Mullenix v. Eastman Chemical Company
MEMORANDUM OPINION: Defendant's motion to strike [Doc. 25 ] will be DENIED and the motion for summary judgment [Doc. 13 ] will be GRANTED in part and DENIED in part. An appropriate order will enter. Signed by District Judge Thomas W Phillips on 2/15/17. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EASTMAN CHEMICAL COMPANY, )
Plaintiff Judy Mullenix worked for defendant Eastman Chemical Company at its
Kingsport, Tennessee facility for over 24 years. In October 2012, she suffered a broken
right arm in a workplace accident. One year and two surgeries later, plaintiff continued to
have some physical restrictions and she was terminated. Plaintiff claims her termination
was discriminatory in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq.
Eastman has filed a motion for summary judgment [Doc. 13], with supporting briefs,
affidavits and exhibits [Docs. 14, 15, 16, 17, 26], and the plaintiff has responded in
opposition [Docs. 21, 22, 23]. Eastman has also moved to strike plaintiff’s affidavit [Docs.
25, 26] and plaintiff has responded [Doc. 27]. After careful consideration of the pending
motions and all related pleadings, the defendant’s motion to strike will be DENIED and
the motion for summary judgment will be GRANTED in part and DENIED in part.
Ms. Mullenix began working for Eastman on March 6, 1989 [Doc. 14-1 at p. 4]. In
2000, she began working as a First Operator in the Film Esters Department [Id. at p. 5].
During the time period pertinent to this case, plaintiff reported to Randy Britton, Principal
Team Manager, who reported to Brian McCloud, the Area Manager of Film Esters [Id. at
The Film Esters Department chemically creates plastic pellets that Eastman’s
customers can use to create a thin layer of plastic film for products such as LCD televisions
[Doc. 15 at ¶ 3]. This is a multi-phase process in which cellulose rolls are reacted with
chemicals to create “dope” that is then processed into plastic pellets and packaged for the
customer [Id.]. This process involves a significant amount of manual labor by the First
The Film Esters Department operates with four different crews that work 12-hour
rotating shifts [Id. at ¶ 4]. During the time relevant to this case, plaintiff worked on Crew
3, which included one or two Utility Operators and six First Operators, including plaintiff
The Utility Operator supports the Principal Team Manager and performs
responsibilities such as scheduling, time entry, safety procedures, and other tasks [Id. at ¶
5]. Eastman considers it critical that a Utility Operator be free to address the myriad issues
that might arise during a shift [Id.]. Thus, while a Utility Operator may occasionally fillin for or assist a First Operator, they could not consistently fulfill the essential duties of a
First Operator [Id.].
First Operators in Film Esters are required to be certified and trained on at least
three of the First Operator rotations to ensure coverage within the area in the event of
absences for vacation, sick leave, etc. [Id. at ¶ 6]. During 2012 – 2013, the rotations in
Film Esters included the following: Activation, Acetylation Control Room, Acetylation
Field Operator, Precipitation, Wash Room, and Dryer & Water Softener [Id.]. The First
Operator performing the Field Operator rotation during a shift was required to fill in for
the Activation Operator, as needed, for meal and rest breaks [Id. at ¶ 9]. 1 The Acetylation
Control Room rotation primarily involved working with computers as the First Operator
would control and monitor the process [Id. at ¶ 10].
On October 22, 2012, plaintiff tripped and fell at work and landed on her right
shoulder, breaking her arm [Doc. 14-1 at pp. 37—38]. The injury required surgery and
plaintiff was out of work on Workers’ Compensation leave from October 23, 2012 through
March 14, 2013 [Doc. 16 at ¶ 5]. Plaintiff returned to work on March 24, 2013, but was
out again on Workers’ Compensation leave for a second surgery from April 26, 2013,
through May 20, 2013 [Id.].
Per Eastman policy, when an employee returns to work with medical restrictions,
her supervisors are not privy to her medical records [Doc. 15 at ¶ 12]. The Eastman
Medical Department receives and reviews all medical documentation and restrictions from
an employee’s treating physicians and communicates with the employee’s line
Eastman claims that in 2013, the Activation rotation was filled by a First Operator, but it was
anticipated that this rotation would eventually be filled by entry-level workers [Doc. 15 at ¶ 8].
Plaintiff and her former colleague, Sheree Anderson, claim that by the Fall of 2013, only entrylevel employees were assigned to the Activation area [Doc. 22 at ¶ 13; Doc. 23 at ¶ 53].
management and Human Resources regarding any restrictions that are in place for purposes
of determining whether the restrictions can be accommodated and the employee can be
returned to work at that time [Id.; Doc. 16 at ¶ 3]. The Medical Department does not
provide any medical information to line management – it simply advises them of the
applicable restrictions [Id.].
