Larson v. The Rush Fitness Complex (TV1)

Filing 58

MEMORANDUM OPINION: The Court will DENY as moot plaintiff's Motion to Strike Supplemental Brief Filed by Defendant 54 and will GRANT defendant The Rush Fitness Complex's Motion for Summary Judgment 24 in all respects. The Court will DISMISS all remaining claims against The Rush and direct the Clerk of Court to CLOSE this case. Signed by Chief District Judge Thomas A Varlan on 11/13/14. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MICHAEL A. LARSON,
Plaintiff,
v.
THE RUSH FITNESS COMPLEX,
Defendant.

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No.: 3:13-CV-73-TAV-HBG

MEMORANDUM OPINION
This civil action is before the Court on defendant The Rush Fitness Complex’s
Motion for Summary Judgment [Doc. 24]. Plaintiff filed a response in opposition [Doc.
30], and defendant replied [Doc. 32]. The Court has carefully considered the matter and,
for the reasons stated herein, will grant defendant’s motion as to plaintiff’s remaining
claims.1
I.

Background
Michael Larson was employed by The Rush Fitness Complex (“The Rush” or

“defendant”) as a personal trainer [Doc. 25 p. 2; Doc. 30-1 p. 4]. He was an at-will
employee who underwent two surgeries on his right knee in 2011 [Doc. 25 p. 2–3]. After
plaintiff’s February surgery, plaintiff was able to return to The Rush and perform all his
duties as a personal trainer by May 2011 [Id. p. 2]. The following month, however, a

1

Defendant requested oral argument on its motion for summary judgment [Doc. 24 p. 2].
The Court considers requests for oral argument on a case-by-case basis, and upon review of the
record, the Court finds that oral argument is not needed.

meniscus transplant became necessary after plaintiff “tweaked” his right knee again while
playing indoor soccer [Id. p. 2–3]. Because plaintiff anticipated his recovery would take
longer than his recovery from the previous surgery, he asked his supervisor, Ashley
Kittrell, about the possibility of taking leave [Id. p. 3; Doc. 30-1 p. 3]. His supervisor
submitted his leave request and allegedly said, “It sucks that you’re going to be out for as
long as you are, keep me posted, let me know, your job will be here when you get back”
[Doc. 30-1 p. 3]. According to plaintiff, his supervisor’s instructions were to be in
communication with her and to return as a personal trainer when cleared by his doctor
[Id. p. 4].
On the day of his transplant operation, August 8, 2011, plaintiff went on Family
and Medical Leave Act (“FMLA”) leave, which “is limited to a total of 12 workweeks”
under Department of Labor regulations [Doc. 25 p. 3; Doc. 30-6; 29 C.F.R.
§ 825.200(a)]. Four days later, on August 12, 2011, plaintiff received a letter from Jenny
Johnson, The Rush Benefits Coordinator [Doc. 32-1 p. 16]. The letter stated, in pertinent
part:
I have received the FMLA paperwork for you. . . . [Y]our FMLA time is
not paid leave. It is primarily job and pay rate security. In the FMLA
paperwork, it states that your surgery was schedule[d] for August 8, 2011
and the duration of your leave will be 6 to 12 weeks. Please notify your
supervisor that they will need to submit a [Personnel Change Notice] to
Payroll placing you on FMLA leave. Please make sure your doctor lets me
know when you are cleared for work before you return. Upon your return
your supervisor will need to submit another [Personnel Change Notice] to
Payroll returning you to Active status. While on leave you will need to
make arrangements with me to send in your insurance premiums (since you
will not have a payroll check for us to deduct from).
2

[Id.]. In plaintiff’s view, this letter “ordered [him] that he could not return to work until
he had a return to work release authorization from his doctor” [Doc. 30-1 p. 4]. Plaintiff
understood he would have, at most, twelve weeks of FMLA leave [Doc. 24-1 p. 15–16].
Plaintiff’s knee began to recover, and on September 29, 2011, about seven weeks
after the surgery, his physician discontinued his brace and permitted him to walk and jog,
but encouraged him to not bear weight past ninety degrees [Id. p. 53]. In the fall, plaintiff
coached soccer and worked out a few times at The Rush facilities [Doc. 25 p. 4]. He
touched base once with his supervisor Ashley Kittrell and also ran into district fitness
manager Mandy Lawson [See Doc. 24-1 p. 16].
Plaintiff’s FMLA leave expired in late October2 [see Doc. 30 p. 4–5], and he
claims he did not return to work “based on the instructions that Jenny Johnson gave me
and instructions of my boss, Ashley Kittrell, to come back once I’m released from my
physician” [Id. p. 8]. On November 21, 2011, The Rush Benefits Coordinator, Jenny
Johnson, contacted plaintiff by email:
I have not yet received your insurance premiums for the month of October.
Your FMLA leave technically ended on October 26, 2011. Please respond
to this email if your intentions are returning to work. If I do not hear from
you in the next two days, I will cancel your insurance effective 10/31/2011.
Thanks.

