                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0265n.06
                             Filed: April 7, 2005

                                          No. 03-4133

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

JOHN A. ROSSI,                                        )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )   ON APPEAL FROM THE
v.                                                    )   UNITED STATES DISTRICT
                                                      )   COURT FOR THE NORTHERN
ALCOA, INC; ALCOA WHEEL & FORGED                      )   DISTRICT OF OHIO
PRODUCTS; and MIKE MARTIN,                            )
                                                      )
       Defendants-Appellees.


BEFORE:        MARTIN and BATCHELDER, Circuit Judges; O’MEARA, District Judge.*

JOHN CORBETT O’MEARA, District Judge. John Rossi, a current employee of Alcoa, Inc.,

(“Alcoa”) appeals the district court’s order granting summary judgment to Alcoa and Mike Martin,

his former supervisor, on Rossi’s claims of sex discrimination, disability discrimination, sexual

harassment, disability harassment, and retaliation under Title VII of the Civil Rights Act of 1964

and the Americans with Disabilities Act of 1990 (“ADA”), as well as his claim of intentional

infliction of emotional distress.

                           FACTS AND PROCEDURAL HISTORY

       Rossi, a white male, was hired by Alcoa in 1996 as an hourly worker. In January 1999 he

was promoted to unit supervisor in the chip and trim department. Two years later Mike Martin

became his supervisor; and, not long after, Martin became critical of Rossi’s job performance.


       *
       The Honorable John Corbett O’Meara, United States District Court for the Eastern District
of Michigan, sitting by designation.
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Martin testified that he observed various problems in Rossi’s work and instructed him to provide

better constructive feedback to other Alcoa employees.

       Rossi subsequently complained to Sean Mee, Alcoa’s human relations supervisor, stating

that Martin was harassing him and singling him out for unfair treatment. Rossi said that as a result

of the unfair treatment, he was becoming physically ill and that if Mee did not resolve the conflict,

he would like to resign his position and return to the hourly workforce.

       In February 2002 Rossi met with Mee and superintendent Ed Gonzales. Martin, who was

also present at the meeting, gave Rossi the option of remaining in his supervisory position and being

put under review or returning to the hourly workforce. Rossi considered this a threat; he deduced

that if he were put under review he would ultimately be fired. He decided that he did not want to

be put under review and would rather be returned to the hourly workforce. In his lawsuit he alleges

that he was constructively discharged from his salaried position.

       Upon Rossi’s decision to leave his salaried position, Martin assigned Roger Beck to replace

him for the weekend. Martin then assigned Laura Daum, a union employee, to fill the position as

a temporary assigned supervisor. Ultimately, Martin permanently placed Billy Meyers, a salaried

employee, in Rossi’s former position.

       When Rossi became an hourly employee, he was put on the day shift in the chip and trim

department. He soon became aware that he could be transferred to the night shift and was concerned

that he might start having problems with sleep apnea. On February 12, 2002, he saw Dr.

Gundapaneni, his physician, who wrote a disability note which stated, “pt can only work day shift

for 3 months.”
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Rossi v. Alcoa, Inc.
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       The note was reviewed by Dr. Singer, Alcoa’s company physician, who contacted Dr.

Gundapaneni. Gundapaneni told Singer that Rossi was currently experiencing “chronic sinus and

laryngeal difficulties” and was having a “lot of congestion and difficulty breathing.”             Dr.

Gundapaneni suggested that Rossi might also be evaluated for sleep apnea. Rossi was diagnosed

in 2002 for sleep apnea and given medication. He testified that when he takes his medication he

sleeps well. Dr. Singer concluded that Rossi and Dr. Gundapaneni provided no medical justification

for granting the requested restriction. He informed Rossi that under the terms of the collective

bargaining agreement he could see a third party physician chosen by Singer and Gundapaneni to

resolve their disagreement. Rossi did not see that physician, however, and started working the night

shift in March 2002. He continues to work that shift today.

