Suttles v. US Bank NA

Filing 42

ORDER granting 37 Defendant's Motion to Exclude; granting 30 Defendant's Motion for Summary Judgment. Signed by Judge Sandra S Beckwith on 3/19/12. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
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Angel Suttles,
Plaintiff,
vs.
U.S. Bank, N.A.,
Defendant.

Case No. 1:10-cv-494

ORDER
Before the Court is Defendant’s motion for summary judgment.
(Doc. 30)

Defendant seeks judgment on Plaintiff’s claims arising

under federal and state law for disability discrimination, and
failure to accommodate her disability.

Plaintiff opposes the

motion (Doc. 31), and Defendant has filed its reply.

(Doc. 38)

Defendant has also moved to exclude Plaintiff’s expert report and
testimony (Doc. 37), which Plaintiff opposes.

(Doc. 40)

For the

following reasons, the Court will grant both of Defendant’s
motions.
FACTUAL BACKGROUND
Plaintiff Angel Suttles is deaf.

Her first language is

American Sign Language, although she is able to read and write
English.

She testified that she can read lips to some extent,

but when she cannot understand she needs someone to either sign
to her or to write the message being communicated for her to
read.

She interviewed for a position as a lockbox clerk with
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U.S. Bank in 2006, and Suttles used a sign interpreter for her
interview.

Bank employee Angie Clemmons who participated in her

interview is able to communicate in ASL, although she is not
certified as an ASL translator and has no credentials.

Suttles

was hired for the position and attended an orientation session in
June 2006.

She was provided with an interpreter for that

orientation, during which she reviewed the bank’s Code of Ethics
and Employee Handbook.

She also reviewed the bank’s Cincinnati

Retail Lockbox Attendance and Vacation Policy, and acknowledged
that she had done so by signing the document on June 17, 2006.
(Suttles Ex. 8)
The Cincinnati attendance policy states that prompt and
regular attendance is required, and sets forth a number of
guidelines and requirements.

As relevant here, it provides that

absences from work are accumulated over a “rolling” year, that is
any absences over the 12 months preceding any absence.

An

employee must notify his or her manager directly if they cannot
come to work.

Sick time must be used for unplanned absences

(when an employee calls in the same day as an assigned shift).
An employee is entitled to six sick days per year, and a verbal
warning is given on the sixth such absence.

Employees may

schedule pre-approved sick hours for medical appointments and
school conferences, which are not counted on the attendance
record unless the time reported is excessive.

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If an employee

must leave early and has worked the majority of the shift, it
would not be counted against them.

Managers may use discretion

when determining the validity of such early departures.

If

deemed unnecessary, the early departure will be considered one
half of an unexcused absence.

Tardiness is tracked separately

from absences, and more than six tardies in a rolling 12-month
period results in a verbal warning.

Warnings for both absences

and being late are escalated if attendance issues persist: a
verbal warning can lead to a written warning, which in turn can
lead to further action, up to and including termination, if there
are additional absences thereafter.
Suttles testified about her job duties: “I had to type
amounts and words.

I had to match amounts to words and then put

them in data -- enter the data, the amount.

Well, I

had to download all the information from a system.

There was a

system I had to read and then to go to pull the information,
those amounts, and type in the information.”
21-22)

(Suttles Dep. at

She was able to perform her job duties without being able

to hear.
An interpreter was available for Suttles during her
orientation session and her initial training period.

She

testified that at the end of that period, the interpreter
reported to Clemmons (who was Suttles’ shift supervisor) that
Suttles did not need an interpreter to perform her daily tasks,

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but would need one to attend large or group meetings.

If she had

a simple question about work, she was able to ask Clemmons for
help without an interpreter.

Clemmons denied that the

interpreter reported this need to her.

The Court accepts

Suttles’ testimony on this issue for purposes of summary
judgment.
At the first group meeting that Suttles attended, no
interpreter was present.

Suttles testified that she reminded

Clemmons that she needed an interpreter, and Clemmons said
“oops,” indicating to Suttles that she had forgotten to arrange
for one.

It was too late to find an interpreter for that

meeting, so Clemmons signed part of what was said at the meeting
and then met individually with Suttles afterwards to review what
had been said.

Suttles testified that Clemmons continued to do

this for other group meetings she attended.
Clemmons held monthly “one on one” meetings with Suttles.
James McDaniel, who was Suttles’ team “lead,” also held some of
the one on one meetings with her.

