Dunn v. Chattanooga Publishing Company

Filing 40

MEMORANDUM with order to follow.Signed by District Judge Curtis L Collier on 1/8/2014. (AWH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DEBRA DUNN,
Plaintiff,
v.
CHATTANOOGA PUBLISHING
COMPANY,
Defendant.

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1:12-CV-252

Judge Curtis L. Collier

MEMORANDUM
Before the Court is Defendant Chattanooga Publishing Company’s (“CPC”) motion for
summary judgment (Court File No. 31). CPC argues Plaintiff Debra Dunn (“Dunn”) has failed to
establish a prima facie case of disability discrimination, failed to exhaust her administrative
remedies with respect to her accommodation claim, otherwise sought an unreasonable
accommodation, and CPC in fact accommodated her disability. Dunn responded in opposition to
CPC’s motion (Court File No. 33) and CPC replied to Dunn’s response (Court File No. 35). The
Court concludes Dunn has met her burden to establish a prima facie case of discrimination and to
demonstrate CPC’s proffered explanation is pretextual. The Court also concludes Dunn adequately
exhausted her accommodation claim and sought a reasonable accommodation. Accordingly, the
Court will DENY CPC’s motion for summary judgment (Court File No. 31).
I.

FACTUAL AND PROCEDURAL BACKGROUND
CPC is a Chattanooga, Tennessee based publishing company. Dunn began working for CPC

in September 2010 as the administrative assistant to Russell Lively, controller and director of
operations (Court File No. 31-2, Lively Dep., pp. 5-6). His job duties were varied and included
oversight over facilities, printing and press operations, and financial functions. He reported directly

to the president of the company, Jason Taylor (id. at p. 7). Dunn’s duties as Lively’s assistant were
nearly as broad: she was to assist him in his duties (id. at pp. 26-27). No one served in this position
prior to Dunn, and a new assistant was not hired until over one year after Dunn left CPC.
In spring 2011, Dunn was diagnosed with stage IV breast cancer (Court File No. 31-1, Dunn
Dep., pp. 9-10). Dunn disclosed her cancer diagnosis to Lively the same day she was informed of
it (id. at p. 10). Dunn then underwent chemotherapy and was forced to work a shorter schedule.
Between April and July 2011, Dunn relied on her accrued sick leave to take every third Friday off
in order to attend these chemotherapy sessions (id. at p. 12, 15). She also worked what she calls a
“flexible schedule” from 9:00 am to 4:00 or 4:30 pm on workdays rather than the normal 8:00 am
to 5:00 pm schedule, although she would work through her lunch hour to accommodate her shorter
hours (id. at p. 19); (Court File No. 34, Dunn Aff., ¶¶ 5, 6). At the time, Mr. Lively expressed no
dissatisfaction with this schedule, nor does CPC suggest that Dunn failed to complete any tasks as
a result of it.
Following chemotherapy, Dunn knew she would have to undergo surgery (Court File No.
31-1, Dunn Dep., pp. 16-17). Due to “blood-level issues,” her surgery was delayed numerous times.
Dunn herself wanted the surgery to be scheduled in September 2011, because at that point she would
have been employed by CPC for one year and would be entitled to medical leave under the Family
and Medical Leave Act (“FMLA”) (id.).1 Dunn claims she notified Lively several times that she
would eventually require surgery (Court File No. 34, Dunn Aff., ¶ 3).

1

Dunn also sued CPC for FMLA retaliation but the Court granted CPC’s motion to dismiss
this claim (Court File Nos. 22, 23). As more fully explained in the Court’s order and memorandum,
Dunn is not entitled to sue under the FMLA because she had not been employed by CPC for one
year at the time her employment was terminated.
2

On August 18, 2011, Dunn informed Lively that her surgery would be scheduled in
September, after her one-year employment anniversary, although no specific date had yet been set
(Court File No. 33-1, Dunn Dep., p. 20). She told Lively if the cancer was as her doctors
anticipated, she would need four to six weeks for recovery. If there was more cancer than the
doctors anticipated, the recovery period could be as long as two months (id.).2 Dunn offered to train
a temporary replacement while she was out for recovery and Lively asked her to produce a job
description in case he made use of this suggestion (id.). Later that day, Dunn emailed Lively,
informing him she had a pre-surgery appointment moved to September 1, 2011, which would enable
her to take FMLA leave (Court File No. 33-5, Dunn email).
Shortly after this discussion, Lively called Dunn into his office and terminated her.
According to Dunn, Lively explained that their arrangement was “just not working” and he needed
“someone who can spend more hours here” (Court File No. 33-1, Dunn Dep, p. 22). Because he was
expecting a “big promotion” he needed “someone who can work full-time hours, possible overtime”
but he knew she could not “do that right now” (id.). Dunn apologized for her health-related
absences but noted “obviously, [she] had no control over getting cancer” (id.). Lively responded
that Dunn could not stay on as his assistant, adding, “I can’t have times when I don’t have somebody
here to do the work that I need done . . . You’ve got to deal with your cancer and . . . that’s what you
should do, is just deal with that right now” (id.). Lively, for his part, does not remember many
specifics of the conversation beyond telling her “we didn’t have a good fit” (Court File No. 31-2,
Lively Dep., pp. 92-93).

