Ash v. Walgreens Specialty Pharmacy, LLC et al

Filing 28

OPINION AND ORDER granting in part and denying in part 19 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GERALD ASH,
Plaintiff,
CASE NO. 12-15201
HONORABLE GEORGE CARAM STEEH

v.
WALGREENS SPECIALTY
PHARMACY, LLC, and
WALGREENS CO.,
Defendants.
/

OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This disability discrimination case arises out of plaintiff Gerald Ash’s claims that his
employer, Walgreens Specialty Pharmacy, LLC and Walgreens Co. (collectively
“Walgreens”) terminated him in retaliation for using medical leave for treatment of his HIV
in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Ash also claims
Walgreens denied his leave request to attend a doctor appointment in violation of the
FMLA, and failed to accommodate his disability under the ADA. Now before the court is
Walgreen’s motion for summary judgment. Oral argument was heard on January 13, 2014.
For the reasons set forth below, Walgreen’s motion shall be granted as to Ash’s FMLA
interference claim arising out of his request to attend a doctor’s appointment, and his failure
to accommodate claim under the ADA, but denied as to his FMLA and ADA claims arising
out of his termination.
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I. Factual Background
On February 18, 2008, Walgreens hired Ash to work as a “team lead” at its Ann
Arbor specialty pharmacy, also known as a “call center”. The Ann Arbor call center fills
prescription orders by mail for specialty drugs used in the treatment of cancer, HIV,
hepatitis, and other illnesses, which are not usually available at retail stores.

On

September 29, 2009, Walgreens promoted Ash to a supervisor position. In April, 2010,
Ash was promoted again, this time to the patient manager supervisor position. Call center
general manager, Judie Kral, interviewed Ash for the position, hired him, and became his
direct supervisor. In that position, Ash supervised 72 employees and his duties included
managing groups responsible for customer service, pharmaceutical order processing, and
insurance support. At his deposition, Ash testified that he lacked knowledge of the
insurance business which he needed to learn to perform his new job. (Doc. 19, Ex. C at
86). Walgreens alleges that Ash failed to learn the technicalities of the insurance business,
and thus, failed to perform his job to satisfaction.
According to Walgreens, Kral began receiving complaints about Ash’s work in the
fall of 2011, but she decided to give him more time to acclimate to the new job, and thus
did not issue a performance improvement process (“PIP”) until February, 2012. (Doc. 19,
Ex. E at 124-35). In November, 2011, however, human resources manager, Jessica
Gliesman, issued an employee document called a “Stop, Stop, Continue” (“SSC”) process
which outlines areas where improvement is needed and recognizes areas where an
employee is succeeding. (Doc. 19, Ex. F). Gliesman testified at her deposition that the
SSC is not a form of discipline (Doc. 23, Ex. 19 at 100); however, the document issued in

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connection with the SSC outlines certain employee complaints against Ash, including poor
communication and overdelegating. (Doc. 19, Ex. F).
Walgreens gave Ash a bonus and a pay increase in December, 2011. Pay raises
and bonuses at Walgreens are generally merit based. (Doc. 23, Ex. 17 at 67-68).
Walgreens alleges, however, that Ash’s bonus and increase in 2011 were not based on his
performance, but that Kral authorized pay increases for all supervisors across the board
without conducting any employee evaluations. (Doc. 26, Ex. 4 at 106).
Ash testified that in November, 2011, Kral told him that she had let some nurses go
because of “medical issues.” (Doc. 23, Ex. 1 at 192). At her deposition, Kral admitted that
one of the nurses that she terminated was on FMLA leave. (Doc. 23, Ex. 5 at 227).
Sometime in early 2012, Ash and four other employees filed a written complaint against
Kral alleging that she created a hostile environment based on her abrasive management
style. (Doc. 23, Ex. 1 at 134-35). Walgreens investigated the complaint, issued a written
warning, suspended her for two days, and placed her on a PIP in March, 2012.1 (Doc. 23,
Ex. 5 at 183-84).
In January or February, 2012, Ash told Gliesman that he suffered from HIV and
complained that the stress of working for Kral exacerbated his condition. (Doc. 23, Ex. 1
at 37). Before he disclosed his HIV status, Ash alleges that Kral stated on two occasions,
“God forbid you ever have someone on a management team that takes FMLA; you might
as well just get rid of them because they are useless.” (Doc. 23, Ex. 1 at 192). On
February 2, 2012, Ash asked Kral for leave to attend a medical appointment. (Doc. 23, Ex.

