Watts v. Creative Foundations, Inc. et al
ORDER granting 28 Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/27/17. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Civil Action 2:14-cv-01768
Magistrate Judge Elizabeth P. Deavers
CREATIVE FOUNDATIONS, INC., et al.
OPINION AND ORDER
Plaintiff, Dawn Watts (“Watts” or “Plaintiff”), brings this action against Defendants,
Creative Foundations, Inc. (“CF”) and David J. Robins (“Robins”) (collectively “Defendants”)
alleging disability discrimination and failure to accommodate in violation of the Americans’ with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and Ohio Revised Code Chapter 4112.
Plaintiff also asserts a state-law claim for breach of contract. This matter is before the Court for
consideration of Defendants’ Motion for Summary Judgment (ECF No. 28), Plaintiff’s
Memorandum in Opposition to Defendants’ Motion (ECF No. 33), and Defendants’ Reply (ECF
No. 35). For the reasons that follow, Defendants’ Motion for Summary Judgment is
CF is a corporation that provides various forms of support and services to individuals in
the community with developmental disabilities. At the time of the alleged discrimination,
Robins was the Executive Director of CF, Steve Fulton (“Fulton”) was the Director of
Operations for CF, Bruce Smith (“Smith”) was Plaintiff’s “job coach” provided by the Ohio
Bureau of Vocational Rehabilitation, Trena Shank (“Shank”) was an employee of Consumer
Support Services (“CSS”), a competitor of CF, where she served as a guardian to several deaf
individuals who were receiving care from CF.
Plaintiff is a deaf person. Her first language is American Sign Language (“ASL”), in
which she is fluent, and her second language is English. (Watts Dep. at p. 24, ECF No. 36-1.)
She also suffers from a mild learning disability that affects her capacity to understand and
process written English. Id. at p. 24–25. Plaintiff began her career at CF as a Team Leader in
October of 2011 and worked until she was terminated June 6, 2013. (Robins Dep. at p. 6, 11,
ECF No. 30; Watts Dep. at p. 126, ECF No. 36-1.) On February 8, 2012, Plaintiff was promoted
to Supportive Living Coordinator where she worked in the administrative office and was
supervised by Fulton. (Watts Dep. at p. 83, ECF No. 36-1.)
Prior to being hired, Plaintiff completed an employment application in which she
indicated that she was fluent in English, ASL, and international gesture. (Watts Dep. at p. 49,
ECF No. 36-1). She testified, however, that she does not consider herself fluent in English. Id.
at 136. Plaintiff did not disclose on her employment application that she had any type of a mild
learning disability which affected her ability to read or write in English. Id. at 50. According to
Plaintiff, prior to beginning work, she told CF that she would need an ASL interpreter. Id. at
131. Plaintiff concedes, however, that prior to starting her job, nobody at CF told her that CF
was planning to hire a full-time interpreter. Id. at 132. Although she indicates now that she
wanted CF to provide her with full-time interpreter as an accommodation, according to
management at CF, Plaintiff never made this request known.1 (Robins Dep. at p. 39, 11, ECF
Although the Court addresses the matter more fully infra, in her Declaration, Plaintiff
indicates that she unequivocally told CF’s Human Resources person, Kim Turner, that she
needed a qualified interpreter in order to successfully perform her job duties and Ms. Turner told
No. 30). Plaintiff testified she became aware that CF evaluated hiring a full-time interpreter, but
human resources told her it was unreasonable because “CF just can’t afford the interpreter just
because of the rates that they would charge.” (Watts Dep. at 131-132.) Plaintiff clearly testified
that no one at CF ever told her that they were planning to hire a full-time interpreter. Id. at 132.
As a Team Leader, Plaintiff was responsible for supervising services delivered to CF’s
clients according to each client’s individual service plan. (Defs’ Mot. for Sum. Jdgmt., Exh. A,
ECF No. 28.) Some of these duties included supervising members of her team, making medical
appointments for clients, and making sure all documentation was completed. Id. Plaintiff
received training on several subjects including her responsibilities. During her training period,
CF provided Plaintiff with a full-time interpreter. (Watts Dep. at p. 73.) Plaintiff averred that
she did not have any difficulties understanding the training when an interpreter was present or
when using the video phone. Id. at 66. Part of this training covered the confidential treatment of
all information related to clients’ personal and medical records. Plaintiff understood that she was
required to keep client information confidential. Id. at 55.