2

Dunn eventually underwent a double mastectomy on October 13, 2011 and endured a
recovery period of two months.
3

Lively does claim that he told Dunn there may be opportunities in other departments,
including opportunities in the circulation department. He asked her to let him know by the following
Monday whether she wanted to make use of those opportunities (id. at p. 96). Dunn, however,
denies he mentioned such opportunities and claims he merely told her to check with human
resources to determine if there were any openings (Court File No. 34, Dunn Aff., ¶ 10). She also
claims he told her to re-apply for her previous job at Covenant Transport, but she thought it unfair
to apply for a job and immediately take two months off for surgery (id. at ¶ 11).
Lively claims he was displeased with Dunn’s performance throughout her tenure. He stated
that she “never progressed to a point where I could keep giving her more projects” and that she
never “progress[ed]” to his expectations (Court File No. 31-2, Lively Dep., at p. 35). However,
when pushed by counsel about the specifics of his displeasure, Lively was unable to identify exactly
how it was that Dunn was deficient in her performance. He claimed she “plateaued” and did not
show “initiative” (id.). The only specific example he could provide was her unsuccessful attempt
to reduce a charge on his credit card, although he then admitted he later failed at the same task (id.
at pp. 36-37). He also stated broadly that she “did not initiate actions” with him and did not find out
what his needs were or what his day was going to be (id. at p. 56). Both Dunn and Lively appear
to agree that he only confronted her about these problems once, and in that case he only stated they
should have more meetings (id. at pp. 56-57); (Court File No. 33-1, Dunn Dep., p. 103). Lively
claims those meetings ended due to Dunn’s “medical challenges” (id. at pp. 56-57).
Lively also claims he discussed this dissatisfaction with Taylor and human resources in the
months preceding Dunn’s termination (Court File No. 31-2, Lively Dep., p. 29). Matthew Salada,
CPC’s director of human resources at the time, could not remember the exact date Lively first

4

approached him about his concerns but noted it “was not like the day before” Dunn was terminated
and may have been “a couple of months [before then],” which would have put the conversation
around June 2011 (Court File No. 31-3, Salada Dep., p. 36). Apparently, Lively discussed his
concern that Dunn would soon be needing a substantial period of time off and told Salada “she was
already a problematic employee, [who] wasn’t getting the work done that he needed her to get done,
that she had already used up all of her leave and that he was going to need someone doing that job
who was actually there every day - - or, you know, on a regular basis - - to get the work done” (id.
at p. 35). When Lively first came to Salada, “[h]e did express that [Dunn’s flex schedule] was
difficult, but he didn’t say it was a problem, per se. But we had a definite discussion that it was her
performance that really made his - - made it problematic for him to keep her in that position” (id.
at p. 37). According to Salada, regardless of Dunn’s need for time off, Lively intended to “make
a move” on the position. But these issues came to a head when Dunn informed Lively her surgery
was impending:
But it wasn’t until Ms. Dunn, as I recall it, came into our office and said:
“Hey, I’ve kind of got a date certain now, I’m definitely going to get treatment and
it’s going to be after I qualify for FMLA,” that I went upstairs, talked to Mr. Taylor;
and we both went in to Mr. Lively and said: “Look, it’s going to happen. If you
don’t make a decision about this to deal with her performance, you are going to be
stuck with her as your assistant while she’s on twelve weeks of leave. So you need
to make a decision, before she becomes eligible for FMLA leave, as to whether or
not you want to act on her performance or not.”
(id. at pp. 37-38).
Although Lively told Dunn she would no longer be his assistant on August 18th, she was
scheduled to remain his assistant until August 26th. But Lively heard from some of the employees
that Dunn was saying negative things about her termination, and so he told her not to come in on her
last day (Court File No. 31-2, Lively Dep., p. 125-26). Lively did not hire a replacement for Dunn’s
5

position until January 2013. However, Lively and Salada discussed hiring a replacement for Dunn
but declined to do so on the advice of counsel (Court File No. 33-4, Salada Dep., p. 59). Lively had
also mentioned his intention to fill the position to at least one other employee (Court File No. 33-6,
Austin Dep., pp. 25-26).
After her termination, Dunn filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), which issued her a Notice of Right to Sue. The EEOC charge
included the following.
I was employed by Chattanooga Publishing Company as an Administrative Assistant.
In Spring 2011, I was diagnosed with an illness that resulted in a disability. I
continued to perform my job functions with a flexible schedule.
However, on August 18, 2011, I notified Mr. Lively that I would need to have
surgery for my disability in September 2011 and would need medical leave. Thirty
minutes later Mr. Lively terminated my employment because “you are sick.”
(Court File No. 31-1, Dunn Dep., Ex. 14). Dunn then filed a complaint alleging violations of the
Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et. seq., and the FMLA, 29 U.S.C. § 601, et. seq. CPC later filed
a motion to dismiss Dunn’s FMLA claim, which the Court granted.
II.

STANDARD OF REVIEW
Summary judgment is proper when “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 bears the burden of demonstrating no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
The Court should view the evidence, including all reasonable inferences, in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
6

To survive a motion for summary judgment, “the nonmoving party must go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.”
Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled
to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-CV-63, 2009 WL
3762961, at *2 (E.D. Tenn. Nov. 4, 2009) (explaining the Court must determine whether “the record
contains sufficient facts and admissible evidence from which a rational jury could reasonably find
in favor of [the] plaintiff”). In addition, should the nonmoving party fail to provide evidence to
support an essential element of its case, the movant can meet its burden of demonstrating no genuine
issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return
a verdict in favor of the non-movant based on the record, the Court should enter summary judgment.
Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
III.

