Salazar v. Tribar Manufacturing

Filing 19

OPINION AND ORDER DENYING 12 Plaintiff's Motion for Summary Judgment, and GRANTING 13 Defendant's Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHANTEL SALAZAR,
Plaintiff,
Case No. 14-12935
HON. TERRENCE G. BERG

v.
TRIBAR MANUFACTURING, L.L.C.,
Defendant.
/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. 12) AND GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. 13)
Plaintiff Chantel Puffer (formerly “Chantel Salazar”), an ex-employee of
Defendant Tribar Manufacturing, L.L.C., (“Tribar”), filed this lawsuit on July 28,
2014 alleging that Tribar terminated her employment in violation of the Americans
with Disabilities Act (“ADA.”) (Dkt. 1). On April 10, 2015, the parties filed crossmotions for summary judgment (Dkt. Nos. 12, 13). The Court held oral argument
on these motions on December 4, 2015. For the reasons explained below, Plaintiff’s
motion for summary judgment (Dkt. 12) is DENIED and Tribar’s motion for
summary judgment (Dkt. 13) is GRANTED.
I.

FACTUAL AND PROCEDURAL HISTORY

A. Tribar Hires and Promotes Plaintiff to Hourly Positions Subject to
Its Attendance Policy.
Tribar employs approximately 300 hourly workers manufacturing injectionmolded parts in its Howell, Michigan plant. (Dkt. 13, p. 1). On August 26, 2011,

Plaintiff began work at Tribar as an hourly press operator (Puffer Dep., Dkt. 13,
Ex. 3, at 71:8-15) assigned to the “D shift,” an evening shift that ran from 5 p.m. to
5 a.m. (id. at 74:20-24).
As an hourly employee, Plaintiff was subject to Tribar’s “point system”
attendance policy—a policy that emphasizes that employee attendance and
punctuality are “extremely important” to the company. (Tribar Attendance Policy,
Dkt. 13, Ex. 8). Under this system, employees are assessed points when they are
tardy or absent from work without permission:1 half a point for being tardy and a
full point for being absent. (Id.) Upon accruing three points, employees lose the
“Class A” bonus, resulting in a $.50 hourly decrease in their wages. (Id.) Accruing
five points constitutes grounds for termination. (Id.) In addition, Tribar deducts
one point when an employee achieves perfect attendance for one calendar month.
(Id.) Tribar posts a list showing employees’ point totals in the lunchroom, and
updates it on a weekly basis. (Gary Decl., Dkt. 13, Ex. 1, p. 2). Employees are
responsible for tracking their point totals and can dispute any points with human
resources manager Cathy Muylaert. (Id.)

The attendance policy also requires an employee who misses multiple days to provide a doctor’s
note detailing the nature of the illness and the number of days that the employee will miss. (Id.)
The parties dispute whether an employee accrues a point after a doctor’s visit. Plaintiff claims that
a doctor’s note results in no points, relying on the employee handbook that states that “[a]n absence
or partial day can be excused by . . . [a] doctor’s note,” an approved personal day or official business
like jury duty. (Employee Handbook, Dkt. 13, Ex. 6). Tribar argues that employees are assessed a
point even if they have a doctor’s note. However, Tribar contends that under its unwritten doctor’s
note policy, employees absent for consecutive days are only assessed one point (as opposed to a point
for every day missed) if they provide a doctor’s note. (Muylaert Dep., Dkt. 13, Ex. 2, 71:19-72:8).
1

2

During her new hire orientation, Plaintiff learned that to be considered “on
time” to work, she needed to be at her work station five minutes before the start of
her shift (by 4:55 pm) under Tribar’s unwritten “five-minute rule.” (Puffer Dep., at
74:25-75:5). Muylaert explained that Tribar implemented the five-minute rule so
that workers from the outgoing and incoming shifts could discuss any relevant
issues, like mechanical problems, that occurred during the prior shift. (Id. at 75:2376:6). Tribar paid Plaintiff for these five minutes. (Gary Decl., at p. 2).
In February 2012, Plaintiff obtained a promotion from press operator to team
lead in the D shift. (Puffer Dep., at 111:21-25). As team lead, Plaintiff managed
press operators and conducted quality control. (Id. at 112:21-113:4).
B. Plaintiff’s Kidney Disease Diagnosis and Promotion to Janitor
On December 28, 2012, Plaintiff was diagnosed with stage-five kidney
disease. (Dr. George Behrend, December 28, 2012 Note, Dkt. 12, Ex. 2). Two
months later, on February 18, 2013, Tribar promoted Plaintiff to janitor, (Puffer
Dep., at 131:25-132:6) increasing her hourly wage from $11.25 to $12.25 per hour
(id. at 133:19-22). As a janitor, Plaintiff was responsible for cleaning the plant floor.
(Muylaert Dep., at 58:8-14).
At the time of her promotion, Plaintiff was receiving hemodialysis2 at a
clinic—a process that took an average of four hours to complete. (Puffer Dep., at

