Welch v. Level 3 Communications, LLC

Filing 45

OPINION and ORDER Granting Defendant's 33 MOTION for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTAN WELCH,
Case No. 15-13381
Plaintiff,
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

v.
LEVEL 3 COMMUNICATIONS, LLC,

MAGISTRATE JUDGE STEPHANIE
DAWKINS DAVIS

Defendant.
/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [33]
Plaintiff Christan Welch worked under various managers at Defendant Level
3 Communications, LLC from 2000 to 2014. After suffering a grand mal seizure
and being diagnosed with multiple sclerosis in February 2013, she began working
from home full time. Christopher Vickers became Plaintiff’s new manager in
November 2013. Between that time and the time of Plaintiff’s termination in April
2014, there were a series of problems with several of Plaintiff’s customers. Vickers
discussed these issues with Plaintiff, but ultimately decided to terminate her
employment.
Plaintiff filed this lawsuit in September 2015, alleging disability
discrimination in violation of the Americans with Disabilities Act (“ADA”) and the
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Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”). Defendants
filed a Motion for Summary Judgment [33] upon the conclusion of the discovery
process. The motion was timely briefed and the Court heard oral arguments on
April 5, 2017.
Summary judgment for Defendants is appropriate because the evidence
shows that at the time of Plaintiff’s termination, Plaintiff was no longer qualified to
perform the essential functions of her position. Therefore, she cannot establish a
prima facie case of discrimination.
FACTUAL BACKGROUND
The Court considers all the facts and evidence with all reasonable inferences
in favor of Plaintiff. See Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 648
(6th Cir. 2012).
Level 3 Communications, LLC provides communication services to
enterprise, government, and carrier customers. Christan Welch began working at
Level 3’s predecessor, Focal Communications, in December 2000. Focal, and
Broadwing Communications, its successor, were acquired by Level 3 in or around
2007. The nature of Plaintiff’s work remained the same throughout each
acquisition. Plaintiff’s responsibilities as a Customer Care Manager (“CCM”)
included “[b]eing the primary point of contact for Level 3 customers[,] [r]esolving
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post-sales non-technical customer inquiries[, and] [c]oordinating the resolution of
technical issues using interdepartmental resources.”
Although Plaintiff was assigned to Defendant’s Southfield office, Plaintiff
worked from home three days per week between 2005 and 2012. Plaintiff worked
from home nine out of every 10 days after returning from maternity leave in early
2012. Being at home did not impede Plaintiff’s ability to be productive and do
work. She set up an office space in her home with a laptop, printer, and headset,
which she used to communicate with customers. Plaintiff’s four-year-old son went
to day care and her mother-in-law and older son cared for Plaintiff’s two-year-old
twins.
Plaintiff “was in the office every other week routinely” until she suffered a
grand mal seizure in February 2013. At that time, she was diagnosed with multiple
sclerosis. Plaintiff’s doctor instructed Plaintiff to limit her driving as much as
possible. When Plaintiff began driving again, in December 2013, she was only able
to drive very short distances – to drop her children off at school, for instance, or to
go grocery shopping. Plaintiff’s disability did not prevent her from working, and
she could have arranged transportation to get to work. It was simply more
convenient for her to work from home.

