Tuck v. Suncrest Health Care, Inc.

Filing 54

MEMORANDUM OPINION OF THE COURT. Signed by Senior Judge William J. Haynes, Jr on 7/9/2015. (Attachments: # 1 Attachment Text Searchable Version)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LEIGHANN TUCK,
Plaintiff,
v.

SUNCREST HEALTH CARE, INC.,
Defendant.

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No. 3:12-cv-01090
Senior Judge Haynes

MEMORANDUM
Plaintiff, Leighann Tuck, filed this action under 42 U.S.C. § 12117 of the Americans with
Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”) and 42 U.S.C. § 1981(a)
against the Defendant, Suncrest Health Care, Inc. Plaintiff’s claims arise out of her termination that
she contends was discriminatory because she suffers from Lyme disease, that qualifies as a disability
under the ADA, for which she was not offered a reasonable accommodation. Plaintiff also alleges
that the Defendant retaliated against her for exercising her rights under the FMLA for the
intermittent leave that she required due to her medical condition.
Before the Court is Defendant’s motion for summary judgement (Docket Entry No. 43),
contending that: (1) Plaintiff’s termination was due to a reduction in force that heightens the level
of proof required for her claims under the ADA and the FMLA, and (2) Plaintiff’s proof fails to
make a prima facie showing of retaliation in that Plaintiff’s termination occurred before the Plaintiff
filed her EEO charge and before she complained to Defendant’s officials about any discrimination
under the ADA. Plaintiff filed a response in opposition (Docket Entry No. 44), conceding her ADA
retaliation claims, but contending that genuine issues of material fact render summary judgment
inappropriate with respect to her disability discrimination and FMLA retaliation claims. Defendant

filed a reply (Docket Entry No. 49).
For the reasons stated herein, the Court concludes that: (1) Plaintiff has not presented direct
evidence of either disability discrimination or FMLA retaliation with respect to Plaintiff’s
termination; (2) Defendant’s reduction in force constitutes a legitimate non-discriminatory reason
for Plaintiff’s termination; and (3) Plaintiff has not offered any evidence to create a genuine issue
of material fact as to whether Defendant’s proffered explanation is untrue or pretextual.
Accordingly, Defendant’s motion for summary judgment (Docket Entry No. 43) should be granted.
A. Findings of Fact1
In October 2008, Suncrest hired Plaintiff as a private duty Licensed Practical Nurse (“LPN”).
(Docket Entry No. 45, Plaintiff’s Response to Defendant’s Statement of Undisputed Facts at ¶ 4).
Suncrest develops Medicare/Medicaid-certified home health agencies in the South and also develops
partnerships with local health care communities to provide local hospitals and community health
care facilities with quality medical care. Id. at ¶ 2.
In April 2011, Plaintiff joined Suncrest’s Information Technology Department to assist
Kaseigh Long, a clinical IT help desk specialist with Allscripts software. Id. at ¶¶ 5-6. Plaintiff and
Long’s duties involved clinical support for the company as Todd Pratt and Levi Nesmitt performed
the technical duties in that department. Id. at ¶ 7.

1

Upon a motion for summary judgment, the factual contentions are viewed in the light most
favorable to the party opposing the motion for summary judgment. Duchon v. Cajon Co., 791 F.2d
43, 46 (6th Cir. 1986). As discussed infra, upon the filing of a motion for summary judgment, the
opposing party must come forth with sufficient evidence to withstand a motion for directed verdict,
Anderson v. Liberty Lobby, 477 U.S. 242, 247-52 (1986), particularly where there has been an
opportunity for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). The Court concludes
that, under the applicable law, there are not any material factual disputes. Thus, this section
constitutes findings of fact.
2