During her time as a Team Leader, Plaintiff was supervised by Robins. Id. at 75. She
was able to effectively communicate with Robins regularly using text, e-mail, and sign language.
CF promoted Plaintiff to Supportive Living Coordinator on February 8, 2012. She then
became responsible for overall supervision of services delivered to clients according to their
individual service plans. (Exh. D, ECF No. 28). Her new position required her to ensure all
her that someone fluent in ASL would be hired. (Watts, D. Aff. ¶ 9.) When asked during her
prior deposition if she ever told CF she needed a full-time interpreter, Plaintiff, who then could
not recall Kim’s last name, said “I don’t remember.” (Watts Dep. At 131:3-6.)
incident reports were complete and accurate, confirm that all individual service plans were in
compliance, and bundle individual programming documentation on a monthly basis. Id.
Plaintiff believed she was capable for performing the essential functions of this position. (Watts
Dep. at p. 84, ECF No. 36-1). CF provided accommodations such as high speed internet for
Plaintiff’s video phone, fire alarms, smoke detectors, a flashing light to signal when someone
came in the front door. Id. at 84–85.
During her time as Supportive Living Coordinator, Plaintiff used interpreters from
various providers as well as other CF staff members. Id. at 85–87. When Plaintiff, in her
discretion, required interpreters for meetings with her hearing team members, CF never denied
this request. CF afforded Plaintiff latitude to call and request the interpreters when she needed
one. Id. Robins encouraged Plaintiff to retain the services of an interpreter whenever she needed
them. Id. at 89. While Plaintiff was personally concerned for the CF budget, she acknowledges
that Robins never limited the use of interpreters. Id. at 90. Robins in fact relied heavily on
Plaintiff’s discretion as to whether or not she needed an interpreter for personnel meetings. CF
postponed meetings on several occasions to accommodate a request for an interpreter. (Robins
Dep. at p. 45, ECF No. 30)
On January 10, 2013, CF gave Plaintiff a written warning related to work-performance
issues. (Watts Dep. at p. 80, ECF No. 36-1). The warning came because Plaintiff “failed to
transfer medication that was prescribed by J.R.’s (individual) doctor for his eczema.” (Exh. C,
ECF No. 28.) According to the warning, Plaintiff did not properly document a prescription
application correctly. When asked why the medicine was not on the Medication Administration
Report (“MAR”) or the medical record, Plaintiff said that the medication was not needed because
“he is getting better.” (Id.) The warning included a “Plan for Improvement,” which required her
to monitor all medications weekly on the MAR and directed Plaintiff never to make the
determination on her own to discontinue medications. (Id.) Plaintiff’s “job coach,” Brue Smith,
attended the meeting and interpreted. Plaintiff indicated that she understood the Plan for
Improvement. (Watts Dep. at p. 96, ECF No. 36.)
On June 4, 2013, Plaintiff received a second written warning.2 (Def’s Mot. for Summ.
Jdgmt. Exh. E, ECF No. 28.) Robins called an impromptu meeting. Prior to starting the
meeting, Robins asked Plaintiff if she wanted an interpreter present, which she declined. (Watts
Dep. at p. 99, ECF No. 36-1). During this conversation, Fulton informed Plaintiff of several
mistakes she committed including multiple billing errors, failing to review documentation at the
end of the month to ensure correctness, and not properly complying to the incident-reporting
procedure. (Id.) The attachment to the warning compiles numerous problems with Plaintiff’s
work, including billing, medication administration, communication with management, and
insubordination. CF presented her with another Plan of Improvement in the warning, which
included that she was not allowed to have more than 3 billing errors, per individual, per month
and that end-of-the-month documentation would be complete and orderly. Id. Plaintiff met with
Robins, Fulton, and Janet Fout to discuss the warning. Because Plaintiff had questions about the
documents she was given during this meeting, the parties agreed to give her more time to review
the documents and to reconvene on June 6, 2013. Id. at 101. Although she was aware that they
planned to meet again, Plaintiff contends she did not read the documents until the afternoon of
June 6, 2013, after she was terminated. Id. at 106–07.
The second warning was mislabeled as a final warning.
On June 2, 2013, Plaintiff attended an open house at the invitation of Trena Shank.
