADA claim. Although Kennedy was granted
interpret the terms of a CBA." Id. at 78.                                     leave to file a motion to amend his complaint, he instead filed
                                                                              a separate action alleging the ADA violation. The two cases
  The burden was on Superior to show that Kennedy waived                      were eventually consolidated. On January 29, 1999, summary
his statutory rights, not merely that he arbitrated a                         judgment was granted to Superior on the wrongful discharge
discrimination claim under a collective bargaining agreement                  and ADA claims and to Union on the breach of the duty of
that also had a basis in federal law. Superior has not met this               fair representation claim. The district court held that Kennedy
burden. There was no written agreement providing that                         had produced no evidence showing that the Union had
Kennedy would submit his ADA statutory claims to binding                      breached its duty of fair representation and that Kennedy
arbitration. The only arguable evidence that Kennedy                          voluntarily submitted and litigated the ADA claim to an
submitted his ADA claim to arbitration was his grievance in                   arbitrator and, thus, that res judicata barred Kennedy's ADA
which he wrote that he was "still claiming ADA protection-                    claim. Subsequently, Kennedy brought the present appeal.
breach of contract." In this case it was not clear what law the
arbitrator would have to consider in order to apply the                                              II. ANALYSIS
Agreement's anti-discrimination clause because the
                                                                              A. PRECLUSIVE EFFECT OF THE ARBITRATION

    3
                                                                                Kennedy argues that the district court erred in holding that
      The Gilmer Court seemed to be in accord with the distinction drawn      his ADA claim is barred by the arbitrator's award and
in Gardner-Denver between contractual and statutory rights,                   adjudication. Kennedy asserts that neither the Agreement nor
distinguishing Gardner-Denver on the basis that Gardner-Denver                he waived his right to a federal judicial forum for his statutory
involved the arbitration of contract-based anti-discrimination claims
where the employees there had not agreed to arbitrate their statutory anti-   ADA rights and points to Alexander v. Gardner-Denver Co.,
discrimination claims. See Gilmer, 500 U.S. at 35.                            415 U.S. 36 (1974), as holding that the arbitration of
6    Kennedy v. Superior Printing Co., et al. No. 99-3304          No. 99-3304 Kennedy v. Superior Printing Co., et al.          7

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