In May 2011, there was a merger of Suncrest and Omni Home Care that resulted in the
creation of Suncrest Health Care. Id. at ¶ 3. Suncrest retained its local branches. Id. Also in May
2011, Gomez installed the Home Care Home Base software. Id. at ¶ 11. In August 2011, Suncrest
decided to have one Director of IT, Leo Gomez. Id. at ¶¶ 8-9. Gomez divided his workers into two
groups: clinical and technical. The technical workers in Gomez’s unit were assigned duties for
hardware and communication problems, and the clinical workers were assigned duties for
application issues, specifically billing and computer software. Id. at ¶ 10.
Plaintiff was diagnosed with Lyme disease on April 28, 2011 and, therefore, had to have
blood drawn weekly and was allowed to work from home one day per week. Id. at ¶ 13. Plaintiff’s
prior supervisor, Anderton, approved this arrangement and, after he became aware of Plaintiff’s
working from home, Gomez did not express any concerns about this arrangement. Id. at ¶¶ 14-15.
In August 2011, Suncrest undertook an initial reduction in force. Id. at ¶ 32. In October 2011,
Anderton and Della Mervin, Suncrest’s Human Relations Director, approached Plaintiff to suggest
using her FMLA benefits when she needed to take time off from work. Id. at ¶ 17. Based on their
request, Plaintiff commenced using FMLA leave for her intermittent time away from work. Id. at
¶ 18. Plaintiff concedes that Suncrest never denied her any FMLA leave. Id. at ¶ 20.
By late 2011, Wally Dant, Suncrest’s Chief Financial Officer, found the need for a second
reduction in force. Id. at ¶¶ 32-33. The latter reduction in force commenced on February 2, 2012,
and resulted in 40 terminations. Yet, Plaintiff insists that she was terminated on February 1. Id. at
¶ 34. According to the Defendant, Kiehl and Gomez identified employees for the reduction in force
that included condensing its IT Department’s three employees at Suncrest’s Madison office where
Plaintiff worked. Id. at ¶¶ 36-39. Plaintiff, Long, and Blain each performed Help Desk duties. Id.

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at ¶ 39.
Defendant asserts that Long was hired to help at the clinical Help Desk in August 2009 and
served as a de facto manager. Id. at ¶¶ 25-26. Although Plaintiff disputes that Long was a de facto
supervisor, she concedes that Long was able to respond to both technical calls as well as clinical
Help Desk calls. Id. at ¶ 27. Defendant also asserts that Brenda Dunn and Kari Byrne, Director of
Clinical Support, added Blain, a Registered Nurse (“RN”), because she had personal knowledge of
the Outcome and Assessment Information Set (“OASIS”). Id. at ¶ 28. OASIS groups data elements
for comprehensive assessment of adult home health care and is used to measure patient outcomes.
Id. at ¶ 29. Only RNs may conduct assessments for OASIS reporting. Id.
Gomez and Kiehl decided to terminate Plaintiff after a comparison of her skills and abilities
to Long and Blain, who also worked for Suncrest’s clinical group. Id. at ¶ 42. Plaintiff was never
demoted, subjected to reduced hours or lower pay or negative evaluations, and was never suspended
or placed on probation. Id. at ¶ 24. Plaintiff did not complain of any discrimination or retaliation
until after her termination. Id. at ¶ 22.
B. Conclusions of Law
“The very mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.” Advisory Committee
Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, “district
courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so
long as the opposing party was on notice that she had to come forward with all of her evidence.”
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); accord, Routman v. Automatic Data Processing,
Inc., 873 F.2d 970, 971 (6th Cir. 1989).

4

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986), the United States Supreme Court
explained the nature of a motion for summary judgment:
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment ‘shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.’ By its very terms, this standard
provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.
As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.

477 U.S. at 247-48 (emphasis in the original and added in part). Earlier the Supreme Court defined
a material fact for Rule 56 purposes as “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita
Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
A motion for summary judgment is to be considered after adequate time for discovery.
Celotex, 477 U.S. at 326. Where there has been a reasonable opportunity for discovery, the party
opposing the motion must make an affirmative showing of the need for additional discovery after
the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th
Cir. 1989). But see Routman, 873 F.2d at 971 (6th Cir. 1989).
There is a certain framework in considering a summary judgment motion as to the required
showing of the respective parties as described by the Court in Celotex:

5

Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any,” which it believes demonstrate the absence of a
genuine issue of material fact. . . . [W]e find no express or implied
requirement in Rule 56 that the moving party support its motion with
affidavits or other similar materials negating the opponent's claim.
Celotex, 477 U.S. at 323 (emphasis deleted).
As the Court of Appeals explained, “[t]he moving party bears the burden of satisfying Rule
56(c) standards.” Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir. 1986). The moving party’s
burden is to show “clearly and convincingly” the absence of any genuine issues of material fact.
Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991)(quoting Kochins v.
Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). “So long as the movant has met its
initial burden of ‘demonstrat[ing] the absence of a genuine issue of material fact,’ the nonmoving
party then ‘must set forth specific facts showing that there is a genuine issue for trial.’” Emmons v.
McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (quoting Celotex and Rule 56(e)).
Once the moving party meets its initial burden, the Court of Appeals warned that “[t]he
respondent must adduce more than a scintilla of evidence to overcome the motion [and]. . . must
‘present affirmative evidence in order to defeat a properly supported motion for summary
judgment.’” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)(quoting Liberty
Lobby). Moreover, the Court of Appeals explained that
The respondent must ‘do more than simply show that there is some
metaphysical doubt as to the material facts.’ Further, ‘[w]here the
record taken as a whole could not lead a rational trier of fact to find’
for the respondent, the motion should be granted. The trial court has
at least some discretion to determine whether the respondent's claim
is ‘implausible.’

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Street, 886 F.2d at 1480 (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d
790, 792 (6th Cir. 1990) (“A court deciding a motion for summary judgment must determine
‘whether the evidence presents a sufficient disagreement to require a submission to the jury or
whether it is so one-sided that one party must prevail as a matter of law.’”)(quoting Liberty Lobby).
If both parties make their respective showings, the Court then determines if the material
factual dispute is genuine, applying the governing law.
More important for present purposes, summary judgment will not lie
if the dispute about a material fact is ‘genuine’ that is, if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.
...
Progressing to the specific issue in this case, we are convinced that
the inquiry involved in a ruling on a motion for summary judgment
or for a directed verdict necessarily implicates the substantive
evidentiary standard of proof that would apply at the trial on the
merits. If the defendant in a run-of-the-mill civil case moves for
summary judgment or for a directed verdict based on the lack of
proof of a material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff
on the evidence presented. The mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for
the plaintiff. The judge's inquiry, therefore, unavoidably asks
whether reasonable jurors could find by a preponderance of the
evidence that the plaintiff is entitled to a verdict – ‘whether there is
[evidence] upon which a jury can properly proceed to find a
verdict for the party producing it, upon whom the onus of proof is
imposed.’

Liberty Lobby, 477 U.S. at 248, 252 (citation omitted and emphasis added).
It is likewise true that:
[I]n ruling on a motion for summary judgment, the court must
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construe the evidence in its most favorable light in favor of the
party opposing the motion and against the movant. Further, the
papers supporting the movant are closely scrutinized, whereas the
opponent's are indulgently treated. It has been stated that: ‘The
purpose of the hearing on the motion for such a judgment is not to
resolve factual issues. It is to determine whether there is any
genuine issue of material fact in dispute. . .’

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation
omitted). As the Court of Appeals stated, “[a]ll facts and inferences to be drawn therefrom must be
read in a light most favorable to the party opposing the motion.” Duchon v. Cajon Co., 791 F.2d.
43, 46 (6th Cir. 1986).
The Sixth Circuit further explained the District Court's role in evaluating the proof on a
summary judgment motion:
A district court is not required to speculate on which portion of the
record the nonmoving party relies, nor is it obligated to wade through
and search the entire record for some specific facts that might support
the nonmoving party’s claim. Rule 56 contemplates a limited
marshalling of evidence by the nonmoving party sufficient to
establishing a genuine issue of material fact for trial. This
marshalling of evidence, however, does not require the nonmoving
party to “designate” facts by citing specific page numbers. Designate
means simply “to point out the location of.” Webster's Third New
InterNational Dictionary (1986).
Of course, the designated portions of the record must be presented
with enough specificity that the district court can readily identify the
facts upon which the nonmoving party relies; but that need for
specificity must be balanced against a party's need to be fairly
apprised of how much specificity the district court requires. This
notice can be adequately accomplished through a local court rule or
a pretrial order.