DISCUSSION
CPC argues the Court should grant summary judgment in its favor because Dunn has failed

to offer sufficient indirect evidence supporting her discrimination claim, she failed to adequately
exhaust her administrative remedies with respect to her accommodation claim, the accommodation
she sought was unreasonable, and CPC in fact accommodated her disability. Because the Court
previously dismissed Dunn’s FMLA claim, only her TDA and ADA claims remain. Dunn offers
two bases of liability: discriminatory discharge and failure to accommodate. The Court will address

7

Dunn’s discrimination claim and accommodation claim separately.
In considering Dunn’s discrimination claim, the Court need not bifurcate its analysis,
because the TDA mirrors the ADA and the same standards apply to both statutes.3 See Barnes v.
Goodyear Tire & Rubber Co., 48 S.W.3d 698, 705 (Tenn. 2000) abrogated in part by Gossett v.
Tractor Supply Co., Inc., 320 S.W.3d 777 (Tenn. 2010); see also Cardenas-Meade v. Pfizer, Inc.,
510 F. App’x 367, 369 n.2 (6th Cir. 2013). However, “[t]he TDA does not require that a reasonable
accommodation be made,” Cardenas-Meade, 510 F. App’x at 369 n.3 (citing Tenn. Code Ann. §
8–50–103), so the Court considers Dunn’s accommodation claim only under the ADA.

A. Discriminatory Discharge
The ADA prohibits employers from discriminating against a qualified individual “on the

3

Although these statutes are still congruent with respect to the substance of Dunn’s claims,
the Tennessee Supreme Court rejected the McDonnell Douglas framework at summary judgment
as “incompatible with Tennessee summary judgment jurisprudence.” Gossett v. Tractor Supply Co.,
Inc., 320 S.W.3d 777 (Tenn. 2010). Various courts, including the Sixth Circuit, described this new
standard as a state procedural rule that had no application in federal court. See e.g., Theus v.
GlaxoSmithKline, 452 F. App’x 596, 602 n.8 (6th Cir. 2011) (considering Gossett’s change
procedural where the issue was undisputed); Reed v. Inland Intermodal Logistics Servs., LLC, No.
09–2607, 2011 WL 4565450, at *5 (W.D. Tenn. Sept. 29, 2011). But see Cobb v. Keystone
Memphis, LLC, 526 F. App’x 623, 627-28 (6th Cir. 2013) (declining to decide whether Gossett binds
federal courts sitting in diversity). Regardless, the Tennessee legislature later adopted the
McDonnell Douglas framework by statute in the Tennessee Human Rights Act, Tenn. Code Ann.
§ 4–21–311(e), the “definitions and remedies” of which apply to the TDA, Barnes, 48 S.W.3d at
705. Moreover, because the Court concludes Dunn’s claims survive under the McDonnell Douglas
framework, her claim would also survive under the more “employee-favorable” Gossett standard.
See Hale v. ABF Freight System, Inc., 503 F. App’x 323, 332 n.7 (6th Cir. 2012) (“Regardless, as
explained in more detail below, Hale has established a prima facie case and produced sufficient
evidence of pretext to cast doubt on ABF’s proffered nondiscriminatory reason and allow an
inference of discrimination. Thus, under Gossett’s more employee-favorable standard, ABF is
clearly unable to show that Hale cannot prove an essential element of his age discrimination
claim.”).
8

basis of disability.” 42 U.S.C. §12112(a). Absent direct evidence of discrimination,4 Plaintiff must
establish a prima facie case demonstrating “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.”
Whitfield v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011). Once Dunn has established a prima
facie case of disability discrimination, the burden shifts to CPC to “articulate a non-discriminatory
explanation for the employment action.” Id. at 259 (citing McDonnell Douglas Corp. v Green, 411
U.S. 792, 802-04 (1973)). If CPC does so, “the burden shifts back to [Dunn] to prove that [CPC’s]
explanation is pretextual.” Id. Despite the shifting burdens of production, Plaintiff ultimately bears
the “burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff.”5 Macy v. Hopkins Cnty. School Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007) (citation
and internal quotation marks omitted).
1. Prima Facie Case
Dunn must first establish a prima facie case of discrimination. For the purposes of this
motion, CPC concedes that Dunn satisfies the first four prongs of a discriminatory discharge prima
facie case (Court File No. 32, p. 10 n.66). CPC argues summary judgment must be granted in its

4

The parties dispute whether Lively’s comments about Dunn’s cancer constitute direct
evidence of discrimination. Because the Court holds Dunn has offered sufficient indirect evidence
to survive summary judgment, the Court need not consider this question.
5

ADA plaintiffs in this circuit previously were required to prove they suffered adverse
employment action solely because of their disabilities. Monette v. Electronic Sys. Corp., 90 F.3d
1173 (6th Cir. 1996). However, the Sixth Circuit recently reversed course and held that ADA
plaintiffs need only demonstrate disability is the “but-for” cause of the adverse action, not the sole
cause. Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
9

favor because Dunn’s position was not filled for seventeen months following her termination.
CPC almost entirely relies upon Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992), an Age
Discrimination in Employment Act (“ADEA”) case.6 In Lilley, the plaintiff proceeded to trial and
obtained a substantial judgment on the basis of age discrimination. However, on appeal, the Sixth
Circuit held that the plaintiff failed to establish that he was replaced by a younger person, which is
a required element of the ADEA prima facie case. Id. at 752 (“A plaintiff may prove a prima facie
case of age discrimination by establishing that: (1) he was a member of the protected class [over age
40]; (2) he was subjected to adverse employment action; (3) he was qualified for the position; and
(4) he was replaced by a younger person.”). After he was terminated, the plaintiff’s duties were
assumed by his employer’s remaining staff. It was undisputed that the employer suffered a
downturn in business at the time the plaintiff was terminated. Nine months later, however, business
picked up and a younger individual was hired to the sales staff. Rejecting the plaintiff’s argument
he was “replaced” by this younger individual, the court held “[t]he fact that nine months later
business had picked up to the extent that another employee was needed in the sales department does
not mean that Boehm replaced Lilley in any sense relevant to inferring age-based discrimination.”
Id.
CPC argues a similar outcome is called for here: it is undisputed that Dunn’s position was
not filled for some seventeen months, almost double the time period considered to be too lengthy
to raise an inference of discrimination in Lilley. However, this case is distinguishable from Lilley
for several reasons. Unlike the plaintiff in Lilley, Dunn may establish a prima facie case by

