Easter v. Asurion Insurance Services, Inc.
Filing
23
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/6/15. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JENNIFER EASTER,
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Plaintiff,
v.
ASURION INSURANCE
SERVICES, INC.
Defendant.
No. 3:13-01372
Judge Sharp
MEMORANDUM
In this case, Plaintiff Jennifer Easter brings claims under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2611 et seq., the American with Disabilities Act (“ADA”), 42 U.S.C. §
12101, et seq., and the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, against her
former employer, Asurion Insurance Services, Inc. (“Asurion”). Pending before the Court is
Defendant’s Motion for Summary Judgment (Docket No. 13) which has been fully briefed by the
parties (Docket Nos. 14, 15, 19, 20, 21 & 22). For the reasons that follow, the Court will grant the
motion in part, and deny the motion in part.
I. FACTUAL BACKGROUND
Plaintiff began working for Asurion as a Customer Service Representative on April 25, 2011.
She first reported to Shawn Bean, and later reported directly to Robert Rowe, Asurion’s Call Center
Supervisor. Mr. Rowe, in turn, reported to Kathleen Peyton, Asurion’s Operations Manager.
Asurion employees are provided an 8% monthly allowance for absences. That is, employees
are not supposed to be absent more than 8% of their scheduled hours during any given month. When
1
employees are going to be absent, they are expected to notify their supervisor within one hour of the
scheduled start time.1
Employees who exceed the 8% limit are subject to discipline. While Asurion retains the
discretion to terminate an employee with poor attendance at any time, an employee who violates the
attendance policy may first receive a Coaching Action Plan (“CAP”) or an Attendance Coaching and
Action Plan (“ACAP”). If the employee does not correct the attendance issues after receipt of one
of those plans, the employee may be placed on a Performance Improvement Plan (“PIP”). If
attendance issues identified in the PIP are not corrected, the employee may be terminated.
In the less that two years that Plaintiff was employed by Asurion, she was disciplined for
attendance violations on nine separate occasions. Asurion issued Plaintiff (1) an ACAP on
December 6, 2011, because her attendance percentage for November 2011 was 9.69%; (2) a PIP on
January 11, 2012, because her attendance percentage for December 2011 was 8.08%; (3) an ACAP
on April 9, 2012, because her attendance percentage for March 2012 was 8.62%; (4) an ACAP on
July 7, 2012, because her attendance for the month of June 2012 was 13.08%; (5) an ACAP on
October 5, 2012, because her attendance for the month of September 2012 was 15.62%; (6) a verbal
warning on November 30, 2012, for failing to call in advance of her absence; and (7) an ACAP on
January 4, 2013, because her absence for the month of December 2012 was 17.17%.
Plaintiff admits that she received all of these disciplinary actions. Plaintiff claims, however,
that she told Defendant on numerous occasions that she was tardy to work, required to leave work
early, or absent from work because of a serious health condition – irritable bowel syndrome (“IBS”)
1
Plaintiff asserts that, during her employment, Asurion reduced the call-in period from two hours
to one hour without informing her, but, once counseled about the change, understood the policy.
2
and chronic stomach problems – and that she needed an accommodation from Defendant because
of those conditions.2 She further claims that her October 2012 shortfall was a result of IBS and a
stomach bleed for which she received hospital care, all of which she explained to her supervisor.
As for the November 30, 2012 warning for failure to call in, Plaintiff claims that she offered to work
late to make up any time missed. With regard to the January 4, 2013 ACAP, Plaintiff asserts that
the shortfall included time she was away from her work station taking bathroom breaks because of
her IBS, and she so informed both Mr. Rowe and Ms. Peyton. According to Plaintiff, Mr. Rowe said
that once an employee exceeds the 8% absence rate, “it didn’t matter what the reason was,” and Ms.
Peyton said “there is nothing that we can do for you.” (Docket No. 16-1, Pf. Depo. at 74).