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). In this district, the parties must
provide specific references to the proof upon which they rely. See Local Rule 56.01(c) requiring
8

each party to provide a statement of undisputed facts to which the opposing party must respond.
In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and
other authorities on summary judgment and synthesized ten rules in the “new era” on summary
judgment motions:
1.
Complex cases are not necessarily inappropriate for summary
judgment.
2.
Cases involving state of mind issues are not
necessarily inappropriate for summary judgment.
3.
The movant must meet the initial burden of showing ‘the
absence of a genuine issue of material fact’ as to an essential element
of the non-movant's case.
4.
This burden may be met by pointing out to the court that the
respondent, having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.
5.
A court should apply a federal directed verdict standard in
ruling on a motion for summary judgment. The inquiry on a summary
judgment motion or a directed verdict motion is the same: ‘whether
the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that the party must prevail as
a matter of law.’
6.
As on federal directed verdict motions, the ‘scintilla rule’
applies, i.e., the respondent must adduce more than a scintilla of
evidence to overcome the motion.
7.
The substantive law governing the case will determine what
issues of fact are material, and any heightened burden of proof
required by the substantive law for an element of the respondent's
case, such as proof by clear and convincing evidence, must be
satisfied by the respondent.
8.
The respondent cannot rely on the hope that the trier of fact
will disbelieve the movant's denial of a disputed fact, but must
‘present affirmative evidence in order to defeat a properly supported
motion for summary judgment.’

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9.
The trial court no longer has the duty to search the entire
record to establish that it is bereft of a genuine issue of material fact.
10.
The trial court has more discretion than in the ‘old era’ in
evaluating the respondent's evidence. The respondent must ‘do more
than simply show that there is some metaphysical doubt as to the
material facts.’ Further, ‘[w]here the record taken as a whole could
not lead a rational trier of fact to find’ for the respondent, the motion
should be granted. The trial court has at least some discretion to
determine whether the respondent's claim is ‘implausible.’
Street, 886 F.2d at 1479-80 (citations omitted).
The Court has distilled from these collective holdings four issues that are to be addressed
upon a motion for summary judgment: (1) has the moving party “clearly and convincingly”
established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to
establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the
nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under
the applicable law?; and (4) are there any genuine factual issues with respect to those material facts
under the governing law?
1. Disability Discrimination Under the Americans with Disabilities Act
The ADA was enacted to counterbalance society’s historic tendency to isolate and segregate
individuals with disabilities. 42 U.S.C. § 12101. The ADA ensures that individuals living with
disabilities are treated fairly and afforded equal opportunity within the workplace, among other
areas. Id. Thus, the ADA prohibits an employer from discriminating “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.” 42 U.S.C. § 12112(a).
To recover on a claim of discrimination under the ADA, a plaintiff may prove that she was
10

discriminated against based upon her disability either through direct or indirect evidence. Monette
v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir. 1996), abrogated on other grounds
by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
a. Direct Evidence
Direct evidence is evidence that, “if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the adverse employment action.” Erwin v. Potter,
79 Fed. App’x 893, 896 (6th Cir. 2003) (internal citation omitted). Thus, “direct evidence of
discrimination does not require a factfinder to draw any inferences in order to conclude that the
challenged employment action was motivated at least in part by prejudice against members of the
protected group.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 915 (6th Cir.
2013) (quoting Thompson v. City of Lansing, 410 Fed. App’x 922, 929 (6th Cir. 2011)).
The Sixth Circuit has stated that, where a plaintiff presents direct evidence of disability
discrimination:
(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. (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.
Hedrick v. Western Reserve Care System, 355 F.3d 444, 452-53 (6th Cir. 2004) (citing Monette, 90
F.3d at 1186).
Here, Defendant’s motion for summary judgment assumes, arguendo, that Plaintiff has
satisfied the first two elements of a prima facie case of disability discrimination under the ADA, that

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she has a disability and was qualified to perform the essential functions of her job.
Plaintiff cites, as alleged direct evidence of disability discrimination, “her supervisor,
Anderton, interrogating her regarding her job performance (keeping in mind she was one of the
highest performing in her position), based solely upon her disability and making accusations that
her reasonable accommodation was creating problems.” (Docket Entry No. 44, Plaintiff’s Response
to Defendant’s Motion for Summary Judgment at 11). Plaintiff does not provide any citation to the
record in support of this factual assertion.2 Regardless, a review of Plaintiff’s deposition testimony
reflects that Plaintiff did not testify that Anderton stated her absences were causing “problems.”
Instead, Plaintiff’s deposition testimony reflects only that Anderton told Plaintiff that the
“appearance” of her not being at her desk was “raising flags and questions from the VPs of the
company.” (Docket Entry No. 44-1, Deposition of Leigh Ann Raney at 17-18).
Yet, it is undisputed that Plaintiff was never demoted, subjected to reduced hours or lower
pay or negative evaluations, and was never suspended or placed on probation. (Docket Entry No.
45, Plaintiff’s Response to Defendant’s Statement of Undisputed Facts at ¶ 24). Thus, Plaintiff’s
adverse employment action consists solely of her termination.
Accordingly, the Court concludes that Anderton’s alleged statements regarding the
appearance created by Plaintiff’s absence do not constitute direct evidence of disability
discrimination with respect to Plaintiff’s termination. See, e.g., Lovell v. Champion Car Wash, LLC,
969 F. Supp.2d 945 (M.D. Tenn. 2013) (concluding that statements that plaintiff was being