2

The Personnel Change Notice that terminated plaintiff marks October 27, 2011, as the
effective date of his termination [Doc. 32-2 p. 6]. Twelve weeks from the day his FMLA leave
began, however, is October 31, 2011 [See Doc. 30-3 p. 4–5]. It appears The Rush may have
calculated twelve weeks from plaintiff’s last day of work, August 3, 2011. Regardless, in light
of the evidence and arguments before the Court, the precise October date is not legally
significant.
3

[Doc. 24-1 p. 34]. Plaintiff responded by email that same day, stating, “I went to the
doctor [at] the end of October and was not released for work yet. My next appointment
isn’t until December 29th. At this point I expect to be released to return to work” [Id. p.
34–35]. His email went on to discuss how therapy “has gone very slow” and to discuss
“the job function as a personal trainer and things [he] would not be able to do that [he
had] not been cleared to” [Id. p. 36].

This email exchange, and the fact that his

membership card scanned properly in the month of November, allegedly contributed to
plaintiff’s belief “that everything was okay” and that his job would be secure if he
continued to see his doctor and wait on his doctor to give him a return to work release
[See Doc. 30-1 p. 4, 6–9].
Just two days after the conversation with the Benefits Coordinator, on November
23, 2011, Sarah Miller, a Human Resources representative, completed the Personnel
Change Notice (“PCN”) that led to plaintiff’s termination [See Doc. 32-2 p. 6; Doc. 30-3
p. 4]. At the time, managers at The Rush would submit PCNs on an employee’s behalf to
make a change to their personnel record [Doc. 30-3 p. 2]. Although plaintiff’s PCN was
completed on November 23, 2011, it was backdated to reflect a termination date of
October 27, 2011 [See id. p. 5–6; Doc. 32-2 p. 6].
The section of the PCN form titled “Termination Reasons” instructed Ms. Miller
to “check one box” and “provide a brief description of termination circumstances” [Doc.
24-1 p. 69]. There were two sections of boxes to check from: a “Voluntary” section
which included, for example, “Medical Reasons,” “Company Policies,” and “Other,” as
4

well as an “Involuntary” section which included, for example, “Attendance,” “Policy
Violation,” and “Other” [Id.].3

Ms. Miller checked “Medical Reasons” under

“Voluntary” and wrote, “Michael’s FMLA expired and he is not able to return to work at
this time. He has been marked eligible for rehire & can re-apply in the future” [Id.].
According to The Rush’s employee handbook, “The Rush will consider an
employee

to

have

voluntarily

terminated

his

or

her

employment

if

an

employee . . . ‘[f]ails to return from an approved leave of absence on the date specified’”
[Doc. 25 p. 6]. It appears undisputed, however, that The Rush never explicitly stated to
plaintiff that he would no longer have a job if he failed to return to work by a specified
date [See id. 2–8; Doc. 30 p. 3]. In plaintiff’s words, “[a]t no point did they ever say you
need to be here at X, Y, Z” [Doc. 30-1 p. 7]. It is also undisputed that The Rush did not
notify plaintiff that he had been terminated. Plaintiff first learned of his termination
when he went to The Rush to exercise in December 2011 and his membership card would
not scan [See id. p. 9]. At no point did plaintiff approach The Rush about allowing him
to work as a personal trainer with accommodations for his physical limitation or request
to be placed in any other position at The Rush [See Doc. 24-1 p. 2–3].
Approximately five months after the August surgery, on January 13, 2012,
plaintiff’s physician cleared plaintiff to return to work as a personal trainer and gave him
no permanent restrictions [See id. p. 54; Doc. 25 p. 6]. The physician noted that plaintiff

