Jackson v. Regal Beloit America, Inc

Filing 54

MEMORANDUM OPINION & ORDER: (1) Defendant Regal Beloit America, Inc.s Motion for Summary Judgment 36 is GRANTED as to Count Three (FMLA-interference and FMLA-retaliation claims); and DENIED as to Count One (ADA/KCRA unlawful-medical-examination an d ADA/KCRA-retaliation claims) and Count Two (GINA-unlawful-request and GINA-retaliation claims); (2) Summary judgment is GRANTED in favor of Defendant Regal Beloit America, Inc. as to Count Three of the Amended Complaint; (3) Partial summary judgmen t is GRANTED sua sponte in favor of Plaintiff Sheila Jackson as to liability on Count One and Count Two of the Amended Complaint; (4) The matter remains pending only as to damages for Counts One and Two; and (5) Within twenty (20) days from the date of the entry of this Memorandum Opinion and Order, the parties shall filed a Joint Status Report, setting forth available dates for a Final Pretrial Conference and Jury Trial, and whether they would be amenable to a court-facilitated settlement conference. Signed by Judge David L. Bunning on 06/21/2018.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 16-134-DLB-CJS
SHEILA JACKSON
vs.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

REGAL BELOIT AMERICA, INC.
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* *

DEFENDANT
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* *

* *

* *

* *

This matter is before the Court upon Defendant Regal Beloit America, Inc.’s Motion
for Summary Judgment, seeking judgment as a matter of law on Plaintiff Sheila Jackson’s
employment-discrimination claims under the Americans with Disabilities Act (“ADA”), the
Kentucky Civil Rights Act (“KCRA”), the Family Medical Leave Act (“FMLA”), and the
Genetic Information Nondiscrimination Act (“GINA”). In its Motion, Regal Beloit America,
Inc. (“Regal”) argues that Jackson has failed to create a genuine issue of material fact
regarding whether Regal violated the ADA, KCRA, FMLA, or GINA. The Court has
federal-question jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction under 28 U.S.C. § 1367.
I.

FACTUAL AND PROCEDURAL BACKGROUND
In November of 2011, Plaintiff Sheila Jackson began working for Regal1 at its

Regal purchased and acquired another company, Emerson Power Transmission, in
February of 2015. (Doc. # 41-1 at 5-6). Therefore, for most of her employment, Jackson actually
worked for Emerson. However, the law imposes successor liability to remedy unfair labor
practices. See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974). And,
at oral argument, Regal conceded its liability for Emerson’s actions. (Doc. # 53). Accordingly, to
avoid confusion, the Court will refer to the defendant-employer as Regal throughout this
Memorandum Opinion and Order.
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Florence, Kentucky location, where Regal operates the Power Transmission Solutions
segment of its business and manufacturers couplings for Kop-Flex and components for
System Plast. (Docs. # 40-1 at 19; 41-1 at 7). At all times relevant to this action, Jackson
worked on a swing-shift (from 11:30 a.m. to 8:00 p.m.) as a Value Added Packer (Grade
5) on the Distribution side of Regal’s facility. (Docs. # 40-1 at 14-17, 51; 51-2 at 2). As a
Value Added Packer (Grade 5), Jackson picked and packed drive kits, “retriev[ing] parts
ordered by customers from various areas in Regal’s warehouse” and then “assembl[ing]
those parts on a pallet for shipping to the customer.” Id. To perform those job duties,
Jackson operated powered industrial equipment. Id. Specifically, Jackson operated a
Taylor-Dunn motorized three-wheel cart and a Crown forklift. (Doc. # 40-1 at 17-18).
In July of 2014, Jackson was diagnosed with colon cancer and underwent surgery.
(Doc. # 40-1 at 31). As a result, Jackson requested, and was granted, leave under the
FMLA. (Doc. # 40-1 at 232-240). Jackson’s doctor cleared her to return to work on
September 23, 2014. (Doc. # 40-1 at 242). After using vacation time, Jackson returned
to Regal on October 1, 2014. Id. Upon her return to work, Jackson resumed her position
as a Value Added Packer (Grade 5) and performed her job as she had before, with no
restrictions and no performance issues. (Doc. # 41-1 at 52).
In the early part of 2015, Regal notified Jackson that she would need to undergo
a medical screening. (Doc. # 40-1 at 34). Regal contracted with Saint Elizabeth Business
Health to provide medical screenings of its employees. (Doc. # 41-1 at 19). On January
15, 2015, Jackson underwent a medical screening with Dr. Haskell. Id. at 111. During
this appointment, Dr. Haskell obtained information regarding Jackson’s medical history
and conducted a medical examination. (Doc. # 36-5 at 10-11). The Occupation/Medical

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Health Examination form shows that Jackson passed her vision test and that she had no
physical abnormalities. Id. at 11.
At some point during the appointment, Dr. Haskell inquired about Jackson’s history
of colon cancer and her prior surgery.2 (Doc. # 40-1 at 44). Jackson, however, refused
to discuss her colon cancer or her surgery with Dr. Haskell. Id. at 37. At the conclusion
of the appointment, Dr. Haskell requested that Jackson provide her medical records for
his review. Id. at 39. Dr. Haskell also sent a letter to Regal, detailing Jackson’s visit and
the status of her medical clearance:
This is to inform you that Sheila Jackson was seen for a physical
examination on 01/15/2015. The examination has been placed on medical
hold pending receipt of additional information concerning the individual.
The patient has been instructed to provide the requested documentation
within two weeks in order for the provider to make a medical determination.
If the information is not received within the time allotted the physical results
will be reported as incomplete.
Id. at 112.

Attached to Dr. Haskell’s correspondence was a “Medical Condition

Clarification” form, which identified Jackson’s “medical condition of concern” as “surgery
– all medical records” and requested that Jackson “provide the following information from
[her] treating medical provider to the Business Health center within two weeks”:
1. Current diagnosis of your medical condition
2. The treatment you have received to date
3. The prognosis
4. Any relevant tests
5. List any medications you are receiving and any restrictions arising from
their use
6. Any restrictions or limitations that may limit your activities at home or at
work and the time period during which those restrictions will be in effect
Although irrelevant, how the topic of Jackson’s colon cancer came up is disputed. Jackson
maintains that she did not disclose her history of colon cancer to Dr. Haskell and believes that a
representative of Regal told Dr. Haskell about her cancer. (Doc. # 40-1 at 37-38). Nicole George
testified in her deposition that she did not provide any information or documentation about
Jackson’s colon cancer to Dr. Haskell, but did not know whether another individual at Regal may
have done so. (Doc. # 41-1 at 24-25).
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7. Any additional information that your medical provider thinks would help
us to make our medical recommendation
Id. at 111. The Medical Condition Clarification form also warned that the employee “may
be unable to perform any work related duties until you provide the requested information.”
Id.
When Jackson returned to work, she met with Nicole George, Regal’s Human
Resource Manager, and explained that she had passed the medical screening and did
not believe Dr. Haskell needed access to her medical records. Id. at 39. At the conclusion
of that conversation, Jackson offered to provide a note from the doctor who had performed
her colon-cancer surgery, Dr. Moon. Id. On January 16, 2015, Dr. Moon faxed a letter
to Regal’s Human Resources Department, which opined: “Sheila Jackson is able to drive
any [t]ype of vehicles since she was released to go back to work without restrictions. If
you have any questions please contact my office.” (Doc. # 41-1 at 109-110). That day,
Nicole George forwarded Dr. Moon’s correspondence to Dr. Haskell. Id. at 28. Dr.
Haskell did not respond to the submission of Dr. Moon’s letter. Id.
After approximately two weeks had passed, Nicole George contacted Saint
Elizabeth Business Health to inquire about the status of Jackson’s medical clearance. Id.
at 33. Although she confirmed that they had received the note from Dr. Moon, George
was told that the information provided was inadequate. Id. George then informed
Jackson’s supervisor, Mike Tobias, that Jackson’s medical clearance was still pending
and summoned Jackson to a meeting. Id. At that meeting, George advised Jackson that
she would need to provide the requested documentation to Dr. Haskell in order to operate
powered industrial equipment, and warned Jackson that if she did not comply, “she could
potentially be displaced per [Regal’s] policy.” Id.
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On February 10, 2015, Dr. Haskell rendered his final Occupational Determination
on a pre-printed form, checking the box next to “Additional medical information has not
been received concerning this individual. Physical results are incomplete.” Id. at 113.
Three days later—on February 13, 2015—George, Tobias, and Jackson had a meeting,
where Regal notified Jackson that she was being displaced from her Value Added Packer
(Grade 5) Position “due to [Jackson’s] inability to operate a powered industrial vehicle per
the incomplete medical screening results.” Id. at 130. At that time, Jackson was offered
three Grade 3 positions that did not require the use of powered industrial equipment. Id.
Jackson was also informed that she had approximately one year, until February 11, 2016,
“to bid into another internal opportunity that does not require the operation of a powered
industrial vehicle” and warned that “[f]ailure to bid and take another opportunity before
February 11, 2016, [would] result in [her] being placed into any open available job at the
time” and that her “employment [would] be terminated” if she “refuse[d] the placement.”
Id. Jackson elected “displacement” in lieu of selecting an open position outside of the
drive-kit department. Id.
Jackson was displaced into a Grade 3 position, and her job duties no longer
included the operation of powered industrial equipment. (Doc. # 41-1 at 38). However,
Jackson retained her swing-shift hours and her rate of pay stayed the same. (Doc. # 401 at 82). Approximately seven months after being displaced—on September 21, 2015—
Jackson filed a discrimination charge with the EEOC, alleging that Regal had violated the
ADA and GINA. (Docs. # 41-1 at 57; 31 at ¶ 4).
On February 2, 2016—as Jackson’s one-year displacement deadline drew near—
Nicole George and Joe DeVillez, the Director of Distribution at Regal’s Florence,