6

CPC cites two other cases, Sandhu v. Napolitano, No. 10–12593, 2011 WL 5507405 (E.D.
Mich. Nov. 10, 2011) and Vertrees v. American Vulkan Corp., No. 8:10–cv–2164–T–24 EAJ, 2012
WL 95306 (M.D. Fla. Jan. 12, 2012), both of which rely on Lilley.
10

demonstrating that she was replaced or that her position remained open while CPC sought other
applicants. Dunn’s claim could survive even in light of the seventeen-month gap if she showed that
the position remained open and CPC sought to fill it. CPC points to Lively’s testimony that he did
not “even think” about replacing Dunn. However, Dunn offers testimony of another employee who
stated that Lively acknowledged his intent to replace Dunn and would not allow Dunn’s desk to be
removed because he intended to fill the position (Court File No. 33-6, Austin Dep., pp. 25-26).
Salada, CPC’s head of human resources at the time, also admitted that he and Lively discussed
replacing Dunn, (Court File No. 33-4, Salada Dep., p. 59), which wholly conflicts with Lively’s
own testimony that he did not even think about replacing her. Thus Dunn has produced evidence
that her position, which CPC concedes was later filled, was kept open throughout this time period.
Given that the position was later filled, it would be reasonable to infer CPC sought applications for
the position.
But CPC’s main point is not that the position was empty, and remained so, when it
subsequently sought out a replacement. Rather, CPC stresses, as was the case in Lilley, that the
lengthy, seventeen-month period during which the position was empty suggests discrimination was
not the cause of Dunn’s termination. However, in Lilley the employer’s position was supported by
evidence of a downturn and subsequent upturn in business consistent with the plaintiff’s termination
and his “replacement.” Here, on the other hand, no evidence of such business circumstances has
been presented. Unlike Lilley, the nondiscriminatory reasons given in this case–both that Dunn was
a subpar employee and that Lively needed a full-time assistant–are discredited by the seventeenmonth break between Dunn’s termination and the hiring of a replacement. If Lively was in need of
an active assistant who took initiative and could work a full-time schedule without significant

11

breaks, then how did he manage during the period the position was unfilled?7 In Lilley the length
of time between the plaintiff’s firing and the “replacement’s” hiring indicated a lack of
discrimination; here, the length of time at issue is more indicative of discrimination. Accordingly,
the Court concludes Dunn has established the fifth prong of the prima facie case.
Even were the Court less convinced that the fifth prong is satisfied in this case, when the
Sixth Circuit adopted the McDonnell Douglas framework in the ADA context, it recognized that
“the precise characterization of the [replacement] prong of the test will sometimes vary depending
upon the factual scenario confronting the court.” Monette, 90 F.3d at 1185 n.11; see also McDonnell
Douglas, 411 U.S. at 802 n.13 (“The facts necessary will vary . . . and the specification . . . of the
prima facie proof required from respondent is not necessarily applicable in every respect to differing
factual situations.”).

In fact, “[t]he requirements for establishing a prima facie case of

discrimination are always context-dependent, and ‘[t]he key question is always whether, under the
particular facts and context of the case at hand, the plaintiff has presented sufficient evidence that
he or she suffered an adverse employment action under circumstances which give rise to an
inference of unlawful discrimination.’” Thompson v. UHHS Richmond Heights Hosp., Inc., 372 F.
App’x 620, 624 (6th Cir. 2010) (“Thompson’s claim need not fit perfectly within one of our

7

More to the point, why did Lively not fill the position? The only explanation offered to the
Court, which Salada admitted during his deposition, is that the position was not filled on the advice
of counsel. The Court doubts such gamesmanship could result in summary judgment in CPC’s
favor. Dunn cites a Tenth Circuit case for the proposition that active avoidance of the fifth prong
will preclude summary judgment, Fester v. Farmer Bros. Co., 49 F. App’x 785 (10th Cir. 2002), but
this case appears off-base. Although there was similar evidence in that case that the position had
not been filled on advice of counsel, the court held there was sufficient evidence to suggest the
position had been offered within two months of the plaintiff’s discharge. Id. at 792. Regardless, the
Court concludes the evidence presented here is sufficient to establish a prima facie case of
discrimination.
12

enumerated tests in order to survive summary judgment.”) (quoting Clay v. United Parcel Serv.,
Inc., 501 F.3d 695, 703 (6th Cir. 2007)).8
In this case, Dunn not only offers evidence demonstrating that the gap between her
termination and replacement was primarily due to litigation strategy, she also offers further evidence
of discrimination. Dunn testified that Lively made comments regarding her need for time off and
her cancer when he was dismissing her. These comments are strong evidence that Dunn suffered
discrimination due to her disability. Further, Salada conceded that he urged Lively to terminate
Dunn immediately because of her impending medical leave. Were there still a question about
whether Dunn presented sufficient evidence to satisfy the prima facie case standard, these facts
would put such doubt to rest.
Accordingly, the Court concludes Dunn has met her initial burden to establish a prima facie
case of discrimination. The burden shifts to CPC to articulate a legitimate, nondiscriminatory reason
for the adverse employment action.
2. Legitimate, Nondiscriminatory Reason
CPC articulates a legitimate, nondiscriminatory reason for Dunn’s termination: Lively was
unsatisfied with her performance. Dunn appears to concede this could constitute a legitimate,
nondiscriminatory explanation for her termination as she focuses on discrediting CPC’s explanation
as pretext. Accordingly, CPC has met its burden and the burden shifts back to Dunn to demonstrate
pretext.