3

At the time, the Personnel Change Notice form did not have a box under “Termination
Reasons” for FMLA expiration or for failure to return after approved leave [See Doc. 24-1 p. 69;
Doc. 30-3 p. 5].
5

was “doing so well” but still wanted him to “limit weight bearing past 90 degrees for
heavier exercise type things” and to wait one more month before running, skipping, or
jumping [Doc. 24-1 p. 54]. As of February 9, 2012, almost exactly six months after the
August surgery, plaintiff believed he no longer had a disability [See Doc. 30-1 p. 2 (“I do
not have a disability now, but I did have one.”)].
Plaintiff then brought this action, seeking, among other things, at least $275,000 in
back pay, front pay, and the value of The Rush stock options [Id. p. 10–11; Doc. 1 p. 8].
The Court dismissed Counts II (mental and emotional distress), III (breach of contract),
and IV (FMLA violation) of the complaint, as well as any claim under the Rehabilitation
Act of 1973 [Docs. 15, 19]. Defendant now moves for summary judgment on plaintiff’s
remaining claims of disability discrimination and misrepresentation [Doc. 24 p. 1–2].
II.

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, 330 n.2 (1986); Moore v. Phillip Morris
Cos., Inc., 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, 301 F.3d 937, 942 (6th Cir. 2002).
6

“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. at 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.

7

III.

Analysis
Having reviewed the record as well as the relevant legal authorities, the Court

concludes that none of plaintiff’s claims survive summary judgment.
A.

Disability Discrimination

The Americans with Disabilities Act (“ADA”) provides that an employer “‘shall
[not] discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.’”
Whitfield v. Tennessee, 639 F.3d 253, 258 (6th Cir. 2011) (quoting 42 U.S.C.
§ 12112(a)). To make out a prima facie case of employment discrimination under the
ADA, a plaintiff must generally show: (1) he is disabled; (2) he was otherwise qualified
for the position, with or without reasonable accommodation; (3) he suffered an adverse
employment decision; and (4) he suffered such action under circumstances that give rise
to an inference of unlawful discrimination. See Macy v. Hopkins Cnty. Sch. Bd. of Educ.,
484 F.3d 357, 364–65 (6th Cir. 2007) (citations omitted). “The 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.” Id. at 365
(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

8

Under the McDonnell Douglas burden-shifting framework, after a plaintiff makes
out a prima facie case, the burden shifts to the employer “to articulate some legitimate,
nondiscriminatory reason” for the employment action. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973). If the defendant does so, then the burden returns to
the plaintiff to prove that the stated reason is pretextual. Id. “At the summary judgment
stage, the district court must determine whether there is ‘sufficient evidence to create a
genuine dispute at each stage of the McDonnell Douglas inquiry.’” Rachells v. Cingular
Wireless Emp. Servs., LLC, 732 F.3d 652, 661 (6th Cir. 2013) (quoting Cline v. Catholic
Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).
As discussed herein, the Court concludes plaintiff has failed to establish a prima
facie case of disability discrimination and has failed to create a genuine dispute that
defendant’s non-discriminatory reason for terminating him is pretextual.
1.

Plaintiff’s Prima Facie Case

Plaintiff’s amended complaint alleges that The Rush “terminated Plaintiff because
of his disability” [Doc. 16 ¶ 30]. Having reviewed the facts of this case and the relevant
law, the Court finds that plaintiff has not presented sufficient evidence that The Rush
discriminated against plaintiff because The Rush regarded him as disabled.
Under the ADA, a person is disabled if he has “a physical or mental impairment
that substantially limits one or more major life activities” or is “being regarded as having
such an impairment.” 42 U.S.C. § 12102(1). Plaintiff’s response to defendant’s motion