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Kentucky Facility, summoned Jackson to a meeting. (Docs. # 51-2 at 2; 41-1 at 58).
During that meeting, Jackson was reminded that her displacement time would expire on
February 11, 2016, and was presented with a document that listed positions that had
been open for bidding during Jackson’s displacement. (Docs. # 40-1 at 63; 41-1 at 137).
Jackson was also offered another opportunity to complete a medical screening with Saint
Elizabeth Business Health. Id. When Jackson asked if the medical screening would
require her to submit her medical records, Regal responded in the affirmative and
explained that the doctor “needed to understand her history so they could authorize her
to be safe to operate [powered industrial equipment].” (Doc. # 41-1 at 137). Despite
Regal’s assurance that it would not receive Jackson’s medical records from Saint
Elizabeth Business Health, Jackson declined another medical examination because she
did not want to disclose her medical records. (Docs. # 40-1 at 63-64; 41-1 at 137).
Because of her unwillingness to submit to a medical examination and provide her
medical records, Regal presented Jackson with five positions, which did not require the
use of powered industrial equipment: three Grade 3 positions in the Molding Department
covering first, second, and third shifts; a third-shift Grade 7 Extrusion Set-Up Tech
position; and a second-shift Grade 7 CNC Operator position. (Doc. # 41-1 at 127).
Jackson refused to accept placement in any of those positions and Regal terminated her
employment, effective February 11, 2016. Id. When presented with her termination letter,
Jackson refused to sign. (Docs. # 40-1 at 72; 41-1 at 127). Shortly after her termination—
on April 25, 2016—Jackson filed another EEOC charge, claiming that Regal had
discriminated and retaliated against her in violation of the ADA and Title VII. (Doc. # 31
at ¶ 4). The EEOC issued Jackson right-to-sue letters for Charge One and Charge Two,

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on April 14, 2016 and May 3, 2016, respectively. Id. at ¶ 5.
On July 12, 2016, Jackson filed suit against Regal, alleging that Regal had
discriminated and retaliated against her in violation of the ADA, KCRA, FMLA, and GINA.3
(Doc. # 1). After the parties completed discovery, Regal filed the instant Motion for
Summary Judgment, seeking judgment as a matter of law on each of Jackson’s claims.
(Doc. # 36). Jackson having filed her Response (Doc. # 42), Regal having filed its Reply
(Doc. # 51), and the Court having heard oral argument on the Motion on June 15, 2018
(Doc. # 53), Regal’s Motion for Summary Judgment is fully briefed and ripe for review.
For the reasons stated herein, Regal’s Motion for Summary Judgment (Doc. # 36) is
granted in part and denied in part.
II.

ANALYSIS
A.

Standard of Review

Summary judgment is appropriate when the record reveals “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists where “there is
sufficient evidence … for a jury to return a verdict for” the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The “moving party bears the burden of
showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor
Co., 532 F.3d 469, 483 (6th Cir. 2008). Once a party files a properly supported motion
for summary judgment, by either affirmatively negating an essential element of the nonmoving party’s claim or establishing an affirmative defense, “the adverse party must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
With leave from the Court, Jackson amended her Complaint on November 29, 2017,
removing her claim for race discrimination under Title VII. (Docs. # 27, 28, and 29).
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250. However, “the mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient.” Id. at 252.
The Court must “accept Plaintiff’s evidence as true and draw all reasonable
inferences in [her] favor.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014)
(citing Anderson, 477 U.S. at 255). The Court is not permitted to “make credibility
determinations” or “weigh the evidence when determining whether an issue of fact
remains for trial.” Id. (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001)).
“The ultimate question is ‘whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.’” Back v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting
Anderson, 477 U.S. at 251-52). If there is a dispute over facts that might affect the
outcome of the case under governing law, the entry of summary judgment is precluded.
Anderson, 477 U.S. at 248.
As the moving party, Regal must shoulder the burden of showing the absence of
a genuine dispute of material fact. Fed. R. Civ. P. 56(c); see also Laster, 746 F.3d at 726
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming Regal satisfies its
burden, Jackson “must—by deposition, answers to interrogatories, affidavits, and
admissions on file—show specific facts that reveal a genuine issue for trial.” Laster, 746
F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).
B.

Discrimination and Retaliation under the ADA and KCRA

The ADA prohibits employers4 from discriminating against “a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement,
Regal has admitted it is an “employer” under the ADA, as well as the KCRA. (Doc. # 31
at ¶ 11).
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or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual”
is “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). Because the language of the KCRA “mirrors that of the ADA,”
Jackson’s claims under the KCRA will be analyzed concurrently and “consistently with
the standards developed under the ADA.” Bryson v. Regis Corp., 498 F.3d 561, 574 (6th
Cir. 2007); see also Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).
If “the plaintiff seeks to establish discrimination through indirect, rather than direct,
evidence,” the tripartite burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), provides the proper approach for analyzing the
discrimination claim. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105
(6th Cir. 2008). Under this approach, the initial burden is on the plaintiff to make out a
prima facie case of discrimination by demonstrating 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.” Whitfield v. Tennessee, 639
F.3d 253, 259 (6th Cir. 2011); see also Barlia v. MWI Veterinary Supply, Inc., No. 171185, 2018 WL 327448, at *4 (6th Cir. Jan. 9, 2018).
If the plaintiff establishes a prima facie case of discrimination under the ADA, then
the burden “shifts to the defendant to set forth a legitimate, nondiscriminatory reason for
the adverse employment action it took against the plaintiff.” Kocsis v. Multi-Care Mgmt.,

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Inc., 97 F.3d 876, 883 (6th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802). The
defendant’s burden of providing a legitimate, nondiscriminatory reason is not especially
demanding.

“The defendant bears only the burden of production; the burden of

persuasion is with the plaintiff at all times.” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d
367, 377 (6th Cir. 2002); see also Chappell v. GTE Prods. Corp., 803 F.2d 261, 266 (6th
Cir. 1986).
“If the defendant carries that burden of production, plaintiff must then prove by a
preponderance of the evidence that the defendant’s proffered reasons were not its true
reasons, but were merely a pretext for illegal discrimination.” Kocsis, 97 F.3d at 883. A
plaintiff “can demonstrate pretext ‘by showing that the proffered reason (1) has no basis
in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.’” Bender v. Hecht’s Dep’t Stores, 455 F.3d
612, 624 (6th Cir. 2006) (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,
576 (6th Cir. 2003)). “To survive a motion for summary judgment, the plaintiff need not
prove that the defendant’s proffered rationale is pretextual, as that would be enough proof
for summary judgment in favor of the plaintiff.” Whitfield, 639 F.3d at 260. “Rather, the
plaintiff must prove only enough to create a genuine issue as to whether the rationale is
pretextual.” Id. Again, “[a]t all times, the plaintiff bears the ultimate burden of persuading
the trier of fact that illegal discrimination took place.” Kocsis, 97 F.3d at 883.
Jackson claims that Regal violated the ADA and KCRA in three ways: (1)
conditioning her continued employment on submitting to a medical examination and
producing medical records, (2) displacing and demoting her for refusing to turn over all of
her medical records related to her cancer treatment and surgery, and (3) terminating her

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because of her continued refusal to turn over those medical records. (Doc. # 42 at 11).
These allegations give rise to three distinct claims—one disability-discrimination claim
and two retaliation claims. Each claim will be addressed in turn.
1.