8

For instance, in the context of reduction-in-force cases where the plaintiff was not replaced,
plaintiffs may bring other evidence demonstrating that the employer discharged the employee for
impermissible reasons. See Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 265 (6th
Cir. 2010) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990)).
13

3. Pretext
To discredit CPC’s proffered nondiscriminatory reason as pretextual, Dunn must establish
one of the following: “(1) that the proffered reason has no basis in fact; (2) that the proffered reason
did not actually motivate the adverse employment action; or (3) that the proffered reason was
insufficient to motivate the adverse employment action.” Sarvak v. Urban Retail Props., 524 F.
App’x 229, 234 (6th Cir. 2013) (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir. 1994), overruled on other grounds by Geiger v. Tower Auto., 579 F.3d 614 (6th Cir.
2009)). Because Dunn focuses on impugning Lively’s testimony–on which CPC relies almost
entirely–the Court assumes Dunn is arguing the proffered reason “did not actually motivate the
adverse employment action,” in which case Dunn must show “an illegal motivation was more likely
than that offered by” CPC. Id. at 234-35.
As Dunn notes, CPC’s argument that Lively was dissatisfied with Dunn’s performance is
based on two sources: Lively’s own testimony and Salada’s testimony.9 The Sixth Circuit has
indicated that subjective evaluations are “ready mechanisms for discrimination.” Sharp v. Aker Plant
Servs. Grp., Inc., 726 F.3d 789, 802 (6th Cir. 2013) (quoting Grano v. Dep’t of Dev. of City of
Columbus, 699 F.2d 836, 837 (6th Cir. 1983)). In Sharp, the Sixth Circuit held that a conversation
explaining the reasons for the plaintiff’s termination created a genuine issue of material fact

9

CPC also argues Dunn’s employment only ended because she was “unwilling to even
discuss, much less pursue, other opportunities in the company” (Court File No. 32, p. 13). However,
as discussed infra at III.B.3, significant disputes of fact remain regarding what “options” Dunn was
given and the extent to which she pursued them. If CPC is arguing Dunn was not actually
terminated, CPC conceded for the purposes of this motion that Dunn “suffered an adverse
employment decision” of some kind (id. at p. 10 n.66).
14

regarding whether the plaintiff was an inferior employee.10 Id. The conversation linked the
plaintiff’s termination to his age: plaintiff was informed that he was “going to retire” and the
employer had the opportunity to “bring the next generation[] in.” Id. The court discounted poor
performance evaluations in light of this evidence, because “the value of [the manager’s] opinion is
undermined by his comments ascribing his decision to [the plaintiff’s] age.” Id.
Similar to Sharp, Lively’s subjective explanations conflict with the alleged comments he
made to Dunn when she was terminated. According to Dunn, Lively told her that he needed
“someone who can spend more hours here” (Court File No. 33-1, Dunn Dep, p. 22). Because he was
expecting a “big promotion” he needed “someone who can work full-time hours, possible overtime”
but he knew she could not “do that right now” (id.). Dunn noted “obviously, [she] had no control
over getting cancer” (id.). Lively reiterated, “I can’t have times when I don’t have somebody here
to do the work that I need done . . . You’ve got to deal with your cancer and . . . that’s what you
should do, is just deal with that right now” (id.).
And unlike Sharp, there are no contemporaneous evaluations or other evidence supporting
Lively’s contention he was dissatisfied with Dunn’s performance other than his and Salada’s
testimony. Lively stated he was dissatisfied with Dunn’s performance for months, but when pushed
to explain why, Lively struggled to provide any specific reasons. He did mention some broad-based
dissatisfactions, such as his impression that Dunn failed to take initiative. After some degree of
prodding, Lively also mentioned an incident in which Dunn failed to convince Lively’s credit card
company to reduce a charge to his card, although Lively then admitted he failed in the same task
(Court File No. 31-2, Lively Dep., at pp. 35-37). Beyond a lack of contemporaneous evidence,

