NOT RECOMMENDED FOR PUBLICATION File Name: 22a0009n.06
No. 21-5470
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jan 05, 2022 HENRY HASSELL, JR., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN FORD MOTOR COMPANY, ) DISTRICT OF TENNESSEE ) Defendant-Appellee. )
Before: COLE, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. After Henry Hassell, Jr. injured his hand in a workplace accident,
his employer, Ford Motor Company, terminated his employment. Hassell believes that Ford
terminated him because of his disability and race, so he sued. The problem is that Hassell’s layoff
happened in 1981, nearly forty years before he raised his claims. The district court dismissed his
claims as untimely. We agree and AFFIRM.
I.
In 1980, Hassell nearly severed the middle finger on his right hand while operating a
grinder on the job at Ford. He suffered permanent nerve and ligament damage but returned to
work a year later. Due to his impairment, Hassell was unable to lift heavy objects or even write
legibly. Hassell claims that Ford was nevertheless required to keep him on as a “full workers’
comp status” employee because a company doctor deemed him “incapacitated due to an on the job No. 21-5470, Hassell v. Ford Motor Co.
injury.” Instead, Hassell claims, Ford “downplayed the extent of [Hassell’s] injury” and
terminated him three weeks after he returned to work.
At the time of his layoff, Hassell had worked for Ford for eight and a half years. Had
Hassell accrued ten years with Ford, he would have been entitled to full disability retirement
benefits, including a pension and medical insurance. But because he was short of that mark in
actual experience, and because Ford’s allegedly improper layoff deprived him of the opportunity
to accrue pension credits, Ford instead pays Hassell $119 per week in workers’ compensation
benefits. For at least the last ten years, a Ford representative has visited Hassell twice per year to
verify his eligibility for these benefits. On each visit, Hassell asks Ford to provide him with
pension credits. In July 2018, Hassell, who is Black, learned that near the time of his accident
Ford had given full pension credit to a white employee who had a similar injury, but only three
years of experience.
On July 26, 2018, Hassell filed a discrimination charge with the Equal Employment
Opportunity Commission (EEOC) and the Michigan Department of Civil Rights. Of the bases for
discrimination listed on the charge form, Hassell checked only the “disability” box; and, in his
explanation of the complaint, Hassell stated that he was discriminated against “because of [his]
disability.” The EEOC closed Hassell’s file and issued a right-to-sue notice.
Hassell then filed this suit against Ford.1 Hassell’s operative complaint alleges that Ford
terminated him “in contravention of [his] known disability”; that the layoff deprived him of
disability benefits that had been afforded to similarly situated white employees; and that Ford’s
discrimination “is a fixed and continuing practice that has been repeated continuously within the
1 Hassell initially sued pro se, but that first complaint was dismissed without prejudice. This appeal arises from Hassell’s second suit against Ford, in which he is represented by counsel. -2- No. 21-5470, Hassell v. Ford Motor Co.
statute of limitations period.” Ford moved to dismiss for failure to state a claim, arguing that
Hassell’s claims were time barred and any adverse employment actions occurred before the
enactment of the Americans with Disabilities Act of 1990 (ADA). Hassell responded to the motion
and separately moved to amend his complaint. Admitting that his earlier complaint “primarily”
alleged disability discrimination, Hassell sought leave to describe “more accurately” his race-
discrimination claim in light of a recently discovered EEOC pre-charge filing in which Hassell
complained of racial discrimination.
The district court granted Ford’s motion to dismiss and denied Hassell’s motion to amend.
The court agreed that Hassell’s termination occurred well before the enactment of the ADA and
rejected his argument that Ford’s continued refusal to provide full disability benefits constituted a
continuing violation of the ADA. The court then concluded that Hassell’s proposed amendment
would be futile because his EEOC filings were insufficient to even raise, let alone exhaust, a race-
discrimination claim. Hassell appealed both rulings.
II.
When a district court denies leave to amend due to futility—i.e., because the proposed
amended complaint could not withstand a motion to dismiss—we review the denial de novo. Doe
v. Mich. State Univ., 989 F.3d 418, 424 (6th Cir. 2021). We thus review de novo both the dismissal
of Hassell’s disability-discrimination claim and the denial of leave to add a race-discrimination
claim. See id. at 425. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Americans with Disabilities Act of 1990 prohibits employment discrimination on the
basis of disability. See 42 U.S.C. § 12112. But it only did so starting in 1992. Pub. L. No. 101-
-3- No. 21-5470, Hassell v. Ford Motor Co.