Plaintiff told Shank that she was looking to leave CF. Id. at 116–17. On June 4, 2013, Robins,
Fulton, and Shank had dinner together, at Shank’s request, to discuss statements Plaintiff
allegedly made to Shank at the open house. Shank provided Robins and Fulton with a detailed
account of her conversation with Plaintiff. Fulton later wrote a statement regarding his
recollection of the meeting with Shank. (Def’s Mot. for Summ. Jdgmt., Exh. G.) According to
the Fulton’s account, Plaintiff told Shank that she was unhappy working for CF and that, if
Shank’s employer, CSS, were to hire her, she could bring three deaf individuals currently being
served by CF. Shank indicated that Plaintiff mentioned these individuals by name. According to
the statement, Shank was “shocked” by this information because she was the guardian of two of
the individuals Plaintiff mentioned and had no intention of removing them from CF. (Defs’ Mot.
for Summ. Jdgmt., Exh. G, ECF No. 28; CF Dep. at p. 59–60, ECF No. 31). Plaintiff adamantly
denies these allegations as false. (Watts Dep., at pp. 110-11, 118-19.) Plaintiff admitted,
however, that if true, these allegations would amount to a breach of confidentiality and company
policy, and would be grounds for termination. (Id. at at 110.)
After the meeting with Shank, Robins decided to terminate Plaintiff’s employment based
in part on the information he received from Shank and the work performance issues identified in
the June 4th meeting. (CF Dep., at 61.) Around this time, Robins also noticed that Plaintiff was
emptying out her office, and knew she was contemplating leaving CF. Id.
On June 6, 2013, Plaintiff met with Robins, Fulton and Fout to further discuss the issues
raised during the June 4, 2013 meeting. (Watts Dep. at p. 108, ECF No. 36-1). Plaintiff did not
make arrangements for an interpreter on that day. (Id. at 113.) The meeting, however, focused
on Plaintiff being terminated for breaking confidentiality related to sharing CF patient
information with Trena Shank. (Robins Dep. at p. 76–78, ECF No. 30).
Plaintiff believes that she did not receive progressive discipline leading up to her
termination. She asserts that since the CF handbook talks about progressive discipline, she
should have received it for the matters raised in the June 4 and 6, 2013 meeting. (Watts Dep. at
p. 140, ECF No. 36-1). The handbook, however, provides states that the company “reserves the
right to skip any step and terminate a team member for any violation of company policy.” (Def’s
Mot. for Summ. Jdgmt., Exh. M, ECF No. 28).
After she was terminated by CF on June 6, 2013, Plaintiff filed a charge with the Ohio
Civil Rights Commission on that same day, alleging that CF terminated her because of her
disability. Subsequently, Plaintiff filed the instant action asserting claims for (1) disability
discrimination in violation of the ADA and O.R.C. Chapter 4112; (2) failure to accommodate in
violation of the ADA and O.R.C. Chapter 4112; and (3) breach of contract.
Under Federal Rule of Civil Procedure 56, “[t]he 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.” Fed. R. Civ. P. 56(a). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).
“Once the moving party meets its initial burden, the nonmovant must ‘designate specific
facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011
WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely
disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,
however, do more than simply show that there is some metaphysical doubt as to the material
facts, . . . there must be evidence upon which a reasonable jury could return a verdict in favor of
the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson
Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted).
“When a motion for summary judgment is properly made and supported and the nonmoving
party fails to respond with a showing sufficient to establish an essential element of its case,
summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at
As an initial matter, the Court turns first to Defendants’ assertion that the Watts’
declarations are not properly before the Court. (Defs’ Reply at p. 1-2, ECF No. 35.) Plaintiff
submitted her own declaration and a declaration of her daughter with her Memorandum in
Opposition to Defendants’ Motion for Summary Judgment. Contrary to Defendants’ assertions,
an unsworn declaration may substitute for a conventional affidavit if the statement contained in
the declaration is made under penalty of perjury and verified as true and correct. 28 U.S.C. §
1746. Here, the Watts’ declarations are made under penalty of perjury and verified as true and
Nevertheless, if an affidavit is filed after a motion for summary judgment has been made
“a party should not be able to create a disputed issue of material fact where earlier testimony on
that issue by the same party indicates that no such dispute exists.” Aerel, S.R.L. v. PCC Airfoils,
L.L.C., 448 F.3d 899, 907 (6th Cir. 2006). The nonmoving party is barred from avoiding
summary judgment by filing an affidavit that directly contradicts the party’s previous testimony.