According to Eastman’s Activity Restrictions and Accommodations Evaluation
policy, an employee’s temporary activity restrictions can be temporarily accommodated
with light duty assignments for up to four months, where such activity restrictions can be
accommodated and light duty assignments are available [Doc. 16 at ¶ 4, Ex. 1]. If an
employee’s temporary activity restrictions require light duty work in excess of this fourmonth period, one of two things may happen. First, there may be an assessment to
determine whether the activity restrictions can be reasonably accommodated in order for
the employee to perform his/her essential job functions. Unlike light duty assignments that
may be available during the four-month period covered by Eastman’s policy, this process
considers longer term reasonable accommodations. If the activity restrictions cannot be
accommodated, the employee may be placed on a leave of absence, utilizing available short
term disability (“STD”) benefits, vacation, or other leave benefits. If that option is not
available (for example, if the employee has already exhausted his/her available leave), the
employee may apply for long term disability benefits (“LTD”) and their employment will
be administratively terminated once all STD benefits, vacation, or other leave options have
been exhausted [Id.].
The policy of accommodating temporary activity restrictions for four months
typically applies on a continuous, calendar basis [Doc. 16 at ¶ 7]. In other words, an
employee may be provided with light duty work to accommodate temporary activity
restrictions for a continuous four-month period [Id.]. According to this policy, since
plaintiff first returned to work on March 24, 2013, in a light duty capacity due to her
temporary restrictions, her four-month period of light duty work should have expired on
July 24, 2013 [Id.]. However, upon consideration of the fact that plaintiff was unable to
actually work during part of that period, Eastman recalculated the four-month period after
plaintiff returned from her second surgery in May 2013 with temporary activity restrictions
and did not count the time that plaintiff was off work for vacation or other leave. Thus,
plaintiff’s four-month period of light duty work was set to expire on October 11, 2013 [Id.].
When plaintiff returned to work on March 24, 2013, Eastman Medical provided Mr.
McCloud the following information regarding her temporary activity restrictions: no
lifting above 2 pounds with right arm (including above and below shoulder level), no ladder
climbing, reaching above shoulder level only occasionally, and no forceful grasping with
her right hand [Doc. 15 at ¶ 13]. Because these were temporary restrictions, Eastman
determined that it could temporarily accommodate those restrictions by limiting plaintiff’s
assigned work solely to the Acetylation Control Room rotation and having the other crew
members perform all other crew assignments [Doc. 15 at ¶ 13].
On April 24, 2013, plaintiff had a second surgery on her arm [Doc. 14-1 at p. 14].
She was released to return to work effective May 24, 2013, with the following temporary
restrictions: no lifting above 2 pounds, no ladder climbing, reaching above shoulder level
only occasionally with her right arm, and no forceful grasping with her right hand [Doc.
15 at ¶ 14]. As previously, Eastman determined that it could temporarily accommodate
these restrictions by limiting plaintiff’s assigned work solely to the Acetylation Control
Room rotation and having other crew members perform all other crew assignments [Id.].
Plaintiff states she could perform all the duties of the Control Room position by using both
arms for activities below shoulder-level and her left arm for any work above shoulder level
[Doc. 23 at ¶ 9].
On June 17, 2013, plaintiff’s temporary restrictions were modified as follows: no
lifting above 5 pounds, no ladder climbing, reaching above shoulder level only
occasionally with her right arm, and no forceful grasping with her right hand [Doc. 15 at ¶
15]. Eastman continued to accommodate these restrictions by limiting plaintiff’s assigned
work solely to the Acetylation Control Room rotation and having other crew members
perform all other crew assignments [Id.].
Plaintiff learned in July 2013 that she had a four-month limit on working with
restrictions and that her “time was almost up” [Doc. 14-1 at p. 13]. She was off work on
unrelated medical leave from August 8, 2013 through September 17, 2013 [Id. at p. 14]. 2
On September 16, 2013, plaintiff’s temporary restrictions were modified again to
the following: no lifting above 10 pounds, no ladder climbing, and reaching above
shoulder level only occasionally with her right arm [Doc. 15 at ¶ 16]. Eastman continued
At another point in her deposition, plaintiff testified that she was off work until September 19,
2013 [Doc. 14-1 at p. 26]. This distinction is not material for purposes of the summary judgment
to accommodate plaintiff’s restrictions in the same manner [Id.]. At some point in
September, plaintiff went to her doctor to try and get her restrictions lifted, but he refused
to do so [Id. at pp. 26—27]. She also claims Mr. McCloud told her to check Eastman’s
“E-Jobs” website for other positions, but there was nothing listed for which she was
qualified [Id. at pp. 26, 28].
Plaintiff met with Linda Burchfield, Eastman’s Human Resources Manager for the
Acetate Fibers & Cellulose Esters and Specialty Plastics Divisions, on September 23, 2013,
to discuss Eastman’s policy for accommodating temporary activity restrictions and to
discuss plaintiff’s options [Doc. 16 at ¶ 8]. Plaintiff claims Ms. Burchfield told her that
the only way to save her job was “to have all restrictions lifted and come back 100 percent”
[Doc. 14-1 at p. 25]. Plaintiff told Ms. Burchfield she was discriminating against her and
violating the ADA [Id. at p. 30]. During this meeting, they scheduled an appointment with
Dr. Heiba in Eastman’s Medical Department to review plaintiff’s activity restrictions and
essential job duties and to perform a Functional Capacity Evaluation (“FCE”) [Id.]. The
FCE was conducted on October 1, 2013, and Eastman received the results on October 7,
2013 [Doc. 17 at ¶ 3].