1

On October 8, 2013, Kral separated from her employment with Walgreens.
According to Ash, Walgreens terminated her.
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11). Kral denied his request. Id. One week later, on February 9, 2012, Kral issued Ash
a PIP. (Doc. 23, Ex. 15). The document issued in connection with the PIP references
verbal reprimands in September, October, and November, 2011. Id. Fearing that Kral
would not authorize his leave requests for medical appointments, on March 26, 2012, Ash
filed a request for intermittent FMLA leave. (Doc. 23, Ex. 2, 3). On those forms, he
identified his medical condition as HIV. Id. In speaking with Gliesman about his leave
request, she told him that Kral would be required to sign off on the request. At his
deposition, Ash testified that he believed that Gliesman would inform Kral of his HIV status,
but when pressed, admitted that she did not specifically state that she would tell Kral that
he had HIV. (Doc. 23, Ex. 1 at 42-43). On the form that Gliesman presented to Kral, the
reason for his leave request is identified as “serious chronic condition.” (Doc. 23, Ex. 3).
Kral testified that the first time she learned that Ash has HIV was at her deposition, but
admitted knowing that he had a serious chronic condition. (Doc. 19, Ex. A at 148-49).
Although Ash requested intermittent FMLA leave, he never actually used any of it.
On Monday, April 16, 2012, he requested leave for a medical appointment set for Friday,
April 21, 2012. (Doc. 23, Ex. 12). In a written e-mail, Kral advised Ash that there was an
important meeting in the morning on the 21st asked him to try to reschedule his
appointment for another time. Id.
On May 23, 2012, Kral presented Ash with a PIP and a final written warning advising
him that he had 60-days to improve his performance or he risked termination. (Doc. 23,
Ex. 16). In the written record of his discipline, Kral wrote, inter alia, that Ash was not
meeting the expectations of his position as he lacked business judgment, failed to timely
communicate and provide updates to senior management, and did not understand the
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insurance side of the business. Id. Ash argues the issuance of the final written warning
violated Walgreen’s progressive discipline policy because he had not received a prior
verbal and written warning. In support of its claim that Ash was fired for cause, Walgreens
relies on a four-page performance log, filed under seal, in which Kral recorded Ash’s
alleged performance failures from September, 2011 until June 26, 2012.
In late June, 2012, Ash alleges that Kral told him that just because he had a medical
condition did not mean he was not expected to perform.

(Doc. 23, Ex. 1 at 177).

Walgreens argues that Kral decided to terminate Ash on June 26, 2012, approximately one
week before he filed for continuous FMLA leave on July 9, 2012. In support of this
contention, Walgreens relies on four pieces of evidence: 1) Kral’s deposition testimony that
she decided to terminate him in late June, 2012 but put off telling him because of her
scheduled vacation (Doc. 19, Ex. A at 241), 2) an e-mail from vice president of specialty
operations and pharmacy operations Donald Vidic to Gliesman dated September 19, 2012
stating that they would go forward with the June 26, 2012 decision to terminate Ash (Doc.
19, Ex. O), 3) Gliesman’s testimony that the decision to terminate Ash was made in late
June (Doc. 19, Ex. E at 209), and 4) Ash’s own deposition testimony that on June 26 or 27,
2012, he was in Human Resource manager Mo Zayed’s office and overheard Gliesman
state on speaker phone that they were going to terminate him without waiting 60 days.
(Doc. 19, Ex. C at 202-03). Ash responds that the decision to terminate him was made
sometime after he filed for continuous leave (so likely in retaliation for his FMLA request).
In support of this claim, he relies on notes from Kral’s executive coach Woody Woodburn
wherein Woodburn states Kral expressed concerns on August 16, 2012, over how Ash will
handle changes made in his absence upon his return to work (Doc. 23, Ex. 25), and a June
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27, 2012 entry in Kral’s performance log of Ash states that Kral “still had hope, supported
[Ash] and thought he could do the job.”
On July 6, 2012, Ash began his continuous FMLA leave for which he filed his formal
request on July 9, 2012. (Doc. 23, Ex. 4). Gliesman testified that they decided to allow
Ash the disability leave he requested before following through on the decision to terminate
him. (Doc. 19, Ex. E at 210). Kral was required to sign off on that leave request. As with
the intermittent leave request, the continuous leave request presented to her did not state
that HIV was the reason, but stated “serious health condition.” (Doc. 19, Ex. A at 146, Ex.
P). Ash qualified for and was paid short-term disability benefits for the time he was on
leave. On September 21, 2012, Ash returned to work. On that morning, Ash met with Kral
and Gliesman and Kral told Ash that he was being terminated for performance issues that
had been discussed earlier in the year. (Doc. 23, Ex. 1 at 184).
On February 15, 2013, Ash filed a three-count amended complaint against
Walgreens alleging (1) retaliation in violation of the FMLA, (2) interference in violation of
the FMLA, and (3) violations of the ADA under theories of disparate treatment, failure to
accommodate, and retaliation. Walgreens seeks summary judgment on all three counts.
II. Standard of Review
Federal Rule of Civil Procedure 56(c) empowers the court to render summary
judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law." See
Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed
the court's use of summary judgment as an integral part of the fair and efficient
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administration of justice. The procedure is not a disfavored procedural shortcut. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dept. of Transp., 53
F.3d 146, 149 (6th Cir. 1995).
The standard for determining whether summary judgment is appropriate 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.'" Amway Distributors
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding,
241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is
no genuine issue of material fact and that it is entitled to judgment as a matter of law, the
opposing party must come forward with "specific facts showing that there is a genuine issue
for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean
v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in
the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be