Id. “[A] party opposing summary judgment with an affidavit that contradicts her earlier
deposition must explain why she disagrees with herself.” Powell-Pickett v. A.K. Steel Corp., 549
F. App’x 347, 353 (6th Cir. 2013). As the Supreme Court in Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 806 (1999), noted, federal courts
[h]ave held with virtual unanimity that a party cannot create a genuine
issue of fact sufficient to survive summary judgment simply by
contradicting his or her own previous sworn statement (by, say, filing
a later affidavit that flatly contradicts that party’s earlier sworn
deposition) without explaining the contradiction or attempting to
resolve the disparity.
“[A] district court deciding admissibility of a post-deposition affidavit at the summary
judgment stage must first determine whether the affidavit directly contradicts the . . . party’s
prior sworn testimony.” Aerel, 448 F. 3d at 908. An affidavit that is directly contradictory
should be stricken unless the party “provides persuasive justification for the contradiction.” Id.
If there is no direct contradiction, “then the district court should not strike or disregard that
affidavit unless the court determines that the affidavit ‘constitutes an attempt to create a sham
fact issue.’” Id. The existence of a sham fact issue turns on “whether the affiant was crossexamined during his [or her] earlier testimony, whether the affiant had access to the pertinent
evidence at the time of his [or her] earlier testimony or whether the affidavit was based on newly
discovered evidence, and whether the earlier testimony reflects confusion [that] the affidavit
attempts to explain.” Id.
In her declaration, Plaintiff largely repeats much of the information given during her
sworn deposition. Several statements in her declaration, however, are wholly inconsistent with
her prior sworn testimony during her deposition. In Paragraph 3 of her declaration, for instance,
Plaintiff states that she “had to attend meetings to discuss important job performance issues
without a qualified ASL interpreter present.” (D. Watts Aff., ¶ 3, ECF No. 34.) This statement
is not consistent with multiple statements she made during her deposition. On several occasions
in her deposition, Plaintiff said that she attended meetings related to her performance without
requesting an outside ASL interpreter because someone else fluent in ASL was there or she
chose to not have an interpreter present.
In Paragraph 6, Plaintiff indicates that Defendant Robins “was upset because Bruce
Smith attended the meeting” in January 2012 “to advocate for [her].” (Id. at ¶ 6.) During her
deposition, however, Plaintiff stated that she had previously discussed with Robins having an
interpreter at this meeting and they agreed that Smith would do so. (Watts Dep., at p. 81.)
In Paragraph 9 of her declaration, Plaintiff states that she “told CF’s Human Resources
person Kim Turner that I needed a qualified ASL interpreter in order to successfully perform
[her] job duties.” (Id. at ¶ 9.) Plaintiff avers that Ms. Turner told her someone fluent in ASL
would be hired. (Id.) In her deposition, however, Plaintiff refers to a conversation with “Kim”
from Human Resources but said that the HR person advised her that CF could not afford the
interpreter. (Watts Dep., at p. 131.) She admitted in her deposition that no one from CF ever
told her they were planning to hire a full-time ASL interpreter and stated under oath that she
could not remember if she ever told CF that she needed a full-time interpreter. (Watts Dep. at
pp. 131, 132.)
In Paragraph 15, Plaintiff states that no qualified ASL interpreter attended the June 4,
2013 meeting. This statement is true, but it omits the fact that when offered an ASL interpreter
by Robins, Plaintiff indicated she did not want one. During her deposition, Plaintiff stated
unequivocally that “first, [Robins] said do you want an interpreter?” (Watts Dep. at p. 99.)
Plaintiff indicated that she did not want one because she wanted to know what was going on
right then. (Id.)
These subjects were probed in great depth during Plaintiff’s deposition. These statements
in her Declaration are wholly inconsistent with her previous sworn testimony and are apparent
attempts to create an issue of material fact. Plaintiff has made no effort to provide a justification
for any of the contradictions between her deposition and declaration. The Court, therefore,
disregards the paragraphs in Plaintiff’s Declaration that are contrary to her deposition testimony.3
CF moves for summary judgment on Plaintiff’s claim of disability discrimination and
her breach of contract claim related to CF’s purported failure to provide progressive discipline in
violation of the employee handbook. Although Defendants moved for summary judgment on
Plaintiff’s breach of contract claim, she offers no mention of the claim or argument in opposition
to the Motion for Summary Judgment. Plaintiff has, therefore, abandoned this claim. Brown v.