Hemodialysis is machine-based treatment for kidney disease that filters “wastes, salts and fluid”
from the blood. The Mayo Clinic, Hemodialysis, http://www.mayoclinic.org/testsprocedures/hemodialysis/basics/definition/prc-20015015. It is the most common treatment for
advanced kidney disease. Id.
3
2

130:20-25). Since Plaintiff’s treatment began at 6 a.m., she spoke with Tribar plant
manager Frank Gary about her schedule, and Gary adjusted her hours to 12 p.m. to
8 p.m.3 (Id. at 139:11-141:15). Gary also gave her the flexibility to arrive late as
needed, and provided her with his cell phone number to alert him about any late
arrivals. (Id. at 142:11-21). In effect, Gary exempted Plaintiff from Tribar’s
attendance policy during the time she worked as a janitor. (Gary Decl., at p. 5).
On March 28, 2013, Plaintiff had surgery to implant a catheter—a procedure
that allowed her to begin peritoneal dialysis.4 (Puffer Dep., at 165:16-19). This
method required Plaintiff to administer dialysis every four to six hours. (Id. at
151:20-24). In May 2013, Plaintiff told Gary that she needed to begin performing
dialysis at home. (Id.) Tribar had a “closed campus” policy that prohibited
employees from leaving the plant during their shifts; the policy also prohibited
employees from going to their cars alone during their work time. (Dkt. 13, Ex. 17).
Despite this policy, Gary agreed to allow Plaintiff to go home during her shift to
administer dialysis. (Gary Decl., at p. 5). He did not ask Plaintiff to provide any
medical documentation. (Id.)
After some time, Plaintiff stopped going home and instead began performing
dialysis in her car, which was parked in Tribar’s parking lot. (Puffer Dep., at

Plaintiff does not remember what her hours were prior to the change of schedule. (Id. at 140:1315).
3

Peritoneal dialysis provides greater flexibility than hemodialysis and can be administered at home,
at work or while traveling. The Mayo Clinic, Peritoneal Dialysis, http://www.mayoclinic.org/testsprocedures/peritoneal-dialysis/basics/definition/prc-20013164.
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4

153:11-19). In June 2013, some employees told Gary that they had observed
Plaintiff administering dialysis in her car, and bringing McDonald’s food into the
plant for other employees. (Gary Decl., at pp. 5-6). Plaintiff was then called into a
meeting with Gary, Sean Whittum,5 and Muylaert where they spoke to Plaintiff
about violating the closed campus rule. (Id. at 6). Plaintiff apologized for violating
the closed campus rule by bringing in outside food to other employees (Puffer Dep.,
at 163:3-19) and explained for the first time that she was administering dialysis in
her car (id at 160:15-24). Plaintiff then told them that this would not happen again
because she was going to begin administering dialysis overnight. (Gary Decl., at p.
6).
C. Plaintiff Leaves Janitor Position to Return as a Team Lead.
In July 2013, Tribar posted an internal listing for a quality team lead for the
B shift. (Id. at p. 7). Paul Rose, the B shift supervisor, had heard good things about
Plaintiff’s prior performance as a team lead for the D shift and asked Plaintiff to
become one of his team leaders. (Rose Dep., Dkt. 13, Ex. 4, 13:15-20). Plaintiff was
Rose’s first choice for the job, and he selected her over 10 to 20 other applicants.
(Id. at 44:17-23).
When Plaintiff accepted the offer to return as a team lead, she understood
that this position would not have the flexible schedule that she enjoyed as a

Whittum is the general foreman at Tribar (10:8-9) and is responsible for overseeing the production
floor and managing supervisors (13:9-12). He was Plaintiff’s superior.

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janitor.6 (Puffer Dep., at 169:9-13). The B shift, like the D shift, ran from 5 p.m. to
5 a.m. (id. at 174:1-3) and was subject to the five-minute rule (id. at 171:18-23).
Plaintiff did not request a flexible schedule when she agreed to take the position.
(Id. at 172:16-21).
D. Plaintiff Begins Administering Dialysis at Work
In September 2013, Plaintiff requested permission to administer dialysis at
work. (Gary Decl., at p. 7). Gary approved the request and told Plaintiff to use the
maintenance room because he believed that it was “clean and relatively private.”
(Id. at p. 7). Plaintiff used the maintenance room once (Puffer Dep., 232:8-10) but
felt uncomfortable there because she found that the room was dirty and did not offer
privacy (id. at 234:4-16). She told Rose about the condition of the room and Rose
allowed her to go home to administer dialysis. (Rose Dep., at 48:1-13). Plaintiff also
administered dialysis in other locations in the plant, including an upstairs
conference room (Puffer Dep., at 230:3-9), and in the corner of an upstairs balcony
area (id. at 232:12-14).
In late September 2013, Plaintiff went to the hospital for treatment for
peritonitis.7 (Id. at 280:4-6). As a result, she had to administer additional dialysis
treatments and learn how to adjust her dialysis machine. (Id. at 294:5-11). On
October 10, 2013, Plaintiff’s doctor sent a note to Tribar explaining that Plaintiff
6

Tribar did allow Plaintiff to keep the higher wage she earned as a janitor. (Gary Decl., at p. 7).