2

The Court notes that, although Plaintiff provides citations to the record throughout the
“facts” section of her response in opposition to Defendant’s motion for summary judgment (Docket
Entry No. 44), Plaintiff does not provide any citation to the record for the conclusory factual
assertions contained in the “argument” section of her response. The Court need consider only the
those facts that are properly supported by citations to the record. Fed. R. Civ. P. 56(c).
12

terminated for medical reasons, and that his medical needs could not be accommodated at the car
wash, constituted direct evidence of disability discrimination).
b. Indirect Evidence
Where a plaintiff seeks to establish discrimination through indirect evidence, courts apply
the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008). Thus, Plaintiff must first
establish a prima facie case of discrimination by showing that:
(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 at 253, 258-59 (6th Cir. 2011) (quoting Macy v. Hopkins County
School Board of Education, 484 F.3d 357, 365 (6th Cir. 2007)).
In addition, because Plaintiff’s position was terminated, along with that of approximately 40
other employees, as part of a reduction in force (“RIF”) (Docket Entry No. 45, Plaintiff’s Response
to Defendant’s Statement of Undisputed Facts at ¶¶ 33-34, 38-39, 45), Plaintiff must also provide
“additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled
out the plaintiff for discharge for impermissible reasons.” Geiger v. Tower Automotive, 579 F.3d
614, 623 (6th Cir. 2009). This additional showing can be met by demonstrating “that a comparable
non-protected person was treated better.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
350 (6th Cir. 1998). Thus, Plaintiff must demonstrate that she is “similarly-situated to the nonprotected employee in all relevant respects.” Id. at 353 (emphasis in original). Courts “should make
an independent determination as to the relevancy of a particular aspect of the plaintiff’s employment
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status and that of the non-protected employee.” Id. at 352.
If Plaintiff makes such a showing, then the burden shifts to Defendant to articulate a
legitimate, nondiscriminatory reason for its employment action. If Defendant articulates such a
reason, then the burden shifts back to Plaintiff to prove that the Defendant’s proffered explanation
is untrue or pretextual. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-42 (2003). Under this
framework, Plaintiff retains the ultimate burden of persuasion at all times.
As an initial matter, it is undisputed that Plaintiff’s clinical IT help desk position was not
filled by a new employee. (Docket Entry No. 45, Plaintiff’s Response to Defendant’s Statement of
Undisputed Facts at ¶ 47). Regardless, Plaintiff contends that she was “as qualified if not more
qualified to perform the job duties than Kaseigh Long,” whom Plaintiff asserts she was
“outperforming.” (Docket Entry No. 44, Plaintiff’s Response to Defendant’s Motion for Summary
Judgment at 14).3 Again, Plaintiff does not provide any citation to the record to support this
conclusory assertion.
To be sure, a single Spiceworks productivity report reflects that, during an unspecified twoweek period of time, Plaintiff processed the most tickets related to the Madison, Tennessee IT
department. (Docket Entry No. 44-4, Deposition of Leandro Gomez Ball, Jr. at 27-31). Yet, “some
tickets take a shorter time; some tickets take a longer time.” Id. at 31.
Moreover, Plaintiff concedes that Long had two more years of experience than Plaintiff and
that Long was able to respond to both technical calls as well as clinical help desk calls. Id. at ¶¶ 2527; see also Docket Entry No. 44, Plaintiff’s Response to Defendant’s Motion for Summary

3

Plaintiff concedes that Blain is not comparable to Plaintiff. See Docket Entry No. 44,
Plaintiff’s Response to Defendant’s Motion for Summary Judgment at 17.
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Judgment at 14. In addition, although Plaintiff’s Response to Defendant’s motion for summary
judgment disputes that Long served as de facto manager, Plaintiff concedes in her deposition that
Long was the lead clinical help desk specialist. Specifically, Plaintiff testified that:
Q:

Okay. Was she your supervisor, Kasiegh Long?