Medical Examination/Inquiry

Once an employee has been hired, the ADA prohibits an employer from “requir[ing]
a medical examination” or making “inquiries of an employee as to whether such employee
is an individual with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business necessity.”
42 U.S.C. § 12112(d)(4)(A); see also Denman v. Davey Tree Expert Co., 266 F. App’x
377, 379 (6th Cir. 2007). Although the statute clearly permits medical examinations and
inquiries, “an employer’s discretion to order employees to undergo examinations is hardly
unbounded.” Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999). In the
post-hiring context, “demands for examinations can only be made where shown to be
‘job-related and consistent with business necessity.’”

Id. (quoting 42 U.S.C. §

12112(d)(4)(A)).
Jackson claims that Regal’s request that she submit to a medical examination was
unlawful because it was neither job-related nor consistent with business necessity. (Doc.
# 42 at 14-18). And relatedly, Jackson claims that Regal’s request, and the subsequent
demand for Jackson’s past medical records, was overly broad. Id. at 18. Regal, by
contrast, argues that it was permitted to require a medical examination and that its request
for Jackson’s medical records was lawful. (Doc. # 51 at 5-6). Thus, Regal contends that
it did not violate the ADA by making such requests and claims that Jackson’s refusal to
comply with Regal’s requests constituted “legitimate grounds” for her termination. Id. at

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8-9.
Armed with their arguments, both parties attempt to analyze Jackson’s unlawfulmedical-examination claim under the typical five-element test for ADA discrimination
claims, focusing much of their attention on the second element—whether Jackson was
qualified for her position, despite the lack of Dr. Haskell’s medical clearance. Such an
approach, however, is akin to shoving a square peg into a round hole.

Jackson’s

unlawful-medical-examination claim simply does not fit into the typical five-element test
for ADA discrimination claims.
To begin, “a plaintiff need not prove” the first element—that he or she is disabled—
“to contest an allegedly improper” medical examination or inquiry under § 12112(d)(4)(A).
Lee v. City of Columbus, 636 F.3d 245, 252 (6th Cir. 2011); see also Kroll v. White Lake
Ambulance Auth. (Kroll I), 691 F.3d 809, 816 (6th Cir. 2012) (“The importance of §
12112(d)(4)(A) in preventing discrimination is underscored by the fact that, in contrast to
many other provisions of the ADA, all individuals—disabled or not—may bring suit in aid
of its enforcement.”).

Similarly, then, the fourth element—whether the defendant-

employer knew or had reason to know of the plaintiff’s disability—makes little sense in
the unlawful-medical-examination context. The second, third, and fifth elements—which
focus on whether the plaintiff was qualified for her position, whether the plaintiff suffered
a materially adverse change in the terms and conditions of her employment, and the
defendant-employer’s actions with respect to plaintiff’s position after the adverse
employment action—are also ill-suited for a claim that does not require that the plaintiffemployee have suffered an adverse employment action. Moreover, for unlawful-medicalexamination claims, it is the defendant who has the burden of persuasion, not the plaintiff.

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Kroll II, 763 F.3d at 623.
Recognizing, at least implicitly, that the five-element test for ADA-discrimination
claims is not well-suited for an unlawful-medical-examination claim, recent Sixth Circuit
cases have applied a more straight-forward analysis, avoiding the five-element test and
analyzing only the lawfulness of the medical examination or inquiry. See, e.g., Kroll v.
White Lake Ambulance Auth. (Kroll II), 763 F.3d 619, 623 (6th Cir. 2014); Bates v. Dura
Auto. Sys., Inc. (Bates II), 767 F.3d 566 (6th Cir. 2014).5 Accordingly, the Court will adopt
the Sixth Circuit’s recent approach and analyze Jackson’s unlawful-medical-examination
claim without resort to the typical five-element test.
Under that approach, Jackson’s unlawful-medical-examination claim “reduces to
two essential inquiries: (1) whether the employer performed or authorized a medical
examination or disability inquiry (‘the regulated conduct’); and if so, (2) whether the
exam/inquiry was job-related and consistent with business necessity (‘the justification’).”
Bates II, 767 F.3d at 569. Put another way, Jackson must first establish that Regal has
performed or authorized a medical examination or disability inquiry. If she does so, Regal
will then “bear[ ] the burden of proving that” the medical examination or inquiry was “jobrelated and consistent with business necessity.” Kroll II, 763 F.3d at 623.

Prior Sixth Circuit cases have considered the lawfulness of an employer’s request for a
medical examination/inquiry under the typical five-element analysis. See, e.g., EEOC v. Prevo’s
Family Mkt., Inc., 135 F.3d 1089, 1097 (6th Cir. 1998) (concluding that the defendant-employer’s
requests for a medical evaluation did not “rise to the level of adverse employment decisions based
on stereotypes and generalizations”); Sullivan, 197 F.3d 804 (analyzing request for medical
examination under the first element as evidence that the plaintiff was “regarded as” disabled by
the employer and then concluding that valid request for medical examination could not “count as
an adverse job action”); James v. Goodyear Tire & Rubber Co., 354 F. App’x 246, 248 (6th Cir.
2009) (analyzing request for medical examination as an “adverse employment action”). As
discussed, however, more recent Sixth Circuit cases appear to have abandoned this approach.
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For purposes of the first element, a “medical examination” is “a procedure or test
that seeks information about an individual’s physical or mental impairments or health.”
Bates II, 767 F.3d at 574 (citing EEOC, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with Disabilities
Act (“EEOC Guidance”), Part B.2 (July 27, 2000)).6 A “disability-related inquiry,” on the
other hand, is a “question (or series of questions) that is likely to elicit information about
a disability.” Id. (quoting EEOC Guidance, Part B.1).
Jackson has easily carried her burden with respect to the first element. It is
undisputed that Regal required Jackson to submit to a medical examination. (Docs. # 31
at ¶ 17; 36-1 at 3; 36-3). During that medical examination and afterwards, Regal also
made a “disability-related inquiry” by requesting Jackson’s medical records related to her
colon-cancer surgery. (Docs. # 31 at ¶ 20; 36-3 at 9; 36-5 at 10-11). Therefore, the
burden shifts to Regal to “prov[e] that [the] medical examination” and the disability inquiry
were “job-related and consistent with business necessity.” Kroll II, 763 F.3d at 623.
i.

Justification

Regal argues that it was permitted to require a medical examination “given the
constantly changing nature of every employee’s health,” which is reflected in “Regal’s
policy requir[ing] a medical screening every three years to ensure that employees can

The Sixth Circuit has repeatedly relied upon the EEOC’s Enforcement Guidance as “the
best interpretative aid” for “explain[ing] and clarify[ing] the terms of § 12112(d)(4).” Kroll I, 691
F.3d at 815; see also Bates II, 767 F.3d at 574-75.

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continue to safely use [powered industrial equipment].” 7 (Doc. # 51 at 5). Specifically,
Regal asserts that “ensuring that all employees, including Plaintiff, are able to safely
operate [powered industrial equipment] by confirming his/her physical health is both jobrelated and consistent with business necessity.”

Id.

Regal further claims that “Dr.

Haskell’s request for Plaintiff’s medical records relating to her FMLA leave was not only
lawful, but appropriate to determine whether Plaintiff was medically qualified to operate
[powered industrial equipment].” Id. at 6.
Regal’s reasoning, however, merely begs the question. Regal’s policy, which
requires an employee to submit to a medical screening every three years, is only
permissible if it is job-related and consistent with business necessity.

That Regal

repeatedly asserts that it is “job-related and consistent with business necessity” does not
make it so. Nor does Regal’s reliance on “the constantly changing nature of every
employee’s health” satisfy its burden. (Doc. # 51 at 5). “The business-necessity standard

In the parties’ briefing, there seems to be some confusion about the exact statutory
provisions at play here. In its Reply, Regal cites to 42 U.S.C. § 12112(b)(6) and argues that Regal
“is entitled to” inquire into “qualification standards.” (Doc. # 51 at 5). Subsection (b)(6) provides
that “‘discriminat[ion] against a qualified individual on the basis of disability’ includes … using
qualification standards, employment tests or other selection criteria that screen out or tend to
screen out an individual with a disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered entity, is shown to be job-related
for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b)(6);
see also 42 U.S.C. § 12113. Jackson, however, has invoked the protections of (d)(4), not (b)(6).
And, the Sixth Circuit has held that (b)(6) and (d)(4) provide distinct protections and apply in
different situations. Bates v. Dura Auto. Sys., Inc. (Bates I), 625 F.3d 283, 285-86 (6th Cir. 2010).
While (b)(6) applies only to individuals with qualifying disabilities under the ADA, (d)(4)’s
protections apply to disabled and non-disabled employees alike. Id. By conflating the ADA’s
provisions regarding unlawful medical examinations and qualification standards, which may be
tested in some sort of medical screening, Regal’s arguments regarding “qualification standards”
under (b)(6) miss the mark. Thus, Regal’s argument will instead be construed as an argument
that the medical examination was “job-related and consistent with business necessity,” as
required by (d)(4). See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 568-69 (1999) (concluding
that employer could use visual-acuity job qualification standard as support for its argument that
plaintiff was not a “qualified individual with a disability under the ADA”).
7

15

cannot be satisfied by an employer’s bare assertion that a medical examination was
merely convenient or expedient.” Kroll II, 763 F.3d at 623. Rather, Regal must satisfy
the business-necessity standard in one of two ways: by offering a particularized rationale
that justifies a medical examination of an individual employee or by falling within a narrow
category of circumstances that justify periodic and indiscriminate medical examinations.
a.