Peritonitis, an inflammation of the membrane that lines the abdominal wall, can be caused by an
infection acquired while administering peritoneal dialysis. The Mayo Clinic, Peritonitis,
http://www.mayoclinic.org/diseases-conditions/peritonitis/basics/definition/con-20032165.
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6

had suffered from peritonitis and requested that Tribar provide Plaintiff a “clean
and sanitary environment” to administer dialysis. (Dr. Vidooshi Maru, October 10,
2013 Note, Dkt. 13, Ex. 18). In response, Gary allowed Plaintiff to administer
dialysis in the front office. (Gary Decl., at p. 8).
E. Plaintiff is Repeatedly Late to Work
Soon after Plaintiff’s return as a team lead,8 Rose noticed Plaintiff repeatedly
punching in after 4:55 p.m., accruing attendance points for violating the five-minute
rule. (Rose Dep., at 59:6-14). Rose raised the issue with Plaintiff and she
responded that she would try to make it to work on time. (Id. at 59:15-19). She did
not tell Rose why she was late and Rose never asked. (Id. at 70:19-71:1).
This pattern continued from September to October 2013 and eventually Rose
told Whittum, his superior, about Plaintiff’s tardiness. (Whittum Dep., 85:3-4).
Whittum later observed Plaintiff punching in late and told her that she could not
continue arriving late to work.9 (Id. at 76:18-77:1). Plaintiff told Whittum that she
was having problems administering her dialysis during her sleep and that this
prolonged her dialysis and made her late. (Puffer Dep., at 212:3-9). She explained
that her dialysis machine was malfunctioning either because her husband rolled
over the cord or because she tripped over the cord. (Whittum Dep., at 77:8-14).
Whittum understood Plaintiff’s statement as an explanation as to why she was late
8

The exact date of Plaintiff’s return to the team lead position is unknown.

Whittum does not remember exactly when this conversation occurred but believes it took place
close to Plaintiff’s termination. (Id. at 84:23-85:2).
9

7

on that particular day, not as a general reason for her numerous late arrivals. (Id.
at 77:15-17). He then told Plaintiff to try sleeping in a chair. (Puffer Dep., at 212:39). Whittum testified that he recommended sleeping in a chair because it had
helped him to stay immobilized when he was injured in the past. (Whittum Dep., at
82:5-7).
Plaintiff states that during this conversation she told Whittum that she
needed an adjustment in order to keep her job. (Puffer Dep., at 211:19-212:2). She
did not ask Whittum for an accommodation because it was not in his power to grant
her an accommodation (id. at 223:18-21) but she states that she requested a
meeting with management (id. at 213:9-11).
After speaking to Whittum, Plaintiff spoke with Muylaert10 and told her that
she wanted to set up a meeting with management to discuss her attendance
points.11 (Id. at 308:25-309:3). She then sought out Gary but when she attempted
to speak with him, he told her that he was busy. (Id. at 215:22-216:16). She did not
attempt to schedule another meeting.12 (Id. at 237:5-6). In the end, Plaintiff admits

10

It is unknown when this meeting occurred.

Plaintiff originally testified that Muylaert laughed at her when she told Muylaert that she wanted
to meet with management to discuss her points and her dialysis. (Id. at 259:16-260:5). She later
clarified that she only told Muylaert that she wanted to discuss her points and did not mention her
dialysis. (Id. at 308:25-309:5). She maintains that Muylaert laughed, and then told her to talk to
Gary. (Id. at 309:15-19).
11

At first Plaintiff testified that she had tried to schedule a meeting with Gary multiple times. (Id.
at 279:2-3). Later she stated that she only tried speaking with Gary once, but felt intimidated and
did not try again. (Id. at 304:14-24). She claims that she did not insist on a meeting because she felt
like she was a nuisance (id. at 219:10-16) and that Gary and Whittum did not want to deal with it.
(Id. at 278:17-279:30).
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8

that she never communicated to Gary, Muylaert or her direct supervisor Rose that
she was having trouble with her dialysis. (Id. at 303:16-304:3).
Plaintiff wanted an adjustment to her schedule (id. at 217:8-218:18) that
would give her the flexibility to arrive to work late when necessary to finish her
dialysis treatment (id. at 239:13-15). She concedes that she did not request this (or
any other) accommodation but claims that she would have requested an
accommodation had she had the opportunity to meet with Gary. (Id. at 222:1-10).
F. Tribar Terminates Plaintiff’s Employment
After Rose informed him of Plaintiff’s attendance problems, Whittum checked
Plaintiff’s attendance point total in late October 2013 and asked Muylaert to verify
its accuracy.13 (Whittum Dep., at 71:19-72:7). According to Muylaert, Plaintiff had
by that time accumulated eight and a half points. On October 28, 2013, Plaintiff
arrived late again and was summoned to a meeting. (Puffer Dep., at 243:2-8).
There Plaintiff met with Rose, Muylaert, and Whittum. (Muylaert Dep., 81:1982:12). They told Plaintiff that she had accumulated eight and a half points and she
was being terminated under the attendance policy.14 (Puffer Dep., at 243:2-8).
While disputing the precise number, Plaintiff acknowledges that she had over five