On February 5, 2013, Plaintiff was placed on a PIP because of her attendance issues in
December 2012 and because her absences for the month of January 2013 was 28.9%. This PIP was
in place for the entire month of February. In the PIP, Plaintiff was instructed to “consistently focus
on being here when scheduled and not leaving early or coming in late[,]” and warned that “[i]f the
PIP is not successfully completed in its entirety then management has the discretion to consider the
next steps up to and including termination of employment.” (Id. at 76).
Plaintiff did not report for work on either February 26 or 28, 2013, resulting in her exceeding
the 8% limit for that month. On Friday, March 1, 2013, Plaintiff mentioned to Mr. Rowe that she
might apply for FMLA leave for the two missed days. Defendant claims that the stated reasons for
the absences was that Plaintiff had a sore throat and sinus infection on those days.
2
Plaintiff contends that she was diagnosed with IBS in December 2012. The record does not,
however, contain any statement from a doctor indicating that such a diagnosis was made at that time. In fact,
the only document from a medical provider that the Court can find in the record which mentions IBS is a
Medical Certificate dated March 15, 2013, filed in conjunction with a request for unemployment benefits
which indicates that Plaintiff was seen on three occasions between January and March 2013, and that Plaintiff
was able to work without restriction. (Docket No. 16-1 at 64).
3
On Monday, March 4, 2013, Mr. Rowe, Ms. Peyton, and Amy Sutton from Asurion’s Human
Resources Department, decided Plaintiff’s employment should be terminated because of her
attendance issues and failure to improve under the February PIP. They met with Plaintiff the same
day in Ms. Sutton’s office.
According to Defendant, Plaintiff stated at the meeting that she wanted to apply for FMLA
leave for the two February days due to sinusitis and a sore throat, and Ms. Sutton informed her that
she did not believe those were qualifying conditions. In contrast, Plaintiff claims that, just as she
had told both Mr. Rowe and Ms. Peyton in the past, she told Ms. Sutton that her absences were due
to her IBS and chronic stomach problems, and that she needed an accommodation. Plaintiff also
claims that she was instructed by Ms. Sutton to apply for leave through Defendant’s third-party
administrator which, at the time, was Unum Group.3 According to Plaintiff, this was the first time
that she was given any information on how to apply for FMLA leave.
Based upon Plaintiff’s statements at the March 4, 2013 meeting, Defendant claims that the
termination was placed on hold and Plaintiff was suspended pending resolution of her FMLA claim.
Plaintiff insists that she was terminated on March 4, 2013, a claim which is supported by the
deposition testimony of Mr. Rowe. In his deposition, Mr. Rowe testified that it was his
understanding that Plaintiff was in fact terminated on the 4th, and that it was news to him that
Plaintiff was actually terminated in April instead of March, as Defendant now claims. (Docket No.
16-2, Rowe Depo. at 29-30). Moreover, the Separation Notice that Asurion filed with the State of
3
In her deposition, Ms. Sutton testified that Unum Group handled Asurion’s FMLA claims in 2013,
but before that they were handled by The Hartford Group. Plaintiff claims that when she discussed her IBS
and chronic stomach problems with Mr. Rowe in December 2012, he told to her that he could not provide her
with information as to how to apply for FMLA leave because Asurion was changing administrators and she
should wait until January 2013 to apply with whoever the new administrator turned out to be.
4
Tennessee indicates that Plaintiff was employed from “4/25/11 to 3/4/2013.” (Docket No. 16-1 at
76).
Plaintiff applied for FMLA leave for her sinusitis on the same day as the
termination/suspension meeting. By letter dated March 5, 2013, from Unum, Plaintiff was informed
that she was required to provide certification supporting her need for leave by March 19, 2013.
When certification was not received by the due date, Unum notified Plaintiff that her deadline to
submit the medical certification was extended by seven days to March 26, 2013. On March 29, 2013,
Plaintiff was informed that her request for FMLA was denied for failure to provide a timely medical
certification.4 Asurion was also notified by Unum of the denial of Plaintiff’s request for leave.