336, § 108, 104 Stat. 327, 337 (1990); O’Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir. 1993)
(per curiam). Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the
basis of race, 42 U.S.C. § 2000e-2, but plaintiffs must timely file a discrimination charge with the
EEOC to bring such a claim, id. § 2000e-5(f)(1). For a Michigan claimant who “initially
institute[s]” proceedings with a state or local non-discrimination agency, the plaintiff must file his
charge within 300 days of the unlawful employment practice. See id. § 2000e-5(e)(1); Logan v.
MGM Grand Detroit Casino, 939 F.3d 824, 827 (6th Cir. 2019). “A discriminatory act which is
not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred
before the statute was passed.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).
Hassell’s disability and race discrimination claims are time barred. Between his operative
and proposed amended complaints, Hassell alleges two adverse employment actions: termination
and the refusal to award pension credits. But both of those acts occurred in 1981. That’s too early
to be actionable under the ADA; and Hassell’s 2018 EEOC charge came too late, much more than
300 days after those decades-old events.2
In an attempt to avoid the time bar, Hassell argues that by continuing to pay him less than
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0009n.06
No. 21-5470
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jan 05, 2022 HENRY HASSELL, JR., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN FORD MOTOR COMPANY, ) DISTRICT OF TENNESSEE ) Defendant-Appellee. )
Before: COLE, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. After Henry Hassell, Jr. injured his hand in a workplace accident,
his employer, Ford Motor Company, terminated his employment. Hassell believes that Ford
terminated him because of his disability and race, so he sued. The problem is that Hassell’s layoff
happened in 1981, nearly forty years before he raised his claims. The district court dismissed his
claims as untimely. We agree and AFFIRM.
I.
In 1980, Hassell nearly severed the middle finger on his right hand while operating a
grinder on the job at Ford. He suffered permanent nerve and ligament damage but returned to
work a year later. Due to his impairment, Hassell was unable to lift heavy objects or even write
legibly. Hassell claims that Ford was nevertheless required to keep him on as a “full workers’
comp status” employee because a company doctor deemed him “incapacitated due to an on the job No. 21-5470, Hassell v. Ford Motor Co.
injury.” Instead, Hassell claims, Ford “downplayed the extent of [Hassell’s] injury” and
terminated him three weeks after he returned to work.
At the time of his layoff, Hassell had worked for Ford for eight and a half years. Had
Hassell accrued ten years with Ford, he would have been entitled to full disability retirement
benefits, including a pension and medical insurance. But because he was short of that mark in
actual experience, and because Ford’s allegedly improper layoff deprived him of the opportunity
to accrue pension credits, Ford instead pays Hassell $119 per week in workers’ compensation
benefits. For at least the last ten years, a Ford representative has visited Hassell twice per year to
verify his eligibility for these benefits. On each visit, Hassell asks Ford to provide him with
pension credits. In July 2018, Hassell, who is Black, learned that near the time of his accident
Ford had given full pension credit to a white employee who had a similar injury, but only three
years of experience.
On July 26, 2018, Hassell filed a discrimination charge with the Equal Employment
Opportunity Commission (EEOC) and the Michigan Department of Civil Rights. Of the bases for
discrimination listed on the charge form, Hassell checked only the “disability” box; and, in his
explanation of the complaint, Hassell stated that he was discriminated against “because of [his]
disability.” The EEOC closed Hassell’s file and issued a right-to-sue notice.
Hassell then filed this suit against Ford.1 Hassell’s operative complaint alleges that Ford
terminated him “in contravention of [his] known disability”; that the layoff deprived him of
disability benefits that had been afforded to similarly situated white employees; and that Ford’s
discrimination “is a fixed and continuing practice that has been repeated continuously within the
1 Hassell initially sued pro se, but that first complaint was dismissed without prejudice. This appeal arises from Hassell’s second suit against Ford, in which he is represented by counsel. -2- No. 21-5470, Hassell v. Ford Motor Co.
statute of limitations period.” Ford moved to dismiss for failure to state a claim, arguing that
Hassell’s claims were time barred and any adverse employment actions occurred before the
enactment of the Americans with Disabilities Act of 1990 (ADA). Hassell responded to the motion
and separately moved to amend his complaint. Admitting that his earlier complaint “primarily”
alleged disability discrimination, Hassell sought leave to describe “more accurately” his race-
discrimination claim in light of a recently discovered EEOC pre-charge filing in which Hassell
complained of racial discrimination.