Muylaert was in charge of monitoring and verifying employee attendance points. (Muylaert Dep.,
at 26:11-14).
13

Including the half-point for the date of Plaintiff’s termination, Tribar claims that Plaintiff had
accrued a total of nine points. (Gary Decl., at pp. 8-9).
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9

points on the day of her termination.15 Tribar points out that, since 2011, it has
fired over 100 employees for violating the attendance policy. (Gary Decl., at p. 9).
Believing that Tribar fired her because of her disability (Puffer Dep., at
244:17-23), Plaintiff filed suit on July 28, 2014 (Dkt. 1). Plaintiff raises two counts
for relief: (1) discrimination and failure to accommodate under the ADA and (2)
discrimination and failure to accommodate under Michigan’s Persons with
Disabilities Civil Rights Act (“PWDCRA.”) (Id.) On April 10, 2015, the parties filed
cross-motions for summary judgment. (Dkt. Nos. 12, 13).
II. ANALYSIS
A. Standard of Review
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that
there is no genuine issue as to any material fact such that the movant is entitled to
a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563,
568 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might
affect the outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary judgment, the
According to her timesheets, Plaintiff arrived after 4:55 pm and was assessed points on July 27,
2013, July 28, 2013, July 31, 2013, August 14, 2013, August 23, 2013, August 24, 2013, September
16, 2013, September 17, 2013, September 19, 2013, September 20, 2013, October 6, 2013, October 9,
2013, October 24, 2013, and October 28, 2013. (Puffer Timecards, Dkt. 13, Ex. 16). In addition, she
was assessed two more points for absences for absences where Plaintiff provided a doctor’s note, the
first from September 25 to 26, 2013, and the second on October 23, 2013. (Id.) Under Tribar’s
interpretation of the attendance policy, the late arrivals and absences total nine points. Tribar did
not assess points for Plaintiff’s late arrivals on August 5, 2013, August 16, 2014, September 8, 2013,
October 5, 2013, and October 14, 2013. Neither side addresses the reasons for these tardy arrivals or
explains why points were not assessed for them.
10
15

Court must view the evidence, and any reasonable inferences drawn from the
evidence, in the light most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).
“As the moving parties, the defendants have the initial burden to show that
there is an absence of evidence to support [plaintiff’s] case.” Selhv v. Caruso, 734
F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has met its burden, the non-moving party “‘may not rest
upon its mere allegations or denials of the adverse party’s pleadings, but rather
must set forth specific facts showing that there is a genuine issue for trial.’”
Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009)).
B. Discussion
On cross-motions for summary judgment, courts “must rule on each party’s
motion on an individual and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56 standard.” Charles Alan
Wright, Arthur R. Miller, & Mary Kay Kane, 10A Fed. Prac. & Proc. Civ. § 2720 (3d
ed.). Accordingly, the Court will examine each party’s motion in turn.

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1. Plaintiff’s Motion for Summary Judgment
Plaintiff seeks summary judgment for discrimination and failure to
accommodate under the ADA and PWDCRA.16 The Court will analyze the two
statutes together because the PWDCRA “substantially mirrors” the ADA. See
Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 597 (6th Cir. 2002) abrogated on other
grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en
banc).
a. Disability Discrimination
Title I of the ADA forbids discrimination against a “qualified individual on
the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Because Plaintiff does not present any direct evidence that Tribar
discriminated against her based on her disability, such as statements of managers,
or employment-related documents, that directly reference her disability as a reason
for the adverse employment action, Plaintiff’s claim relies on indirect evidence of
The Court notes that Plaintiff’s motion for summary judgment makes various assertions of fact
that are unsupported by the record, including, for example:
 That Whitman confronted Plaintiff and told her that she could not perform dialysis in her car
(Dkt. 12, p. 2). Plaintiff testified that she did not remember being told not to administer
dialysis in her car. (Puffer Dep., 162:13-15).
 That Plaintiff performed dialysis in a bathroom and was forced to use a second floor ledge in
the main warehouse. Plaintiff did not testify about administering dialysis in a bathroom.
Further, she testified that she administered dialysis on the second floor ledge because it was
private, not because she was forced to use it. (Puffer Dep. 232:12-16).
 That Plaintiff asked to administer dialysis in her car. There is no evidence that Plaintiff
ever made this request.

16

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discrimination. Claims involving indirect evidence of discrimination under the ADA
follow the McDonnell Douglas burden-shifting framework.17 Talley v. Family Dollar
Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). Under this framework, a
plaintiff must first establish a prima facie claim of discrimination by showing that
“(1) he is disabled, (2) he is otherwise qualified to perform the essential functions of
a position, with or without accommodation, and (3) he suffered an adverse
employment action because of his disability.” Demyanovich v. Cadon Plating &
Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014) (citing Talley, 542 F.3d at
1105).18 The third-factor requires that a plaintiff show that his disability was a “but
for” cause of the adverse employment action. Lewis, 681 F.3d at 321.