VHS of Mich., Inc., 545 F. App’x 368 (6th Cir. 2013) (“This Court’s jurisprudence on
abandonment of claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff
Brittany Watts’ Declaration adds only that she was also employed at CF and sometimes
served as an ASL interpreter there. (B. Watts Dec. at ¶¶ 10-15.) Nothing in Ms. Watts’
Declaration creates a genuine issue of material fact.
fails to address it in response to a motion for summary judgment); Hicks v. Concorde Career
Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (holding that district court properly declines to
consider the merits of a claim when a plaintiff fails to address it in a response to a motion for
summary judgment); Clark v. City of Dublin, 178 F. App’x 522, 524–25 (6th Cir.2006)
(recognizing that failure to respond properly to motion for summary judgment arguments
constitutes abandonment of a claim).
The Court therefore turns to Plaintiff’s remaining claims regarding disability
discrimination under the ADA and Ohio law.
Plaintiff alleges Defendants discriminated in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12112 and Ohio Revised Code § 4112.02 et seq., by terminating her
and for failing to provide her with a reasonable accommodation for her disability “to ensure
Plaintiff was able to understand and participate in mandatory, unscheduled, impromptu job
performance meetings.” (Pl’s Mem. Opp., at p. 1, ECF No. 33.) The Court of Appeals for the
Sixth Circuit has held Ohio disability discrimination claims mirror the analysis for ADA claims.
Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 872 (6th Cir. 2007). An analysis under the ADA,
therefore, applies equally to claims under O.R.C. Chapter 4112.
Under the ADA “employers are prohibited from discriminating against a qualified
individual with a disability because of his or her disability in employment matters, such as
hiring, advancement, and discharge.” Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 479
(6th Cir. 2012). A “qualified individual with a disability” is an individual “who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual hold[.]” 42 U.S.C. § 12111(8). Under the ADA, “disability” means “a physical
or mental impairment that substantially limits on or more major life activities” of a person. 42
U.S.C. § 12102(1)(A). “Major life activities” include hearing. 42 U.S.C. § 12102(2)(A). A
person is “otherwise qualified” for a position when that person “can perform the essential
functions[,]” or “fundamental job duties” of the position. Johnson v. Cleveland City Sch. Dist.,
443 F. App’x 974, 985 (6th Cir. 2011). Plaintiff maintains that Defendants violated the ADA by
failing to accommodate her disability and ultimately terminating her on account of her disability.
Failure to Accommodate
Under the ADA, discrimination includes the failure to make reasonable accommodations
for the known limitations of an employee with a disability. 42 U.S.C. §§ 12112(a),
12112(b)(5)(A). The Act defines “reasonable accommodation” as follows:
(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). A “reasonable accommodation” includes “the provision of qualified
readers or interpreters.” 42 U.S.C. § 12111(9)(B).
A plaintiff bringing an ADA claim for failure to accommodate “‘bears the initial burden
of proposing an accommodation and showing that that accommodation is objectively
reasonable.’” Kleiber, 485 F.3d at 870 (quoting Hedrick v. W. Reserve Care Sys. & Forum
Health, 355 F.3d 444, 457 (6th Cir. 2004)). “An employer, then, has the burden of persuasion to
show that an accommodation would impose an undue hardship.” Hedrick, 355 F.3d at 457. “In
order for an accommodation to be reasonable, it should be necessary in light of the plaintiff’s
known physical limitations.” Johnson v. Cleveland City School Dist., 344 Fed. App’x 104, 111
(6th Cir. 2009) (citing Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 557 (6th Cir.
2008)). Furthermore, “[w]here there is more than one reasonable accommodation, the choice
between accommodation is the employer’s.” Smith v. Honda of America Mfg., Inc., 101 Fed.
App’x 20, 25 (6th Cir. 2004); see also Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir.
1996) (quoting 29 C.F.R. pt. 1630, app. at 415) (“‘[T]he employer providing the accommodation
has the ultimate discretion to choose between effective accommodations, and may choose the
less expensive accommodation or the accommodation that is easier for it to provide.’”); Trepka
v. Bd. of Educ., 28 F. App’x 455, 459–60 (6th Cir. 2002) (“The employer need not provide the
accommodation that the employee requests or prefers. Instead, the employer retains the
‘ultimate discretion’ to choose another effective accommodation. . . . Accordingly, an employee
is not entitled to a particular reasonable accommodation if another reasonable accommodation is
provided.”). If an employee rejects a reasonable accommodation offered by her employer “that
is necessary to enable the individual to perform the essential functions of the position, . . . the
individual will not be considered a qualified individual with a disability.” Id. at 801 (citing 29
C.F.R. § 1630.9(d)).