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Christopher Vickers became a Senior Manager of Customer Service after
taking over from Plaintiff’s previous manager, Nick Monroe, in November 2013.
He oversaw a team of Level 3 customer care managers, including Plaintiff. Shortly
after beginning his new role, Vickers called Plaintiff to introduce himself, learn a
bit about her, and inquire as to why she worked from home. Plaintiff told Vickers
about her MS, her seizures, and her driving restrictions. Vickers directed Plaintiff
to file this information with HR. This was the only conversation Plaintiff had with
Vickers about her medical condition.
Plaintiff thereafter entered into a formal telecommunications agreement with
Level 3. Plaintiff did not go to the Southfield office at all between November 2013
and April 1, 2014, the date of her termination. Plaintiff and Vickers never actually
met in person, although they spoke frequently on the phone, and via email and
Instant Messenger.
It appears that Plaintiff’s alleged problematic behavior with customers began
in November 2013. Several clients – including Clear Rate, Grid 4
Communications, T1, and Easton – made a variety of complaints to different
individuals at Level 3 about Plaintiff’s performance. Clear Rate, for instance,
wanted Plaintiff to communicate on a more consistent, established schedule. In
December 2013, Tim Wood, the Director of Sales and Support, advised Plaintiff to
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improve her communication with T1 and that T1 needed “hand holding.” He also
stated that “an email tracker isn’t cutting it for them. We need more specific
updates.” Plaintiff failed to respond in a timely manner to messages from
employees at Easton and Clear Rate. Finally, Grid 4 asked that Plaintiff be
removed from its account.
In March 2014, Plaintiff and Vickers discussed Plaintiff’s subpar
performance. Vickers told Plaintiff that she needed to improve her communication
and escalation management. Plaintiff recognized that she was at risk of being
placed on a Performance Improvement Plan (“PIP”) if Vickers did not see
immediate improvement. A PIP was not guaranteed, however. According to
Maryanne Kanaskie, the Human Resources Manager at Level 3, the company had
no progressive disciplinary process, but instead, “manage[d] each situation for the
circumstances.” Disciplinary action could consist of “a written warning that’s
issued for something,” or “[i]t could be a performance plan or . . . it could be
termination of employment.”
Vickers stated that not only were Defendant’s customers upset with Plaintiff,
members of Defendant’s sales team were as well. Defendant believed that Plaintiff
prioritized her children over her work assignments. Vickers and Wood both
testified that when they called Plaintiff at different times, a child answered the
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phone and then abruptly hung up. Wood did not remember how many times this
occurred, but he recalled “this not being a unique story.”
In Plaintiff’s view, Vickers did not actively support her. She found him
unresponsive and hard to get in touch with. He often referred her questions to
someone else within her group, which was unhelpful because she needed a
response from someone at a higher level. Plaintiff also felt that Vickers “never
made an effort to have a conversation with me on my disability in my work
environment. He put forth no effort to understand me . . . all he did was make it
worse . . . he built a case to get rid of me.” Although Vickers never said anything
directly to Plaintiff about her disability, Plaintiff was uncomfortable with Vickers’
tone and attitude. Plaintiff did not feel like “a valuable employee on [Vickers’]
team.” She said that he treated her “as an outcast with a disability.”
Plaintiff has no evidence or any reason to believe that this was because of
her disability. Plaintiff spoke with Human Resources several times between
November 2013 and March 2014 and never complained of Vickers’ alleged
discrimination against her.
Vickers and Kanaskie called Plaintiff on April 1, 2014 to inform her that she
was being terminated. Vickers testified that he had to call Plaintiff twice in order to

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reach her because the first time he called, a child picked up the phone and then
hung up.
ANALYSIS
Plaintiff brings discrimination actions under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12203, et seq., and the Michigan Persons with
Disabilities Civil Rights Act (“PWDCRA”), M.C.L. § 37.1602. Because Plaintiff
offers only circumstantial evidence in support of her claims, the Court will apply
the McDonnell-Douglas burden-shifting framework. See E.E.O.C. v. Ford Motor
Co., 782 F.3d 753, 767 (6th Cir. 2015) (en banc). If Plaintiff establishes a prima
facie case, the burden shifts to Defendant to articulate non-retaliatory reasons for
the challenged actions, after which the burden shifts back to Plaintiff to show that
those reasons are a pretext for retaliation. See id. (citing St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506, 515 (1993)).
I.