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evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at
800 (citing Anderson, 477 U.S. at 252).
III. Analysis
A.

FMLA Claims
The FMLA provides that “[i]t shall be unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to exercise, any right provided under [the
FMLA].” 29 U.S.C. § 2615(a)(1). The Sixth Circuit recognizes two distinct theories under
the FMLA, (1) the “interference” theory, and (2) the “retaliation” theory.

Seeger v.

Cincinnati Bell Telephone Co., 681 F.3d 274, 282 (6th Cir. 2012). Under the “interference”
theory, “[i]f an employer interferes with the FMLA-created right to medical leave or to
reinstatement following the leave, a violation has occurred, regardless of the intent of the
employer.” Id. (internal quotations and citations omitted). Under the retaliation theory, on
the other hand, the intent of the employer is relevant and the inquiry is “whether the
employer took the adverse action because of a prohibited reason or for a legitimate
nondiscriminatory reason.” Id. (citations omitted). Ash seeks to recover under both
theories, and Walgreens seeks summary judgment as to both.
1. Retaliation in violation of the FMLA
Under the retaliation theory, the plaintiff must prove that the defendant discriminated
against him because he took FMLA leave. Arban v. West Publ’g Corp., 345 F.3d 390, 403
(6th Cir. 2003). Retaliation claims under the FMLA can be established by direct or
circumstantial evidence. Gibson v. City of Louisville, 336 F.3d 511, 513-14 (6th Cir. 2003).
“[D]irect evidence is evidence which, if believed, requires the conclusion that unlawful

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discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).
Although direct evidence cannot be based upon isolated remarks, such remarks are
relevant if made by a decision-maker. DiCarlo v. Potter, 358 F.3d 408, 416 (6th Cir. 2004).
“Once there is credible direct evidence, the burden of persuasion shifts to the defendant
to show that it would have terminated the plaintiff’s employment had it not been motivated
by discrimination.” Jacklyn, 176 F.3d at 926.
In this case, although Ash relies on discriminatory statements he claims are
attributable of Kral, which may be characterized as direct evidence of discrimination, it
appears he is relying on the McDonnell-Douglas burden shifting framework reserved for
discrimination cases based on circumstantial evidence. Thus, the court analyzes the
retaliation claim under that framework, and considers the direct evidence presented when
deciding whether Ash has proven pretext. Retaliation claims based upon indirect evidence
are evaluated under the burden-shifting framework articulated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). To establish a prima facie case, Ash must show (1) he
engaged in a protected activity under the FMLA; (2) the employer knew he had exercised
his FMLA rights; (3) the employer took an adverse employment action against the
employee; and (4) a causal connection exists between the exercise of the FMLA right and
the adverse employment action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
Once the plaintiff establishes his prima facie case, the burden shifts to the defendant to
articulate a nondiscriminatory reason for its actions.

Id.