       Rossi filed this lawsuit against Alcoa and Martin in June 2002. His complaint makes the

following allegations: (1) he was harassed, mistreated, and constructively discharged from his

position as supervisor based on his gender in violation of Title VII of the Civil Rights Act; (2) Alcoa

and Martin violated the ADA by failing to afford him a reasonable accommodation for his sleep

apnea after he was transferred to the hourly workforce; (3) Martin harassed and retaliated against

him on the basis of his gender and disability in violation of Ohio’s discrimination statute, § 4412.02

of the Ohio Revised Code; and (4) he was retaliated against on the basis of his disability for filing

a claim with the Equal Employment Opportunity Commission alleging gender discrimination.

Finally, Rossi alleged that Martin was liable for intentional infliction of emotional distress under

common law.
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                                    STANDARD OF REVIEW

       We review de novo the district court’s grant of summary judgment. Williams v. Gen. Motors

Corp., 187 F.3d 553, 560 (6th Cir. 1999). Summary judgment is appropriate where the evidence

shows “there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56( c). In deciding an appeal of a grant of summary

judgment, we view the evidence and draw all reasonable inferences in favor of Rossi, the non-

moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

We weigh the evidence not to determine the truth of the matter but to determine whether there is a

genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In this case a

genuine issue for trial exists if there is sufficient evidence upon which the jury could reasonably find

for Rossi on any of his claims.

                                      LAW AND ANALYSIS

A.      Gender Discrimination

       Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against

any individual with respect to his compensation, terms, conditions or privileges of employment

because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1).

In a Title VII action the plaintiff has the burden of proving a prima facie case. Thurman v. Yellow

Freight Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996). In a “reverse” discrimination case such as

this one, in which the plaintiff does not belong to a traditionally protected class but instead belongs

to a majority group, a prima facie case is established upon a showing that “‘background

circumstances support the suspicion that the defendant is that unusual employer who discriminates
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against the majority’ . . . and upon a showing that the employer treated differently employees who

were similarly situated but not members of the protected group.” Yeager v. Gen. Motors Corp., 265

F.3d 389, 397 (6th Cir. 2001) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67

(6th Cir. 1985)).

       To show that Alcoa is the unusual employer who discriminates against the majority, Rossi

argues that female supervisors received favorable treatment. He makes the following allegations:

(1) Martin disciplined female supervisors differently; (2) he was publicly criticized and embarrassed

for no reason; (3) Martin allowed female employees to use the office to perform supervisory chores

but refused to allow Rossi to do so; (4) Martin allowed a female supervisor to make a lateral move

back to her original position when her performance was questioned.

       Rossi also contends, though, that other male supervisors received favorable treatment. He

contends that Martin chastised him for awarding a paid lunch to an employee but ignored the same

conduct by another male employee. Rossi testified that when he complained to his human relations

supervisor about Martin’s treatment, he also complained that Martin treated both female and male

employees more favorably.

       The district court found that Rossi complained that he received worse treatment than other

supervisors, male or female. Because he failed to show any evidence of background circumstances

that “support the suspicion that the defendant is that unusual employer who discriminates against

the majority,” we will affirm the district court’s conclusion on this issue.
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B.      Failure to Accommodate a Disability

        Rossi claims that Defendants violated the ADA by failing to accommodate his sleep apnea.

To prevail on this calm, Rossi must show that he is a qualified individual with a disability. 42

U.S.C. § 12112(a). A “disability” is defined to include “a physical or mental impairment that

substantially limits one or more major life activities . . . .” 42 U.S.C. § 12102(2)(A). The mere fact

that Plaintiff has a recognized physical or mental impairment is not sufficient to establish a

cognizable disability; Rossi must also show that his impairment substantially limits a major life

activity.

        Rossi submits as evidence of his disability a 2002 diagnosis of sleep apnea, anxiety, and

other conditions; however, he provides no evidence that the impairment substantially limited him

in the performance of a major life activity. We have held that “getting between 2 and 4 hours of

sleep per night, while inconvenient, simply lacks the kind of severity we require of an ailment before

we will say that the ailment qualifies as a substantial limitation under the ADA.” Boerst v. Gen.