Prima Facie Case of Discrimination
The parties agree that the Court should use the same standards to examine

Plaintiff’s ADA and PWDCRA claims. See Donald v. Sybra, Inc., 667 F.3d 757,
763 (6th Cir. 2012) (the “PWDCRA ‘substantially mirrors the ADA and resolution
of a plaintiff’s ADA claim will generally, though not always, resolve the plaintiff’s
PWDCRA claim.’”) (internal quotations omitted). To prove a prima facie case of
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disability discrimination using the McDonnell-Douglas framework, Plaintiff must
show that (1) she is disabled, (2) she is otherwise qualified to perform the essential
functions of the position, with or without accommodation, (3) she suffered an
adverse employment decision, (4) Level 3 knew or had reason to know of
Plaintiff’s disability, and (5) the position remained open while Level 3 sought other
applicants, or the disabled individual was replaced. See Whitfield v. Tennessee, 639
F.3d 253, 259-60 (6th Cir. 2011). “Establishing a prima facie case of
discrimination under the indirect method is not onerous.” Ferrari v. Ford Motor
Co., 826 F.3d 885, 894 (6th Cir. 2016).
Defendant acknowledges that Plaintiff has satisfied her burden on the third,
fourth, and fifth elements. Accordingly, the Court’s discussion will focus on
whether Plaintiff was disabled and whether Plaintiff was otherwise qualified to
perform the essential functions of her position as a CCM.
A. Whether Plaintiff was Disabled as Defined by the ADA
An individual qualifies as disabled under the ADA if she has an impairment
that substantially limits a major life activity; she has a record of such an
impairment; or she is “regarded as having such an impairment.” 42 U.S.C. §

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12102(1).1 The parties contest the disability requirement in different ways: Plaintiff
argues that she is regarded as disabled, under 42 U.S.C. § 12102(1)(C), while
Defendant claims that Plaintiff is not disabled because she has no impairment that
substantially limits a major life activity, under 42 U.S.C. § 12102(1)(A).
1. Plaintiff’s medical conditions did not substantially impair a
major life activity nor was she “regarded-as-disabled” by
Defendant.
The ADA Amendments Act (“ADAAA”), which became effective on
January 1, 2009, “changed the way courts are to review ‘regarded as’ claims under
the ADA.” Jennings v. Dow Corning Corp., No. 12-12227, 2013 U.S. Dist. LEXIS
66803, at *21 (E.D. Mich. May 10, 2013). The ADAAA provides that
‘[R]egarded as’ claimants no longer need to demonstrate that their employer
believed them to be substantially limited in a major life activity. Instead, an
individual is ‘regarded as having such an impairment’ if the individual is
subjected to a prohibited action because of an actual or perceived physical or
mental impairment, whether or not that impairment substantially limits, or is
perceived to substantially limit, a major life activity.

1

Similarly, to qualify as disabled under the PWDCRA, an individual must have an
impairment that “substantially limits 1 or more of that individual’s major life activities”
or the individual must be “regarded as having a determinable physical or mental
characteristic [which may result from disease, injury, congenital condition of birth, or
functional disorder.” M.C.L. § 37.1103(d)(i)(A), (iii).

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Id. at *21-22 (citing 29 C.F.R. § 1630.2(l)(1) (emphasis added)).2 “Whether an
individual’s impairment ‘substantially limits’ a major life activity is not relevant to
coverage under paragraph (g)(1)(iii) (the ‘regarded as’ prong) of this section.” §
1630.2(j)(2). Congress intended the ADA Amendments Act to “‘reinstat[e] a broad
scope of protection to be available under the ADA.’” Milholland v. Sumner County
Bd. of Educ., 569 F.3d 562, 566 (6th Cir. 2009).
Under the “regarded as disabled” prong, “[i]t is enough that an employer
took some adverse employment action because of some impairment, whether real
or imagined, no matter how insubstantial.”3 Jennings, 2013 U.S. Dist. LEXIS
66803, at *22-23 (emphasis added). An impairment is:
Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genitourinary, immune, circulatory,
hemic, lymphatic, skin, and endocrine; or any mental or psychological
disorder, such as an intellectual disability . . . organic brain syndrome,
emotion or mental illness, and specific learning disabilities.
29 C.F.R. § 1630(h).
2

The ADAAA supersedes Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999),
which held that ‘regarded as’ claimants had “to show that their employers believed them
to be substantially impaired in a major life activity or unable to work in a broad class of
jobs.” Jennings, 2013 U.S. Dist. LEXIS 66803, at *21.
3

To meet the disability definition of “being regarded as having such an impairment,” the
impairment must have an actual of expected duration of more than six months. 42 U.S.C.
§ 12102(3)(B).