Once the defendant has

articulated a nondiscriminatory reason for its decision, the presumption of discrimination
that arises from the plaintiff’s prima facie case disappears and the plaintiff must show that
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the defendant’s proffered explanation is merely a pretext for discrimination. Id. at 762. In
this case, the first three factors of Ash’s prima facie case are easily met. The only question
is whether Ash has demonstrated a question of fact as to the causation factor.
a. Causation
In this case, Ash argues that he establishes causation because he was terminated
the day he returned from work. The Sixth Circuit has held that the minimal causal
connection required to establish the prima facie case may, in a narrow group of cases, be
made based solely on the close proximity between a plaintiff’s FMLA leave and termination.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008); Bell v. Prefix, Inc., 321
Fed. App’x 423. 426 (6th Cir. 2009). In this case, Walgreens argues that Ash cannot
establish temporal proximity because the decision to terminate him occurred in June, 2012,
before he made his FMLA continuous leave request. The evidence as to this point
conflicts. Walgreens has submitted an e-mail from Vladic stating the decision was made
on June 26, 2012, as well as the deposition testimony of Kral and Gliesman that the
decision was made in late June, 2012. Even Ash’s own deposition supports the conclusion
that the decision to terminate him was made in June as he testified there that he overheard
Gliesman telling Zayed on the speaker phone on June 26, 2012, that he would be
terminated before his 60 days ran from the giving of his final written warning. In opposition
to Walgreen’s motion for summary judgment, however, Ash argues that the decision
occurred sometime while he was on medical leave based on (1) the June 27, 2012
performance log entry by Kral on that date which states that she supported Ash and hoped
he could improve his performance to meet expectations, and (2) Woodburn’s August 16,

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2012 notes that Kral expressed concern as to how Ash would respond to changes within
the department upon his return to work. Based on this conflicting evidence, a question of
fact exists as to whether Walgreens decided to terminate Ash in late June, 2012, as
alleged, or whether the decision was made at a later point after he had requested leave.
Moreover, a close proximity in time exists between Ash’s request for intermittent leave
made in March, 2012, and Kral’s increased scrutiny of his work, and her issuance of the
May, 2012 PIP.
In deciding whether Ash has met his prima facie case, the court is mindful of the
Sixth Circuit’s admonition that “plaintiff’s burden in establishing a prima facie case is not
intended to be onerous” and is minimal. Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir.
2007). Under this liberal standard, the court will presume that Ash has shown causation
sufficient to establish his prima facie case based on the proximity in time between his
discharge and his continuous leave, coupled with the discriminatory remarks attributed to
Kral.
b. Legitimate, Non-Retaliatory Reason
The court now turns to the second step of the McDonnell Douglas three-part test
which requires this court to consider whether Walgreens has come forward with a
legitimate, nondiscriminatory reason for Ash’s termination. Here, Walgreens alleges that
it fired Ash for his performance failures as documented in his February 9, 2012 PIP and the
May 23, 2012 final written warning which put Ash on notice he would be terminated if his
performance did not improve. Walgreens has met its burden of production, and the burden
now shifts to Ash to prove that Walgreen’s true reason for terminating him was retaliation
for his taking FMLA leave.
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c. Pretext
To prove pretext, Ash must produce evidence to show that Walgreen’s proffered
reason for his discharge was false. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309,
316 (6th Cir. 2001). A plaintiff may establish pretext by showing that the employer’s
proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3)
were insufficient to warrant the action. Seeger, 681 F.3d at 285. The Sixth Circuit has held
that unlike its role in establishing a prima facie case, temporal proximity standing alone is
insufficient to establish pretext. Id. at 285 (citing Donald, 667 F.3d at 763). The Sixth
Circuit has held, however, that “suspicious timing is a strong indicator of pretext when
accompanied by some other, independent evidence.” Id. (citations omitted).
Ash argues that he has shown Walgreen’s real reason for terminating him was in
retaliation for his having taken FMLA leave based upon (1) temporal proximity between his
medical leave and termination on the day he returned to work, (2) alleged statements of
Kral that just because he had a medical condition, did not mean he was not expected to
perform, (3) alleged statements of Kral that Walgreens should get rid of all employees on
FMLA as they are all useless, (4) Kral discharged some nurses from the call center based
on their “medical issues,” at least one of whom was on FMLA leave, (5) Kral allegedly
increased her scrutiny of him after he filed a request for intermittent FMLA leave and
subjected him to demeaning and humiliating comments, and (6) Ash received a bonus and
alleged merit based pay increase in 2011 and Kral did not become critical of his
performance until he requested FMLA leave.