As a result of the FCE report, on October 8, 2013, Eastman Medical advised Mr.
McCloud and Ms. Burchfield that plaintiff no longer had temporary restrictions, but she
“may require overhead reaching assistance” [Doc. 15 at ¶ 17; Doc. 16 at ¶ 9; Doc. 17 at ¶
4]. In fact, only the ladder climbing restriction had been removed [Doc. 14-1 at p. 16].
Based on the incorrect report that plaintiff had no restrictions, Mr. McCloud believed that
plaintiff was able to return to her normal rotations and he prepared to begin her training
and certification on her required job rotations [Doc. 15 at ¶ 17]. 3 Mr. McCloud anticipated
that plaintiff would work in the following rotations: Activation, Acetylation, Acetylation
Field Operator, and Precipitation, among other duties [Id.].
On October 13, 2013, Mr. McCloud, Mr. Britton, and Ms. Burchfield met with
plaintiff to discuss her return to work [Doc. 15 at ¶ 19]. During this meeting, plaintiff
stated she did not believe she could perform several of her job duties [Id.]. Plaintiff stated
that her temporary activity restrictions were still in place and that there were job functions
she could not perform without assistance [Doc. 16 at ¶ 10]. This was contradictory to the
FCE report that Ms. Burchfield and Mr. McCloud received from Eastman Medical. Later
that day, Mr. Britton met with plaintiff to discuss which of her job duties she could not
perform and how Eastman could accommodate her [Doc. 15 at ¶ 20]. Mr. Britton reported
to Mr. McCloud and Ms. Burchfield that there were several job duties that plaintiff told
him she simply could not perform or that she could perform only with the assistance of
On October 15, 2013, Eastman Medical provided modified temporary restrictions
to Mr. McCloud for plaintiff which stated, “employee needs help with functions that
require use of both hands” and that this restriction would be in place for 2 weeks [Doc. 15
at ¶ 21]. Mr. Britton and Mr. McCloud reviewed this restriction and concluded that they
could not accommodate it because, based on their personal knowledge and observations,
Plaintiff was required to become certified, i.e., fully trained, on her required job rotations because
the process had been modified during the period since she had been injured, and she had not had
the opportunity to become certified on the other job rotations while she was off work and during
her temporary assignment to the Control Room [Doc. 15 at ¶ 18].
the First Operator essential job duties require use of both hands to complete tasks at least
20% of the time [Id.]. Additionally, they concluded that Eastman could not accommodate
plaintiff’s temporary restrictions because she admitted to Mr. Britton that there were
several essential job duties that she simply could not perform without the assistance of
During this time frame, Ms. Burchfield contacted Doug Giles and Charles Chapman
in Eastman’s Industrial Hygiene department to determine if there was a way to
accommodate plaintiff’s inability to perform certain of the tasks associated with her
position [Doc. 16 at ¶ 13]. Ms. Burchfield inquired if there was a device or other
accommodation they could identify to assist plaintiff [Id.]. After reviewing the task
descriptions and physically reviewing the area in which plaintiff worked, both Mr. Giles
and Mr. Chapman were unable to identify a device that could assist plaintiff with all of the
essential job functions she could not perform [Id.].
Plaintiff had exhausted her four-month period under Eastman’s policy for
accommodating temporary activity restrictions [Doc. 16 at ¶ 15]. Additionally, Mr.
McCloud and Mr. Britton had concluded that Eastman could not accommodate her
temporary activity restrictions on an ongoing basis because there were several essential job
duties that she admitted she could not perform [Id.]. They also determined that plaintiff’s
activity restrictions prevented her from performing 20% of her daily tasks and Eastman
could not reasonably accommodate those restrictions on an on-going basis [Id.]. On
October 16, 2013, plaintiff met with Mr. McCloud, Mr. Britton, and Doug Bounds,
Eastman’s Human Resources Team Manager, to review her status. At this point, plaintiff
had exhausted all available leave and her employment was terminated [Doc. 15 at ¶ 22].
Motion to Strike
Eastman has moved to strike [Doc. 25] plaintiff’s 30-page affidavit [Doc. 23] filed
in response to the motion for summary judgment. Specifically, Eastman argues that the
affidavit is improper because it contradicts plaintiff’s deposition testimony and/or contains
embellishments to her testimony; it contains hearsay and “rank speculation”; and it
contains legal arguments in an effort to evade the page limits on briefs set forth in E.D.
Tenn. L.R. 7.1(b) [Doc. 26 at pp. 2—7].
Plaintiff has filed a 25-page response [Doc. 27] to the motion to strike correctly
noting that an affidavit is not a “pleading” within the meaning of Fed. R. Civ. P. 7(a) and
therefore it is not subject to a motion to strike under Fed. R. Civ. P. 12(f). 4 See Fox v.