“An employee may prove discrimination based on his or her disability in two ways. The first is by
putting forward direct evidence that the defendant had a discriminatory motive in carrying out its
employment decision. See Robinson v. Runyon, 149 F.3d 507, 512–14 (6th Cir.1998) (discussing the
difference between direct versus circumstantial proof in a Title VII case). Such evidence would take
the form, for example, of an employer telling an employee, ‘I fired you because you are disabled.’
Because ‘rarely will there be direct evidence from the lips of the defendant proclaiming his or her ...
animus,’ id., employees have a second method to prove discrimination: the indirect burden-shifting
approach first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973).” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998)
17

The Court notes that the correct test for establishing a prima facie claim of indirect discrimination
is not entirely clear in the Sixth Circuit. A Sixth Circuit panel has rejected the three-part test
quoted above in favor of a five-part test, Whitfield v. Tenn., 639 F.3d 253, 258-59 (6th Cir. 2011)
(holding that a prima facie claim requires a plaintiff to show that “1) he or she is disabled; 2)
otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an
adverse employment decision; 4) the employer knew or had reason to know of the plaintiff’s
disability; and 5) the position remained open while the employer sought other applicants or the
disabled individual was replaced.”) (quoting Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357,
365 (6th Cir. 2007)). Some Sixth Circuit panels have followed Whitfield. See Curtis v. Humana
Military Healthcare Servs., Inc., 448 F. App'x 578, 578 (6th Cir. 2011); Arthur v. Am. Showa, Inc.,
625 F. App'x 704, 705 (6th Cir. 2015), Hurtt v. Int'l Servs., Inc., No. 14-1824, 2015 WL 5332531, at *1
(6th Cir. Sept. 14, 2015); Neely v. Benchmark Family Servs., No. 15-3550, 2016 WL 364774, at *1
(6th Cir. Jan. 26, 2016). Other panels have continued to apply the three-part test even after
Whitfield. See Demyanovich, 747 F.3d at 433; Blazek v. City of Lakewood, Ohio, 576 F. App'x 512,
513 (6th Cir. 2014); Johnson v. Univ. Hosps. Physician Servs., 617 F. App'x 487, 487 (6th Cir. 2015).
In addition, courts in this district continue to apply the three-part test. See Ferrari v. Ford Motor
Co., 96 F. Supp. 3d 668 (E.D. Mich. 2015) (discussing this issue in detail); see also Schindewolf v.
13
18

If the plaintiff can establish a prima facie claim, the burden shifts to the
defendant to “articulate some legitimate, nondiscriminatory reason for its actions.”
Talley, 542 F.3d at 1105 (internal quotation marks omitted). If the defendant
makes this showing, the burden shifts back to the plaintiff to “show by a
preponderance of the evidence that the proffered explanation is a pretext for
discrimination.” Id.
Turning to the prima facie requirement, the only elements at issue are
whether Plaintiff was qualified for the position and whether she suffered an adverse
action because of her disability.19
“An employee who cannot meet the attendance requirements of the job at
issue cannot be considered a ‘qualified’ individual protected by the ADA.” Gantt v.
Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (internal citation
omitted). The record demonstrates that Tribar considered its employees’
attendance and punctuality extremely important to its operations. Tribar
instituted a point system, closely monitored it, and tied this system to employee
compensation and tenure. The record contains ample evidence showing that
Plaintiff failed to comply with Tribar’s attendance policy by arriving late on
multiple occasions and by missing work. Plaintiff acknowledges having more than
five points as a result of these failures. Viewing these facts in the light most

City of Brighton, 107 F. Supp. 3d 804, 808 (E.D. Mich. 2015). Here, both parties agree that the
three-part test applies. Because the result in this case would be the same under either test, the
Court will apply the three-part test.
19

For purposes of these motions, Tribar does not contest that Plaintiff is disabled under the ADA.
14

favorable to Tribar, the non-moving party, there is at least a question of fact
whether Plaintiff was a qualified employee based on her noncompliance with the
attendance policy. Plaintiff, therefore, is not entitled to summary judgment.
Plaintiff relies on Fritz v. Mascotech Auto. Sys. Grp., Inc., 914 F. Supp. 1481
(E.D. Mich. 1996) to argue that she is entitled to summary judgment. In Fritz, the
court denied the defendant’s motion for summary judgment because it held that
there was a question of fact as to whether a chronically late employee could
nonetheless be deemed qualified if provided with a reasonable accommodation. But
Fritz stands for the proposition that a chronically tardy employee may be a qualified
employee under the ADA, not that such an employee is per se qualified.
Because there is at least a question of fact whether Plaintiff was a qualified
employee, Plaintiff’s motion for summary judgment is DENIED as to Count One.
b. Failure to Accommodate
To establish a prima facie claim for failure to accommodate, a Plaintiff must
show that “(1) she is disabled within the meaning of the Act; (2) she is otherwise
qualified for the position, with or without reasonable accommodation; (3) her
employer knew or had reason to know about her disability; (4) she requested an
accommodation; and (5) the employer failed to provide the necessary
accommodation.” Johnson v. Cleveland City Sch. Dist., 443 F. App'x 974, 982-83
(6th Cir. 2011).20