Meanwhile, on March 15, 2013, Plaintiff submitted a separate request for FMLA leave in
connection with a colonoscopy that was performed on March 14, 2013. The “Certification of Health
Care Provider” submitted by Dr. Ronald Pruitt indicates that Plaintiff had clinic visits on January
30 and March 6, 2013, and that she had a colonoscopy on March 14, 2103. Although the form does
not describe Plaintiff’s condition, it indicates that Plaintiff was first seen in 1997, seen again in
2004, and seen for the times listed in 2013. The form also indicated that “no further treatments”
were expected and that Plaintiff was next scheduled for an appointment on March 14, 2018
(presumably for another colonoscopy).
On March 27, 2014, Plaintiff was informed by Unum that she was approved for intermittent
leave from March 4, 2013 through March 14, 2013. By letter dated April 9, 2013, Plaintiff was
informed that she was also approved for intermittent leave from February 26, 2014 to March 2,
4
In a “Certification of Health Care Provider” signed on March 26, 2013, and apparently received by
Unum on April 2, 2013, Dr. Andrea Beck indicated that Plaintiff was unable to work from February 26 to 28,
2013, because she was ill due sinusitis and her “symptoms included headache sinus congestion, facial pain,
weakness/fatigue [and a] sore throat.” (Docket No. 16-1 at 98).
5
2013.
On April 8, 2013, Unum sent Asurion an email regarding Plaintiff that stated:
Leave dates being approved: 2/26/13 through 3/3/13.
The employee referenced above has a leave request that was previously denied on
3/09/13. Since the denial, the employee has submitted a complete and qualifying
certification/document. Their [sic] requested leave will be approved and retroactively
designated as approved and protected.
(Id. at 126). Asurion responded, “Thank you. Jennifer was terminated as of 4/2.” (Id.). Ms. Sutton
claims that Asurion followed up by telling UNUM that Plaintiff was terminated after she failed to
timely file FMLA paperwork, the matter was closed, and Unum had “reopened the claim in
error[.]”. (Docket No. 16-3, Sutton Depo. at 21). Ms. Sutton also claims that Unum assured Asurion
that it would contact Plaintiff and inform her of the error regarding the granting of FMLA leave.
This lawsuit followed some eight months later.
II. STANDARDS GOVERNING SUMMARY JUDGMENT
The standards governing summary judgment are well known. A party may obtain summary
judgment if the evidence establishes there are no genuine issues of material fact for trial and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Covington v.
Knox Cnty, School Sys., 205 F.3d 912, 914 (6th Cir. 2000). A genuine issue exists “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). In ruling on a motion for summary judgment, the Court must
construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable
inferences in his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
III. APPLICATION OF LAW
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A. FMLA Claims
The FMLA entitles eligible employees up to twelve weeks of leave for any of a number of
reasons, including a “serious health condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The Sixth Circuit
“recognizes two distinct theories of wrongdoing under the FMLA.” Bryson v. Regis Corp., 498 F.3d
561, 570 (6th Cir. 2007). “The ‘entitlement’ or ‘interference’ theory” makes “it unlawful for
employers to interfere with or deny an employee’s exercise of her FMLA rights” and “require[s] the
employer to restore the employee to the same or an equivalent position upon the employee’s return.”
Id. “The ‘retaliation’ or ‘discrimination’ theory, on the other hand . . . prohibits an employer from
discharging or discriminating against an employee for ‘opposing any practice made unlawful by’ the
Act.” Id. (internal citations omitted). Plaintiff alleges both types of violation in this case.