Particularized Justification

An employer “who decides to require a medical examination must have a
reasonable belief based on objective evidence that the employee’s behavior threatens a
vital function of the business.” Id. To show that a particular examination or inquiry was
“job-related and consistent with business necessity,” Regal must “demonstrat[e] that: ‘(1)
the employee request[ed] an accommodation; (2) the employee’s ability to perform the
essential functions of the job [was] impaired; or (3) the employee pose[d] a direct threat
to himself or others.’” Id. (quoting Denman, 266 F. App’x at 379).
It is undisputed that Jackson did not request an accommodation. Therefore, Regal
must show either that Jackson’s ability to perform the essential functions of her job was
impaired or that Jackson posed a direct threat to herself or others. It has done neither.
Regal does not argue, and there is no evidence in the record to suggest, that Regal “ha[d]
a reasonable belief that [Jackson’s] ability to perform the essential functions of [her] job
might have been impaired.” Denman, 266 F. App’x at 380. “[F]or an employer’s request
for an exam to be upheld, there must be significant evidence that could cause a
reasonable person to inquire as to whether an employee is still capable of performing
[her] job.” Sullivan, 137 F.3d at 811. Regal has offered no evidence in this respect, aside
from the “constantly changing nature of every employee’s health.” (Doc. # 51 at 5). Such

16

a generalized justification, however, cannot be said to give rise to a “genuine reason to
doubt whether” Jackson could perform her “job-related functions.” Sullivan, 137 F.3d at
811. Nor can Regal justify the medical examination or inquiry as a response to a “direct
threat.” Regal has not claimed or put forth evidence that Jackson posed a “significant risk
to the health or safety of others.”8 EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089,
1095 (6th Cir. 1998) (citing 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.15(b)(2)).
b.

Generalized Justification

Absent “evidence of current performance problems or observable evidence
suggesting that a particular employee will pose a direct threat,” employers can require
periodic medical examinations of employees in only two instances: (1) where the
employees are in positions affecting public safety (e.g., police officers and firefighters) or
(2) where the medical examinations are required or necessitated by other law or
regulation (e.g., Federal Aviation Administration and Department of Transportation
medical certifications, Occupational Safety and Health Act standards). EEOC Guidance,
Part D.18, 21.
Although Regal describes its “Medical Screening Program for Powered Industrial
Vehicle Operators” as a periodic check for industrial safety, it does not apply to employees
who are “in positions affecting public safety.” Id. Nor is it required or necessitated by any
federal, state, or local law or regulation. See 29 C.F.R. § 1910.178. In fact, Regal’s
“Medical Screening Program for Powered Industrial Vehicle Operators” explicitly
concedes that “OSHA does not mandate specific medical standards for PIV operators.”

During oral argument on this Motion, Regal confirmed that it was not attempting to validate
its policy with any particularized evidence showing that Jackson’s ability to perform the essential
functions of her job was impaired or that Jackson posed a direct threat to herself or others. (Doc.
# 53).
8

17

(Doc. # 41-1 at 96). Nevertheless, Regal’s policy explains that “the requirements of the
DOT Commercial Driver Medical Standards are used as a starting point,” id., and requires
employees who operate powered industrial equipment to submit to similar medical
screenings and standards as drivers of commercial motor vehicles. See 49 C.F.R. Part
391.
While the Court agrees that Regal’s “workplace safety” rationale is a “wellrecognized business necessity,” “the issue” is whether the required medical examination
and disability inquiry were a “lawful means to that end.” Miller v. Whirlpool Corp., 807 F.
Supp. 2d 684, 687 (S.D. Ohio 2011) (finding that defendant-employer had failed to show
that “OSHA required or necessitated” the disability inquiry for powered industrial vehicle
operators).9 Again, there are only two circumstances where periodic, indiscriminate
medical examinations are permissible: (1) where the employees are in positions affecting
public safety or (2) where the medical examinations are required by law or regulation.
EEOC Guidance, Part D.18, 21.10 At oral argument, Regal acknowledged that its policy
did not fit within the public-safety or required-by-law categories, but attempted to argue
for a third, “common sense” category, so that employers “do not have to wait for an

In Miller, the district court did not grant summary judgment for the plaintiff and instead
found that there was a “genuine issue of material fact as to whether all the questions in Whirlpool’s
form were a reasonably effective and necessary method of achieving workplace safety.” Miller,
807 F. Supp. 2d at 687. That genuine issue of material fact arose because Whirlpool presented
evidence that the company’s medical director had demonstrated “a comprehensible link between
each of these apparently needless questions and safe driving.” Id. Regal has not offered any
similar proof or evidence in support of its periodic-medical-examination policy.
9

Again, the Court relies on the EEOC’s Enforcement Guidance, which the Sixth Circuit has
repeatedly characterized as “the best interpretative aid” for “explain[ing] and clarify[ing] the terms
of § 12112(d)(4).” Kroll I, 691 F.3d at 815; see also Bates II, 767 F.3d at 574-75.
10

18

accident to justify screening employees.”11

(Doc. # 53).

If the business-necessity

standard were that low, however, it would amount to no standard at all. Surely, one would
not have to look hard to find an employer interested in “workplace safety” or employees
with “constantly changing” health.

Regal’s far-reaching rationale would therefore

eviscerate the ADA’s prohibition against medical examinations and disability inquiries that
are not “job-related and consistent with business necessity.” Such a result is nonsensical,
and finds no support in law. Because Regal has not raised a genuine issue of material
fact regarding whether its medical examination and inquiry were “job-related” and
“consistent with business necessity,” it has failed to carry its burden.
ii.

Scope

Moreover, even if Regal had provided a sufficient justification for its request for a
medical examination or disability inquiry, which it has not, the scope of the examination
and the inquiry “must remain appropriately narrow.” James v. Goodyear Tire & Rubber
Co., 354 F. App’x 246, 249 (6th Cir. 2009). A medical examination or inquiry under §
12112(d)(4) “is not an excuse for every wide-ranging assessment of mental or physical
debilitation that could conceivably affect the quality of an employee’s job performance”;

Regal cites to Wice v. Gen. Motors Corp., No. 07-cv-10662, 2008 WL 5235996 (E.D. Mich.
Dec. 15, 2008)—an unpublished and non-binding case—to support its “common sense”
suggestion. Wice, however, is distinguishable for several reasons. First, General Motors did not
require the plaintiff-employee to “see the plant nurse or doctor, but allowed him to provide a
medical certification from his own doctor.” Id. at *3. Second, the Michigan Occupational Safety
and Health Administration had enacted a regulation that “require[d] that employees assigned to
operate mobile equipment meet certain minimum fitness standards, including that they have
corrected vision that meets the same requirements as those for a valid Michigan’s driver license,
have effective use of all four limbs, be of a height sufficient to operate the controls, have an
unobstructed view over the controls and dashboard, have coordination between the eyes, hands,
and feet, and be free from known convulsive disorders and episodes of unconsciousness for a
period of one year.” Id. at *1. In this case, there were no similar requirements imposed by law or
regulation. And more significantly, it is undisputed that Regal refused to allow Jackson to provide
a medical certification from her own doctor. (Doc. # 41-1 at 33). Moreover, to the extent that
Wice is not distinguishable, the Court finds it unpersuasive.

11

19

rather, the examination and the inquiry must be “restricted to discovering whether the
employee can continue to fulfill the essential functions of the job.” Sullivan, 197 F.3d at
812-13. Therefore, “an employer may not request an employee’s complete medical
records under the disguise of job-relatedness and business necessity.” Farmiloe v. Ford
Motor Co., 277 F. Supp. 2d 778, 782-83 (N.D. Ohio 2002); see also EEOC Guidance,
Part B.10.
Here, any appropriate scope was far surpassed. At the medical examination,
Jackson was “required to submit information regarding [her] past medical history, which
clearly inquired into the nature and severity of any disabilities.” James v. James Marine,
Inc., 805 F. Supp. 2d 340, 350 (W.D. Ky. 2011). Jackson was also required to submit
medical records related to her colon-cancer surgery, even though her physical
examination did not reveal any physical abnormalities or uncover any causes for concern.
(Docs. # 31 at ¶ 20; 36-3 at 9; 36-5 at 10-11). Regal has put forth no rationale supporting
its broad request.
Put simply, Regal has failed to carry its “burden of proving that” the medical
examination or inquiry was “job-related and consistent with business necessity.” Kroll II,
763 F.3d at 623. Given Regal's failure to provide any particularized reason and inability
to satisfy the generalized justification, it appears that Regal simply made a decision to
stand by its policy. By failing to limit the scope of the medical examination and inquiry
and failing to put forth a legally valid justification for demanding it, Regal violated the
ADA and the KCRA.

