Keogh v. Concentra Corporation

Filing 40

OPINION and ORDER granting 21 defendant's MOTION for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN KEOGH, D.O.,
Plaintiff,
Case No. 16-CV-11460
vs.
HON. GEORGE CARAM STEEH
CONCENTRA CORP.,
Defendant.
_____________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DOC. 21]

Plaintiff Dr. Kevin Keogh filed this action alleging discrimination and
retaliation in violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq. against his employer, defendant Concentra. The
matter is presently before the court on defendant’s motion for summary
judgment.
The court held oral argument on defendant’s motion on August 23,
2017. For the reasons set forth below, defendant’s motion for summary
judgment is GRANTED.

-1-

FACTUAL BACKGROUND
1.

Dr. Keogh’s Employment at Concentra
Concentra provides occupational healthcare services dedicated to the

treatment of workplace injuries and the performance of employment-related
healthcare services, such as drug screenings and pre-employment
physicals. Dr. Keogh began his employment as a physician for Concentra
in 1993 when he sold his medical practice to Concentra. Dr. Keogh worked
as a Staff Physician, first in the I-96 Center in Novi and later in the Livonia
Center. In 2001, Concentra promoted Dr. Keogh to Center Medical
Director (CMD) for the Livonia Center. As CMD, Dr. Keogh’s
responsibilities included patient care as well as leadership/management.
CMD’s reported directly to the Area Medical Director (AMD). Concentra’s
core operational principles are found in its Site Playbook. The Site
Playbook establishes standardized processes to ensure that an individual
has the same experience in all Concentra locations.
In 2010 Dr. Keogh had his first back surgery, a laminectomy for
herniated discs at levels L4 and L5. He had a second laminectomy for the
same discs in 2012, developed an infection and underwent a subsequent
fusion. Dr. Keogh returned to work in February of 2013. Dr. Keogh

-2-

contends he had difficulty sitting, going from sitting to standing, and walking
for long periods due to his surgeries. As a result of pain and other
limitations, Dr. Keogh maintains that he got fatigued after working for more
than 6 hours.
2.

Events Leading to Dr. Keogh’s Demotion
In mid-2013, Dr. Thomas became the AMD who directly supervised

Dr. Keogh as the CMD of the Livonia Center. In 2014, Dr. Thomas
developed concerns about Dr. Keogh’s performance and addressed
performance and behavioral problems related to his leadership. On
February 14, 2014, Dr. Thomas noted that Dr. Keogh made fun of the
Playbook. On February 26, 2014, Dr. Thomas met with Dr. Keogh about
his attendance at the mandatory quarterly staff meeting. Dr. Keogh said he
would “think about” attending. On March 4, 2014, Dr. Keogh told Dr.
Thomas he would not attend the mandatory quarterly meeting because “if
it’s not about medicine I don’t have anything to do with it.” (Ex. 15, Dr.
Thomas’ Counseling Notes).
At the March 4, 2014 meeting, where the Site Playbook was rolled
out to staff at the Livonia Center, Dr. Keogh spent the first 70 minutes of
the 90 minute meeting working in another room. When asked to sign his

-3-

pledge agreeing to adhere to the principles of the Site Playbook, Dr. Keogh
signed the name “Wiley E. Coyote.”
Dr. Thomas informed Dr. Cobb, a Regional Medical Director, of Dr.
Keogh’s insubordination. Dr. Cobb forwarded the information to Dr. Yaldo,
Concentra’s Vice President of Medical Operations, Dr. Cobb expressed her
support “of making a move to separate Dr. Keogh” to Senior HR Consultant
Thomas Tschirhart.
Concentra placed Dr. Keogh on a PIP on March 11, 2014 for
unsatisfactory performance:
(1)

Openly mocking Concentra’s policies and procedures;

(2)

Not consistently completing charts in a timely fashion;

(3)

Not participating in the management of the Livonia Center staff;

(4)

Consistently arriving late for meetings;

(5)

Engaging in rude and disrespectful behavior in meetings, such
as addressing the group with “Hi Ladies and Genitals”;

(6)

Failing to take Livonia Center performance metrics seriously;
and

(7)

Not taking responsibility for center readiness audits (“CAT
Audits”).