1. Interference
“If an employer takes an employment action based, in whole or in part, on the fact that the
employee took FMLA-protected leave, the employer has denied the employee a benefit to which he
is entitled,” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007), and violated the
interference prong of 29 U.S.C. § 2615(a)(1). “Because an employer interferes with an employee’s
exercise of FMLA rights whenever the employee does not receive the rights that are due to her under
the statute, the intent of the employer is irrelevant to whether an FMLA violation has occurred under
the interference theory.” Wallner v. Hilliard, 590 F. App’x 546, 550 (6th Cir. 2014).
In this case, the Court finds that a genuine issue of material fact has been presented on
whether Asurion interfered with Plaintiff’s FMLA rights by failing to comply with the Act’s notice
requirements. Failure to comply with the applicable notice provisions can constitute interference
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under the FMLA. Wallace v. FedEx Corp., 764 F.3d 571, 585-86 (6th Cir. 2014).
The applicable regulations provide that “[w]hen an employee requests FMLA leave, or when
the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason,
the employer must notify the employee of the employee’s eligibility to take FMLA leave within five
business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b). Notably, the regulations
speak in terms of whether an employee “may be” entitled to FMLA leave, and “‘[t]he critical
question is whether the information imparted to the employer is sufficient to reasonably apprise it
of the employee’s request to take time off for a serious health condition.’” Walton v. Ford Motor
Co., 424 F.3d 481, 486 (6th Cir. 2005) (emphasis added) (quoting Brohm v. JH Props., Inc., 149 F.3d
517, 523 (6th Cir. 1998)). In this regard, “the employees burden is not heavy,”; in fact she “need not
expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave
is needed,” with the employer “‘expected to obtain any additional required information through
informal means.’” Wallace, 764 F.3d at 585 (quoting 29 C.F.R. § 825.303(b) (emphasis added)); see
also, Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004). (“[W] emphasize
that the employee’s duty is merely to place the employer on notice of a probable basis for FMLA
leave. He doesn’t have to write a brief demonstrating a legal entitlement. He just has to give the
employer enough information to establish probable cause, as it were, to believe that he is entitled to
FMLA leave.”).
Here, Plaintiff claims that she repeatedly told her employer that she had IBS and stomach
problems that required her to miss work her to having to miss work, affected her ability to get to
work on time, and impacted the time that she was at work due to the need for frequent bathroom
breaks. She also claims that her pleas fell on deaf ears, although on one occasion, Mr. Rowe told her
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to wait to request FMLA leave until the following year since Asurion was in the process of changing
administrators. This is more than enough to place Defendant on inquiry notice that Plaintiff may
have been suffering from a condition for which Plaintiff was entitled to FMLA leave.
That said, “the FMLA is not a strict liability statute,” even under the interference prong,
Edgar v. JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2014), and the Sixth Circuit has made clear that
the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) paradigm applies “to both . . .
interference and retaliation claims” under the FMLA, Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th
Cir. 2012). “Although an employer’s intent is not directly relevant to the entitlement inquiry[,] . .
. interference with an employee’s FMLA rights does not constitute a violation if the employer has
a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”
Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008) (internal citation omitted) (quoting Edgar, 443
F.3d at 507). “If the defendant proffers such a justification, then the plaintiff may seek to rebut it by
a preponderance of the evidence” which “show[s] that the proffered reason (1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant
the challenged conduct.’” Id. (quoting Wexler v. White’s Fine Furniture, 317 F.3d 564, 576 (6th Cir.
2003)).
As noted in the factual recitation, Defendant asserts that Plaintiff was terminated because she
consistently exceeded the 8% limit for monthly absenteeism, and she did not meet the terms of her
February 2013 PIP. Obviously, excessive absenteeism and failure to comply with call-in policies
can be a legitimate non-discriminatory reason for discipline or discharge. Burdett-Foster v. Blue
Cross Blue Shield, 574 F. App’x 672, 681 (6th Cir. 2014); Hill v. Air Tran Airway, 416 F. App’x
494, 499-500 (6th Cir. 2011). However, the essence of Plaintiff’s interference claim is that
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Defendant repeatedly ignored her statements that her absences, tardiness, and need to take numerous
bathroom breaks were because of her IBS and chronic stomach problem, thereby pretermitting any
consideration of whether she might be entitled to FMLA leave.