20

Accordingly, Jackson is entitled to partial summary judgment in her favor on her
unlawful-medical-examination claim under the ADA and the KCRA.12 “In order to prevail
on this claim, however, [Jackson] must still establish that [she] suffered ‘some cognizable
injury in fact of which the violation is a legal and proximate cause.’” James, 805 F. Supp.
2d at 350 (quoting Indergard v. Georgia-Pacific Corp., 582 F.3d 1049, 1060 (9th Cir.
2009)); see also Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998);
Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206 (11th Cir. 2010). Therefore,
the matter of damages is best left for a jury.
2.

Retaliation

The ADA prohibits discrimination “against any individual because such individual
has opposed any act or practice made unlawful by [the ADA] or because such individual
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). Therefore, an ADAretaliation claim can arise from an individual’s opposition to an unlawful employment
practice or an individual’s filing of a discrimination charge. “The ADA is not, however, a
catchall statute creating a cause of action for any workplace retaliation, but protects
individuals only from retaliation for engaging in, or aiding another who engages in, activity
covered by the ADA.” Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014).

“[A] district court may enter summary judgment sua sponte, ‘so long as the losing party
was on notice that [it] had to come forward with all [its] evidence.’” Grand Rapids Plastics, Inc. v.
Lakian, 188 F.3d 401, 407 (6th Cir. 1999) (quoting Celotex Corp., 477 U.S. at 326); see also Fed.
R. Civ. P. 56(f)(1). Because it was Regal that sought summary judgment and because the Court
discussed this issue with the parties at oral argument, the Court finds that Regal was “afforded
notice and reasonable opportunity to respond to all the issues to be considered by the court” and
that a sua sponte grant of summary judgment is appropriate. Shelby Cty. Health Care Corp. v.
S. Council of Indus. Workers Health & Welfare Tr. Fund, 203 F.3d 926, 931 (6th Cir. 2000)).
12

21

In the absence of direct evidence of retaliation, a claim of retaliation under the ADA
is analyzed using the familiar McDonnell Douglas burden-shifting framework. Id. First,
the plaintiff must establish a prima facie case of retaliation, “which requires a showing
that (1) the plaintiff engaged in activity protected under the ADA; (2) the employer knew
of that activity; (3) the employer took an adverse action against plaintiff; and (4) there was
a causal connection between the protected activity and the adverse action.” Id. The
plaintiff’s initial burden of “[e]stablishing a prima facie case of retaliation is a ‘low hurdle.’”
Id. (quoting Gribcheck v. Runyon, 245 F.3d 547, 551 (6th Cir. 2001)). “If the plaintiff
establishes a prima facie case of retaliation, the burden shifts to the defendant to establish
a legitimate, nondiscriminatory reason for the adverse employment action.” Penny v.
United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997). Then, the burden shifts back to
the plaintiff to show that the proffered reason for the adverse employment action was
“merely pretext.” Id.
The first three elements of the prima facie case are easily satisfied. Jackson
engaged in activity protected under the ADA in two ways: (1) filing a charge with the
EEOC and (2) opposing the medical examination and inquiry. See Rorrer, 743 F.3d at
1046 (“Protected activity typically refers to action taken to protest or oppose a statutorily
prohibited discrimination.”). And, it is undisputed that Regal was aware of Jackson’s

22

activities and that Jackson suffered an adverse employment action.13 The fourth element,
however, warrants more attention.
“To establish a causal connection, a plaintiff must ‘proffer evidence sufficient to
raise the inference that her protected activity was the likely reason for the adverse action.’”
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (quoting EEOC v. Avery Dennison
Corp., 104 F.3d 858, 861 (6th Cir. 1997)). “Significantly, the causation prong requires
[the plaintiff] to show but-for causation.” Sharp v. Profitt, 674 F. App’x 440, 450 (6th Cir.
2016); see also Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir.
2012). Although temporal proximity is a valid basis from which to draw an inference of
retaliatory motivation in some circumstances, the Sixth Circuit has cautioned courts about
“drawing an inference of causation from temporal proximity alone.” Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (collecting cases). “Specifically, the
more time that elapses between the protected activity and the adverse employment
action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory
conduct to establish causality.’” Id. (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d
516, 525 (6th Cir. 2008)).

Although Regal admits that Jackson’s termination was an adverse employment action,
Regal contends that Jackson’s “displacement” was not. (Doc. # 36-1 at 10). The Court disagrees.
To find an “adverse employment action,” there must have been a “materially adverse change in
the terms and conditions of [a plaintiff’s] employment.” White v. Burlington N. & Santa Fe Ry.
Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc). “Reassignments without salary or work[-]hour
changes do not ordinarily constitute adverse employment decisions.” Kocsis, 97 F.3d at 885.
But, “even if a reassignment is not paired with a salary or work-hour change, it can nonetheless
be considered an adverse employment action where there is evidence that the employee received
a ‘less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.’” Spees v. James
Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010) (quoting Kocsis, 97 F.3d at 886). Like the plaintiff
in White, Jackson was transferred from being a forklift operator to a standard employee in her
department. See White, 364 F.3d at 803. Because “the forklift operator position required more
qualifications, which is an indication of prestige,” Jackson’s “displacement” was “in essence,” a
“demotion.” Id.
13

23

As evidence that her termination was in retaliation for filing her first EEOC charge,
Jackson relies solely on temporal proximity. Approximately four months and twenty-one
days elapsed between Jackson’s filing of her first EEOC charge and her termination.
(Docs. # 41-1 at 57, 137). But, that time period, without more, does not raise the inference
that the adverse action would not have been taken but for Jackson engaging in the alleged
protected activity. See Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)
(“The mere fact that Cooper was discharged four months after filing a discrimination claim
is insufficient to support an [inference] of retaliation.”); see also Lahar v. Oakland Cty.,
304 F. App’x 354, 359 (6th Cir. 2008) (“[A] five-month gap in time does not by itself suffice
to get to a jury on causation.”). Apart from the four-month-and-twenty-one-day time
period, Jackson has not established a causal connection between filing her EEOC charge
and her termination. As Regal has noted, Jackson testified in her deposition that no one
at Regal ever mentioned her EEOC charge to her and conceded that she had no “reason
to think that [her] EEOC charge caused [her] to be terminated in February 2016.” (Doc.
# 40-1 at 140). Therefore, Jackson’s participation-based retaliation claim fails to survive
summary judgment.
Jackson’s opposition-based retaliation claim, on the other hand, is much stronger.
Jackson refused to fully comply with the medical examination and inquiry by submitting
medical records related to her colon cancer, and by doing so, opposed a practice made
unlawful by the ADA. See Barrett v. Lucent Techs., Inc., 36 F. App’x 835, 840 (6th Cir.
2002) (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000)) (The
opposed act or practice need not actually be unlawful under the ADA, but the plaintiff
“must have a reasonable and good faith belief that the opposed act or practice is unlawful

24

under the ADA.”). Immediately upon Jackson’s refusal, Regal took action. Thus, Jackson
has established a prima facie case of retaliation under the ADA, and the “burden shifts to
[Regal] to establish a legitimate, nondiscriminatory reason for the adverse employment
action.” Penny, 128 F.3d at 417.
Regal has not put forth a legitimate rationale for Jackson’s displacement or
termination. In fact, Regal has not denied that it displaced and terminated Jackson
because of her refusal to comply with the medical examination and inquiry. Instead,
Regal argues that it was entitled to do so because “failure to cooperate with the employer
regarding such medical inquiries constitutes legitimate grounds for termination.” (Doc. #
51 at 8).
Regal’s argument assumes too much. The Sixth Circuit and other district courts
within this Circuit have permitted employers to terminate employees for refusal to submit
to a medical examination or inquiry only when the request for the medical examination or
inquiry was lawful. See Sullivan, 197 F.3d at 812 (citing Moore v. Bd. of Educ. of Johnson
City Schs., 134 F.3d 781, 783 (6th Cir. 1998)) (“We have also upheld a finding of
insubordination for refusing to submit to such exams.”); see also Sloan v. Repacorp, Inc.,
No. 3:16-cv-161-MJN, 2018 WL 1070502, at *7 (S.D. Ohio Feb. 27, 2018) (“A retaliation
claim cannot stand where an employee refuses a proper request for a medical exam or
medical inquiry under 42 U.S.C. § 12112(d)(4)(A).”) (emphasis added). Likewise, to the
extent an employer’s medical-examination request or disability-inquiry demand are
unlawful, an employee’s refusal to relent to such unlawful requests does not constitute a
legitimate, nondiscriminatory reason for taking adverse employment action against that
employee. Rather, it is the opposite: an illegitimate and unlawful reason.