-4-

The PIP required Dr. Keogh to correct his deficiencies and meet
expectations within 30 days. While on the PIP, Dr. Keogh refused to see a
patient for a physical exam because the patient arrived 15 minutes before
closing and Dr. Keogh did not want to delay the end of his shift. This
conduct was in contravention of Concentra’s policy of requiring that all
patients arriving at a clinic before closing are seen. Also while on the PIP,
Dr. Keogh arrived over a half-hour late for his shift. A patient presented
with an urgent medical need, which required Concentra to call EMS.
On April 17, 2014, Dr. Keogh met with Dr. Thomas to discuss his
progress towards meeting the targets of the PIP. After 30 days on the PIP,
Dr. Keogh was still not completing charts on time, had not performed any
mock CAT Audits, and refused to see patients who arrived near the end of
the day. Dr. Thomas noted that “Dr. Keogh takes excellent care of his
patients, but has room to grow regarding leadership and administrative
elements of the CMD position.” Dr. Thomas extended the PIP to afford Dr.
Keogh another opportunity to correct his performance problems.
The next month, on June 14, 2014, Dr. Thomas met with Dr. Keogh
to discuss his performance. Dr. Keogh had satisfied some but not all of the

-5-

requirements of the PIP, so Dr. Thomas decided to close the PIP rather
than placing Dr. Keogh on a Final Warning.
On July 7, 2014, Dr. Thomas emailed Dr. Keogh, telling him to
complete two mandatory learning modules by July 11, 2014 to avoid being
taken off the schedule. On July 16, Dr. Thomas again emailed Dr. Keogh
telling him he must complete the two learning modules and asking for an
explanation as to why he has not yet completed them. The same date, Dr.
Thomas informed Dr. Cobb of the situation and asked for her support in
following through with taking Dr. Keogh off the schedule the following week.
On July 17, Dr. Cobb informed Dr. Yaldo that Dr. Keogh would be removed
from duty if he did not comply with the training.
On July 28, Dr. Thomas emailed Drs. Cobb and Yaldo to inform them
that she would like to move Dr. Keogh out of the CMD role and offer him a
full time float position. “If he declines this position then I do not have a
place for him.” (Ex. 28, July 28, 2014 email) Drs. Cobb and Yaldo agreed
with Dr. Thomas’ proposed course of action. On August 11, 2014,
Concentra reassigned Dr. Keogh from his position as CMD of the Livonia
Center to that of a float physician. Dr. Keogh no longer had leadership
responsibilities and received assignments to work at clinics within the

-6-

market based on the need for physician coverage. Dr. Keogh’s salary was
not reduced even though he no longer performed the duties of a CMD.
3.

Post-Demotion Events
On August 27, 2014, following Dr. Keogh’s demotion to float position,

Dr. Thomas visited the Livonia Center where Dr. Keogh was working. Dr.
Thomas learned that Dr. Keogh showed up at least a half hour late for his
shift three days that week and did not answer a routine question asked by a
medical assistant. Dr. Thomas met with Dr. Keogh and stated her
expectation that he be on time to work and perform his duties in a
professional manner. Dr. Thomas summarized problems with Dr. Keogh’s
unprofessional behavior in an email to Drs. Cobb and Yaldo and Thomas
Tschirhart, writing that she would return to the Livonia Center in 5 days and
that “if this behavior persists at that time, I will be requesting a panel call to
separate Dr. Keogh from Concentra.”
Concentra’s FMLA leave policy required employees to contact a thirdparty administrator. Dr. Keogh testified that he knew about this
requirement. Prior to his demotion to float physician, Dr. Keogh testified
that he never contacted the third-party administrator or said anything to Dr.
Thomas or his other supervisors about needing FMLA leave or an