The district court granted Ford’s motion to dismiss and denied Hassell’s motion to amend.
The court agreed that Hassell’s termination occurred well before the enactment of the ADA and
rejected his argument that Ford’s continued refusal to provide full disability benefits constituted a
continuing violation of the ADA. The court then concluded that Hassell’s proposed amendment
would be futile because his EEOC filings were insufficient to even raise, let alone exhaust, a race-
discrimination claim. Hassell appealed both rulings.
II.
When a district court denies leave to amend due to futility—i.e., because the proposed
amended complaint could not withstand a motion to dismiss—we review the denial de novo. Doe
v. Mich. State Univ., 989 F.3d 418, 424 (6th Cir. 2021). We thus review de novo both the dismissal
of Hassell’s disability-discrimination claim and the denial of leave to add a race-discrimination
claim. See id. at 425. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Americans with Disabilities Act of 1990 prohibits employment discrimination on the
basis of disability. See 42 U.S.C. § 12112. But it only did so starting in 1992. Pub. L. No. 101-
-3- No. 21-5470, Hassell v. Ford Motor Co.
336, § 108, 104 Stat. 327, 337 (1990); O’Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir. 1993)
(per curiam). Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the
basis of race, 42 U.S.C. § 2000e-2, but plaintiffs must timely file a discrimination charge with the
EEOC to bring such a claim, id. § 2000e-5(f)(1). For a Michigan claimant who “initially
institute[s]” proceedings with a state or local non-discrimination agency, the plaintiff must file his
charge within 300 days of the unlawful employment practice. See id. § 2000e-5(e)(1); Logan v.
MGM Grand Detroit Casino, 939 F.3d 824, 827 (6th Cir. 2019). “A discriminatory act which is
not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred
before the statute was passed.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).
Hassell’s disability and race discrimination claims are time barred. Between his operative
and proposed amended complaints, Hassell alleges two adverse employment actions: termination
and the refusal to award pension credits. But both of those acts occurred in 1981. That’s too early
to be actionable under the ADA; and Hassell’s 2018 EEOC charge came too late, much more than
300 days after those decades-old events.2
In an attempt to avoid the time bar, Hassell argues that by continuing to pay him less than
he is entitled to in benefits, Ford discriminates against him with each paycheck. There are two
problems with this theory. First, even if each paycheck were indeed discriminatory, those recent
acts cannot revive the related but time-barred termination or denial of pension credits. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). It isn’t enough that Hassell has
2 Hassell alleges in his proposed amended complaint that Ford refused to award him pension credits after a November 1990 state court decision affirmed his right to certain disability benefits. Even if that refusal could be considered a distinct adverse employment action, rather than a continued effect of his 1981 layoff, it too occurred over a year before the effective date of the ADA, and Hassell filed his EEOC charge over twenty-five years after the expiration of the Title VII limitations period. -4- No. 21-5470, Hassell v. Ford Motor Co.
repeatedly asked Ford to rectify its past actions by awarding him pension credit. See Pittman v.
Spectrum Health Sys., 612 F. App’x 810, 813–14 (6th Cir. 2015) (collecting cases establishing that
a “failure to rectify a prior discriminatory act” does not constitute an act of discrimination).
Second, Hassell does not assert that the retirement system is itself discriminatory. He never
alleges, for example, that a white disabled employee with eight and a half years of experience
would be entitled to greater benefits. Rather, Hassell’s claim is that one similarly situated white
employee was credited with more years of experience at the time of his injury; it is that credit that
gives rise to the benefits differential. Ford’s alleged decision not to credit Hassell—a discrete act
that occurred decades ago—may continue to affect the size of Hassel’s disability check but “the
critical question is whether any present violation exists.” Evans, 431 U.S. at 558. Based on
Hassell’s complaint, the answer is “No.” Ford’s present operation of a retirement system that is
not itself discriminatory cannot breathe new life into a claim based on decades-old events.
Hassell argues for the first time on appeal that he should be given leave to amend his
complaint to add a race discrimination claim under 42 U.S.C. § 1981. But he forfeited that claim
by failing to raise it below. United States ex rel. Maur v. Hage-Korban, 981 F.3d 516, 522 (6th
Cir. 2020). And because Hassell’s Title VII claim is time barred, we need not determine whether
the district court properly held that Hassell had not exhausted that claim.
***
Hassell’s discrimination claims are untimely, so we AFFIRM.
-5-