The ADA provides an independent claim for failure to accommodate—the claim Plaintiff relies on
here—and a claim for discrimination for failure to accommodate. See Anderson v. General Motors,
15
20

This claim, like Plaintiff’s disability discrimination claim, requires that
Plaintiff show that she was qualified for the team lead position. As explained
above, there is at least a question of fact as to whether Plaintiff was qualified for
the team lead position. Accordingly, Plaintiff’s motion for summary judgment is
DENIED as to Count Two.
For the reasons explained above, Plaintiff’s motion (Dkt. 12) is DENIED.
2. Tribar’s Motion for Summary Judgment
The Court next turns to Tribar’s motion for summary judgment on Plaintiff’s
counts of discrimination and failure to accommodate under the ADA and PWDCRA.
a. Disability Discrimination
Beginning with the first step of the McDonnell Douglas framework outline
described above, the Court will examine whether Plaintiff has made a prima facie
claim of disability discrimination. Here, the inquiry centers on two elements: (1)
whether Plaintiff was qualified to perform the essential functions of her position,
with or without accommodation; and (2) whether she suffered an adverse
employment action because of her disability.

L.L.C., 45 F. Supp. 3d 662, 670 (E.D. Mich. 2014). To establish a claim of discrimination for failure
to accommodate, the following factors must be met: “(1) The plaintiff bears the burden of
establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or
she is ‘otherwise qualified’ for the position despite his or her disability: (a) without accommodation
from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or (c) with a proposed
reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job
criterion is essential, and therefore a business necessity, or that a proposed accommodation will
impose an undue hardship upon the employer.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862,
869 (6th Cir. 2007). In this case, Plaintiff does not allege discrimination for failure to accommodate.
16

(i) Qualified to perform the position’s essential functions
The ADA defines the term “qualified individual” as one who:
with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires. For the purposes of this subchapter,
consideration shall be given to the employer’s judgment as to
what functions of a job are essential, and if an employer has
prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.
42 U.S.C. § 12111(8). “Essential functions generally are those that the employer’s
judgment and written job description prior to litigation deem essential.” E.E.O.C. v.
Ford Motor Co., 782 F.3d 753, 761-62 (6th Cir. 2015) (en banc).
For Tribar, attendance and punctuality were essential job functions. Tribar’s
attendance policy described punctuality as “extremely important.” According to
Tribar, this policy included the unwritten five-minute rule that required employees
to be present at their workstations five minutes prior to the start of their shifts.
Tribar enforced its policy through its point system and tied the policy to
compensation (in the form of reduced wages for absent employees) and termination.
Attendance was therefore an essential job function.
An employee who excessively violates an employer’s attendance policy is not
qualified as a matter of law. See Brenneman v. MedCentral Health Sys., 366 F.3d
412, 418-19 (6th Cir. 2004). In Brenneman, a health care worker who suffered from
diabetes missed work nearly 200 times and was late over 34 times over the course of
his employment. Id. at 416. The plaintiff never alerted his employer that his
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diabetes caused his attendance problems. Id. The Sixth Circuit held that this
excessive tardiness rendered the employee unqualified as a matter of law. Id. at
418-19.
As in Brenneman, Plaintiff here had significant attendance problems, albeit
less extreme. From July 27, 2013 until her termination on October 24, 2013,
Plaintiff was late 19 times and missed four days of work.21 Further, she did not
inform her supervisors that her dialysis was responsible for her chronic attendance
problems. Thus, while Plaintiff was qualified for some of the essential functions of
the team lead position, like managing employees, her tardiness and attendance
problems rendered her not qualified as a matter of law to meet the essential
functions of Tribar’s attendance requirements.
Plaintiff’s recourse to Fritz does not alter this conclusion. In Fritz, the
district court held that a defendant could only prevail as a matter of law if the
record showed “both that attendance and punctuality were essential functions . . .
and that [d]efendant’s reasonable attempts to accommodate [p]laintiff failed to
enable him to satisfy those functions.” 914 F. Supp. at 1489 (emphasis in original).
This case is different, however. In Fritz, the defendant knew that the diabetic
plaintiff needed an accommodation to his schedule and imposed strict conditions on
the plaintiff, such as requiring him to obtain a doctor’s note every time his diabetes
caused him to be late to work. Id. at 1484-85. The defendant also rejected two
proposed accommodations that the plaintiff requested for his schedule. Id. at 1490.
The parties dispute Plaintiff’s point total at the time of her termination. This issue is discussed in
detail below.
18
21