A.

She did oversee me. Yes.

Q:

Now, did you consider Ms. Long your direct supervisor or
Mr. Anderton your direct supervisor?

A:

Mr. Anderton was my direct supervisor. He was the IT
director. Kasiegh was more of a - - I guess you could say
more of a manager. Not director, more but manager. And I
would report to her more on a daily basis than I did Richard
due to the fact that we were handling clinical issues with the
clinical software, clinical calls. And Richard, the IT director,
and Todd Pratt, they were handling more - - they would
handle more the networking issues, and me and Kasiegh were
tackling the clinical issues.

Q:

So is it fair to say that she was the lead in that department?

A:

Yes.

(Docket Entry No. 44-1, Deposition of Leigh Ann Raney at 12).
In addition, although Plaintiff contends that Long considered Plaintiff an equal because they
did the same job and filled in for each other when one was absent, Long specifically testified that:
Q:

So would [Plaintiff] have been considered an assistant help
desk administrator or - -

A:

I looked - - I mean, I didn’t - - I’ve always hated titles. And
I’ve always - - I told her that, you know, I’d like to look at us
as equals and that - - you know, because if I’m out or if I’m
on holiday or, Lord forbid, if something happened to me, she
would be doing my job so to me that would maker her an
equal. I don’t know if that makes sense.

(Docket Entry No. 44-2, Deposition of at Ksaeigh Long 33).
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Thus, the Court concludes that Plaintiff is not similarly situated with Long in all relevant
respects and Plaintiff has, therefore, not provided any additional direct, circumstantial, or statistical
evidence that creates a genuine issue of material fact as to whether the employer singled out the
plaintiff for discharge for impermissible reasons.
Moreover, even if the Court were to assume that Plaintiff has met the heightened standard
and established a prima facie case of disability discrimination, the Court also concludes that
Defendant has articulated a legitimate, non-discriminatory reason for its employment action and
Plaintiff has not proved that Defendant’s proffered explanation is untrue or pretextual.
Defendant’s reduction in force constitutes a legitimate non-discriminatory reason for
Plaintiff’s termination. See Barnes v. GenCorp. Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (“When
work force reductions by the employer are a factor in the decision, the most common legitimate
reasons for the discharge are the work force reductions.”). Thus, the burden shifts back to Plaintiff
to show that the reason is untrue or pretextual. Specifically, Plaintiff must show that the proffered
reasons: (1) had no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to
motivate the action. See Crane v. Monterey Mushroom, Inc., 910 F. Supp.2d 1032, 1049 (E.D. Tenn.
2012) (citing Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996)).
Here, it is undisputed that, in August 2011, Defendant effected an initial reduction in force
and, by late 2011, Wally Dant, Suncrest’s Chief Financial Officer, found the need for a second
reduction in force. (Docket Entry No. 45, Plaintiff’s Response to Defendant’s Statement of
Undisputed Facts at ¶¶ 32-33). The latter reduction in force commenced on February 2, 2012, and
resulted in 40 terminations, including Plaintiff’s termination. Id. at ¶ 34. Thus, Plaintiff cannot show
that Defendant’s proffered reason has no basis in fact.

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Instead, Plaintiff contends that Defendant’s proffered reason is pretextual because the only
difference between Plaintiff and Long was that Plaintiff was disabled and used FMLA leave. As
discussed supra, the Court concludes that Plaintiff and Long are not similarly situated in all relevant
respects. Plaintiff also contends that Todd Pratt’s sole job function was technical side telephone
calls. Thus, had Long been terminated instead of Plaintiff, technical calls could still be handled by
Pratt. Yet, courts “do not require that the decisional process used by the employer be optimal or that
it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse employment action.” Brooks v. Davey
Tree Expert Co., 478 Fed. App’x 934, 943 (6th Cir. 2012) (citing Wright v. Murray Guard, Inc., 455
F.3d 702, 708 (6th Cir. 2006)). Here, Kiehl testified that he and Leo Gomez “had long conversations
going back and forth reviewing strengths and weaknesses of various employees.” (Docket Entry No.
44-7, Deposition of John Kiehl at 20). The mere fact that Pratt could handle technical calls does not
render Defendant’s adverse employment action unreasonable.
As such, the Court concludes that Plaintiff has not offered any evidence that creates a
genuine issue of material fact as to whether Defendant’s proffered explanation is untrue or
pretextual. Accordingly, Defendant’s motion for summary judgment should be granted as to
Plaintiff’s disability discrimination claim under the ADA.
2. Retaliation Under the Family and Medical Leave Act Claim4