The one on one meeting

reviewed job performance statistics (including competency in
service areas and production in data entry functions), as well as
reporting on compliance with the attendance policy.

Each monthly

review form was signed by the reviewer and by Suttles.

Each

month, Suttles was given a specific update on the number of
occurrences she had accumulated for the rolling 12-month period.

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Her first one on one review in September 2006 stated that she had
1.5 occurrences for the period.

(Suttles Ex. 9)

In her January

2007 review, Clemmons praised her productivity and competency,
but also told Suttles that she had already accumulated 4.5
attendance occurrences over the rolling 12-month period, telling
her to “watch your attendance.”

(Suttles Ex. 10)

By the next

month, she had accumulated 7.5 occurrences; Clemmons told
Suttles, “Remember you cannot miss another day until at least
after 11/20/07 to allow some of the occurrences to drop off.”
(Suttles Ex. 10, at CM/ECF PAGEID 512)

Suttles also received a

written notification of her absences on February 23.

(Exhibit

12) Clemmons warned her that further absences may be without pay
and may result in further disciplinary action.

Clemmons also

reminded Suttles about the bank’s Employee Assistance Program,
where counselors were available round the clock to speak with her
about any specific problems she had.
Suttles did not have another absence occurrence until July
2007, when Clemmons again warned her that “you need to be very
aware of your occurrences.”

(Suttles Ex. 10, at PAGEID 517)

She

was late one time in September, and in her monthly one on one
review Clemmons told her to “continue to monitor your attendance.
You will not have any occurrences fall off until November.

You

did have a tardy this month on 9/7/07 which puts you at 4 tardies
within a rolling twelve months, two more and you will be placed

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on a verbal.

You really need to monitor your attendance, it does

not look good.”

(Id. at PAGEID 518) Despite this warning,

Suttles was late twice in October and had two occurrences in
November.

Because two of her earliest occurrences had fallen off

of the 12-month rolling calendar, Clemmons took no further action
at that time.

Suttles had another occurrence fall off in

December 2007 which Clemmons verified for her, and three more
fall in February 2008.

Clemmons cautioned her at that time to

monitor her attendance carefully.

But by April 2008, Suttles had

accumulated six incidents of being late within the 12-month
period.

On May 5, 2008, Clemmons issued Suttles written

reminders about both her absences and her tardiness.

(Suttles

Exs. 14 and 15) Clemmons listed the date of each incident, and
reminded Suttles that the employee assistance program was
available, providing a toll-free number.1

In her June 2008 one

on one meeting with James McDaniel, he warned her in writing that
“It is imperative that you monitor your attendance in both
occurrences as well as tardies.”

(Suttles Ex. 11 at PAGEID 537)

She also received another written notice on July 11 about her
incidents of being late.

(Suttles Ex. 16)

In July 2008, one of her occurrences dropped off the 12-

1

Suttles testified that she asked Clemmons at some point
during her employment if the bank could provide a TTD/TTY
telephone for her to use, and one was installed in the lockbox
facility’s lobby.
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month accounting period, but in August she incurred another
incident.

In September 2008 she had an incident of being late,

and was warned that one more incident would result in a verbal
warning.

Suttles was also counseled to monitor her sick days.

Suttles received one occurrence in October and two in November
2008, along with two more written notifications about being late
and her absenteeism.

(Suttles Exs. 17 and 18)

Suttles received annual performance reviews during her
employment with the bank.

Clemmons completed her first annual

review for 2006 and rated her skills quite favorably.

But

Clemmons also stated that “Her attendance could improve” as she
had already incurred four occurrences since starting the job the
previous July.

(Suttles Ex. 21)

In her 2007 annual review which

Suttles signed on February 16, 2008, Clemmons stated that Suttles
performed well on her data entry skills but that she and McDaniel
had spoken with Suttles about her problems with “staying focused,
talking, walking around, attendance, quality, and team work.”
(Suttles Ex. 22, CM/ECF PAGEID 572)

Specifically addressing her

attendance, Clemmons stated that she had regular conversations
with Suttles about her attendance problems.
2007,

By November 25,

Suttles was told that “she was on the borderline” of

receiving a written warning for violating the attendance policy.
She had accumulated seven occurrences, four incidents of being
late for work, and roughly 23 early departures (although some of

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the early departures were apparently approved because Suttles had
completed her shift work on those occasions, or they were made up
later).
On January 3, 2009, Clemmons issued Suttles a formal written
warning about her attendance problems, stating that her
absenteeism and tardiness “is excessive and is affecting the
workflow and performance of the group.”