Michigan State Police Dep’t, 173 F. App’x 372, 375 (6th Cir. 2006); Vehicle Protection
Plus, L.L.C. v. Premier Dealer Servs., Inc., 650 F. Supp. 2d 800, 807 n.4 (E.D. Tenn. 2009)
(Jordan, J.). Accordingly, because plaintiff’s affidavit is not a pleading subject to Rule
12(f), Eastman’s motion to strike will be DENIED.
However, Eastman is correct that the Court must consider only admissible evidence
presented in conjunction with a motion for summary judgment. Fed. R. Civ. P. 56(c)(2)
The Court observes that most of plaintiff’s response to the motion to strike is further argument on
the issues presented by the motion for summary judgment and is inappropriate on that basis.
Plaintiff is arguably using her response to the motion to strike to get around the restrictions on
supplemental briefs provided in E.D. Tenn. L.R. 7.1(d).
(“A party may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible evidence.”); see Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence may not be
considered on summary judgment”). Eastman is also correct that a party may not create a
question of fact by filing an affidavit in direct contradiction to the party’s earlier sworn
testimony. Aerel v. S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 907—08 (6th Cir. 2006);
Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). If, however, the affidavit
is not directly contradictory, the Court should not strike or disregard the affidavit unless it
is “an attempt to create a sham fact issue.” Aerel, 448 F.3d at 908. Thus, to the extent
plaintiff’s affidavit is directly contradictory to her deposition testimony or is otherwise
inadmissible, the Court will not consider the affidavit. See United States v. Hodges X-Ray,
Inc., 759 F.2d 557, 561 (6th Cir. 1985) (“The rule is settled that on a motion for summary
judgment a court will disregard only the inadmissible portions of a challenged affidavit
offered in support or opposition to the motion and will consider the admissible portions in
determining whether to grant or deny the motion.”) (quoting Lee v. Nat’l Life Assurance
Co., 632 F.2d 524, 529 (5th Cir. 1980).
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“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 bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.
1993). All facts and all inferences to be drawn therefrom must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once
the moving party presents evidence sufficient to support a motion under Rule 56, the
nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991)
(citing Celotex, 477 U.S. 317). To establish a genuine issue as to the existence of a
particular element, the non-moving party must point to evidence in the record upon which
a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve
facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or
determine the truth of the matter. Id. at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold
inquiry of determining whether there is a need for a 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.” Anderson, 477 U.S. at 250.
The ADA prohibits covered employers from discriminating against qualified
individuals with a disability. 42 U.S.C. § 12112. A plaintiff may prove that she was
discriminated against based on her disability either through direct or indirect evidence.
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453—54 (6th Cir. 2004). Ms. Mullenix
has presented no direct evidence of disability discrimination so her claims must be
reviewed under the McDonnell Douglas burden-shifting framework. Id. at 452—53. To
state a prima facie case of discrimination under the ADA, the plaintiff must establish that:
(1) she is disabled; (2) she was otherwise qualified for the position, with or without
reasonable accommodation; (3) she suffered an adverse employment decision; (4) the
employer knew or had reason to know of her disability; and (5) the disabled individual was
replaced. Ferrari v. Ford Motor Co., 826 F.3d 885, 894 (6th Cir. 2016); Whitfield v.
Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). Furthermore, the plaintiff’s disability must
be a “but for” cause of the adverse employment action. Tennial v. United Parcel Serv.,
No. 15-6356, 2016 WL 6156315, *7 (6th Cir. Oct. 24, 2016); Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012) (en banc).
The plaintiff may establish the first prong of the prima facie case if the plaintiff (1)
has a physical or mental impairment that substantially limits one or more of the plaintiff's
major life activities (i.e., “actually disabled”); (2) the plaintiff has a record of such
impairment; or (3) the plaintiff is regarded by an employer as having such an impairment
(“regarded as disabled”). 5 Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008)
(citing Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999)) (quotations
omitted); see also 42 U.S.C. §§ 12102(1)(A)-(C). Major life activities include “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). While this is not meant to be a
“demanding standard,” 29 C.F.R. § 1630.2(j)(1)(i), the plaintiff must present more than
“bare assertions” of an impairment. See Neely v. Benchmark Fam. Servs., 640 F. App’x
429, 433 (6th Cir. 2016).
Whether Plaintiff was Actually Disabled
Eastman first argues that plaintiff cannot establish the first prong of a prima facie
case because she was not disabled within the meaning of the ADA because her restrictions
were temporary and her injured arm did not substantially limit one or more of her major
life activities [Doc. 14 at pp. 13—16]. Eastman relies on the medical records indicating
that plaintiff’s restrictions were “temporary” [Doc. 14-1 at pp. 68, 69, 71, 73] and case law
holding that restrictions which were not permanent or long-term are not regarded as
“substantially limiting” under the ADA. See, e.g., Cardenas-Meade v. Pfizer, Inc., 510 F.
App’x 367, 371 (6th Cir. 2013); Spence v. Donahoe, 515 F. App’x 561, 569—570 (6th Cir.