25

Put simply, Regal has failed to satisfy its burden of producing evidence “that the
employment decision would have been the same absent the protected conduct.” Baker
v. Windsor Republic Doors, 414 F. App’x 764, 778 (6th Cir. 2011). And for that reason,
there is no need for Jackson “to show that the proffered reason was not [Regal’s] true
reason but merely a pretext for retaliation.” Id. All parties agree that the reason for the
adverse employment action was Jackson’s refusal—and continued refusal—to fully
comply with the medical examination and inquiry.

But, because Regal’s medical-

examination request and disability-inquiry demand were not job-related or consistent with
business necessity, Jackson’s alleged insubordination does not provide a legitimate,
nondiscriminatory reason for her displacement or termination. Therefore, Regal has
failed to carry its burden and Jackson is entitled to partial summary judgment on her ADAretaliation claim. The extent of Jackson’s damages, however, must be decided by a jury.
C.

Discrimination and Retaliation under the FMLA

“The FMLA enables employees covered by the Act to take up to twelve weeks of
leave per year for various purposes specified in the statute, including the employee’s own
‘serious health condition that makes the employee unable to perform the functions of the
position of such employee.’” Bryson, 498 F.3d at 569 (quoting 29 U.S.C. § 2612(a)(1)(D)).
“At the expiration of the employee’s leave period, she must be reinstated to her position
or to a position equivalent in pay, benefits, and other terms and conditions of
employment.” Id. at 569-70 (citing 29 U.S.C. § 2614(a)(1)).
The Sixth Circuit “recognizes two distinct theories of wrongdoing under the FMLA”:
interference and retaliation.

Id. at 570.

The “‘interference’ theory arises from §§

2615(a)(1) and 2614(a)(1), which make it unlawful for employers to interfere with or deny

26

any employee’s exercise of her FMLA rights … and which require the employer to restore
the employee to the same or an equivalent position upon the employee’s return.” Id.
(citing Arban v. West Publ’g Corp., 345 F.3d 390, 400-01 (6th Cir. 2003)). The “retaliation”
theory “arises from § 2615(a)(2), which prohibits an employer from discharging or
discriminating against an employee for ‘opposing any practice made unlawful by’ the Act.”
Id. Jackson claims that Regal has violated the FMLA in both ways: by interfering with her
exercise of FMLA rights and by retaliating against her.
For both interference and retaliation claims that are based on circumstantial
evidence, courts apply the McDonnell Douglas burden-shifting framework. Donald v.
Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (citing Edgar v. JAC Prods., Inc., 443 F.3d
501, 508 (6th Cir. 2006); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315-16
(6th Cir. 2001)). That is to say, if Jackson meets her burden of establishing a prima facie
case, “the burden shifts to the employer to offer evidence of a legitimate, nondiscriminatory reason for the adverse employment action.” Bryson, 498 F.3d at 570. If
Regal “succeeds, the burden shifts back to” Jackson to show that Regal’s “proffered
reason is a pretext for unlawful discrimination.” Id.
1.

Interference

Under the interference theory, Jackson claims that Regal interfered with her right
to restoration. To establish a prima facie case of interference, Jackson must show that:
(1) she was an eligible employee; (2) the defendant was an employer as
defined under the FMLA; (3) the employee was entitled to leave under the
FMLA; (4) the employee gave the employer notice of her intention to take
leave; and (5) the employer denied the employee FMLA benefits to which
she was entitled.
Donald, 667 F.3d at 761 (citing Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th

27

Cir. 2006)).

Jackson “must establish these elements by a preponderance of the

evidence.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007).
The first, second, third, and fourth elements are not in dispute. Jackson was an
eligible employee, Regal is an “employer” subject to the FMLA, Jackson was entitled to
leave, and she gave Regal notice of her intention to take leave. Therefore, the Court’s
analysis is focused solely the fifth element—whether Regal denied Jackson the FMLA
benefits to which she was entitled. Because Jackson concedes that she received all of
the FMLA leave she requested (Doc. # 42 at 24), the only basis for Jackson’s claim is
Regal’s alleged interference with her right to be reinstated.
“Once an employee submits a statement from her health care provider which
indicates that she may return to work, the employer’s duty to reinstate her has been
triggered under the FMLA.” Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1004
(6th Cir. 2005). Although Jackson acknowledges that she “was initially reinstated to her
job” after returning from her FMLA leave, Jackson argues that Regal interfered with her
right to reinstatement by displacing her a “mere five months after she returned,” and
eventually terminating her. (Doc. # 42 at 24).
“Interference occurs when an employer shortchanges an employee’s leave time,
denies reinstatement, or otherwise interferes with an employee’s substantive FMLA
rights.” Marshall v. The Rawlings Co., LLC, 854 F.3d 368, 384-85 (6th Cir. 2017) (internal
citations and quotation marks omitted). Because Jackson was neither shortchanged
leave nor denied reinstatement to her position, she has failed to meet her burden of
establishing a prima facie case. The fact that Jackson was later displaced and terminated
does not give rise to an FMLA-interference claim. See Seeger v. Cincinnati Bell Tel. Co.,

28

LLC, 681 F.3d 274, 283 (6th Cir. 2012) (holding that employee, who was reinstated and
resumed his normal work routine until he was terminated less than one month after
reinstatement, had not made out an FMLA-interference claim); see also Marshall, 854
F.3d at 385; Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th Cir. 2016).
Rather, to the extent Jackson alleges that Regal took adverse employment actions
against her after she had been reinstated in accordance with 29 U.S.C. § 2614(a)(1),
those claims are more properly analyzed under the “retaliation” theory.
2.

Retaliation

To establish a prima facie case of retaliation under the FMLA, Jackson “must show
that: (1) [she] was engaged in a statutorily protected activity; (2) [Regal] knew that [she]
was exercising [her] FMLA rights; (3) [she] suffered an adverse employment action; and
(4) a causal connection existed between the protected FMLA activity and the adverse
employment action.” Seeger, 681 F.3d at 283 (citing Donald, 667 F.3d at 761); see also
Stein v. Atlas Indus., Inc., No. 17-3737, 2018 WL 1719097 (6th Cir. Apr. 9, 2018). Only
the fourth element—causation—is in dispute.
To make out her prima facie case, Jackson must point to evidence that “enables
the court to deduce that there is a causal connection between the retaliatory action and
the protected activity.” Seeger, 681 F.3d at 283. Unlike with FMLA-interference claims,
a “plaintiff proceeding under a[n] [FMLA] retaliation theory must show discriminatory or
retaliatory intent.” Tennial, 840 F.3d at 308. As proof of causation, Jackson relies on
temporal proximity and argues that her displacement and demotion “touched upon” the
reason for her FMLA leave because Dr. Haskell’s request for medical records related to
her colon cancer and surgery, the medical conditions that prompted her FMLA leave.

29

(Doc. # 42 at 25-26).
Although the Sixth Circuit has “concluded that temporal proximity alone is sufficient
to establish a prima facie case of FMLA retaliation,” Jackson’s arguments stretch
temporal proximity beyond reasonable bounds. Krumheuer v. GAB Robins N. Am., Inc.,
484 F. App’x 1, 5 (6th Cir. 2012). “[T]he relevant timeframe for [the Court] to consider in
determining whether there was a causal connection between the plaintiff’s FMLA leave
and the adverse employment action is ‘the time after an employer learns of a protected
activity,’ not the time after the plaintiff’s FMLA leave expires.” Bush v. Compass Grp.
USA, Inc., 683 F. App’x 440, 452 (6th Cir. 2017) (quoting Mickey, 516 F.3d at 525).
Jackson requested, and received, FMLA leave in July of 2014. She was displaced
on February 13, 2015—approximately seven months after Regal learned of Jackson’s
FMLA-leave request—and terminated on February 11, 2016—approximately nineteen
months after Regal learned of Jackson’s FMLA-leave request. (Doc. # 41-1 at 127, 130).
Such lengthy time periods, standing alone, are not sufficiently proximate to raise “an
inference of retaliatory discrimination absent other compelling evidence.” Tennial, 840
F.3d at 309 (citing Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000));
see also Burdett-Foster v. Blue Cross Blue Shield of Mich., 574 F. App’x 672, 683-84 (6th
Cir. 2014) (finding seven-month gap between complaint and termination did not establish
causation element of retaliation claim); Johnson v. Donahoe, 642 F. App’x 599, 606 (6th
Cir. 2016) (concluding that nineteen-month gap between protected activity and alleged
adverse action “suggests, by itself, no causality at all”).
Therefore, given the lengthy “time that elapse[d] between the protected activity and
the adverse employment action,” Jackson “must supplement [her] claim with ‘other

30

evidence of retaliatory conduct to establish causality.’”