-7-

accommodation. (Keogh dep. pp. 102-03). During Dr. Thomas’ August 27,
2014 visit to the Livonia Center, Dr. Keogh told Dr. Thomas he wanted to
obtain information regarding potential FMLA intermittent leave or
accommodations because of his chronic back condition. (Keogh dep., pp.
106-08, 142-43) Dr. Keogh testified that he did not tell Dr. Thomas he
wanted to take leave or wanted to receive an accommodation, rather he
was “just seeking out information at that time.” Dr. Thomas told Dr. Keogh
to contact Tschirhart in Human Resources regarding his inquiry.
On August 28, 2014, Dr. Keogh reported to work one hour late
without offering any excuse. Dr. Thomas gave Dr. Keogh a Final Verbal
Warning, which she documented in writing on August 29, 2014. The
Warning directed Dr. Keogh to: (1) be on time to work every day; (2) be
respectful to everyone; (3) refrain from outbursts; (4) not make derogatory
comments about Concentra; and (5) implement Concentra’s clinical support
model. According to Dr. Thomas, Dr. Keogh stated that he understood he
could be terminated if he did not immediately live up to the expectations
described in the Final Verbal Warning. (Ex. 31, Dr. Thomas August 28,
2014 email).

-8-

On September 3, 2014, Dr. Keogh reported late for work because he
forgot his clothes after going to the gym. On September 4, 2014, Dr.
Thomas sent copies of her documentation regarding Dr. Keogh’s
performance deficiencies and attitude issues to Dr. Yaldo so he could
evaluate whether to approve convening a panel call to discuss the
possibility of terminating Dr. Keogh.
On September 5, 2014, Dr. Keogh arrived late for his shift without
calling to inform the clinic and without providing a reason for his tardiness.
In an email to Tschirhart and Drs. Cobb and Yaldo, Dr. Thomas remarked
that Dr. Keogh “has not been punctual any day since our discussion
regarding him taking the full time float position. This is having a negative
impact on patient care and colleague morale.” (Ex. 35). On September 6,
2014, Dr. Cobb called for separation consideration and a panel call.
Meanwhile, Dr. Keogh contends that he met with his orthopedic
surgeon, Dr. Montgomery, on September 3, 2014. He told his doctor that
he preferred an accommodation with a stand-up work area as well as an 8
hour work day. The doctor agreed to assist Dr. Keogh once he decided
what he wanted to do.

-9-

Dr. Keogh testified that he left Tschirhart a voice message on
September 5, and then spoke with Tschirhart on September 8, 2014 to
request information regarding intermittent FMLA leave or an
accommodation. Dr. Keogh admitted he did not make a specific request for
an accommodation or leave, but did tell Tschirhart he wanted to be
assigned to clinics where he could stand to perform charting requirements
and that he wanted to work an eight hour day. Dr. Keogh acknowledged
that the Livonia center computers were at a height at which he could stand
to perform charting, and that while the 96 Center had counters at standing
height, the computer was on a desk at sitting height. (Keogh dep. pp. 140142). Tschirhart told Dr. Keogh that he would look into his request and to
“sit tight.”
Concentra convened a panel call on September 12, 2014 to evaluate
whether to terminate Dr. Keogh. Present at the panel call were: Dr. Cobb,
Dr. Yaldo, an in-house Concentra attorney, Tschirhart, Jenny Patkowa
(Tschirhart’s supervisor), and Concentra’s Chief Medical Officer. Dr.
Keogh’s request for a standing work station and an eight hour day was
brought up at the panel call. (Tschirhart dep. p. 84). A consensus decision

-10-

was made to terminate Dr. Keogh. Dr. Keogh was informed of his
termination in person that same day.
Dr. Keogh accepted a position at Advance Urgent Care in or around
October of 2014. He testified that he worked 12 hours a day, three days a
week while he was employed there. (Keogh dep. p. 114).
STANDARD FOR SUMMARY JUDGMENT
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 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