2013). Plaintiff relies on the fact that she continued to have restrictions for 12 months
following her injury and thus her impairment was not “temporary” or “minor” [Doc. 21 at
Eastman does not dispute that plaintiff had an impairment [Doc. 26 at p. 10].
pp. 3—5]. Although some of the medical reports do state that plaintiff’s restrictions were
“temporary” and her condition did improve over time, it is undisputed that plaintiff still
had restrictions at the time of her termination, twelve months after her injury. More
importantly, the EEOC regulations following the ADA Amendments Act of 2008 instruct
that “[t]he effects of an impairment lasting or expected to last fewer than six months can
be substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ix). Thus, the pertinent inquiry is not
whether plaintiff’s restrictions were labelled “temporary” or “permanent” or the precise
length of time she was under restrictions, but whether she was substantially limited in a
major life activity.
Eastman argues that plaintiff has not identified any major life activities in which she
is limited because the only things she cannot do is mow her lawn and yard work, which are
not major life activities [Doc. 14 at pp. 15—16]. Plaintiff responds that she is limited in
the major life activities of “performing manual tasks,” “lifting,” and “reaching” [Doc. 21
at pp. 3—4 (citing 29 C.F.R. § 1630.2(i)(1)(i))]. Eastman replies that plaintiff has
presented no evidence or testimony to support this assertion [Doc. 26 at p. 9]. In other
words, plaintiff’s conclusory assertion that she is substantially limited in the major life
activities of performing manual tasks, lifting, and reaching is not enough to survive
Eastman is correct that plaintiff testified that she could not mow the lawn or do yard
work, but that she was able to cook, clean, wash clothes, and care for herself and her mother
[Doc. 26-1 at p. 4]. She also testified that she could not perform certain job duties without
assistance due to her lifting and reaching limitations [Doc. 14-1 at pp. 18—24]. At the
time of her termination, plaintiff was restricted to lifting no more than 10 pounds with her
right arm and occasional above-shoulder reaching per Eastman’s Medical evaluation [Doc.
14-1 at p. 76]. Thus, in addition to her own testimony, plaintiff has presented medical
evidence regarding her limitations. Cf. Neely, 640 F. App’x at 435 (“self-described
symptoms … without corroborating medical evidence or any diagnosis are insufficient to
establish a substantial limitation on a major life activity”); White v. City of Gatlinburg, No.
3:14-CV-00505, 2016 WL 3093899, at *3-4 (E.D. Tenn. Jun. 1, 2016) (Reeves, J.). The
Court concludes that plaintiff has presented sufficient evidence to satisfy the first prong of
the prima facie case, that she was actually disabled within the meaning of the ADA.
Whether Plaintiff was Regarded as Disabled
An employee is “regarded as” disabled under the ADA if his or her employer (1)
mistakenly believes that the employee has a physical impairment that substantially limits
one or more major life activities, or (2) mistakenly believes that an actual, non-limiting
impairment substantially limits one or more major life activities. Ferrari, 826 F.3d at 893;
see 42 U.S.C. § 12102(3)(A) (“[a]n individual meets the requirement of ‘being regarded as
having such an impairment’ if the individual … has been subjected to an action prohibited
under this chapter because of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life activity”); 29 C.F.R. §
1630.2(g)(1)(iii) (“[b]eing regarded as having such an impairment … means that the
individual has been subjected to an action prohibited by the ADA as amended because of
an actual or perceived impairment that is not both ‘transitory and minor’”). “Thus, an
individual may fall into the definition of one regarded as having a disability if an employer
ascribes to that individual an inability to perform the functions of a job because of a medical
condition when, in fact, the individual is perfectly able to meet the job's duties.” Ross v.
Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001).
Eastman first notes that the “regarded as” definition of disabled does not apply to
impairments that are “transitory and minor.” 42 U.S.C. § 12102(3)(B). Thus, because
plaintiff’s restrictions were labeled as “temporary,” Eastman contends they are transitory
as a matter of law [Doc. 14 at pp. 16—18]. This argument falls short, however, inasmuch
as the ADA explicitly states that “[a] transitory impairment is an impairment with an actual
or expected duration of 6 months or less.” Id. It is undisputed that plaintiff’s restrictions,
while improving over time, lasted more than six months and are therefore not “transitory”
within the meaning of the ADA.
Eastman next argues that plaintiff was not “regarded as” disabled because she was
not “perfectly able to perform” her job [Doc. 14 at p. 17 (quoting Ferrari, 826 F.3d at
892)]. Eastman notes that twelve months after her injury plaintiff admittedly still could
not perform all the essential duties of her position without assistance [Id. at p. 18]. Thus,
her termination was not the result of “myths, fears, and stereotypes regarding disabilities”
[Id. (quoting Neely, 640 F. App’x at 436). Plaintiff does not dispute that she had limitations
which affected her ability to perform her job, but contends that Ms. Burchfield’s statement
that plaintiff had to be “at 100%” in order to return to work and her email of talking points
for the termination meeting is evidence that plaintiff was regarded as disabled [Doc. 21 at
p. 16]. Eastman responds that Ms. Burchfield’s email of talking points does not contain
evidence that plaintiff was regarded as disabled, but merely provides bullet points for
plaintiff’s managers to discuss her termination [Doc. 26 at p. 10]. Eastman also argues
that, assuming Ms. Burchfield did make the “at 100%” comment, her actions nevertheless
demonstrated her efforts to find a reasonable accommodation to plaintiff’s activity
restrictions [Id. at p. 11].