Vereecke, 609 F.3d at 400

(quoting Mickey, 516 F.3d at 524-25). Jackson, however, has failed to put forward any
other evidence to support her FMLA-retaliation claim.

Her assertion that her

displacement and demotion “touched upon” the medical conditions underlying her FMLA
leave is much too attenuated to establish a causal connection between her FMLA leave
and the allegedly retaliatory adverse employment actions. Because Jackson has failed
to raise a genuine dispute as to whether a causal connection exists between her FMLA
leave and her displacement or termination, she has not established a prima facie case of
FMLA retaliation. Therefore, Regal is entitled to summary judgment on both Jackson’s
FMLA-interference claim and her FMLA-retaliation claim.
D.

Discrimination, Unlawful Request, and Retaliation under GINA

GINA prohibits an employer from discriminating or taking adverse employment
actions against an employee “because of genetic information with respect to the
employee.” 42 U.S.C. § 2000ff-1(a)(1), (2). GINA also makes it an “unlawful employment
practice for an employer to request, require, or purchase genetic information with respect
to any employee or a family member of the employee,” with some exceptions. 42 U.S.C.
§ 2000ff-1(b). For employees subjected to an unlawful employment practice, GINA
provides a private right of action, incorporating the enforcement procedures and remedies
of Title VII. 42 U.S.C. § 2000ff-6(a)(1).
For purposes of GINA, “genetic information” means information about an
employee’s “genetic tests,” the “genetic tests of family members” of the employee, and
“the manifestation of a disease or disorder in family members” of the employee. 42 U.S.C.
§ 2000ff-(4)(A)(i)-(iii). “Genetic test,” in turn, “means an analysis of human DNA, RNA,

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chromosomes, proteins, or metabolites, that detects genotypes, mutations, or
chromosomal changes.” 42 U.S.C. § 2000ff(7)(A). While GINA’s definitions may be
broad, there are established limits. For example, an employer does not violate GINA
through “the use, acquisition, or disclosure of medical information that is not genetic
information about a manifested disease, disorder, or pathological condition of an
employee … including a manifested disease, disorder, or pathological condition that has
or may have a genetic basis.” 42 U.S.C. § 2000ff-9.
1.

Discrimination

Although there is a dearth of caselaw interpreting GINA, both parties and other
courts have assumed that the familiar McDonnell Douglas burden-shifting framework
applies to GINA-discrimination claims. (Docs. # 36-1 at 14; 42 at 29); see also Ortiz v.
City of San Antonio Fire Dep’t, 806 F.3d 822, 827 (5th Cir. 2015). Yet, the elements a
plaintiff must establish to prove a prima facie case are unclear. Given GINA’s heavy
reliance on Title VII, however, a plaintiff will likely have to prove that she is entitled to
protection under the statute, that she was qualified for her position, that she suffered an
adverse employment action, and that the employer favored applicants or employees in a
way that evinces discrimination on the basis of genetic information.
Although both Jackson and Regal advance arguments under the traditional
discrimination analysis, Jackson’s GINA claim is not premised upon any adverse
employment action Regal took against her “because of [her] genetic information.” 42
U.S.C. § 2000ff-1(a)(1), (2).

Because Jackson refused to turn over her genetic

information to Regal, Regal could not have taken any adverse employment action against
Jackson based on the content of Jackson’s genetic information. Rather, Jackson’s GINA

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claim arises from § 2000ff-1(b), which makes it an “unlawful employment practice for an
employer to request, require, or purchase genetic information with respect to an employee
or a family member of the employee.” Therefore, the Court’s analysis of Jackson’s GINA
claims will focus first on the lawfulness of Regal’s alleged request for genetic information,
and then turn to Jackson’s GINA-retaliation claim.
2.

Unlawful Request

Regal has put forth three arguments in support of its Motion for Summary
Judgment on Jackson’s unlawful-request claim. First, Regal claims that “it did not request
genetic information” and argues that Jackson has “improperly blend[ed] the concepts of
medical information and genetic information.” (Doc. # 51 at 13). An employer does not
violate GINA “based on the use, acquisition, or disclosure of medical information that is
not genetic information about a manifested disease, disorder, or pathological condition of
the employee, even if the disease, disorder or pathological condition has or may have a
genetic basis or component.” 29 C.F.R. § 1635.12 (emphasis added). For that reason,
Regal appears to argue that Jackson’s colon cancer had “manifested”14 and therefore,
information regarding Jackson’s colon cancer, although it may have a genetic basis or
component, does not constitute protected “genetic information.”

(Doc. # 51 at 13).

Jackson’s claim, however, is not premised on Regal’s acquisition of information or
knowledge regarding her colon cancer. Instead, Jackson claims that Regal requested
protected “genetic information” in the form of family history—specifically, “the genetic
tests of [Jackson’s] family members” and “the manifestation of a disease or disorder in

The Regulations explain that “[m]anifestation or manifested means, with respect to a
disease, disorder, or pathological condition, that an individual has been or could reasonably be
diagnosed with the disease, disorder or pathological condition by a health care professional with
appropriate training and expertise in the field of medicine involved.” 29 C.F.R. § 1635.3(g).
14

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[Jackson’s] family members” under § 2000ff-(4)(A)(ii), (iii). (Doc. # 42 at 31). Because
Jackson has put forward proof that the medical records requested contained protected
“genetic information” in the form of her family history—a fact that Regal conceded at oral
argument—she has proven that Regal made an unlawful request for genetic information.
Second, Regal seems to suggest that it was Dr. Haskell—and not Regal—who
made the allegedly unlawful request and claims that Regal “assured” Jackson “that it
would not receive any medical information—including genetic information—from Dr.
Haskell,” and would instead “simply receive a report on whether [Jackson] could safely
operate” powered industrial equipment. (Doc. # 51 at 11). The plain language of GINA
squarely rejects such an argument. GINA defines “employer” as a person employing a
sufficient number of employees and “any agent of such a person.”

42 U.S.C. §

2000ff(2)(B)(i); 29 C.F.R. § 1635.2(d). Therefore, for purposes of GINA, any request for
protected genetic information by Dr. Haskell is tantamount to a request for protected
genetic information by Regal.
Moreover, the Regulations specifically contemplate a situation where an employer
requests or acquires genetic information through a health-care provider in the context of
a medical examination related to employment and puts the onus on the employer:
The prohibition on acquisition of genetic information, including family
medical history, applies to medical examinations related to employment. A
covered entity must tell health care providers not to collect genetic
information, including family medical history, as part of a medical
examination intended to determine the ability to perform a job, and must
take additional reasonable measures within its control if it learns that genetic
information is being requested or required. Such reasonable measures may
depend on the facts and circumstances under which a request for genetic
information was made, and may include no longer using the services of a
health care professional who continues to request or require genetic
information during medical examinations after being informed not to do so.

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29 C.F.R. § 1635.8(d). Thus, Regal had an affirmative duty to ensure Dr. Haskell did not
violate GINA during the course of any medical examination.15
Lastly, Regal claims that any request for genetic information was merely
“inadvertent.” (Docs. # 36-1 at 17; 51 at 13-14). GINA provides that an employer’s
request for genetic information is not an unlawful employment practice “where an
employer inadvertently requests or requires family medical history of the employee or
family member of the employee.” 42 U.S.C. § 2000ff-1(b)(1). But, when the request for
genetic information is made in conjunction with a request for medical information, the
request for genetic information generally will not be considered inadvertent:
If a covered entity acquires genetic information in response to a lawful
request for medical information, the acquisition of genetic information will
not generally be considered inadvertent unless the covered entity directs
the individual and/or health care provider from whom it requested medical
information (in writing, or verbally, where the covered entity does not
typically make requests for medical information in writing) not to provide
genetic information.
29 C.F.R. § 1635.8(b)(1)(i)(A). In fact, the Regulations provide suggested language,
which a covered entity can use when requesting medical information, to avoid GINA
liability. 29 C.F.R. § 1635.8(b)(1)(i)(B). If an employer uses the suggested—or similar—
language, “any receipt of genetic information in response to the request for medical
information will be deemed inadvertent.” Id. It is undisputed that Regal did not employ