9

focuses on the “regarded-as-disabled prong” [Doc. 30 p. 5–7],4 which “comes into play
when an employee ‘is perfectly able to perform a job, but [is] rejected . . . because of the
myths, fears, and stereotypes associated with disabilities.’” Baker v. Windsor Republic
Doors, 414 F. App’x 764, 771 (6th Cir. 2011) (internal quotations omitted) (quoting
Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008)).
In support of his regarded-as-disabled argument, plaintiff cites the Personnel
Change Notice where Human Resources representative Sarah Miller checked the
“Medical Reasons” box as the reason for terminating him [See Doc. 30 p. 6–7]. The
Court, however, will not infer discrimination from that document or related evidence.
Plaintiff admits the fact he was not released by his physician to return to work is a
medical reason for not returning after his FMLA leave expired [See Doc. 30-1 p. 8].
Although it may have been more appropriate to check the box for “Company Policies” or
“Other [P]lease Explain Below,” there was no box such as “Expiration of Approved
Leave” [See Doc. 24-1 p. 69]. And, in accordance with the form’s instructions to
“provide a brief description of termination circumstances in [the] Comment Section,”
Ms. Miller stated, “[Plaintiff’s] FMLA expired and he is not able to return to work at this
4

Because the regarded-as-disabled prong does not apply “to impairments that are
transitory and minor,” 42 U.S.C. § 12102(3)(B), the parties presented arguments on that issue
[See Doc. 25 p. 13–16; Doc. 30 p. 7]. Plaintiff also asserts that “by having surgeries number
three and four on the same knee in 2011 less than six months apart, [he] also fit[s] the definition
of being disabled” [Doc. 30 p. 7]. However, because the Court finds insufficient evidence of
discrimination, The Rush gave a non-discriminatory reason for terminating plaintiff, and plaintiff
has not created a genuine dispute as to pretext, the Court will not analyze whether plaintiff was
disabled or whether his injury was transitory and minor. And because these issues are the focus
of plaintiff’s Motion to Strike Supplemental Brief Filed by Defendant, the Court finds that
motion [Doc. 54] is moot.
10

time” [Id. (emphasis added)]. In addition, the record contains Ms. Miller’s account of her
conversations with a management level official regarding plaintiff’s termination, and the
Court finds that account does not support an inference of unlawful discrimination.5
Plaintiff mentions that defendant “had never given him specified dates for FMLA
expiration” and asserts that defendant “continuously misled [him] into believing his job
was secure as long as he continued to see his doctor and not return until his doctor
released him” [Doc. 30 p. 8]. But it is not apparent, and plaintiff has not provided
evidence or legal authority to support, how these facts give rise to an inference of
discrimination.
In sum, the Court finds the available evidence does not give rise to an inference
that “myths, fears, and stereotypes associated with disabilities,” Gruener, 510 F.3d at
664, motivated The Rush’s ultimate decision to terminate plaintiff.
2.

Defendant’s Non-Discriminatory Reason for Termination

Even if plaintiff established a prima facie case, the Court finds The Rush
articulated a legitimate, non-discriminatory reason for terminating plaintiff—he was

5

When asked to speak about her conversations with management regarding plaintiff’s
termination and the Personnel Change Notice, Ms. Miller stated:
I just spoke to [one management official] regarding that [the Benefits
Coordinator] had communicated with [plaintiff] via email, notified [plaintiff]
that [his] FMLA was expiring, that he . . . had not yet returned to work, and if
we could proceed with terminating him but marking him eligible for rehire so
that he could come back after he was released from his physician.
[Doc. 30-3 p. 6]. Plaintiff apparently did not seek to depose this management official [See Doc.
32 p. 5 n.3; Doc. 34].
11

unable to return to work after his FMLA leave expired—and finds that plaintiff has not
created a genuine dispute that the reason was pretext for discrimination.
The Rush’s employee handbook provides that “The Rush will consider an
employee

to

have

voluntarily

terminated

his

or

her

employment

if

an

employee . . . ‘[f]ails to return from an approved leave of absence on the date specified’”
[Doc. 25 p. 6]. Even though defendant never gave plaintiff a specified date for FMLA
expiration, plaintiff was an at-will employee [Doc. 30-1 p. 10], and he was aware his
FMLA leave expired in late October, at least three weeks before The Rush took action to
terminate him [See Doc. 24-1 p. 16 (“When I saw [the August letter from the Benefits
Coordinator], I knew that FMLA leave would be 12 weeks.”)]. When directed to give a
“brief description of termination circumstances,” The Rush Human Resources employee
wrote, “[Plaintiff’s] FMLA expired and he is not able to return to work at this time. He
has been marked eligible for rehire & can re-apply in the future” [Id. p. 69].
Accordingly, The Rush has presented a legitimate, non-discriminatory reason, and the
burden shifts back to plaintiff to demonstrate that the reason is pretextual.