(Suttles Ex. 19) Suttles

was warned that “[i]mmediate and continuous improvement in your
attendance is required.

It is expected that you will be at work

every day, unless you have an earned, scheduled and pre-approved
vacation day.

Further absences/tardies will be without pay and

may result in further disciplinary action, up to and including
termination.”

Clemmons invited Suttles to talk with her if she

needed assistance, and reminded her again about the services of
the EAP program.

At the bottom of the warning, Clemmons stated:

“Your signature acknowledges receipt of this memo, as well as
confirms the discussion we have had about the seriousness of your
continued absences and/or tardiness.”
During the evening of February 5, 2009, Suttles testified
that she sent a text message to Clemmons asking her if she knew a
bus route number she could take to work because her car had
broken down.

Clemmons texted a message back and told Suttles

that she needed to be on time, saying “You know where you stand.”
(Suttles Dep. at 48-49)

Nevertheless, Suttles was late for work

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on February 6, and she appeared in Karen Kruse’s office.
was then the lockbox department manager.

Kruse

Suttles testified that

she went to Kruse to ask for a schedule change.

Kruse testified

that Suttles sat down and wrote on a piece of paper that she was
sorry she was late.
about being late.

Kruse thought that Suttles seemed worried

She told Kruse that she had car troubles and

had to take the bus, and that she wanted to look at a schedule
change.

Kruse responded by writing that she was sorry to hear of

her difficulties, but that they would have to talk to Clemmons
about the details.

Kruse said Suttles read her response, then

crumpled up the paper and left her office.
Clemmons prepared a “Significant event form” that day
documenting her subsequent conversation with Suttles.

According

to Clemmons, Suttles came to her to explain why she was late,
telling Clemmons that she had already talked to Kruse due to her
attendance record situation.

Suttles told Clemmons that she had

asked Kruse for a temporary schedule change because she would
have to ride the bus.

Clemmons asked her why she needed a

schedule change, and Suttles said she did not feel comfortable
riding the bus on weekends.

She said she felt more comfortable

when she saw that another employee was on the same bus, and
Clemmons told her that employee worked the same schedule as
Suttles, Friday to Monday.
the bus on the weekends.

Suttles said she did not want to ride

Clemmons noted that the subject of

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“attendance is always a topic of discussion between [Suttles] and
me.

She always has some concern with her attendance; she is

currently on Written Warning for tardies and has accumulated
another tardy today.

As well as she is on a verbal notification

of her sick days in which she called in sick again on 1/30/09.”
(Clemmons Ex. 11)
Clemmons was apparently preparing Suttles’ 2008 annual
review about the same time, as Clemmons commented in the review
that “Angel’s attendance is extremely poor and is one of the
areas that needs the most improvement immediately.

Angel has had

7 occurrences within a rolling twelve months ... .

She has also

accumulated seven unscheduled tardies.”
223)

(Suttles Ex. 8 at PAGEID

Clemmons summarized the several verbal warnings that had

been given to Suttles about the attendance policy and noting that
Suttles had offered several excuses, including most recently that
her car had broken down.
Clemmons testified that after these events on February 6,
she decided to review Suttles’ attendance problems with Kruse.
She and Kruse consulted with Roberta Sims in the Human Resources
Department, and they all agreed that Suttles should be
terminated.

Clemmons asked Sims if she should arrange for an

interpreter for the meeting with Suttles to give her notice.
Sims responded that since Suttles did not report problems
communicating about her job, she did not see the necessity of

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doing so.

Clemmons and Kruse then met with Suttles and informed

her that she was being terminated.

Clemmons testified that

Suttles responded, “I can’t believe this is happening.”
(Clemmons Dep. at 89)

After the meeting, Clemmons collected

Suttles’ bank identification and Suttles left the building.

She

returned a short time later, saying that she needed some
documentation of her termination.

Dan Nocella, another HR

generalist, met with her and told her the bank would provide her
with the necessary confirmations.
Suttles filed a discrimination claim with the EEOC and
stated in her questionnaire: “When I asked for a transfer to
another shift (weekend to first shift) then was asked to attend a
meeting and without a trained or certified sign language
interpreter.