Although Regal claims that “[i]f Plaintiff had expressed concern about producing family
history, Regal would have suggested that she provide the records with whatever family history
information removed or redacted,” the Court is unpersuaded by such after-the-fact assurances.
(Doc. # 36 at 5, 18). It is the employer’s duty to comply with GINA’s requirements; it is not the
employee’s responsibility to remind her employer of GINA’s protections and prohibitions.
Moreover, Regal’s argument rings hollow, given that Jackson filed an EEOC charge on
September 21, 2015, alleging that Regal had violated the ADA and GINA. (Docs. # 41-1 at 57;
31 at ¶ 4). Despite having knowledge of Jackson’s GINA claims, Regal did not rescind or tailor
its medical-records request. Rather, it continued to demand that Jackson comply with the request,
and terminated Jackson for her failure to do so.
15

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the safe-harbor language or similar language with respect to Jackson’s medical
examination or the request for medical records.
Despite Regal’s “failure to give such a notice or to use” the suggested “or similar
language,” it is not “prevent[ed] … from establishing that a particular receipt of genetic
information was inadvertent.” 29 C.F.R. § 1635.8(b)(1)(i)(C). However, to prove that its
request for genetic information was inadvertent, Regal must prove that “its request for
medical information was not likely to result in a covered entity obtaining genetic
information.” Id. Regal claims that Dr. Haskell’s request falls within the Regulation’s
delineated example: “where an overly broad response is received in response to a tailored
request for medical information.” (Docs. 36-1 at 17-18; 51 at 13-14). Jackson contests
Regal’s characterization of Dr. Haskell’s request as “narrowly tailored” and argues instead
that the demand for the “seven categories” of information was not limited in any way, but
instead, sought “everything possibly contained in a medical record.” (Doc. # 42 at 31).
Thus, Jackson claims that Dr. Haskell’s request was not only “likely to elicit protected
genetic information,” but “in fact would have elicited the information if Jackson had
complied.” Id. at 32.
A review of Dr. Haskell’s request, which identified Jackson’s “medical condition of
concern” as “surgery – all medical records” and sought medical records containing
Jackson’s current diagnosis, treatment, medications, restrictions, limitations, prognosis,
any relevant tests, and “any additional information that [Jackson’s] medical provider
[thought] would help” make the medical recommendation, reveals an extremely broad
request. (Doc. # 40-1 at 111). Although Dr. Haskell did not explicitly request genetic
information, any “broad response” Jackson would have provided in response to the

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medical-records request, including protected genetic information, would have been
elicited by Dr. Haskell’s “overly broad” request.

Because Dr. Haskell’s request for

Jackson’s medical information was not “tailored” to avoid requesting genetic information,
Regal’s request was “likely to result in a covered entity obtaining genetic information” and
was not “inadvertent.” 29 C.F.R. § 1635.8(b)(1)(i)(C). Accordingly, Regal violated GINA
by making an unlawful request for Jackson’s genetic information, and Jackson is entitled
to partial summary judgment on her GINA unlawful-request claim.16 As with her other
claims, however, Jackson’s damages must be determined by a jury.
3.

Retaliation

As with other employment-discrimination statutes, GINA prohibits an employer
from discriminating against an employee because she “opposed any act or practice made
unlawful” by GINA “or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under” GINA. 42
U.S.C. § 2000ff-6(f). Assuming that GINA borrows the McDonnell Douglas burdenshifting framework, Jackson’s first hurdle is to establish a prima facie case of retaliation,
which requires a showing that (1) she engaged in a protected activity, (2) the exercise of
the protected rights was known to the defendant, (3) the defendant thereafter took
adverse employment action against the plaintiff, and (4) there was a causal connection
between the protected activity and the adverse employment action. Scott v. Metro. Health
Corp., 234 F. App’x 341, 346 (6th Cir, 2007); Morris v. Oldham Cty. Fiscal Court, 201

Other district courts in this Circuit have reached similar results. See, e.g., Lee v. City of
Moraine Fire Dep’t, No. 3:13-cv-222-TMR, 2015 WL 914440, at *15 (S.D. Ohio Mar. 3, 2015)
(“Because the City gathered genetic information, including family medical history, as part of a
medical examination intended to determine the ability to perform a job, judgment on the question
of liability on the claim of violation of GINA is awarded to Lee.”).
16

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F.3d 784, 792 (6th Cir. 2000). If Jackson establishes a prima facie case of retaliation, the
burden shifts to Regal to establish a legitimate, nondiscriminatory reason for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. If Regal makes that showing,
the burden shifts back to Jackson to show that the proffered reason for the adverse
employment action was merely pretext. Id.
Jackson has easily satisfied the first three elements of her prima facie case.
Jackson engaged in activity protected under GINA in two ways: (1) filing a charge with
the EEOC and (2) opposing the allegedly unlawful request for genetic information. (Doc.
# 42 at 30). And, it is undisputed that Regal was aware of Jackson’s activities and that
Jackson suffered an adverse employment action. Therefore, the remainder of the Court’s
analysis will focus on the fourth element: causation.
“To establish a causal connection, a plaintiff must ‘proffer evidence sufficient to
raise the inference that her protected activity was the likely reason for the adverse action.’”
Dixon, 481 F.3d at 333 (quoting Avery Dennison Corp., 104 F.3d at 861). Because
Jackson testified in her deposition that no one at Regal ever mentioned her EEOC charge
to her and conceded that she had no “reason to think that [her] EEOC charge caused
[her] to be terminated in February 2016,” her participation-based retaliation claim, which
is premised upon filing an EEOC charge, fails to survive summary judgment.
For her opposition-based retaliation claim, however, Jackson has established
sufficient causality to establish a prima facie case. First, timing is on Jackson’s side. After
she refused to turn over her medical records, which contained protected genetic
information, Regal immediately took adverse employment action against her—by
displacing her and then terminating her after her continued refusal. See Mickey, 516 F.3d

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at 525 (“In those limited number of cases—like the one at bar—where an employer fires
an employee immediately after learning of a protected activity, [courts] can infer a causal
connection between the two actions, even if [plaintiff] had not presented other evidence
of retaliation.”). Therefore, Jackson has established a prima facie case of retaliation
under GINA, and the “burden shifts to [Regal] to establish a legitimate, nondiscriminatory
reason for the adverse employment action.” Penny, 128 F.3d at 417.
Regal has not put forth a legitimate rationale for Jackson’s displacement or
termination. In fact, Regal has not denied that it displaced and terminated Jackson
because of her refusal to turn over the requested medical records. As with Jackson’s
ADA-retaliation claim, Jackson’s refusal to relent to the unlawful genetic-information
request does not constitute a legitimate, nondiscriminatory reason for taking adverse
employment action against her.

Rather, it is an illegitimate and unlawful reason.

Therefore, Regal has failed to satisfy its burden of producing evidence “that the
employment decision would have been the same absent the protected conduct,” and
there is no need for Jackson “to show that the proffered reason was not [Regal’s] true
reason but merely a pretext for retaliation.” Baker, 414 F. App’x at 778. Again, all parties
agree that the reason for the adverse employment action was Jackson’s refusal—and
continued refusal—to fully comply with the medical examination and turn over the
requested medical records.

Because Regal’s broad medical-records request was

unlawful under GINA, Jackson’s insubordination does not provide a legitimate,
nondiscriminatory reason for her displacement or termination.

Accordingly, Regal has

failed to carry its burden and Jackson is entitled to partial summary judgment on her
GINA-retaliation claim. The issue of Jackson’s damages, however, must be resolved by

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a jury.
III.

CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Defendant Regal Beloit America, Inc.’s Motion for Summary Judgment

(Doc. # 36) is GRANTED as to Count Three (FMLA-interference and FMLA-retaliation
claims); and DENIED as to Count One (ADA/KCRA-unlawful-medical-examination and
ADA/KCRA-retaliation claims) and Count Two (GINA-unlawful-request and GINAretaliation claims);
(2)

Summary judgment is GRANTED in favor of Defendant Regal Beloit

America, Inc. as to Count Three of the Amended Complaint;
(3)

Partial summary judgment is GRANTED sua sponte in favor of Plaintiff

Sheila Jackson as to liability on Count One and Count Two of the Amended Complaint;
(4)

The matter remains pending only as to damages for Counts One and Two;

(5)

Within twenty (20) days from the date of the entry of this Memorandum

and

Opinion and Order, the parties shall filed a Joint Status Report, setting forth available
dates for a Final Pretrial Conference and Jury Trial, and whether they would be amenable
to a court-facilitated settlement conference.
This 21st day of June, 2018.

K:\DATA\Opinions\Covington\2016\16-134 Jackson v Regal Beloit MSJ MOO.docx
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