See

Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 431 (6th Cir. 2014)
(shifting burden back to plaintiff to demonstrate pretext after defendant asserted it
terminated plaintiff based on his inability to return to work at the end of his FMLA leave
period).

12

3.

Pretext

“Plaintiffs may show that an employer’s proffered reasons for an adverse
employment action are pretext for discrimination if the reasons ‘(1) have no basis in fact;
(2) did not actually motivate the action; or (3) were insufficient to warrant the action.’”
Demyanovich, 747 F.3d at 431 (quoting Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274,
285 (6th Cir. 2012)). Here, plaintiff cannot create a genuine dispute as to pretext.
First, plaintiff’s termination was based in fact. His FMLA leave expired in late
October, more than three weeks before The Rush took action to terminate him on
November 23. And two days before his termination, plaintiff informed the Benefits
Coordinator via email why he could not yet return as a personal trainer [See Doc. 24-1 p.
34–36 (stating therapy “has gone very slow” and discussing “the job function as a
personal trainer and things [he] would not be able to do”)]. This fact—that plaintiff
informed The Rush after his leave period ended of his limitations that would prevent him
from working—militates against a finding of pretext. Cf. Demyanovich, 747 F.3d at 431
(finding genuine dispute as to pretext when employer purportedly terminated employee
for “inability to return to work at the end of the statutory leave period” but “did not even
have access to information regarding [plaintiff’s] physical limitations at the time he fired
[him]”).
Second, FMLA expiration and plaintiff’s inability to return to work appear to have
actually motivated the action. The Personnel Change Notice noted FMLA expiration as
the reason for termination and that plaintiff would be eligible for rehire. Examining the
13

Personnel Change Notice as a whole, the fact that the box for “Medical Reasons” was
checked does not suggest that discrimination was The Rush’s real reason for terminating
plaintiff. At the time the form was prepared, plaintiff had not been released by his doctor
to return to work due to his surgery [See Doc. 30-1 p. 8], and even plaintiff admits this is
a medical reason for not returning to work [See id.].
Third, expiration of FMLA leave and inability to return to work are reasons
sufficient to warrant termination. See Edgar v. JAC Prods., Inc., 443 F.3d 501, 506–07
(6th Cir. 2006) (“[A]n employer does not violate the FMLA when it fires an employee
who is indisputably unable to return to work at the conclusion of the 12-week period of
statutory leave.”). The Rush had the authority, as explained in its employee manual, to
terminate at-will employees and to terminate employees who do not return from an
approved leave of absence [Doc. 3-1 p. 2 (discussing at-will employment at The Rush);
Doc. 25 p. 6 (stating that The Rush will consider an employee to have voluntarily
terminated his employment if the employee “[f]ails to return from an approved leave of
absence on the date specified”)]. The evidence does not suggest that the Court should
view The Rush’s failure to provide plaintiff with a specific date that his FMLA leave
would expire as evidence of discrimination or pretext as opposed to, for example, an
administrative or policy error. Having closely reviewed the record, the Court thus finds

14

plaintiff has not created a genuine dispute that The Rush’s reason for terminating him
was pretext for discrimination.6
Accordingly, because the available evidence is insufficient to support an inference
of discrimination or to support that defendant’s non-discriminatory reason was pretextual,
the Court finds that summary judgment on plaintiff’s disability discrimination claim is
appropriate.
B.

Failure to Accommodate

Assuming the amended complaint can be construed to include a failure-toaccommodate claim [see Doc. 16 ¶¶ 27–29], that claim also fails for multiple reasons.
First, plaintiff’s response brief frames his disability claim solely as a “regarded as”
claim [see Doc. 30 p. 5–6], for which failure-to-accommodate claims are not available.
See 29 C.F.R. § 1630.9(e) (“A covered entity . . . is not required to provide a reasonable
accommodation to an individual who meets the definition of disability solely under the
‘regarded as’ prong.”).
Second, plaintiff’s Charge of Discrimination points only to a claim of improper
refusal to keep his job open while he recovered and to his belief that his disability was a
factor in The Rush’s decision to terminate him [See Doc. 24-1 p. 52]. On similar facts,
the Sixth Circuit has held that an employee failed to exhaust her administrative remedies