Mills Operations, Inc., Case No. 00-3281, 2002 WL 59637, cert. denied, 535 U.S. 1095 (2002).

Moreover, we must consider whether there is a substantial limitation in light of any corrective

measures, such as medication, that plaintiff Rossi uses. Sutton v. United Air Lines, Inc., 527 U.S.

471, 482 (1999) (“Looking at the Act as a whole, it is apparent that if a person is taking measures

to correct for, or mitigate, a physical or mental impairment, the effects of those measures—both

positive and negative—must be taken into account when judging whether that person is

‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.”). Rossi testified
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that he sleeps well when he takes his medication; therefore, he is not substantially limited by his

condition, which fails to rise to the level of a disability. Thus, we will affirm on Rossi’s ADA claim.

C.       State Claim for Gender and Disability Discrimination

         Because Rossi fails to meet the federal standards for his discrimination claims, he necessarily

fails to meet the state standards as well. See Plumbers & Steamfitters Joint Apprenticeship Comm.

v. Ohio Civil Rights Comm’n, 421 N.E. 2d 128, 131 (Ohio 1981) (federal case law applying Title

VII is generally applicable to cases involving Ohio Rev. Code Chapter 4112).

D.       Retaliation

         Rossi claims that Defendants retaliated against him “for filing a previous EEOC charge

alleging discrimination due to his gender.” To establish a prima facie case of retaliation under Title

VII, Rossi must show that: (1) he was engaged in protected Title VII activity; (2) he was subjected

to an adverse employment action; and (3) there is a causal link between the protected activity and

the adverse employment action. Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.

1990).

         Rossi’s claim fails because he suffered no adverse employment action. Though Rossi

contends he was constructively discharged from his supervisory position, it is clear that he was

actually given the option of keeping that position. He claims that this option was not real because

in order to keep his position he would have been subjected to performance review and would

ultimately have been terminated.        This contention does not meet the standard for adverse

employment action. Although constructive discharge may constitute an adverse employment action,

a plaintiff cannot show constructive discharge merely on the basis of his own belief or suspicion that
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Rossi v. Alcoa, Inc.
Page 8

he would someday be terminated. Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002). A

constructive discharge occurs only when an employee shows that his employer subjected him to

conduct so severe that a reasonable person in the employee’s place would have felt compelled to

resign. See Koscis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885-886 (6th Cir. 1996). This court has

held that institution of performance improvement plans does not constitute an objectively

unreasonable condition sufficient to show constructive discharge. Agnew, 286 F.3d at 310.

Therefore, we will affirm the grant of summary judgment as to plaintiff Rossi’s retaliation claim.

E.     Intentional Infliction of Emotional Distress

       Under Ohio law, a claim for intentional infliction of emotional distress requires a plaintiff

to show that: (1) the defendant either intended to cause emotional distress or knew or should have

known that the actions taken would result in serious emotional distress; (2) the defendant’s conduct

was “extreme and outrageous”; (3) the defendant’s actions proximately caused psychic injury; and

(4) the mental anguish suffered by the plaintiff was serious, and no reasonable person could be

expected to endure it. Ekstrom v. Cuyahoga County Comty. Coll., 779 N.E.2d 1067, 1076 (Ohio Ct.

App. 2002).

       In this case Rossi cannot show that Martin’s behavior was “extreme and outrageous,” which,

according to the Ohio courts, must go beyond all possible bounds of decency and be regarded as

atrocious and utterly intolerable in a civilized community. Yeager v. Local Union 20, 453 N.E.2d

666 (1983). Viewed in the light most favorable to him, Rossi claims only that Martin treated him

harshly, rudely, and unfairly. This is not sufficient to support his claim as a matter of law.
No. 03-4133
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Therefore, we will affirm the district court’s order granting summary judgment as to Rossi’s claim

of intentional infliction of emotional distress.

                                          CONCLUSION

       For all of the reasons set forth above, we AFFIRM the order of the district court granting

summary judgment to defendants Alcoa and Martin.