-11-

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

-12-

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 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).
ANALYSIS
I. FMLA Interference
To establish a prima facie case of FMLA interference, a plaintiff must
show that: (1) he was an eligible employee; (2) defendant was an employer
as defined under the FMLA; (3) he was entitled to leave under the FMLA;
(4) he gave his employer notice of his intention to take leave; and (5) his
employer denied him FMLA benefits to which he was entitled. Donald v.
Sybra Inc., 667 F.3d 757 (6th Cir. 2012). Defendant argues that plaintiff
cannot satisfy the fourth or fifth elements of his prima facie case.
For an employee “[t]o invoke the protection of the FMLA, an
employee must provide notice and a qualifying reason for requesting the
leave.” Reeder v. County of Wayne, 177 F.Supp.3d 1059, 1071 (E.D.
Mich. 2016). An employee seeking FMLA leave does not have to expressly
refer to the statute, “but [he] must convey enough information to apprise

-13-

[his] employer that [he] is requesting leave for a serious health condition
that renders [him] unable to perform [his] job.” Norton v. LTCH, 620
Fed.Appx. 408, 410-11 (6th Cir. 2015). In Reeder, the plaintiff delivered
three notes to his employer from his healthcare providers certifying that he
was subject to a serious health condition rendering him unable to work
more than 8 hours per day. The notes were delivered in response to
disciplinary actions taken because plaintiff refused to work overtime hours.
The burden is on the employee to show that he put his employer on notice
of his intention to take leave under the FMLA. The Reeder court found
plaintiff submitted sufficient evidence to create a genuine issue of material
fact whether the employer was on notice of its duty to inquire further about
whether FMLA leave was being sought.
In this case, Dr. Keogh described his status as “investigating” the
possibility of taking FMLA leave when he spoke to Dr. Thomas on August
27, 2014 and Mr. Tschirhart on September 8, 2014. (Keogh dep. p. 138).
Where Dr. Keogh is only asking questions about how intermittent FMLA
leave works, and stating his desire for an eight hour work day without
directly requesting leave and without providing medical certification of a
need for leave, it is insufficient to create an issue of fact that his employer

-14-

was on notice that FMLA leave was being sought. Because the evidence in
this case does not support more than this, plaintiff has not established a
prima facie case of FMLA interference.
Even if Dr. Keogh did make out a prima facie case of FMLA
interference, his claim would not survive summary judgment because he
cannot establish that Concentra’s proffered, and well-documented,
business decision to terminate him was merely a pretext for FMLA
discrimination. Pretext is demonstrated by showing that the proffered
business reason underpinning a plaintiff’s termination “(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.” Mickey v. Zeidler Tool
& Die Co., 516 F.3d 516, 526 (6th Cir. 2008). To establish pretext at the
summary judgment phase “a plaintiff must produce sufficient evidence from
which a jury could reasonably reject the employer’s explanation for the
adverse employment action.” Dekarske v. Federal Express Corp., 294
F.R.D. 68, 81 (E.D. Mich. 2013).
Dr. Keogh acknowledges that he was given a Final Verbal Warning
on August 28, 2014, that included the issue of his tardiness. In response,
Dr. Keogh argues that tardiness was generally excused from other

-15-

clinicians. In support, he cites to the deposition of Suzy Francoeur, who
testified that she was permitted to be late to work regularly because she
was willing to work at a hard-to-staff location where “you can get away with
pretty much anything without getting in trouble.” (Francoeur dep. p. 121).
Ms. Francoeur is a PA, not a physician.
However, the undisputed evidence shows that Concentra terminated
Dr. Keogh only after he failed to correct his numerous and welldocumented ongoing performance and behavioral issues. Second, there is
nothing specific in the record that suggests the decision to terminate Dr.
Keogh was motivated by anything other than his post-Final Warning
tardiness. Third, the record demonstrates that Concentra afforded Dr.
Keogh numerous opportunities to improve before terminating him. Even
when faced with the reasons Concentra identified for terminating him, Dr.
Keogh never related any of those reasons to his back issues. Dr. Keogh
fails to support his argument that his termination was pretext for FMLA
discrimination.
Concentra’s motion for summary judgment on Dr. Keogh’s FMLA
interference claim is GRANTED.