6

Nor is pretext established by plaintiff’s argument that defendant “changed its story to
say [plaintiff’s] coaching soccer, job hunting, and getting exercise while he was on FMLA leave
were factors to the termination” [Doc. 30 p. 7]. The Court agrees with defendant that “The Rush
cited these facts in its Motion, not as reasons for his termination, but to explain that he was very
active while out on FMLA leave and, hence, not disabled” [Doc. 32 p. 6].
15

and therefore could not bring that claim in federal court. See Jones v. Sumser Retirement
Vill., 209 F.3d 851, 853–54 (6th Cir. 2000) (reasoning that “nothing in the charge [of
discrimination] pointed to any claim other than an improper refusal to keep [plaintiff’s]
job open while she recovered”).
Third, even assuming plaintiff’s failure-to-accommodate claim may be brought, to
establish a prima facie case for failure to accommodate, a plaintiff must show, among
other things, that he requested an accommodation. Johnson v. Cleveland City Sch. Dist.,
443 F. App’x 974, 982–83 (6th Cir. 2011). It is undisputed that plaintiff never requested
an accommodation from The Rush. See Cash v. Siegel-Robert, Inc., 548 Fed. App’x 330,
335 (6th Cir. 2013) (affirming summary judgment as to plaintiff’s failure-toaccommodate claim because there was “no proof that he asked [his employer] to grant
him a reasonable accommodation to return to his job . . . or to transfer him to a less
strenuous job commensurate with his physical restrictions”). Without citing any legal
authority, plaintiff suggests that defendant had a duty to accommodate him, particularly
after his “tenure in working in really every position” at The Rush [See Doc. 32-1 p. 2;
Doc. 30 p. 6 (“Defendant was on actual notice that Mr. Larson could not do his job of
personal trainer given the condition of his knee. However, there were other jobs . . . Mr.
Larson could do and was willing to do in the sales department . . . and in the operations
department.”)]. But the employee, not the defendant, “bears the burden of proposing
reasonable accommodations,” and “an employee’s claim must be dismissed if the

16

employee fails to identify and request such reasonable accommodations.” Johnson, 443
F. App’x at 983.
For all these reasons, plaintiff’s failure-to-accommodate claim will be dismissed.
C.

Misrepresentation

Plaintiff also alleges that a reasonable jury could find defendant liable for both
intentional and negligent misrepresentation [See Doc. 30 p. 8–10]. Apparently relying on
the August letter from Benefits Coordinator Jenny Johnson, the three oral conversations
with his supervisors, and the November email from Ms. Johnson, plaintiff contends The
Rush misrepresented that his leave of absence would remain approved and his job secure
until his doctor released him to return to work [See id. 9–10]. Before addressing the law
of misrepresentation, the Court examines whether there is sufficient evidence to support
that such a representation was made by The Rush.
Plaintiff’s response brief argues The Rush misrepresented that “as long as Mr.
Larson continued to follow the instructions in the August 12, 2011 Rush Letter . . . and
see his doctor until his doctor released him to return to work his leave of absence would
remain approved and his job secure” [Doc. 30 p. 9 (citing Larson Dep. 150:5–10, June 4,
2014) (“I was in communication with my boss, with my benefits coordinator of what was
going on, who gave me the impression, who led me down the direction that everything
was okay. At no point did they ever say you need to be here at X, Y, Z.”)]. The
deposition testimony cited by plaintiff is insufficient to support this proposition. Nor

17

does the Court find, upon its independent review of the record, sufficient evidence to
support this proposition.
When asked in his deposition about his understanding of the August 12, 2011,
letter, plaintiff stated, “I knew that FMLA leave would be 12 weeks. If I was still in
recovery and not cleared by my doctor, it would be a leave of absence but my job was
still there” [Doc. 24-1 p. 16]. Plaintiff’s impression was based on his July conversation
with supervisor Kittrell about the prospect of taking leave, in which plaintiff claims she
said, “It sucks that you’re going to be out for as long as you are, keep me posted, let me
know, your job will be here when you get back” [Id.; Doc. 30-1 p. 3], and instructed him
to be in communication with her and to return as a personal trainer when cleared by his
doctor [Doc. 30-1 p. 4]. Given the conversation’s context of taking approved leave and
the letter’s FMLA context, there is insufficient evidence that The Rush represented
plaintiff would have job security beyond that provided by a formally-approved leave of
absence.
According to defendant, “nothing in the August 12, 2011 letter . . . indic[a]ted that
his leave would remain approved until he was released from his physician. Rather, the
letter stated that he must be released from his doctor before he could return to work”
[Doc. 32 p. 7]. The evidence supports defendant’s view. Signed by The Rush Benefits
Coordinator, the letter discusses essential aspects of FMLA leave and does not mention
any other type of leave [See id.]. Although the phrases “please make sure your doctor
lets me know when you are cleared” and “upon your return,” standing alone, could
18