“Employers cannot use the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under
no fault attendance policies.” 29 C.F.R. § 825.220(c); see Demyanovich v. Cadon Plating &
Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir. 2014) (“If an employer takes an adverse employment
action at least in part because an employee requested or took FMLA leave, the employer has denied
an FMLA benefit.”). And, “[t]he requirement that an employee ‘take’ FMLA leave . . . connote[s]
invocation of FMLA rights, not actual commencement of leave,” as “it would be patently absurd if
an employer who wished to punish an employee for taking FMLA leave could avoid liability simply
by firing the employee before the leave begins.” Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508
(3rd Cir. 2009); compare Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir.2012) (emphasis added)
(“an employer may prove it had a legitimate reason unrelated to the exercise of FMLA rights for
terminating the employee.”) with Gates v. United States Postal Serv., 502 F. App’x 485, 490 (6th Cir.
2012) (legitimate non-discriminatory reason for discharge where plaintiff could “have been
terminated due to excessive unscheduled absences unrelated to his FMLA leave, regardless of the
exercise of his FMLA rights or his compliance with [defendant] procedures related to FMLA
leave”).
In determining that Plaintiff’s interference/entitlement claim requires resolution by
the trier of fact, the Court acknowledges Defendant’s argument that Plaintiff’s claims regarding her
employer’s knowledge of her IBS and chronic stomach problems rests solely on her deposition
testimony. Defendant argues that the Court should ignore this testimony because it is entirely “self-
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serving.”
But self-serving testimony is expected, and “a court may not disregard evidence merely
because it serves the interests of the party introducing it.” Harris v. J.B. Robinson Jewelers, 627
F.3d 235, 239 (6th Cir. 2010). Moreover, Plaintiff’s testimony is no more self-serving than Mr.
Rowe’s deposition testimony that he does not recall any discussions with Plaintiff about her medical
conditions or the change in FMLA carriers, or Ms. Sutton’s testimony that she does not recall
anyone ever telling her about Plaintiff’s IBS, or her contention that Plaintiff never mentioned
stomach problems during the March 4, 2012 meeting. While it appears that someone is outright
lying, or at least has serious recollection issues, credibility determinations are quintessential a jury
function. See Snyder v. Kohl’s Dept. Stores, Inc., 580 F. App’x 458, 461 (6th Cir. 2014) (citation
omitted) (on summary judgment “[a] court impermissibly invades the province of the jury it if it
attempts to ‘resolve[ ] issues of credibility and other conflicting evidence’”); Rogers v. Lilly, 202
F. App’x 423, 426 (6th Cir. 2008) (citation omitted) (“In ruling on a motion for summary judgment,
‘[t]he judge may not make credibility determinations or weigh the evidence’”).
Summary judgment will be denied on Plaintiff’s FMLA interference/entitlement claim.
2. Retaliation
Like an interference/entitlement claim, where a plaintiff presents no direct evidence of
discrimination or retaliation, her claims are analyzed under McDonnell Douglas burden-shifting
framework. See Edgar, 443 F.3d at 508. “[P]laintiff may make out a prima facie case by showing
that (1) she engaged in a statutorily protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal connection between the adverse employment action and the
protected activity.” Bryson, 498 F.3d at 570. “If the plaintiff satisfies her prima facie showing, the
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burden shifts to the defendant to offer evidence of a legitimate, non-discriminatory reason for the
adverse employment action.” Id. “If the defendant succeeds, the burden shifts back to the plaintiff
to show that the defendant’s proffered reason is a pretext for unlawful discrimination.” Id.
Here, Plaintiff’s retaliation/discrimination claim fails at the causal connection stage of the
prima facie case. Plaintiff asserts that she was terminated at the meeting on March 4, 2012, and the
evidence is undisputed that Defendant had made the decision to fire Plaintiff for attendance issues
before that date.