-16-

II. FMLA Retaliation
To establish a prima facie case of FMLA retaliation, plaintiff must
show that (1) he was engaged in an activity protected by the FMLA; (2) his
employer knew that he was exercising his rights under the FMLA; (3) after
learning of plaintiff’s exercise of FMLA rights, the employer took an
employment action adverse to him; and (4) there was a causal connection
between the protected FMLA activity and the adverse employment action.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
Dr. Keogh identifies his FMLA protected activity as being his notifying
his supervisor on August 27, 2014 and a senior Human Resources
employee on September 5 and 8 that he wanted to investigate the
possibility of taking intermittent leave because he found working a nine
hour shift difficult due to his chronic back injury. (Brief pp. 17-18). Dr.
Keogh argues that he satisfies the causal connection requirement because
he was terminated within days of making his inquiries.
The Sixth Circuit “is clear that temporal proximity cannot be the sole
basis for finding pretext. Donald, 667 F.3d at 763 (citing Skrjanc v. Great
Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)). Yet, temporal
proximity is all that Dr. Keogh argues. He never tied his tardiness issues to

-17-

his back pain and he was equivocal in asking for intermittent FMLA leave
because, by his own admission, he was only investigating the possibility.
Looking at the evidence in the light most favorable to plaintiff, Dr.
Keogh does not satisfy the causal connection element of his prima facie
case of FMLA retaliation. For that reason, defendant’s motion for summary
judgment is GRANTED.
III. ADA Disability Discrimination
To establish a prima facie case of discrimination under the ADA, Dr.
Keogh must prove that: (1) he has a disability; (2) he is otherwise qualified
for his job with or without reasonable accommodations; 3) Concentra
disciplined, demoted or discharged him solely because of his disability; 4)
Concentra knew or had reason to know of Dr. Keogh’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) (citations omitted). The plaintiff’s disability must be a
“but-for” cause of his discipline, demotion or termination to meet the third
element. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir.
2012) (giving the history of why the court applies the “but-for” causation test
instead of the “motivating factor test” to the ADA).

-18-

The issue comes down to whether Dr. Keogh’s disability, identified as
his chronic back problem, was the “but-for” cause of his termination.
Concentra argues that the evidence demonstrates that Dr. Keogh’s
thoroughly documented behavioral and tardiness issues both impacted his
performance and lead to his termination. The decision to terminate Dr.
Keogh followed his demotion to float physician, a series of oral and written
warnings due to his unprofessional behavior and tardiness, and his failure
to improve his identified deficiencies.
Dr. Keogh offered explanations for two occasions when he was tardy
– blaming them on the location of his residence and the failure to bring
proper clothing to the gym – neither of which were related to his identified
disability. For all other times he was tardy, he gave no explanation at all.
Other than the timing of his request for a standing option to complete his
charts and a reduced work schedule, there is no evidence to support Dr.
Keogh’s contention that but-for making such requests, he would not have
been terminated.
Dr. Keogh has failed to establish a prima facie case of disability
discrimination under the ADA. Defendant’s motion for summary judgment
is GRANTED.