possibly suggest plaintiff’s job was secure pending his doctor’s clearance, the letter’s
FMLA context and the statement “the duration of your leave will be 6 to 12 weeks”
militate against such a finding [See Doc. 32-1 p. 16].
In sum, even when viewing the August 12 letter and the oral conversations
together, and in the light most favorable to plaintiff, there is insufficient evidence to
support plaintiff’s contention in his response brief that The Rush represented that,
notwithstanding the fact he was going on (or already on) FMLA leave, that plaintiff’s
employment would resume upon clearance by his doctor, whenever that may be, or that
plaintiff’s leave of absence would remain approved and his job secure after his FMLA
leave expired. Accordingly, the Court will not analyze whether such a representation
would constitute intentional or negligent misrepresentation under Tennessee law.
The Court will, however, analyze evidence plaintiff has pointed to, including his
supervisor’s statement “your job will be here when you get back” and her instructions to
return to work once cleared by his physician. The torts of intentional and negligent
misrepresentation share common features, including that they cannot be based on
representations of future events. See Glanton v. Beckley, No. 01-A-01-9606-CV-00283,
1996 WL 709373, at *9 (Tenn. Ct. App. Dec. 11, 1996) (“Perceiving some connection
between [the tort of negligent misrepresentation] and the tort of fraudulent
misrepresentation, Tennessee courts have joined several other courts in requiring that the
false information must consist of statements of a material past or present fact.”). The
representations must also be false. See Walker v. Sunrise Pontiac-GMC Truck, 249
19

S.W.3d 301, 311 (Tenn. 2008). For intentional misrepresentation, the false statements
must have been made knowingly, recklessly, or without belief in their truth, and, for
negligent misrepresentation, it must be shown that defendant did not exercise reasonable
care in obtaining or communicating the information. See id. Here, plaintiff has not
created a genuine dispute that the available evidence constitutes either form of
misrepresentation.
A statement qualifies as a representation of a present or past fact, as opposed to a
representation of a future event, if it “involve[s] a present or past fact” or is “based at
least in part on [an] alleged present fact.” Cummins v. Opryland Prods., No. M199800934-COA-R3-CV, 2001 WL 219696, at *8–9 (Tenn. Ct. App. 2001). A party therefore
may misrepresent a present or past fact even if the representations happen to involve
future events—here, plaintiff’s eventual return to work upon clearance by his doctor in
the future. See id. It appears possible that a defendant employer could misrepresent the
present fact that, in a particular situation, an employee’s employment would resume upon
clearance by his doctor, regardless of when his formally-approved leave expires.
However, as discussed above and having reviewed the record, the Court concludes there
is insufficient evidence to support that such a representation was made to plaintiff.
As for statements from his supervisors along the lines of “your job will be here
when you get back,” they constitute representations of future events that are not based on
any alleged present fact. See id. at *8–9. Plaintiff concedes his supervisors did not base
their statements on an understanding of exactly (or even approximately) how long
20

plaintiff would be unable to work and that they gave him no indication how long his
employment would remain secure [See Doc. 30-1 p. 10].
Even assuming The Rush made a representation of a material present or past fact,
the evidence does not support that the statements or instructions were false, were made
either recklessly or without belief in their truth, or were communicated without
reasonable care. First, the statements were made before or while plaintiff was on FMLA
leave and therefore were not necessarily false or made recklessly.7 Statements such as
“your job will be here when you get back” are consistent with his anticipated return at the
end of his approved leave period, and instructions to return when cleared by his doctor
are consistent with the instructions in the August FMLA letter. Second, the evidence
does not indicate that the supervisors suggested plaintiff would receive leave beyond
FMLA leave or beyond other formally-approved leave. Third, plaintiff admits that his
supervisors, at the time they made such statements, did not know how long he would be
gone from work and did not know that he would be terminated.