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Ash argues the facts of this case are comparable to White v. Hurley Med. Ctr., No.
09-CV-14344, 2010 WL 4063202 (E.D. Mich. Oct. 14, 2010), in which this court denied an
employer’s motion for summary judgment finding issues of fact existed as to whether or not
defendant-employer fired plaintiff in retaliation for her taking FMLA leave to care for her sick
mother. In that case, this court found issues of fact on the causation question based on
plaintiff’s supervisor’s sudden change in her treatment of her after she requested leave.
Id. at *6.

Prior to her request for leave, plaintiff alleged that she had a favorable

relationship with her supervisor, but after her request, her supervisor became hostile, overly
critical, and removed some of her responsibilities. Id. The facts in this case are somewhat
analogous. The evidence presented suggests that Kral’s scrutiny of his performance
increased first, after he requested leave to attend a medical appointment in February, 2012,
and again after he filed for intermittent FMLA leave in March, 2012. But unlike the facts
presented in White, it appears that Ash’s relationship with Kral was strained prior to his
request for medical leave, as indicated by the complaint that he filed with four other
employees against her in early 2012. Despite this dissimilarity, Ash has come forward with
sufficient other evidence to overcome Walgreen’s proffered reason for his discharge to
survive summary judgment on his retaliation claim under the FMLA.
Specifically, while there is a factual dispute as to whether his 2011 bonus and pay
increase reflected the judgment of his employer that he was doing a good job, the fact
remains that he did receive a bonus and pay increase in December, 2011 which tends to
support his claim that Kral began to scrutinize and criticize his performance only after he
filed for medical leave. Ash also has introduced evidence that Kral made disparaging
remarks about employees who take medical leave and told him that she terminated certain
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nurses based in part on their “medical issues.” This direct evidence, which the jury may
or may not believe, supports Ash’s claim that Kral harbored discriminatory animus towards
those taking medical leave. Walgreens rebuts Ash’s proofs with Gliesman’s deposition
testimony that at any given time twenty percent of the call center workforce was on FMLA
leave, and that she never heard Kral say anything negative about workers taking medical
leave. (Doc. 19, Ex. E at 181-83). The court cannot make credibility determinations in
deciding a motion for summary judgment; however, thus a fact question exists as to
whether Kral was motivated by discriminatory animus in terminating Ash.
Walgreens argues that Kral fails to show pretext because Kral, as the decision
maker, did not know that Ash had HIV. In order to prevail on a FMLA retaliation claim,
however, Ash need not prove that Kral knew the details of his medical condition, only that
she discriminated against him because he used FMLA leave. See Arban, 345 F.3d at 403
(citing 29 C.F.R. § 825.220(c)). Viewing the evidence in a light most favorable to Ash, a
factual dispute exists as to whether Kral intensified her criticism of Ash’s performance
because he requested leave and whether or not she terminated him because he used
FMLA leave. Thus, Walgreen’s motion for summary judgment as to Ash’s retaliation claim
under the FMLA shall be denied.
2. Interference in violation of the FMLA
The Sixth Circuit has held that the McDonnell Douglas tripartate burden shifting test
applies to FMLA interference claims as well. Donald, 667 F.3d at 762. To establish a
prima facie case of an “interference” claim under the FMLA, a plaintiff must demonstrate:
(1) he was an eligible employee as defined under the FMLA; (2) his employer was a
covered employer as defined under the FMLA; (3) he was entitled to leave under the
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FMLA; (4) he gave notice to the defendant of his intention to take leave; and (5) his
employer denied his rights to which he was entitled by the FMLA. Novak v. MetroHealth
Med. Ctr., 503 F.3d 572, 577-78 (6th Cir. 2007). Each element must be proved by a
preponderance of the evidence. Wysong v. Dow Chemical Co., 503 F.3d 441, 447 (6th Cir.
2007) (citations omitted). In this case, the first four elements are not in dispute and the
court limits its analysis to the fifth prong. Ash argues that Walgreens interfered with his
FMLA rights by denying his request for leave to attend a doctor’s appointment made on
April 16, 2012,2 and by failing to reinstate him when he returned from leave on September
21, 2012. The court considers both alleged adverse employment actions below.
a. Medical Appointment
Ash requested leave for a medical appointment on April 16, 2013. Kral responded
by e-mail stating, “[w]e have our weekly BioScrip Implementation planning meeting on
Friday and it’s important that all managers attend because we are so close to go-live, can
you select another day or modify the request for the afternoon?” (Doc. 23, Ex. 12).
Walgreens argues that Kral’s request that Ash reschedule his doctor appointment for a
more convenient time is the type of employer-employee communication anticipated by the
FMLA. Specifically, Walgreens relies on 29 C.F.R. § 825.302(e) which provides that
“[w]hen planning medical treatment, the employee must consult with the employer and
make a reasonable effort to schedule the treatment so as not to disrupt unduly the