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The Court notes that, in its motion for summary judgment, Defendant contends that Plaintiff
cannot show that Defendant interfered with her benefits or rights under the FMLA. See Docket
Entry No. 43-2, Memorandum in Support of Defendant’s Motion for Summary Judgment at 10. A
review of the record reflects that Plaintiff does not assert a claim for FMLA interference in her
amended complaint (Docket Entry No. 5). Moreover, it is undisputed that Defendant never denied
Plaintiff any benefits to which she was entitled, or leave requested, under the FMLA. See Docket
Entry No. 45, Plaintiff’s Response to Defendant’s Statement of Undisputed Facts at ¶¶ 19-20.
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Under the FMLA, Plaintiff must prove: (1) exercise of a protected right under the FMLA;
(2) her exercise of those rights was known to Defendant; (3) she suffered an adverse employment
decision; and (4) a causal connection between her protected activity and the adverse employment
action. See Skrianc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). In addition,
courts apply the McDonnell Douglas burden-shifting test, discussed supra, to retaliation claims
under the FMLA. See Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006).
Here, Plaintiff again cites to the conversation she had with her supervisor, Anderton,
regarding the perception created by Plaintiff’s absences. For the reasons discussed supra, the Court
concludes that Anderton’s alleged statements regarding the appearance created by Plaintiff’s
absence do not constitute direct evidence of retaliation with respect to Plaintiff’s termination.
Yet, Plaintiff may also prove her FMLA retaliation claim using indirect evidence. To that
end, Plaintiff contends, as proof of a causal link between her need for FMLA leave and her
termination, that: (1) she was terminated four months after being granted FMLA leave; (2) she was
the only IT employee with a known disability or on FMLA leave; and (3) the only difference
between Plaintiff, Blain, and Long was that Plaintiff had a disability and used leave under the
FMLA. Again, Plaintiff provides no citations to the record in support of these assertions.
First, “Plaintiff cannot establish a prima facie case of retaliation solely on the basis of
temporal proximity. She must offer some other indicia of retaliatory conduct.” Cleveland v. Southern
Disposal Waste Connections, 491 Fed. App’x 698, 706 (6th Cir. 2012) (citing Parks v. City of
Chattanooga, 74 Fed. App’x 432, 438 (6th Cir. 2003) (“Temporal proximity . . . does not support

Accordingly, the Court concludes that Plaintiff cannot establish a prima facie case of FMLA
interference. See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 427 (6th Cir.
2014).
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an inference of retaliatory discrimination, particularly where . . . [an employer’s decision] is readily
explainable on non-retaliatory grounds that have not been shown to be pretextual.”)).
Second, even if the Court were to assume that Plaintiff has established a prima facie case of
FMLA retaliation, the Court still must apply the McDonnell Douglas burden-shifting test. Here,
Plaintiff does not provide any additional evidence beyond that already presented in the context of
her ADA discrimination claim to demonstrate that Defendant’s reduction in force is pretextual. See
Docket Entry No. 44, Plaintiff’s Response to Defendant’s Motion for Summary Judgment at 18-20.
Thus, for the reasons discussed supra, the Court concludes that Plaintiff has not offered any evidence
that creates a genuine issue of material fact as to whether Defendant’s proffered explanation for its
adverse employment action is untrue or pretextual. Accordingly, Defendant’s motion for summary
judgment should be granted as to Plaintiff’s FMLA retaliation claim.
3. Retaliation Under the Americans with Disabilities Act
In her Response to Defendant’s motion for summary judgment, Plaintiff concedes her ADA
retaliation claim. See Docket Entry No. 44, Plaintiff’s Response to Defendant’s Motion for
Summary Judgment at 1. Accordingly, the Court concludes that Defendant’s motion for summary
judgment should be granted with respect to Plaintiff’s retaliation claim under the ADA.
C. Conclusion
Accordingly, the Court concludes that Defendant’s motion for summary judgment (Docket
Entry No. 43) should be granted.
An appropriate Order is filed herewith.
ENTERED this the

day of July, 2015.

WILLIAM J. HAYNES, JR.,
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Senior United States District Judge

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