In satisfying her duty to propose a reasonable accommodation to her employer, a plaintiff
must request the accommodation and provide either actual or constructive notice that the request
is linked to a disability. Plaintiff must establish that she “requested and was denied” a
reasonable accommodation. Lockard v. Gen. Motors Corp., 52 F. App’x 782, 786 (6th Cir.
2002); see also Brown v. BKW Drywall Supply, Inc., 305 F. Supp. 2d 814, 828 (S.D. Ohio 2004)
(“A person alleging a disability protected by the ADA must establish that his employer had
either actual or constructive notice of the disability.”); Russell v. National Amusements, Inc., No.
3:07-cv-3216, 2009 WL 262494, *13 (N.D. Ohio Feb. 4, 2009) (“By making this request, and
linking it to an impairment, [plaintiff] sufficiently requested a ‘reasonable accommodation.’”).
An employer has no duty to provide a reasonable accommodation until an employee requests
one. Breitfelder v. Leis, 151 F. App’x 379, 386 (6th Cir. 2005) (finding no failure to
accommodate when plaintiff remained silent). “Although ‘an employee need not use the magic
words, ‘reasonable accommodation’ or even ‘disability,’ the request does need to make it clear
from the context that it is being made in order to conform with existing medical restrictions.’”
Johnson v. JPMorgan Chase & Co., 922 F. Supp. 2d 658, 667 (S.D. Ohio 2013) (quoting Leeds
v. Potter, 249 Fed. App’x 442, 449 (6th Cir. 2007)).
In the instant matter, the parties dispute whether Plaintiff was qualified for the position
she held at CF. Defendants make a lengthy argument that she was not capable of performing the
essential functions of her job as a Supportive Living Coordinator and that her termination had
nothing to do with her disability, but instead resulted from her poor work performance and
violating CF’s confidentiality policy. While Plaintiff acknowledges Defendants’ argument that
she was terminated because of deficient job performance, Plaintiff utterly fails to offer any
evidence in rebuttal. Instead, in her Memorandum in Opposition, Plaintiff makes a single
assertion, namely that “Defendants are liable under the ADA because they failed to provide [her]
with an ASL interpreter for unscheduled impromptu job performance meetings.” (Pl’s Mem.
Opp., at p. 8.) This assertion is belied by the facts of the case. To the extent Plaintiff maintains
in this assertion that Defendants are liable under the ADA because they were required to provide
an accommodation of a full-time staff interpreter, she never specifically requested it.
The law in this circuit is clear: “the employee is saddled with the burden of proposing an
accommodation and proving that it is reasonable.” Jakubowski v. Christ Hosp., Inc., 627 F.3d
195, 202 (6th Cir. 2010). Here, Plaintiff cannot show that she made a request for a full-time
interpreter, that the request was reasonable or that Defendants denied it. The record reflects that
CF considered hiring a full-time interpreter but determined it was financially unreasonable to do
so. (Robins Dep., at p. 38.) Defendants instead provided Plaintiff will unlimited access to
interpretive services through Hallenross & Associates. Notably, Plaintiff herself recommended
them. (Watts Dep., at 46.) Moreover, Robins encouraged Plaintiff to use an interpreter
whenever she needed one. The record shows that meetings were delayed to permit an interpreter
to attend. Plaintiff acknowledged that she knew it was her responsibility to secure an interpreter,
not CF’s, and that in emergency situations, she could contact a different interpreter service
online. (Watts Dep., at p. 85.) Indeed, during the June 4, 2013 meeting that ultimately preceded
her termination, Robins began by asking Plaintiff if she needed an interpreter. Plaintiff declined.