Unlike in Fritz, Tribar’s attendance policy applied to all employees, not just
to Plaintiff. In addition, in contrast to the situation in Fritz, Tribar did not know,
and Plaintiff did not communicate, that Plaintiff’s absences and tardiness were
related to problems with her dialysis machine. Nor did Plaintiff ever propose an
accommodation to her schedule. The reasoning in Fritz is therefore inapplicable.
Here, the record demonstrates that Plaintiff was not qualified as a matter of law
because she could not meet the team lead position’s essential functions.
(ii) Adverse action because of her disability
Even if Plaintiff could raise a question of fact that she was qualified, her
prima facie claim would fail because she cannot establish that she suffered an
adverse action because of her disability. An adverse action is a “materially adverse
change in the terms or conditions of . . . employment because of the employer’s
conduct.” Talley, 542 F.3d at 1107 (internal quotation marks omitted). Plaintiff
must also show that her disability was a “but for” cause of the employer’s adverse
action. Lewis, 681 F.3d at 321.
Although Plaintiff’s termination clearly qualifies as an adverse action, the
record is bereft of any suggestion that “but for” her disability, she would not have
been fired. Because of her poor attendance, Plaintiff accrued over five points—the
threshold for termination under Tribar’s attendance policy. Moreover, Plaintiff
testified that she never informed Gary that her attendance issues were related to
her dialysis. In the absence of any evidence showing that Tribar had knowledge
that Plaintiff’s problems with her dialysis machine caused her tardiness, it is
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difficult to conclude that Plaintiff’s disability was a “but for” cause of the decision to
terminate her. In fact, the record suggests that Tribar did not have animosity
against Plaintiff because of her disability because Tribar accommodated Plaintiff’s
disability numerous times. As a janitor, Plaintiff had been granted an exemption
from Tribar’s attendance policy, allowed to adjust her schedule, and permitted to
arrive late to work as needed. Tribar later exempted Plaintiff from its closed
campus policy by allowing her to go home during work hours to administer dialysis.
Lastly, it authorized Plaintiff to perform dialysis in the company’s front office.
In light of the record, Plaintiff has failed to raise a question of fact that her
disability was a “but for” cause of her termination. Based on these two grounds, the
Court holds that Plaintiff has failed to plead a prima facie claim of discrimination.
(iii)

Nondiscriminatory basis for Tribar’s actions and pretext

Even were the Court to hold that Plaintiff had set forth a prima facie claim,
Plaintiff’s claim would not meet the remaining steps of the McDonnell Douglas
framework. Defendant has met its burden at the second step of articulating a
legitimate, nondiscriminatory reason for its action, namely that it fired Plaintiff
pursuant to its neutral attendance policy. Plaintiff therefore has the burden of
showing that “by a preponderance of the evidence that the proffered explanation is
a pretext for discrimination.” Talley, 542 F.3d at 1105.
“A plaintiff will usually demonstrate pretext by showing that the employer’s
stated reason for the adverse employment action either (1) has no basis in fact, (2)
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was not the actual reason, or (3) is insufficient to explain the employer’s action.”
White v. Baxter Healthcare Corp., 533 F.3d 381, 392-93 (6th Cir. 2008).
At the outset, Plaintiff’s failure to respond to Tribar’s motion for summary
judgment provides independent grounds for concluding that Plaintiff has not made
a showing of pretext. Moreover, the record provides no evidence of pretext here.
Under Tribar’s attendance policy, Tribar had grounds for terminating Plaintiff once
she accrued five points. According to Tribar, on the date of her termination,
October 28, 2013, Plaintiff had accrued nine points. Plaintiff’s main contention (in
her motion for summary judgment) is that she only had four and a half points on
October 28, 2013. Plaintiff arrives at this figure because she argues that any points
assessed pursuant to Tribar’s five-minute rule were improper because the fiveminute rule was unwritten.
This argument is not well-taken. “Whether a policy is written or unwritten
has minimal probative value on the issue of pretext. It may tend to prove that a
defendant attaches little weight to the policy, but this can be rebutted by evidence
that the policy was reliably communicated by the employer to its employees and
that it was consistently enforced. Similarly, it is not the function of courts to judge
the wisdom of particular business policies, but to ensure that such policies are made
on a rational basis.” Stein v. Nat'l City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991).
Plaintiff admits that Rose told her that she would be subject to the fiveminute rule when she chose to return as a team lead and she knew about this rule
for a long time because Muylaert explained it to her during her new-hire
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orientation. Tribar enforced this rule and fired over 100 employees for violating the
attendance policy during Plaintiff’s tenure with the company. And the rule had a
rational basis because Tribar implemented it to encourage effective communication
between the outgoing and incoming shift in order to promote greater efficiency,
product quality, and productivity.
Having determined that the unwritten five-minute rule was valid, the Court
turns to whether Tribar had grounds to terminate Plaintiff under its attendance
policy. Tribar claims that Plaintiff had accrued nine points by October 28, 2013.
Two of these points were the result of Tribar’s unwritten doctor’s note rule.22
Plaintiff was assessed a point for being absent on September 25 and 26, 2013, and
another point for being absent on October 23, 2013. According to Tribar’s written
employee handbook, an absence can be excused via a doctor’s note. Here, there is
some evidence that Plaintiff produced a doctor’s note to excuse these absences.
(Puffer Timecards, Dkt. 13, Ex. 16). Consequently, the Court will assume that
Tribar improperly assessed these two points.
However, even without counting these two points, Plaintiff’s late arrivals
from July 27, 2013 through her termination on October 28, 2013 totaled seven
points, two points more than the five-points necessary to trigger termination. In
addition, there is evidence that Tribar did not assess points for five other occasions
when Plaintiff was late. Had points been assessed for those tardy arrivals,
Tribar assesses one point to employees for being absent, even if they have a doctor’s note.
However, if an employee provides a doctor’s note and is absent for consecutive days, Tribar only
assesses one point for the entire absence (as opposed to a separate point for every day missed).