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Plaintiff’s arguments are unclear – she seems to argue that she is disabled
both because her physical and mental impairments substantially limited a major
life activity, and because Defendant regarded her as disabled. She states that she
was disabled due to her “seizure disorder, MS, and the consequences of medication
17 doses of five different medications she takes on a daily basis) [sic].” These
impairments, she says, “led to more than ‘feeling run down.’ Her sight, strength,
loss of sleep, needing low lights and quiet, almost daily seizures, headaches, numb
hands, etc., all suggest that she qualifies as a traditionally disabled individual
within definition one of the statute.”
Plaintiff’s argument is unconvincing in several respects. First, Plaintiff’s
affidavit, in which she outlines the above argument, contradicts her deposition
testimony that she had no limitations as to typing, reading, hearing, or completing
other job-related tasks. “[A] party cannot create a genuine issue of material fact by
filing an affidavit, after a motion for summary judgment has been made, that
essentially contradicts his earlier deposition testimony.” Penny v. UPS, 128 F.3d
408, 415 (6th Cir. 1997). Plaintiff testified during her deposition that she “could sit
[at her desk in her home office] as long as [she] needed to do [the job]” and that
“[o]ther than the normal aches and pains and having to stand up, [she was] able to
sit at her desk and do [her] job.” Second, there is no evidence that Plaintiff ever
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informed Level 3 about anything other than her MS and seizure disorder; no one at
the company knew of Plaintiff’s issues with respect to her irregular sleeping
patterns, headaches, vision and hearing problems, and exhaustion.4
Plaintiff also acknowledged that apart from the driving accommodation, she
had no “further accommodations for [her] job.” Indeed, the Medical
Accommodation Request that she submitted to Level 3 in November 2013
indicates only partial restrictions on Plaintiff’s driving and/or ability to operate
machinery and Plaintiff’s tolerance for stress. Finally, Plaintiff confirmed during
her deposition that her MS and seizure disorder “only prevented [her] from getting
in the car and driving to work”; it did not “prevent [her] from working once [she
was] at work.” She agreed that she could have traveled to the office via alternative
means and that it was simply more convenient for her to work at home.
Level 3 certainly knew that Plaintiff needed to work from home and had a
driving restriction because of her MS and seizure disorder. However, Plaintiff
“cannot show that [her employer regarded her as disabled] . . . merely by pointing
to that portion of the record in which [the employer] admitted that [it] was aware of
[plaintiff’s] medical restrictions and modified [plaintiff’s] responsibilities based on
them.” Plant v. Morton Int’l, Inc., 212 F.3d 929, 938 (6th Cir. 2000). Notably,
4

See, e.g., Pl.’s Ex. C at 62 (Plaintiff admitted that she did not request the ability to, for
example, “come into work and be able to shut off the lights or go into a private office.”).