They attempted to communicate to me why they were

terminating my employment.
and write on paper. [sic]

They tried to use a invoice signer
English is my 2nd language so I didn’t

understand fully 100% why they terminated me.”
at 2)

(Suttles Ex. 24

Suttles admitted in that questionnaire that she had not

asked the bank for any assistance or change in working conditions
because of her disability, and that she did not need assistance
or a change in working conditions in order to do her job.

(Id.

at 3)
She filed her lawsuit alleging disability discrimination and
a failure to accommodate on August 4, 2010.

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(Doc. 3)

ANALYSIS
Summary Judgment Standards
The court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

An assertion of a undisputed fact must be supported by

citations to particular parts of the record, including
depositions, affidavits, admissions, and interrogatory answers.
The party opposing a properly supported summary judgment motion
“'may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial.'”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986) (internal quotation omitted).
The Court is not duty bound to search the entire record in
an effort to establish a lack of material facts.

Guarino v.

Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992).
Rather, the burden is on the non-moving party to “present
affirmative evidence to defeat a properly supported motion for
summary judgment...,” Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989), and to designate specific facts in
dispute.

Anderson, 477 U.S. at 250.

The non-moving party “must

do more than simply show that there is some metaphysical doubt as
to the material facts.”

Matsushita Electric Industries Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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The court

construes the evidence presented in the light most favorable to
the non-movant and draws all justifiable inferences in the nonmovant's favor.

United States v. Diebold Inc., 369 U.S. 654, 655

(1962).
The court's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether there
is a genuine issue for trial.

Anderson, 477 U.S. at 249.

The

court must assess “whether there is the need for trial — whether,
in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”
250.

“If the evidence is merely colorable, ...

Id. at

or is not

significantly probative, ... the court may grant judgment.”
Anderson, 477 U.S. at 249-50 (citations omitted).
Disability Discrimination
In order to establish her disability discrimination claim,
Suttles must demonstrate that she was disabled; she was otherwise
qualified to do her job with or without reasonable accommodation;
and she was terminated solely due to her disability.

Macy v.

Hopkins County Sch. Board, 484 F.3d 357, 364 (6th Cir. 2007);
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.
1996).
In the absence of direct evidence, the familiar McDonnellDouglas burden-shifting framework applies when analyzing a claim

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of disability discrimination based on circumstantial evidence.
U.S. Bank’s motion does not challenge Suttles’ ability to
establish a prima facie case, a burden which is not onerous in
any event.

The bank contends that it has come forward with a

reasonable and legitimate reason for her termination: her
excessive tardiness and violations of the attendance policy.
Suttles must then demonstrate that the bank’s proffered reason is
mere pretext and that the true reason was because she is
disabled.

She may do so by showing that the bank’s stated reason

has no factual basis; or that it did not actually motivate her
termination; or that the proffered reason was insufficient to
motivate the decision.

Macy v. Hopkins County, 484 F.3d at 366

(citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084
(6th Cir. 1994).
U.S. Bank argues, and the Court agrees, that Suttles cannot
establish a genuine factual dispute on the question of pretext.
She has no direct evidence of disability discrimination, nor any
evidence even suggesting that anyone even commented on the fact
that she is disabled and cannot hear.

She does not deny that she

was late or absent from work on the occasions cited in the bank’s
records.

She admits that she signed each and every monthly one-

on-one review form that cited her absences from work and warned
her about her failure to adhere to the policy.

She does not

challenge the bank’s evidence that several other non-disabled

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employees were terminated for violating the bank’s attendance
policies.

She admitted receiving and acknowledging that she

understood the written attendance policy when she began her job.
There is simply nothing in this record to suggest, much less
raise a genuine dispute, that she was terminated because she was
deaf, and not because of her repeated violations of the
attendance policy.
Failure to Accommodate
The ADA provides that an employer must reasonably
accommodate an employee’s disability, unless the employer can
show that the accommodation would impose an undue hardship on the
operation of its business.

Smith v. Ameritech, 129 F.3d 857, 866

(6th Cir. 1997), quoting 42 U.S.C. § 12112(b)(5).

To support her

failure to accommodate claim, Suttles must show she has a
disability, that she was otherwise qualified for her job, and
that the bank refused her request for a reasonable accommodation.
Only the third element is in dispute.
Suttles contends that a jury should determine if the bank
refused her a reasonable accommodation of providing an ASL
interpreter for all group meetings held at work, and/or for oneon-one and disciplinary meetings.