10

A positive letter of recommendation was also offered.
15

Lively did not select “Poor Job Performance” as the explanation for Dunn’s termination on her
employee termination form; instead, he wrote that Dunn “was not a good [l]ong term fit for the
position” (Court File No. 33-2, Employee Termination Form). Because CPC’s explanation conflicts
with Lively’s comments linking Dunn’s termination to her disability, Dunn has met her burden to
demonstrate pretext and summary judgment is inappropriate.
Moreover, Salada testified that Lively discussed his displeasure at some point–between two
months and two days before Dunn’s termination–but also that his main concern was Dunn’s
impending medical leave (Court File No. 31-3, Salada Dep., p. 36). Salada’s testimony wavered
between these positions. Compare (id. at p. 37) (“He did express that [Dunn’s flex schedule] was
difficult, but he didn’t say it was a problem, per se. But we had a definite discussion that it was her
performance that really made his - - made it problematic for him to keep her in that position.”) with
(id. at p. 35) (“[S]he was already a problematic employee, [who] wasn’t getting the work done that
he needed her to get done, that she had already used up all of her leave and that he was going to need
someone doing that job who was actually there every day - - or, you know, on a regular basis - - to
get the work done.”). Most telling, however, is Salada’s explanation of the impetus for Dunn’s
removal:
But it wasn’t until Ms. Dunn, as I recall it, came into our office and said:
“Hey, I’ve kind of got a date certain now, I’m definitely going to get treatment and
it’s going to be after I qualify for FMLA,” that I went upstairs, talked to Mr. Taylor;
and we both went in to Mr. Lively and said: “Look, it’s going to happen. If you
don’t make a decision about this to deal with her performance, you are going to be
stuck with her as your assistant while she’s on twelve weeks of leave. So you need
to make a decision, before she becomes eligible for FMLA leave, as to whether or
not you want to act on her performance or not.”
(id. at pp. 37-38). Dunn’s showing of pretext is even more convincing when Salada’s testimony is
juxtaposed with Lively’s testimony: Whereas Salada admitted Dunn’s condition and impending
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leave were a topic of discussion, Lively claimed he had not discussed Dunn’s condition or her leave
request with Salada or Taylor (Court File No. 33-3, Lively Dep., at pp. 71, 101-02, 104). The
discrepancy between Lively’s and Salada’s testimony further demonstrates that summary judgment
is inappropriate on this claim.
For these reasons, the Court concludes Dunn has met her burden to demonstrate CPC’s
proffered explanation is pretext for discrimination. The Court will DENY CPC’s motion on Dunn’s
discriminatory discharge claim.
B. Accommodation Claim
CPC provides three bases for granting summary judgment on Dunn’s accommodation claim:
(1) she failed to exhaust her administrative remedies, (2) the accommodation she sought was not
reasonable, and (3) CPC did not actually deny an accommodation.
1. Exhaustion of Administrative Remedies
Initially, Dunn argues CPC waived this argument when it did not plead exhaustion as an
affirmative defense in its answer. Although Dunn is correct that administrative exhaustion is subject
to waiver, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), raising the defense in a
summary judgment motion is sufficient to avoid waiver in this case, Young v. City of Cleveland, No.
99-3275, 2000 WL 924590, at *3 (6th Cir. June 26, 2000) (holding, “[a]lthough it would have been
better had defendants raised the [exhaustion] issue specifically in their answer,” the plaintiffs were
not prejudiced by the delay because the defense was raised in a motion for summary judgment). See
also Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997) (holding failure to raise an affirmative
defense in a responsive pleading does not always result in waiver because the purpose of Fed. R.
Civ. P. 8(c) is notice and a chance to respond). The Court will therefore consider CPC’s argument

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on the merits.
A plaintiff suing under federal civil rights laws must exhaust her administrative remedies
before bringing the suit in federal court. Filing an EEOC charge is a condition precedent to filing
suit under the ADA. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000).
Claims not included in the charge may not be brought in a subsequently filed action. Johnson v.
Cleveland City School Dist., 344 F. App’x 104, 109 (6th Cir. 2009). However, “a plaintiff may
bring suit on an uncharged claim if it was reasonably within the scope of the charge filed.” Id. (citing
Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir.1998) (“[W]here facts
related with respect to the charged claim would prompt the EEOC to investigate a different,
uncharged claim, the plaintiff is not precluded from bringing suit on that claim.”)). Although courts
take a particularly liberal view of charges drafted without the assistance of counsel, “that ‘does not
mean that a broad reading may not, or should not, be given in cases where a plaintiff has counsel.’”
Id. (quoting Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 536 (6th Cir. 2001)).
CPC primarily relies upon Jones v. Sumser Retirement Village, 209 F.3d 851 (6th Cir. 2000).
In Jones, the plaintiff injured her back while at work and took time off to recuperate. After she
returned to work, her doctor ordered that she lift no more than twenty pounds. Over the course of
the next few months, her doctor’s orders changed and she was instructed to work fewer hours and
avoid physical exertions that would exacerbate her injuries. She required a second employee to
work with her who could do all the heavy lifting. One employee refused to shoulder the extra
burden and the plaintiff was forced to do some of these physically demanding tasks. After this
aggravated the plaintiff’s injury, her doctor ordered that she not return to work. Her employer
subsequently informed the plaintiff that if she did not return to work within ten days she would be

18

terminated. The plaintiff was in fact terminated, and she filed a charge with the EEOC and later sued
her employer raising both a discriminatory discharge claim and an accommodation claim.
On appeal, the Sixth Circuit overturned a jury award in the plaintiff’s favor because she
failed to exhaust her administrative remedies on the accommodation claim. The court noted that the
charge did not explicitly allege her employer failed to accommodate her disability and that an
accommodation claim did not “reasonably grow” out of the facts and claims in the charge. Id. at
853-54. Notably, the “date of discrimination” listed on the form was the date she was fired, not the
earlier date on which she worked without the assistance she required. Id. Moreover, the facts
relevant to discriminatory discharge and to failure to accommodate were different: the
accommodation claim would focus on her work limitations, the failure to accommodate those
limitations, and her aggravated injury; the discharge claim, on the other hand, would focus on her
disability, her absence from work, her employer’s leave policy, her ability to return to work, and her
termination. Id. at 854 n.1. The court held that the plaintiff had not exhausted her administrative
remedies because “the inclusion of a single date, identified only as the last day of work, does not
trigger an investigation into whether [the plaintiff] was injured on that date as a result of a failure
to accommodate,” and “the liberal construction to be given charges filed by lay complainants
pertains to legal and procedural technicalities. It cannot extend to include facts and claims not
alleged.” Id. at 854.
CPC argues this case is similar. Dunn’s charge stated, “on August 18, 2011, I notified Mr.
Lively that I would need to have surgery for my disability in September 2011 and would need
medical leave. Thirty minutes later Mr. Lively terminated my employment because ‘you are sick’”
(Court File No. 31-1, Dunn Dep., Ex. 14). Dunn then claimed she was “terminated due to [her]