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Level 3 did not modify Plaintiff’s responsibilities at all; the company allowed
Plaintiff to work from home, but the substantive responsibilities of her job never
changed. There is no evidence that Plaintiff’s ailments substantially limited her
ability to do her job or that Defendant regarded her in such a manner.
B. Plaintiff was not otherwise qualified to perform the essential
functions of her position.
Ultimately, even assuming that Plaintiff either was disabled or was regarded
as disabled, the Court finds that at the time Level 3 terminated her, she was no
longer qualified to perform the essential functions of her job. In order for Plaintiff
to show that she was qualified, she must prove that she was performing her job “at
a level which met [her] employer’s legitimate expectations.” Huhn v. Koehring,
718 F.2d 239, 243 (7th Cir. 1983). “If [Plaintiff] was not doing what [her]
employer wanted [her] to do, [she] was not doing [her] job . . . [Plaintiff] does not
raise a material issue of fact on the question of the quality of [her] work merely by
challenging the judgment of her supervisors.” Kephart v. Institute of Gas
Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959
(1981). The focus is whether Plaintiff’s objective qualifications qualified her for
her position as a CCM. See Wexler v. White’s Fine Furniture, 317 F.3d 564, 575
(6th Cir. 2003) (en banc).

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That Plaintiff was successful at her job at one point, and received solid
evaluations throughout the years, is undisputed. When Vickers first began working
at Level 3, former managers and members of the sales team told him that Plaintiff
used to be “on form,” that she had not been lately, but they thought she could be
again.
It is also true, however, that Vickers, members of the sales team, and Level 3
customers were dissatisfied with Plaintiff’s job performance. Plaintiff concedes
that her communications with Grid 4 and Easton were inexcusably delayed. Grid 4
was upset with the level of service it had received and lacked understanding of
how the project was progressing. Grid 4 eventually asked that Plaintiff be removed
from the account “due to the quality of [her] updates.” Easton, another of
Plaintiff’s accounts, experienced similar issues. On December 4, 2013, Denise, an
Easton employee, wrote to Plaintiff asking about whether something had been
installed. The next morning, Plaintiff told Denise she would follow up later that
day. Denise wrote back and asked Plaintiff to “keep us posted with the progress.”
Over the course of the next several days, Denise sent the following messages
without receiving responses from Plaintiff:
 December 9, 2013: “I need status on this order – ASAP.”
 December 10, 2013: “Christan, I need an update today, if you cannot obtain
one can you please get someone else to look into this for me. I would really
appreciate it!!!!!!!”
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 December 11, 2013: “What is it going to take to get a reply back on this
request, please advise.”
Vickers finally responded by saying “Please accept my apology for the
unacceptable delay in response on this matter. . . . You can expect a call from
Christan in the morning to discuss next steps.”
Vickers spoke with Plaintiff about her performance at some point in
December 2013. They discussed Plaintiff’s “performance being subpar” and how
she could do better. Plaintiff took “responsibility for . . . the issues that occurred
with [her] customers that Mr. Vickers was upset with [her] about.” She also
admitted that her “dealings with [that customer] were not the best display of [her]
talents.”
In Plaintiff’s 2013 year-end review, Vickers indicated that these events were
“a poor measure of [Plaintiff’s] performance and under some circumstances would
have resulted in severe disciplinary action which could have included separation.”
Vickers believed that Plaintiff could “get back in the game,” but urged her “to
commit to the team and focus on the job.”
The evidence also shows that Plaintiff had communication issues with Clear
Rate. Plaintiff acknowledged that Clear Rate was “raising issues with Mr. Vickers”
regarding her work on the account. On December 17, 2013, Erin Knight, Plaintiff’s
contact at Clear Rate, emailed Plaintiff and Michael Cierebiej, another salesperson,
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asking them to process an order. Ms. Knight emailed Cierebiej and Plaintiff again
on January 3, 2014 asking about the status of the order. 11 days later, on January
14, Ms. Knight emailed Plaintiff (and copied Cierbiej) saying “Please provide a
response as requested on the 3rd!” Immediately after that, Cierbiej responded to
Ms. Knight and copied Plaintiff and Vickers, and said, “Chris can you assist?”
Plaintiff and Vickers reviewed her evaluation together once it was finalized,
in approximately February or March of 2014. Plaintiff never complained to anyone
at Level 3 about the substance of her review. When asked whether she disagreed
with it, she said “yes and no”; she “was pissed with some of [Vickers’] verbiage
but, hey, guess what, I got ten grand and he’s giving me a bonus.”
Even viewing the facts in the light most favorable to Plaintiff, the Court
finds that she has not met her burden of showing that she was otherwise qualified
for her job as a CCM with Level 3. In addition to the aforementioned problems
with Level 3 customers, Plaintiff acknowledged that there were several times that
her children answered her cell phone when her supervisors called. Plaintiff’s
counsel pointed out during the hearing that when this happened once with Tim
Wood, Plaintiff was speaking with Vickers on Instant Messenger. Counsel noted
that Wood never followed up as to why he called. This is irrelevant. What is
relevant is Plaintiff’s lack of professionalism and good judgment on such
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occasions. Plaintiff’s counsel also contends that “with the use of cell phones, on
occasion, work-related phone calls will be fielded by someone other than the
intended.” This is questionable given the fact that Plaintiff had set up an office
space at home and her older son and mother-in-law provided child care to her twoyear-old twins while she worked. In theory, Plaintiff’s children should not have
been around her at all and should not have had any access to her phone.
The parties vehemently dispute the nature of Plaintiff’s involvement with the
Clear Rate account. It is Plaintiff’s position that she had nothing to do with the
failure of the Clear Rate circuits and that she was wrongfully blamed by Vickers
and others at Level 3. Even assuming that Plaintiff is correct, it is very clear that a
multitude of other issues existed with regard to her performance at Level 3.
Plaintiff’s counsel’s claim that “[t]here is nothing in any email from any customer”
about Plaintiff’s lack of responsiveness is simply wrong. Employees from Easton
and Clear Rate complained about Plaintiff’s failure to answer emails; one email
from Thane Namy at Clear Rate to Tim Wood and Plaintiff states: “Is there a
reason Christian isn’t answering Erin’s questions?” And further, the fact that
Plaintiff was removed from an account – Grid 4 – provides enough reason for
Level 3 to terminate her, given that its job is to provide telecommunication
services to clients.
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The goal of the inquiry is “not to review bad business decisions, or question
the soundness of an employer's judgment.” McDonald v. Union Camp Corp., 898
F.2d 1155, 1160 (6th Cir. 1990). The fact of the matter is that Plaintiff “was simply
not performing to [Level 3’s] satisfaction.” Id. Accordingly, there is no genuine
issue of material fact as to whether she was qualified. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Plaintiff has failed to establish a prima facie case of
disability discrimination, and summary judgment under the McDonnell
Douglas approach is appropriate.
II.