She argues that Clemmons knew

that her training interpreter recommended that an interpreter be
provided, and that Suttles had asked Clemmons why an interpreter
was not provided for the first group meeting Suttles attended.

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These interactions served as a functional request for that
accommodation.

Suttles argues that the bank’s failure to provide

that accommodation caused her to not understand the bank’s
attendance policies, which in turn led to her discipline and
ultimately her discharge for violating that policy.
Suttles admitted in her deposition that during her
orientation, an interpreter helped her review the attendance
policy and the Cincinnati Lockbox attendance policy.

She signed

the attendance policy indicating her acknowledgment at that time
that she had reviewed and understood the policy.

Suttles

testified that she is able to read text written in English, and
her job duties included reading various documents.

She admitted

that she could and did use her cell phone to send text messages
in English to Clemmons on several occasions.

When she met with

Kruse on February 6, 2009, she wrote out her concern about being
late again for work.

Kruse had no difficulty comprehending what

she wrote, and Suttles understood what Kruse told her - she would
have to deal with Clemmons about being late and about her request
for a shift change.

While Suttles now complains that she did not

understand things when Clemmons would sign and finger-spell for
her, she did not tell Clemmons that she did not understand
Clemmons’ written communications to her about her attendance
problems.

Each time Suttles had a problem, either an occurrence

or an incident of being late, she was warned in writing about how

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many occurrences she had accumulated, and reminded of the
consequences of violating the policy.

While she contends that

she repeatedly asked Clemmons to explain the policy to her, she
does not dispute that both Clemmons and McDaniel repeatedly
informed her of her specific absences, and informed her about the
consequences of incurring additional absences.

The fact that she

asked for explanations at various times does not create a genuine
dispute that she did not understand the policy because an ASL
interpreter did not explain it to her on these occasions.
To claim that she needed an ASL interpreter in order to
adequately understand written English generally or the attendance
policy particularly, Suttles relies on a report written by Robert
Coltrane, which is attached as Exhibit A to her memorandum in
opposition to the bank’s motion.

Mr. Coltrane is the co-owner of

Deaf Choice, which provides ASL interpreters for and advocacy
services on behalf of the deaf.

Mr. Coltrane’s report contains a

recitation on the legal requirements of the Americans with
Disabilities Act, and recites statistics compiled by Gallaudet
University about the general reading and comprehension abilities
of deaf children.

He explains the benefits of ASL for the deaf,

as well as some of its drawbacks, especially in a legal setting.
Mr. Coltrane then presents his “analysis,” which states that the
“average deaf person” reads at or below a 4th grade level, and
therefore reliance on written English communications will not be

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“effective.”

Mr. Coltrane then opines that the ADA requires an

employer to provide an accommodation in order to ensure
“effective” communication with a deaf person.
Defendant has moved to exclude Coltrane’s report based on
Fed. R. Evid. 702.

(Doc. 37)

That rule permits a witness with

relevant specialized knowledge to offer an opinion when:

“(b)

the testimony is based upon sufficient facts or data, (c) the
testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to
the facts of the case.”

As the Sixth Circuit has clearly held,

the Rule does not permit even a well-qualified expert to offer
hypotheses or speculative theories about a fact in dispute.
Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670-671 (6th Cir.
2010).
Mr. Coltrane’s education and his experience are very
interesting.
individually.

But his report offers no opinions about Ms. Suttles
He does not state that he has met with her, or

that he knows anything about her reading ability or her
educational background.

He has not offered any opinion on

Suttles’ specific reading or comprehension abilities, and it is
questionable whether he would be qualified to do so in any event.
The report does not reliably apply any principles or methods to
the facts of this case.

Therefore, Coltrane’s report does not

constitute admissible, probative evidence that raises a genuine

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issue of material fact on the question of whether Suttles
understood her employer’s attendance policy and was able to
comprehend its requirements without an ASL interpreter, or
whether the bank failed to provide a reasonable accommodation to
her.

The Court will grant the motion to exclude the report

because it clearly fails to meet the requirements of Rule 702.
CONCLUSION
For all of the foregoing reasons, the Court grants the
Defendant’s motion for summary judgment.

(Doc. 30)

The motion

to exclude Plaintiff’s expert report (Doc. 37) is granted.
Plaintiff’s claims are dismissed with prejudice.
SO ORDERED.
THIS CASE IS CLOSED.
DATED: March 19, 2012

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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