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disability” (id.). The charge in this case lists the date of discrimination as August 26, 2011–Dunn’s
“last” day–rather than August 18, 2011–the day Dunn was told she would be terminated. CPC
contends, as in Jones, Dunn failed to exhaust her accommodation claim because she listed her date
of termination rather than the date she was told she would be terminated.
The Court disagrees. One crucial difference between Jones and this case is operative here:
the requested accommodation was to take place after the termination date. CPC concedes that
medical leave may constitute a reasonable accommodation. Walsh v. United Parcel Serv., 201 F.3d
718, 726 (6th Cir. 2000). Unlike Jones, where the alleged lack of accommodation had already
occurred (in the form of an unhelpful coworker whose refusal to do the heavy lifting caused the
plaintiff to aggravate her injury), the claimed lack of accommodation here was anticipated medical
leave that CPC sought to avoid by terminating Dunn. Thus listing the termination date as the date
of discrimination was consistent with both a termination claim and an accommodation claim.
Dunn’s discharge claim and accommodation claim are intertwined: she was terminated because her
disability required she obtain medical leave; she was denied medical leave as an accommodation.
The charge specifically mentioned she sought medical leave and was subsequently terminated.
Inquiry into the termination claim in this case would logically include inquiry into the
accommodation claim.
This case is similar to Moore v. Hexacomb Corp., 670 F. Supp. 2d 621 (W.D. Mich. 2009).
In that case, the defendant similarly argued the district court lacked jurisdiction over an unexhausted
claim, although it was the termination claim the defendant sought to preclude. The district court
distinguished Jones and rejected the defendant’s argument because “the failure to accommodate
claim and the termination claim occurred, for all practical purposes, on the same date.” Id. at 632.

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The defendant sent the plaintiff home because he could not perform any available jobs at the facility
due to his indefinite restrictions. The employer then treated the first twelve weeks of his absence
as FMLA leave and terminated his employment thereafter. Because the employer’s “determination
that [the plaintiff] could not perform any available job due to his indefinite restrictions was
tantamount to a termination,” inquiry into the accommodation claim would have led to inquiry into
the termination claim. Id.
For the reasons stated, this case is similar.

Dunn’s denied accommodation and

discriminatory discharge both occurred when she was terminated due to her impending medical
leave. Inquiry into one claim would lead to inquiry into the other. Accordingly, the Court concludes
Dunn adequately exhausted her accommodation claim.
2. Reasonable Accommodation
In the alternative, CPC argues Dunn did not seek a reasonable accommodation. The ADA
states that an employer may not “discriminate against a qualified individual with a disability.” 42
U.S.C. § 12112(a). “Discrimination” includes an employer “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified . . . employee unless [the
employer] can demonstrate that the accommodation would impose an undue hardship on the
operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A); see also U.S. Airways, Inc. v. Barnett, 535
U.S. 391, 396 (2002). In a case alleging an ADA violation based upon a reasonable accommodation
theory,
(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.
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(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., 485 F.3d 862, 869 (6th Cir. 2007) (citation omitted). Here, the parties
only dispute whether the requested leave was a “reasonable” accommodation.11
As indicated, medical leave may constitute a reasonable accommodation in certain
circumstances. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782 (6th
Cir. 1998), the Sixth Circuit noted that “[m]edical leave as an accommodation is not a novel
concept.” The court declined to institute “a per se rule that an unpaid leave of indefinite duration
(or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’
under the ADA.” Id. (quoting Norris v. Allied–Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D.
Cal. 1996)). However, the Sixth Circuit has subsequently clarified this holding to some extent,
noting that Cehrs dealt with a “definite and relatively short leave” request “accompanied by a
reasonable prospect of recovery.” Walsh, 201 F.3d at 726-27. Employers are not required to allow
an employee lengthy (over one year) or indefinite leave, but definite, relatively short leave periods
may constitute reasonable accommodations. Id. The Sixth Circuit has subsequently approved of
leave requests of six months in cases where the condition does not persist indefinitely. See Cleveland
v. Fed. Express Corp., 83 F. App’x 74, 79 (6th Cir. 2003).
In this case, however, CPC argues the requested accommodation was unreasonable because
Dunn did not provide a specific start or end date for her requested leave. CPC relies upon a Tenth