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Plaintiff’s point total would have risen to nine and a half.23 The record thus reflects
that Tribar had a non-discriminatory reason for terminating Plaintiff under its
employment policy, and no evidence of pretext has been offered. For these reasons,
Defendant’s motion for summary judgment is GRANTED as to Count One.
b. Failure to Accommodate
A prima facie claim for failure to accommodate requires Plaintiff to show that
“(1) she is disabled within the meaning of the Act; (2) she is otherwise qualified for
the position, with or without reasonable accommodation; (3) her employer knew or
had reason to know about her disability; (4) she requested an accommodation; and
(5) the employer failed to provide the necessary accommodation.” Johnson v.
Cleveland City Sch. Dist., 443 F. App'x 974, 982-83 (6th Cir. 2011). After a plaintiff
establishes a prima facie case, “the burden shifts to the employer to demonstrate
that any particular accommodation would impose an undue hardship on the
employer.” Id. at 983.
According to the record before the Court, Plaintiff cannot make out a prima
facie claim for two reasons. First, as explained above, Plaintiff was not qualified for
the position because she was unable to perform all of the essential conditions of the
job—including complying with the attendance policy. Second, Plaintiff did not
make a request for an accommodation.

These uncounted late arrivals include August 5, 2013, August 16, 2013, September 8, 2013,
October 5, 2013, and October 14, 2013.
23
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“The employee bears the burden of proposing reasonable accommodation; an
employee’s claim must be dismissed if the employee fails to identify and request
such accommodations.” Id. Plaintiff testified that she never requested an
accommodation to her schedule after she became a team lead. She made one
attempt to meet with Gary but after he told her that he was busy, she never tried
again.
The closest Plaintiff came to requesting an accommodation occurred in a
conversation that she had with Whittum.24 In this encounter, Plaintiff testifies that
she told Whittum that she needed “an adjustment,” a term which she describes as
“some kind of solution . . . so I don’t lose my job over this [.]” She states:
I said – I had – just recently had tried to talk to [Gary], and he
was busy. So I talked to him. I said, I tried to get – talk to [Gary]
about this, he’s busy. I’m trying to come up with a solution. My
dialysis isn’t working as well as I thought it would, and I need –
would – I need an adjustment, is what I told him. I need some
kind of solution that we can come up to so that I don’t lose my job
over this, because I really value my job.
And I explained to him what happened while I did dialysis, the
alarms goes off, it stops dialysis, things happen, cords get
clamped; certain things like that can happen that are not
necessarily always in my control.
(Puffer Dep., 211: 19-212:7) (emphasis added). While Plaintiff’s description of this
conversation clearly amounts to broaching the general topic of needing some kind of
accommodation, Plaintiff concedes that she did not actually request an

24

The parties dispute who initiated the conversation.
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accommodation from Whittum because she did not think it was in his power to
grant one:
Q. What I’m asking, though, is: Did you tell Sean [Whittum] that
you – or did you suggest or recommend anything specific to Sean?
A. No. I was asking what he thought I should do.
(Id. at 212:21-24). Whittum’s recollection of this conversation was not that Plaintiff
told him that she needed an adjustment but that she told him that her machine was
malfunctioning because of problems with her cord. He thought that Plaintiff was
explaining why she was late on that particular day, rather than giving a general
reason for her numerous late arrivals. (Id. at 77:15-17). He did not understand her
to be identifying or requesting any particular accommodation. Even taking
Plaintiff’s version of the conversation alone as true, however, it does not say that
she identified or requested an accommodation.
Indeed, Plaintiff’s testimony makes it clear that she never actually requested
a schedule-related adjustment:
Q. You never asked Mr. Whittum for any type of accommodation,
did you? You never said, I would like to see this happen to
my schedule, I would like Tribar to do this for me, I need
Tribar to do this?
A. That wasn’t up to him. That needed to be a meeting.
Q. That’s my point.
A. That wasn’t up to him.
Q. You didn’t ask him to do anything for you as it related to your
attendance issues or your dialysis, right?
A. Correct.
Q. Okay. So my point it: At no point during your employment
with Tribar, did you ever ask for some type of an
accommodation due to your dialysis or your medical condition
that wasn’t granted, right?
A. Not that I can recall.
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(Puffer Dep., at 223:18-224:2). In sum, there is no genuine issue of fact presented
by the record on the question of whether Plaintiff ever identified and requested a
particular accommodation for her disability, she did not. As this was her burden to
bear, Plaintiff’s claim for failure to accommodate must fail. For this reason,
Defendant’s motion for summary judgment as to Count Two is GRANTED.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is
DENIED. Tribar’s motion for summary judgment is GRANTED.
SO ORDERED.
Dated: March 1, 2016

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service

I hereby certify that this Order was electronically submitted on March 1,
2016, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager

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