As noted above, a “regarded as” claim requires evidence that the employer has a
mistaken perception of the employee’s abilities. Taking the plaintiff’s evidence as true for
purposes of summary judgment, plaintiff has not shown that Eastman had a mistaken belief
about her abilities. See, e.g., Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002). The
evidence demonstrates that Eastman had altered plaintiff’s work requirements to take into
account the activity limitations provided by her doctor and that plaintiff admittedly could
not perform all of her job duties without assistance. This does not indicate that Eastman
was wrongly viewing plaintiff through a stereotype of disability, but rather was following
the specific recommendations of her doctor. Id.; Gruener v. Ohio Cas. Ins. Co., 510 F.3d
661, 664—65 (6th Cir. 2008); see Linser v. State of Ohio, Dep’t of Mental Health, No. 993887, 2000 WL 1529809, at *4 (6th Cir. Oct. 6, 2000) (fact that defendants granted
plaintiff’s request for accommodation does not by itself establish that she was regarded as
disabled); Plant v. Morton Int’l, Inc., 212 F.3d 929, 938 (6th Cir. 2000) (same).
“[A]wareness of an impairment is not enough to prove that the impairment was regarded
as substantially limiting major life activities.” Wolfe v. U.S. Steel Corp., 567 F. App’x 367,
374 (6th Cir. 2014) (citing Brady v. Potter, 273 F. App’x 498, 503 (6th Cir. 2008)). Most
importantly, plaintiff admittedly cannot show that she was “perfectly able to perform” her
job. Accordingly, she cannot establish that she was regarded as disabled.
Whether Plaintiff was Qualified to Perform the Essential Functions of Her
Job With or Without Reasonable Accommodation
Eastman next argues that plaintiff cannot establish the second prong of a prima facie
case because she was not qualified to perform the essential functions of her position with
or without a reasonable accommodation [Doc. 14 at pp. 18—21]. Specifically, Eastman
notes that the First Operator position requires several daily physical tasks which plaintiff
admittedly could not perform without assistance. Eastman also recites the well-settled law
that the ADA does not require an employer to accommodate an employee by shifting an
essential job function onto others. See, e.g., Meade v. AT&T Corp., 657 F. App’x 391, 397
(6th Cir. 2016); Wardia v. Justice & Public Safety Cabinet Dep’t of Juvenile Justice, 509
F. App’x 527, 531 (6th Cir. 2013).
In response, plaintiff disputes that some of the job duties were essential job
functions of the First Operator position and further contends that Eastman could have
accommodated her restrictions. Specifically, plaintiff disputes that manipulating the 750pound cellulose rolls in the Activation area was an essential function of the First Operator
position because that rotation was assigned only to entry-level employees beginning in
mid-2013 [Doc. 21 at pp. 5, 10]. In reply, Eastman contends that plaintiff has testified
unequivocally that there were several functions of the First Operator position which she
could not perform [Doc. 26 at pp. 12—14].
It is worth restating that, at the time of her termination, plaintiff’s three rotations in
the First Operator position were expected to be Acetylation Control Room, Acetylation
Field Operator, and Precipitation Operator [Doc. 14-1 at p. 10; Doc. 15 at ¶ 7]. The Control
Room position primarily involved working with computers to control and monitor the
process [Doc. 15 at ¶ 10], and there is no contention that plaintiff could not perform the
essential functions of this position with or without reasonable accommodation. The
Precipitation Operator “[m]ust be able to lift 30 lb. scrap dope buckets and carry down
steps” [Doc. 14-1 at p. 55], which plaintiff claims she could do with her left hand [Id. at p.
22]. The Acetylation Field Operator position, per Eastman’s job description, “opens,
removes, and cleans filters and screen pots” [Doc. 14-1 at pp. 50, 54]. Plaintiff admits that
she could not lift the strainer baskets or filter cages without assistance from a Utility
Operator [Id. at pp. 19—21]. She also testified that she could open and close the strainer
and filter housings as long as they were torqued appropriately [Id. at p. 24]. Plaintiff also
agrees that the Field Operator filled in for the Activation Operator if needed [Doc. 14-1 at
p. 9], and the Activation Operator position required manually manipulating cellulose rolls
that weighed up to 750 pounds, something she could not do without assistance [Doc. 14-1
at pp. 17—19, 50]. 6 Thus, the duties at issue are lifting the strainer baskets or filter cages
and pushing the cellulose rolls and there is no dispute that plaintiff could not perform these
duties without accommodation.
Plaintiff disputes that First Operators were required to push the cellulose rolls
because this task is now performed by entry-level employees [Doc. 21 at pp. 10—11], thus
arguing that this was not an essential job function. Plaintiff relies on her own affidavit, of
Plaintiff also admitted that she could not refill the treated water lime feeder, which required lifting
50-pound bags of lime [Doc. 14-1 at pp. 22—23]. However, this appears to be a task for the Wash
Room rotation which plaintiff had performed prior to her injury, but she was not expected to
perform this rotation at the time of her termination [Id. at pp. 7, 10].
which Eastman has complained vigorously as set forth above, and the affidavit of her
former co-worker Sheree Anderson [Doc. 22], of which Eastman has remained silent.