7

The Court’s disagreement with plaintiff’s view of the type of representation made
undermines plaintiff’s sole argument in support of the knowing or reckless element of intentional
misrepresentation, that is, “[t]he representation was made either knowingly or without belief in
its truth or recklessly because supervisory level Rush officials were making the representation
and under the doctrine of principal and agency the Rush vicariously had imputed knowledge that
Mr. Larson had, throughout, been misled to believe by the Rush agents (i.e., Jenny Johnson and
Ashley Kittrell) that he would not be terminated while he continued to see his doctor until he
received his return to work release even after the alleged FMLA expiration” [Doc. 30 p. 9
(citations omitted)]. Because the Court finds insufficient evidence that plaintiff’s contended
misrepresentation was made, the Court will not analyze whether plaintiff’s contended
misrepresentation [see id.], if made, would have necessarily been made either knowingly or
recklessly given the case’s corporate context.
21

Plaintiff makes one argument regarding falsity: that the representations about his
job status made to him in the November 21 email were false because he was terminated
effective October 27 [See Doc. 30 p. 9]. It appears undisputed, however, that The Rush
took action to terminate on November 23, not on the “Effective Date of Action” of
October 27 or on any other day prior to the November 21 email exchange [See Doc. 32-2
p. 6; Doc. 30-3 p. 5–6]. Nor has plaintiff pointed to evidence suggesting that the Benefits
Coordinator was aware plaintiff had been or would be terminated when she emailed him
on November 21.
Similarly, plaintiff asserts The Rush did not exercise reasonable care in
communicating the information about his job status “because in fact the Rush terminated
him effective October 27, 2011 and Rush supervisors continued to mislead [plaintiff]
about his job status beyond that point” [Doc. 30 p. 10]. Plaintiff’s assertion also appears
to rely on the email exchange with the Benefits Coordinator in late November, two days
before he was terminated. But the fact that plaintiff’s termination was backdated to
reflect the expiration of his FMLA leave supports the opposite assertion—that is, that the
Benefits Coordinator did not fail to exercise reasonable care because, at the time she
emailed plaintiff, she did not know he would be terminated. Moreover, as plaintiff
admits, in the month of November, he was asked only when he expected to come back to
work and was not specifically told that he still had his job or that he just needed to keep
going to his doctors and get better [See Doc. 30-1 p. 9].

22

In sum, while plaintiff may have had a false impression, there is insufficient
evidence that the supervisors’ statements were based on any material present fact, or that
any of The Rush’s representations were false or were communicated recklessly or
without reasonable care. Thus, plaintiff’s misrepresentation claims will be dismissed.8
IV.

Conclusion
For the reasons stated herein, the Court will DENY as moot plaintiff’s Motion to

Strike Supplemental Brief Filed by Defendant [Doc. 54] and will GRANT defendant The
Rush Fitness Complex’s Motion for Summary Judgment [Doc. 24] in all respects. The
Court will DISMISS all remaining claims against The Rush and direct the Clerk of Court
to CLOSE this case.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
8

The Court also notes, though the parties did not mention it, that courts applying
Tennessee law have disallowed negligent misrepresentation claims in the employer-employee
discharge context. See Shelby v. Delta Air Lines, 842 F. Supp. 999, 1015–16 (M.D. Tenn. 1993)
(holding that plaintiff “has no cause of action for negligent misrepresentation as a matter of
law”); Moore v. Alstom Power Turbomachines, LLC, 1:12-CV-292, 2013 WL 915555, at *6–7
(E.D. Tenn. Mar. 7, 2013) (holding that, “although not discussed by the parties, negligent
misrepresentation is unavailable to plaintiffs in the employer-employee context”). Some cases
have considered negligent misrepresentation in the employment context without addressing
whether it is applicable, see, e.g., Shatford v. smallbusiness.com, No. M2003-02315-COA-R3CV, 2005 WL 1390092 (Tenn. Ct. App. June 13, 2005), but it appears the overwhelming
majority of negligent misrepresentation cases in Tennessee are in the commercial context. In
addition, the Tennessee Supreme Court has cited Shelby for the proposition that “recovery has
been allowed only when the advice or information negligently supplied was given in the course
of a commercial or business transaction for guidance of others in their business transactions.”
Robinson v. Omer, 952 S.W.2d 423, 427–28 (Tenn. 1997) (emphasis in original).
23