11

For the purposes of this motion, CPC concedes Dunn is disabled, is otherwise qualified
for the position with or without a reasonable accommodation, and that CPC knew she was disabled
(Court File No. 32, p. 14 n.94). CPC also has not argued that it would have suffered an undue
hardship in this case and has offered no evidence of such a hardship.
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Circuit case considering the reasonableness of a leave of absence. Robert v. Bd. of Cnty. Comm’rs
of Brown Cnty., 691 F.3d 1211, 1218 (10th Cir. 2012). The court identified “two limits on the
bounds of reasonableness for a leave of absence”: (1) the employee must provide an “estimated date
when she can resume her essential duties,” and (2) this end date must be in the “near future,” which
the court did not define, although it noted a six-month leave request would be too long. Id. In
Robert, the plaintiff provided no evidence of the date she would resume the fieldwork required by
her position. Her doctor’s prognosis varied before and after surgery, but shortly before she was
terminated she informed her employer she could be walking with a cane in three to four weeks.
However, she also expressed concern that this time period might be “too fast” but she assumed her
job would be available “‘regardless of the length’ of her recovery.” Id. The plaintiff herself
recognized she required “full mobility” to perform fieldwork, which would likely mean that this
anticipated assisted walking would preclude her from meeting the requirements of her position. Id.
Because “the doctor’s prediction that Robert could walk with a cane in a month’s time does not
suffice to assure the county that she would then be able to perform site visits and other fieldwork,”
the plaintiff sought an “indefinite reprieve” from the essential functions of the job. Id. The court
concluded the requested accommodation was unreasonable as a matter of law.
Consistent among these cases are two requirements: the leave must be finite and it must not
be too lengthy. Contrary to CPC’s contention, Dunn’s request met both requirements in this case.
Far from some ambiguous, indefinite leave request, Dunn informed Lively her surgery would be
scheduled in September, and that she would need between four and eight weeks leave for recovery.12

12

Her surgery eventually occurred in October, which CPC makes a point of mentioning.
However, Dunn stated her surgery was moved to October because she had “some other issues,”
which were not further discussed (Court File No. 33-1, Dunn Dep., p. 17).
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Although she noted that her doctors had delayed the surgery to accommodate her blood levels, she
made it clear her doctors wanted to schedule it as soon as possible. She was far less equivocal about
the time period than CPC now claims:
Basically, I told him what my doctors had said about surgery, that they wanted to
schedule it right after the anniversary date [in September] and that I - - I was telling
him what they said about, if the cancer was just where they thought, that it would
probably be four to six weeks’ recovery. If they found more, it could be up to two
months; but, obviously, they wouldn’t know that until they got in there and started
the surgery.
(Court File No. 33-1, Dunn Dep., p. 20). And as Salada conceded, it was the impending certainty
of her surgery that was the catalyst for her termination (Court File No. 31-3, Salada Dep., pp. 37-38)
(admitting that “it wasn’t until Ms. Dunn . . . came into [the] office and said: ‘Hey, I’ve kind of got
a date certain now, I’m definitely going to get treatment and it’s going to be after I qualify for
FMLA,’” that Salada and Taylor pressured Lively to terminate Dunn). She informed CPC she
would be having surgery in September 2011 and, at the outside, she needed two months of recovery
time. Given the Court’s reading of precedent, this leave request was reasonable.
Because CPC has not attempted to demonstrate accommodating this request would have
imposed an undue burden, the Court must DENY CPC’s motion on this ground.
3. Not Denied Accommodation
CPC also argues it actually did accommodate Dunn. Lively testified that he told Dunn there
may be opportunities in other departments at CPC (Court File No. 31-2, Lively Dep.. at p. 96). CPC
argues it therefore attempted to accommodate Dunn’s request but she failed to make use of the
accommodation. Dunn, however, denies Lively mentioned such opportunities and claims he merely
told her to check with human resources to determine if there were any openings (Court File No. 34,
Dunn Aff., ¶ 10). Moreover, she claims she did check with human resources and the only available
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positions were part-time telemarketing jobs paying much less than what she was making at the time
(id. at ¶ 12). CPC also points to Dunn’s testimony that she thought it would be unfair to obtain a
new position and immediately take leave. But Dunn claims she was referring to re-applying for her
previous job at Covenant Transport, not for the alleged opportunities at CPC (id. at ¶ 11); (Court File
No. 33-1, Dunn Dep., pp. 22-23). Given these factual discrepancies, summary judgment would be
inappropriate.
More to the point, CPC has not established that Dunn’s proposed accommodation would
impose an undue hardship. Reassignment to a vacant position does constitute a reasonable
accommodation in some circumstances. 42 U.S.C. § 12111(9)(B). However, reassignment is
typically considered if the employee cannot be accommodated in her current position. See Burns
v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000) (“[A]n employer has a duty under the
ADA to consider transferring a disabled employee who can no longer perform his old job even with
accommodation to a new position within the Company for which that employee is otherwise
qualified.”); Bratten v. SSI Servs., Inc., 185 F.3d 625, 633-34 (6th Cir. 1999) (“[T]he ADA requires
an employer to consider re-assignment to a vacant position if the disabled employee cannot be
reasonably accommodated in his or her current job.”). Even if Lively’s discussion with Dunn could
be characterized as an offer of a “counter accommodation,” CPC must still demonstrate Dunn’s
proposed accommodation would cause an undue hardship. Jakubowski v. Christ Hosp., Inc., 627
F.3d 195, 202-03 (6th Cir. 2010) (discussing the “informal, interactive process” envisioned by 29
C.F.R. § 1630.2(o)(3)). The Court has rejected CPC’s argument that Dunn’s leave request was
unreasonable as a matter of law. The burden then shifted to CPC to demonstrate the requested
accommodation posed an undue hardship. CPC did not attempt to satisfy this showing. Because

25

Dunn has met her burden on summary judgment to demonstrate she was qualified to perform the
duties of her position with a reasonable accommodation, the allegedly offered reassignment is beside
the point.
Accordingly, the Court will DENY CPC’s motion on this ground as well.
IV.

CONCLUSION
For the foregoing reasons, the Court will DENY CPC’s motion (Court File No. 31).
An Order shall enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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