Evidence of Pretext
Even assuming that Plaintiff established her prima facie case, she has not

shown that Defendant’s explanation for her firing was a pretext for discrimination.
Level 3 claims to have terminated Plaintiff because of her poor performance,
which is a valid reason. It is now up to Plaintiff to prove that this reason is
pretextual, which she can do by showing that Defendant’s proffered reason (1) had
no basis in fact, (2) did not actually motivate the defendant’s challenged conduct,
or (3) was insufficient to warrant the challenged conduct. Romans v. Mich. Dep’t
of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012). “Pretext is a commonsense
inquiry: did the employer fire the employee for the stated reason or not?” Chen v.
Dow Chemical Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009).
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The Sixth Circuit recognizes the “honest belief” rule, which provides “that
as long as the employer honestly believed the reason it gave for its employment
action, an employee is not able to establish pretext even if the employer’s reason is
ultimately found to be mistaken.” Ferrari, 826 F.3d at 895. The employer’s intent
is what matters here; “arguing about the accuracy of the employer’s assessment is a
distraction because the question is not whether the employer’s reasons for a
decision are right but whether the employer’s description of its reasons is honest.”
Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). The honest belief rule
is satisfied if “the employer can establish its reasonable reliance on the
particularized facts that were before it at the time the decision was made.”
Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001).
The facts before Vickers, Wood, and other supervisors at Level 3 at the time
of Plaintiff’s termination are related above. All of this provides ample justification
for Plaintiff’s termination and, more importantly, there is simply no evidence in the
record indicating that Defendant had any type of discriminatory intent. See
Treadway v. Cal. Prods. Corp., 2016 U.S. App. LEXIS 14212, at *210 (6th Cir.
Aug. 1, 2016) (explaining that employees are not protected “from erroneous or
even arbitrary personnel decisions but only from decisions that are unlawfully
motivated.”).
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III.