2

Walgreens also argues Ash may not recover for Kral’s denial of his request for
leave to attend a medical appointment in February, 2012, as he made his request over
a month before he filed for FMLA intermittent leave. From Ash’s response, it does not
appear that he is seeking to recover on that basis. If he is, the court agrees with
Walgreens that the February denial is not actionable under the FMLA.
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employer's operations.” Id. In this case, Kral did not outright deny Ash’s request for leave
for a medical appointment but merely asked him to try rescheduling it for a better time.
Under these circumstances, Ash has failed to show that his employer denied him FMLA
rights. Accordingly, summary judgment shall enter for Walgreens on Ash’s interference
claim arising out of his request for medical leave made on April 16, 2012.
b. Termination
The court turns now to the question of whether Ash has come forward with sufficient
proofs to defeat Walgreen’s motion for summary judgment as to his interference claim
arising out of his termination. Walgreens argues that Ash cannot meet his prima facie
case, or his more substantial pretext requirement, because it decided to terminate Ash
before he requested and took continuous leave. As discussed supra, an issue of fact exists
as to this contention. In addition, even accepting as true Walgreen’s assertion that it
decided to fire Ash in June, 2012, it is undisputed that Ash had requested intermittent
FMLA leave approximately three months earlier.

For the same reasons that Ash’s

retaliation claim arising out of his termination survives Walgreen’s motion for summary
judgment, his interference claim does so as well.
B. ADA Claims
1. Improper Termination or Disparate Treatment
The ADA prohibits discrimination against a qualified individual with a disability. 42
U.S.C. § 12101 et seq. A claim for improper termination or disparate treatment follows the
McDonnell Douglas burden shifting analysis. To establish a prima facie case of improper
termination or disparate treatment under the ADA, a plaintiff must demonstrate that “(1) he

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is disabled; (2) he is otherwise qualified for the position with or without reasonable
accommodation; (3) he suffered an adverse employment decision; (4) his employer knew
or had reason to know of his disability; and (5) his position remained open.” Brenneman
v. MedCentral Health Sys., 366 F.3d 412, 417 (6th Cir. 2004). The fifth element “may also
be satisfied by showing that similarly situated non-protected employees were treated more
favorably.” Hopkins v. Electronic Data Sys., 196 F.3d 655, 660 (6th Cir. 1999) (citations
omitted). As with an FMLA retaliation or interference claim, once the plaintiff establishes
his prima facie case, the burden of production shifts to the employer to come forward with
a legitimate non-discriminatory reason for the adverse employment decision. Brenneman,
366 F.3d at 417. Once the employer satisfies its burden, the employee must demonstrate
that the proffered reason was, in fact, a pretext for unlawful disability discrimination. Id.
The Sixth Circuit has recently explained that to establish pretext, a plaintiff must show that
the adverse employment discrimination occurred because of a disability.

Lewis v.

Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012).
The parties do not dispute that Ash is disabled. Walgreens argues that Ash cannot
prove disability discrimination under the ADA because Kral, who decided to terminate him,
did not know that he had HIV. See Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1219 (10th
Cir. 2007) (fact that employee applies for and receives FMLA leave does not mean that
employer regarded employee as disabled). Ash responds that a question of fact exists as
to whether or not Kral knew that he had HIV as he disclosed his medical condition on his
FMLA paperwork. He also posits that it is possible that Gliesman or Zayed, who admittedly
knew of his HIV status, told Kral of his condition. Walgreens is correct that the mere fact
that an employee requests FMLA leave does not translate into a finding that an employer
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knows that an employee is disabled within the meaning of the ADA, and in fact, the court
can imagine many instances where taking of medical leave would definitely not mean that
an employee was disabled. For example, an employee might take maternity or paternity
leave, or might have routine surgery. In both instances, the employee likely will return to
work without being considered to be disabled. In this case, by contrast, Kral admits that
when she approved Ash’s request for intermittent leave, the reason listed on the
authorization form stated that Ash had a “serious chronic condition” (Doc. 23, Ex. 3), and
when he took continuous leave, the form stated that Ash had a “serious health condition.”
(Id. at Ex. 4). The ADA defines a disability as “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102
(1)(A). Based on Kral’s admission that she knew Ash had a “serious chronic condition” or
a “serious health condition,” a reasonable trier of fact could determine that Kral knew that
Ash had a disability as defined by the ADA.
Ash also argues that he has established his prima facie case of disability
discrimination because Kral allegedly treated two other employees with similar performance
issues, but who were not disabled, more favorably. Specifically, Ash points to Paul Cornille
and Mark Rodriguez. Although Kral testified that Cornille had performance deficiencies,
she did not subject him to any formal disciplinary action prior to his voluntary resignation.
(Doc. 23, Ex. 5 at 75, 100). Walgreens contends that Cornille was not similarly situated to
Ash because Cornille’s performance problems related to additional duties involving his role
in supervising a second call center which Walgreens later removed. (Doc. 26, Ex. 2 at 5662). As to the second employee Ash claims was similarly situated, Kral testified that
Rodriguez was placed on an individual development plan for his failure to build a cohesive
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working environment and his lack of understanding of operations. (Doc. 23, Ex. 5 at 98).
Ash claims these are some of the same issues Kral cited in his performance evaluations.
Kral testified that Rodriguez improved his performance within 60 days. (Id. at 99). Ash
complains that Kral denied him the 60 days anticipated for performance improvement
provided for in the final written warning she issued to him on May 23, 2012, and thus,
treated him less favorably for the same alleged performance issues. Walgreens responds
that Rodriguez was treated similarly as Rodriguez was terminated on November 19, 2013
for poor performance. (Doc. 26, Ex. 1). Rodriguez was fired approximately one week after
Ash filed his response brief in this case. Because Rodriguez continued his employment
for over a year after Kral disciplined him, the trier of fact still might accept Ash’s complaint
that Rodriguez was treated more favorably than him based on the longer length of time
Walgreens gave him to improve his performance. Based on this discrepancy, a reasonable
jury might find that Walgreens treated Ash less favorably than Rodriguez based on his
disability.
For the same reasons discussed under this court’s analysis of Ash’s FMLA
discrimination claims, Walgreens argues that it has established a legitimate reason for his
discharge, namely, his alleged poor performance, which plaintiff has not overcome. For
the reasons discussed above addressing the FMLA claims, fact issues exist as to whether
or not Ash’s termination was the result of discrimination or whether it was a legitimate
business decision.

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2. Failure to Accommodate and Retaliation Claims
At oral argument, Walgreens argued that Ash’s failure to accommodate claim and
retaliation claims under the ADA should be dismissed as Ash failed to address those claims
in his response brief. When asked if Ash was indeed waiving those claims, Ash’s counsel
stated that he did not intend to abandon them. Upon review of Ash’s response brief,
however, the court agrees that Ash failed to address the reasonable accommodation claim.
Moreover, at his deposition, Ash stated that the only accommodation he sought for his HIV
was continuous medical leave and that was, in fact, granted. (Doc. 19, Ex. C at 196).
While Ash noted he would have liked to have worked from home because of his HIV, he
admitted that he never requested that flexibility. Id. at 196-97. In order to prevail on a
failure to accommodate claim under the ADA, the employee must propose the
accommodation to his employer and prove that it is reasonable. Jakubowski v. Christ
Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010). Having failed to do so, summary judgment
shall enter for Walgreens on Ash’s failure to accommodate claim. His ADA retaliation
claim, however, survives summary judgment as Walgreens relied on its analysis of the
FMLA retaliation claim to support dismissal of that claim. Ash’s discussion of causation and
pretext under the FMLA applies equally to his ADA retaliation claim. For the same reasons
that the FMLA retaliation claim survives, his ADA retaliation claim survives as well.
IV. Conclusion
For the reasons set forth above, Walgreen’s motion for summary judgment (Doc. 19)
hereby is GRANTED as to Ash’s interference claim under the FMLA with respect to the
denial of his request to attend an April, 2012 doctor’s appointment, and his failure to

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accommodate claim under the ADA, but hereby is DENIED as to the rest of his FMLA and
ADA claims.
IT IS SO ORDERED.
Dated: January 22, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 22, 2014, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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