(Watts Dep., at 99.) A disabled individual is not required to accept an accommodation offered
by her employer but if she “rejects a reasonable accommodation, aid, service, opportunity or
benefit that is necessary to enable the individual to perform the essential functions of the position
held or desired, and cannot, as a result of that rejection, perform the essential functions of the
position, the individual will not be considered qualified.” 29 C.F.R. § 1630.9(d). Plaintiff did
not propose a reasonable accommodation and rejected the precise accommodation she faults her
employer for not supplying. Her claim for failure to accommodate under the ADA therefore fails
as a matter of law. See, e.g., Nance, 527 F.3d at 459 (entering summary judgment for employer
on reasonable accommodation claim when employee who did not propose an accommodation
refused to perform machine-cleaner position with “crude[,]” though effective, tools
recommended by physical therapist).
ADA Discriminatory Discharge
Defendants contend that no genuine issues of material fact remain as to Plaintiff’s claim
that she was terminated on the basis of her disability in violation of the ADA. Again, Plaintiff
fails to address this argument at all in her Memorandum in Opposition. The Court could,
therefore, consider the claim abandoned. In any event, the Court determines that, to the extent
she seeks to advance this claim, Defendants are entitled to judgment on it.
To establish a prima facie case of discriminatory discharge under the ADA, Plaintiff must
show that (1) she is disabled, (2) she is qualified to perform the essential functions of the job;
and (3) that CF took an adverse action against her, here termination, because of the disability.
Bailey v. Real Time Staffing Servs., Inc., 543 F. App’x 520, 522–23 (6th Cir. 2013) (citing Gantt
v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998)). The ADA provides that
“[n]o covered entity shall discriminate 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 privilege of employment.”
42 U.S.C. § 12112(a).
Because Plaintiff attempts to prove her claim of discriminatory discharge through
circumstantial, as opposed to direct, evidence, she must use the familiar three-step burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 248 (1973). See Jones v.
Potter, 488 F.3d 397, 403 (6th Cir. 2007). The initial burden rests with Plaintiff to establish a
prima facie case. Id. at 404. If the plaintiff establishes a prima facie case, the burden shifts to
the defendant to “offer a legitimate explanation for its action.” Monette v. Elec. Data Sys, 90
F.3d 1178, 1186 (6th Cir. 1996). If the defendant does so, the burden then shifts back to the
plaintiff, who “must introduce evidence showing that the proffered explanation is pretextual.”
Id.; see also Ferrari v. Ford Motor Co., 826 F.3d 885, 892 (6th Cir. 2016) (same).
Even assuming that Plaintiff could establish a prima facie case, Defendants have
articulated a legitimate, nondiscriminatory reason for her termination. Defendants represent that
they terminated Plaintiff based on poor work performance, including documentation, billing, and
incident reporting errors, and ultimately on Robins’ subjective belief that she had violated CF’s
Because Defendants have articulated legitimate reasons for her termination, Plaintiff
must prove that the reason “was simply a pretext designed to mask discrimination.” Jones, 488
F.3d at 406. To carry this burden, Plaintiff must show by a preponderance of the evidence
“either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not
actually motivate his discharge, or (3) that they were insufficient to motivate discharge.” Id.
(quoting Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
Although it is not apparent from her Memorandum in Opposition, Plaintiff seemingly
argues that Defendants’ justification for her discharge has no basis in fact. In Paragraph 19 of
her declaration, Plaintiff declares that Robins learned shortly after he fired her that Shank lied
about Plaintiff trying to take or steal clients away from CF. (Watts Dec. ¶ 19.) This argument
fails for several reasons, not the least of which is Plaintiff has not demonstrated personal
knowledge as to this purported fact. Indeed, Robins testified during his deposition several years
later that he still did not know whether Shank had been truthful. (Robins Dep., at p. 82.; Robins
30(b)(6) Dep., at p. 62.) Regardless, Robins made his decision to terminate Plaintiff based on
her history of poor work performance as well as the information he received from Shank
regarding Plaintiff allegedly sharing confidential information regarding CF’s clients and her
intention to take clients with her. Plaintiff has not come forward with any evidence that these
reasons have no basis in fact, that they did not actually motivate her discharge, or that they were
insufficient to motivate her discharge. Even drawing all inferences in her favor, as the Court
must, Plaintiff has failed to adduce sufficient evidence to establish that a genuine issue of
material fact remains for a jury. See Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 251-52
(1986) (holding that the central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.”) Accordingly, her discriminatory discharge claim fails as a matter of law.
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED.
The Clerk is DIRECTED to ENTER JUDGMENT in favor of Defendants and to remove this
case from the Court’s pending cases list.
IT IS SO ORDERED.
DATE: March 27, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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