-19-

IV. ADA Failure to Accommodate
To establish a prima facie case of failure to accommodate, Dr. Keogh
must show that: (1) he is disabled under the ADA; (2) he is otherwise
qualified for the position, with or without a reasonable accommodation; (3)
Concentra knew or had reason to know of his disability; (4) he requested a
reasonable accommodation; and (5) Concentra failed to provide the
reasonable accommodation. Deister v. AAA Auto Club of Mich., 91
F.Supp.3d 905, 922 (E.D. Mich. 2015). Dr. Keogh maintains Concentra
failed to grant his requests for the following accommodations after he was
demoted to float physician: (1) that he only receive assignments to centers
where there were stand up work stations and (2) that Concentra allow him
to work a reduced hour schedule. The focus is on the fourth and fifth
elements of the prima facie case.
Following his back surgery in 2013, Concentra provided Dr. Keogh
with an accommodation of working only with other medical providers
present. Dr. Keogh knew first-hand how to seek an accommodation from
Concentra. Furthermore, as a specialist in occupational medicine, one of
Dr. Keogh’s primary job responsibilities was to assess and recommend
specific accommodations for his patients. Dr. Keogh did not even raise the

-20-

possibility of seeking an accommodation for his current back problems until
late August 2014. He did not identify any specific potential
accommodations of working at centers with the ability to stand and being
assigned reduced hours until September 8, 2014 when he spoke to
Tschirhart at Human Resources. This was more than a week after he
received a Final Verbal Warning on August 28, 2014. Tschirhart testified
he spoke about Dr. Keogh’s accommodation request with his supervisor
Patkowa. In fact, Concentra was only assigning Dr. Keogh to work as a
float physician in centers that had stand up work stations. Dr. Keogh
admitted that he did not require any accommodations with respect to his
work station at the Livonia Center. As to the other center to which Dr.
Keogh was assigned, the I-96 Center, Dr. Thomas testified that the
counters were the same height as those at the Livonia Center and that a
computer was moved to create a stand up work station for Dr. Keogh.
(Thomas dep. p. 120). The evidence supports a finding that defendant did
accommodate Dr. Keogh’s request for a stand up work station.
Dr. Keogh contends that he also asked for a reduced work day of
eight hours, where he would work from 8:00 to 4:00 instead of his present
schedule of 8:00 to 5:00. Dr. Keogh did not provide his employer with a

-21-

doctor’s note in support for his request, and was equivocal in his testimony
regarding whether he made a clear request for an eight hour work day or
whether he was still investigating his options. (Keogh dep. pp. 138, 141,
143). In order to satisfy the requirements of a prima facie case, a plaintiff
must request an objectively reasonable accommodation. Kleiber v. Honda
of America Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). The only clear
evidence in this case is that plaintiff was investigating his options with
regard to shortening his hours. Therefore, plaintiff has not satisfied this
element of his prima facie case for a failure to accommodate under the
ADA. Defendant’s motion for summary judgment is GRANTED.
V. ADA Retaliation
To establish an ADA retaliation claim, Dr. Keogh must show: (1) that
he engaged in a protected activity; (2) Concentra knew of that activity; (3)
Concentra took an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment
action. Sharp v. Profitt, 2016 WL 7468086 at *9.
Dr. Keogh identifies the protected activity he engaged in as his
request for an accommodation from Dr. Thomas on August 27, 2014. He
then reiterated his request in a message and follow-up conversation with

-22-

Tschirhart on September 5 and 8. The causation prong requires a plaintiff
to show but-for causation. Lewis, 681 F.3d at 321.
As discussed in the previous sections, there is evidence in the record
to support defendant’s explanation that it terminated Dr. Keogh’s
employment because of his tardiness and insubordination. Other than the
timing of Dr. Keogh’s request for an accommodation, nothing in the record
suggests a causal connection between his termination and any activity
protected by the ADA. The law in the Sixth Circuit is that “temporal
proximity is insufficient in and of itself to establish that the employer’s
nondiscriminatory reason for discharging an employee was in fact
pretextual.” Donald, 667 F.3d at 763 (citing Skrjanc, 272 F.3d at 317)).
For these reasons, defendant’s motion for summary judgment as to
plaintiff’s ADA retaliation claim is GRANTED.
CONCLUSION
Defendants’ motion for summary judgment is GRANTED for the
reasons stated in this opinion and order.
Dated: October 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

-23-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 16, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-24-