“Other Acts” Evidence

Plaintiff references the termination of Kevin Berg to support her argument
that Vickers discriminated against disabled individuals. She states:
Vickers, [sic] engaged in almost the precise behaviors as stated by Welch,
i.e. circumstances suggesting a disability leading to judgment of termination
and a reluctance to use Defendant’s policies (PIP and written warning) [sic]
to rehabilitate the employee).
Berg worked at Level 3 for seven years until his termination in February
2014. Nick Monroe, Berg’s former manager, placed him on a PIP in April 2013,
right before he left on medical leave. Shortly after Berg returned in September
2013, Vickers became his manager. According to Berg, “[a]lthough Mr. Vickers
appeared to want to work with me to successfully complete the terms of the PIP, I
always had an uneasy feeling dealing with him that he was someone who could not
evaluate me fairly.” Berg also believed that his firing by Vickers “was predictable,
given [Vickers’] perception of me as someone who is dysfunctional in the
evaluation [Vickers] gave me wherein he wrote ‘I do need you to be a dependable,
functioning employee . . .’ I felt this was a thinly veiled reference to the five
months I needed off work to rehabilitate myself for employment.”
“‘[O]ther acts’ evidence consists of testimony or other evidence of
discrimination by the employer against non-party employees.” Griffin v.
Finkbeiner, 689 F.3d 584, 598 (6th Cir. 2012). “Whether such evidence is relevant
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is a case-by-case determination that ‘depends on many factors, including how
closely related the evidence is to the plaintiff’s circumstances and theory of the
case.’” Id. (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388
(2008)).
There is no evidence that Berg was disabled. After Berg returned from his
medical leave in September 2013, he did not inform Defendant of any restrictions
or request any accommodations. “[A]n employer cannot be said to know or have
reason to know of an employee’s disability where that employee returns to work
without restriction or request for accommodation. The natural assumption in such a
case is that the employee is fully fit for work.” Hubbs v. Textron, Inc., 2000 U.S.
App. LEXIS 30465, at *7 (6th Cir. 2000). Plaintiff cherry picks “uncorroborated,
conclusory statements and self-serving allegations” from Berg’s affidavit in
support of her claim; these statements “cannot alone satisfy Plaintiff’s burden.”
Brahmbhatt, 2014 U.S. Dist. LEXIS 81592, at *39 (citing Mitchell v. Toledo
Hosp., 964 F.2d 577, 584 (6th Cir. 1992)). It should also be recognized that
Monroe – not Vickers – initiated the disciplinary process by placing Berg on the
PIP, and moreover, that Vickers was the one who released Berg from the PIP after
Berg “satisfactorily achieved the objectives that were established.” Finally, Berg’s

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speculative, subjective beliefs as to his “uneasy feeling” about Vickers are
insufficient to establish discrimination. See Mitchell, 964 F.2d at 585.
CONCLUSION
Plaintiff cannot establish a prima facie case of disability discrimination
because there is no genuine issue of material fact as to whether she was qualified
for her position as a CCM. It is also clear that – even assuming Plaintiff could
make out a prima facie case – Plaintiff has not met her burden of showing that
Level 3’s reasons for terminating her were pretext for unlawful disability
discrimination. Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment [33] is
GRANTED.
SO ORDERED.

Dated: May 26, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to
their respective email or First Class U.S Mail addresses disclosed on the Notice of
Electronic filing on May 26, 2017.
s/Teresa McGovern
Case Manager Generalist

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