Notably, Ms. Anderson states that in 2013 entry-level employees were assigned the heavy
manual labor Activation area duties, including moving the 700+ pound rolls of cellulose
and First Operators no longer rotated into the Activation area to do this manual labor [Id.
at ¶¶ 11—12]. Eastman argues that plaintiff has admitted that pushing the cellulose rolls
was a typical job duty of the Field Operator rotation and that she performed this task within
a few months of her October 2012 injury [Doc. 26 at pp. 13—14]. Even so, Ms. Anderson’s
unrefuted testimony creates a question of fact as to whether the task of moving cellulose
rolls remains an essential function of the job of First Operator. See Henschel v. Clare Cty.
Road Comm’n, 737 F.3d 1017, 1022 (6th Cir. 2013) (“[t]he determination of what
responsibilities are essential functions is ‘typically a question of fact and thus not suitable
for resolution through a motion for judgment as a matter of law’”) (quoting Brickers v.
Cleveland Bd. of Educ., 145 F.3d 846, 849 (6th Cir. 1998)).
Further, plaintiff claims that, during a month’s rotation, a First Operator was only
required to clean the filters once a month, a task that took approximately 20 minutes [Doc.
14-1 at p. 20]. Ms. Anderson’s affidavit confirms this description of this task [Doc. 22 at
¶ 28] and Eastman has not disputed it. Accepting this as true for purposes of summary
judgment, this also presents a question of fact as to whether this task is an essential function
of the First Operator position. See Henschel, 737 F.3d at 1022—23 (court must examine
the amount of time spent performing a function to determine if it is essential or marginal)
(citing 29 C.F.R. § 1630.2(n)(3)).
This issue comes into sharp relief when compared with Eastman’s argument that
plaintiff’s proposed accommodation – allowing the Utility Operators to assist her with
lifting the filters or moving the cellulose rolls – was not reasonable [Doc. 14 at pp. 19—
21; Doc. 26 at pp. 14—18]. Assuming that these two tasks were essential functions,
Eastman argues that employers are not required to accommodate individuals by shifting an
essential job function onto others. This is a correct statement of the law. See Meade, 657
F. App’x at 397; Hoskins v. Oakland Cty. Sheriff’s Dep’t, 227 F.3d 719, 729 (6th Cir.
2000) (“the ADA does not require employers to accommodate individuals by shifting an
essential job function onto others”). However, plaintiff’s own testimony does not suggest
that she asked for these tasks be assigned to someone else. She simply asked for someone
to help her do them – “If I had assistance from a UO to help me with that, no problem”
[Doc. 14-1 at pp. 19—20]. In light of the undisputed fact that Utility Operators were
available at times to do just that, plaintiff’s proposed accommodation does not seem
After considering all the evidence, the Court concludes that there are genuine issues
of material fact as to whether plaintiff could have performed the essential functions of the
First Operators position with reasonable accommodation.
judgment will be denied on this claim.
Failure to Accommodate
The ADA prohibition on discrimination “against a qualified individual on the basis
of disability” includes “not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity.” 42
U.S.C. § 12112(b)(5)(A).
In order to establish a prima facie case of a failure to
accommodate claim under the ADA, “a plaintiff must show that: (1) she is disabled within
the meaning of the Act; (2) she is otherwise qualified for the position, with or without
reasonable accommodation; (3) her employer knew or had reason to know about her
disability; (4) she requested an accommodation; and (5) the employer failed to provide the
necessary accommodation.” Judge v. Landscape Forms, Inc., 592 F. App’x 403, 407 (6th
Cir. 2014) (quoting Johnson v. Cleveland City Sch. Dist., 443 F. App’x 974, 982–83 (6th
Cir. 2011)). Notably, “[a]n ADA plaintiff ‘bears the initial burden of proposing an
accommodation and showing that that accommodation is objectively reasonable.’” Talley
v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1108 (6th Cir. 2008) (quoting Kleiber
v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007)). The employer then has the
burden of persuasion to show that the proposed accommodation would impose an undue
As noted above, there are material questions of fact in dispute as to whether plaintiff
is disabled within the meaning of the Act and whether she is qualified to perform the
essential functions of the position with or without reasonable accommodation. Further,
relying on the same rationale as set forth above, Eastman argues that plaintiff’s proposed
accommodation was not reasonable, i.e., it is not reasonable to shift essential job duties to
another employee [Doc. 14 at pp. 22—23; Doc. 26 at pp. 18—19]. However, as noted
above, plaintiff did not ask for her essential job functions to be assigned to someone else;
she asked for a Utility Operator to assist her with the tasks she could not perform alone.
Inasmuch as the task in dispute – cleaning the filters – only took approximately 20 minutes
once a month and inasmuch as the Utility Operators are available to assist First Operators,
her proposed accommodation does not seem objectively unreasonable. Moreover, Eastman
has not presented undisputed evidence that this accommodation would have presented an
undue hardship for the company. Accordingly, the Court finds that there are genuine issues
of material fact in dispute on plaintiff’s failure to accommodate claim and summary
judgment will be denied on that claim.
Plaintiff’s complaint generally alleges that Eastman retaliated against her after she
complained to Ms. Burchfield that Eastman was discriminating against her because of her
disability [Doc. 1 at ¶ 9]. 7 Eastman has argued that it is entitled to judgment as a matter of
law on plaintiff’s retaliation claim because there is no causal connection between plaintiff’s
protected activity and her termination and because Eastman had a legitimate nondiscriminatory reason for terminating plaintiff’s employment [Doc. 14 at pp. 23—25]. As
noted in Eastman’s reply brief [Doc. 26 at p. 2], plaintiff has not responded in any way in
support of her retaliation claim and her failure to respond will be deemed a waiver of any
Plaintiff’s complaint alleges this conversation occurred in July 2013 [Doc. 1 at ¶ 9]. In plaintiff’s
interrogatory responses [Doc. 14-2 at p. 4—5], plaintiff describes the meeting with Ms. Burchfield
where she complained of discrimination as occurring in “late July 2013.” However, in her
deposition, plaintiff testified that this meeting occurred in September 2013 after plaintiff had
returned to work [Doc. 14-1 at p. 30]. In her affidavit, plaintiff states that this meeting occurred
on September 23, 2013 [Doc. 23 at ¶¶ 17—18]. The Court finds that this discrepancy is not
material for purposes of the instant motion.
opposition to the relief sought on this claim. See E.D. Tenn. L.R. 7.2. “It is well settled
that the non-moving party must cite specific portions of the record in opposition to a motion
for summary judgment, and that the court is not required to search the record for some
piece of evidence which might stave off summary judgment.” U.S. Structures, Inc. v. J.P.
Structures, Inc., 130 F.3d 1185, 1191 (6th Cir. 1997). However, a court cannot grant
summary judgment simply because the nonmovant has not responded. Carver v. Bunch,
946 F.2d 451, 455 (6th Cir. 1991); Nelson v. City of Oliver Springs, Tenn., No. 3:04-CV372, 2005 WL 1594553, at *2 (E.D. Tenn. Jul. 7, 2005) (Jordan, J.). Rather, the motion
must be carefully examined to ensure that the moving party has discharged its burden of
showing an absence of disputed material facts. Id.
Under the ADA, “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by [the ADA] or because such
individual made a charge ... under [the ADA].” 42 U.S.C. § 12203(a) (as quoted in Penny
v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997)). A plaintiff need not actually
be disabled to assert a claim of disability retaliation. However, the plaintiff must have a
reasonable and good faith belief that the opposed act or practice is unlawful under the
ADA. Barrett v. Lucent Tech., 36 F. App’x 835, 840 (6th Cir. 2002). To establish a prima
facie case of retaliation under the ADA, a plaintiff must demonstrate: (1) she engaged in
protected activity; (2) her engagement in that protected activity was known to her
employer; (3) her employer, thereafter, took an adverse employment action against her;
and (4) a causal link exists between his engagement in the protected activity and the adverse
employment action. Clark v. City of Dublin, 178 F. App'x 522, 525 (6th Cir. 2006)
(citations omitted). The only prima facie element challenged here, the causal connection,
requires a plaintiff to produce sufficient evidence to infer that an employer would not have
taken the adverse employment action had the plaintiff not engaged in a protected activity.
Barrett, 36 F. App’x at 841. “A causal connection may be shown by direct evidence or by
knowledge of the complaints on the part of the employer coupled with a closeness in time
sufficient to create an inference of causation.” Id.
Plaintiff has presented no evidence to show that her termination was causally
connected to her complaint to Ms. Burchfield. Assuming for purposes of this motion that
the complaint occurred on or about September 23, 2013, plaintiff’s termination occurred
fairly close in time. However, plaintiff has not disputed the evidence that, following their
meeting, Ms. Burchfield scheduled an FCE with Dr. Heiba, that Ms. Burchfield requested
further guidance from Eastman Medical as to plaintiff’s ability to perform her essential job
duties, or that she contacted Mr. Giles and Mr. Chapman in the Industrial Hygiene
department to determine if they could identify a device or accommodation that would allow
her to perform all of her essential job functions. In short, there is substantial evidence that
Ms. Burchfield continued to try to find ways to keep plaintiff employed with Eastman and
there is no evidence that plaintiff’s complaint of discrimination made any impact on the
termination decision. “Subjective beliefs, without affirmative evidence, are insufficient to
establish a claim of retaliation.” Adair v. Charter Cty. of Wayne, 452 F.3d 482, 491 (6th
Accordingly, defendant is entitled to summary judgment on the ADA
For the reasons set forth herein, defendant’s motion to strike [Doc. 25] will be
DENIED and the motion for summary judgment [Doc. 13] will be GRANTED in part
and DENIED in part. An appropriate order will enter.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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