“Under the retaliation theory,” as opposed to the entitlement theory, “the employer’s motive
is an integral part of the analysis.” Edgar, 443 F.3d at 508 (emphasis in original). “The employer’s
motive is relevant because retaliation claims impose liability on employers that act against
employees specifically because those employees invoked their FMLA rights.” Id. (emphasis in
original). While Plaintiff argues that there was temporal proximity between her termination and the
invocation of her FMLA rights at the meeting so as to satisfy the causal connection, temporal
proximity does not exist when the employer has already made the decision to terminate the
employee. Grubb v. YSK Corp., 401 F. App’x 103, 113 (6th Cir. 2010); see also Farmer v. Town
of Speedway, 2014 WL 5308093, at *10 (S.D. Ind. Oct. 15, 2014) (no causal connection for
purposes of a FMLA retaliation case where employee mentioned the possible need to take leave
FMLA after “the decision to terminate [plaintiff’s] employment was already made”); Peda v. New
York Univ. Hosp. Ctrs., 2014 WL 1013844, at *9 (S.D.N.Y. Mar. 17, 2014) (“no causation, since
[defendant] had already made the decision to fire [plaintiff] before her request for FMLA leave”);
LaFLeur v. Hugine, 2013 WL 5355035, at *5 (N.D. Ala. Sept. 24, 2013) (“The uncontradicted
evidence is that plaintiff’s medical leave had no bearing on the defendants’ decision to terminate her
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employment, because that decision had already been made”).
Even assuming Plaintiff told Mr. Rowe at some point before the meeting that she was going
to seek leave for the February 26 and 28, 2013 days because of sinusitis and/or a sore throat, her
claim fails for at least two reasons. First, she has not established that she suffered from a “serious
health condition” within the meaning of 29 U.S.C. § 2611(11), as things like a sore throat, “sinusitis,
bronchitis, and an ear infection . . . are all routine, short-term illnesses not covered by the FMLA.”
Beaver v. RGIS Inventory Specialists, Inc., 144 F. App’x 452, 456 (6th Cir. 2005). Second, Plaintiff
did not submit the certification within the time frame provided by Unum (even after being provided
an additional grace period), and the failure to comply with the time limits for certification absolves
an employer of liability under the FMLA. Kinds v. Ohio Bell Tele. Co., 724 F.3d 648, 652 (6th Cir.
2013); Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 567 (6th Cir. 2005)
To the extent Plaintiff’s retaliation claim is based upon Dr. Pruitt’s certification, that too fails
for at least two reasons. First, the certification was in relation to a colonoscopy that was performed
in April 2013, after Plaintiff was terminated (Plaintiff’s position) or while Plaintiff was under a
suspension after the termination decision had been made (Defendant’s position). Second, Dr.
Pruitt’s certification does not indicate Plaintiff was incapacitated, undergoing continuing treatment,
or otherwise met any of the requirement of serious health condition under 29 C.F.R. § 825.115(a)(f). Rather, the form indicates that Plaintiff was seen in 1997, seen seven years later in 2004, and
seen on three occasions nine years later in 2013. It also states that her “condition” (never specified
on that form) did “not cause a full/continuous period of inability,” nor was it “medically necessary
for [plaintiff] to be off work due to episodic flareups on an intermittent basis or to work less than
[her] normal work schedule.” (Docket No. 16-1 at 66).
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B. ADA Claim
In the absence of direct evidence, and as with claims under the FMLA, claims under the
ADA are analyzed under the burden shifting approach. “To make out a prima facie case of
employment discrimination through indirect evidence under [the ADA], a plaintiff must show 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. Tenn., 639 F.3d 253, 258-59
(6th Cir. 2011) (quoting, Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir.
2007)). “Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant ‘to articulate some legitimate, nondiscriminatory reason’ for its actions.” Talley v. Family
Dollar Stores of Ohio, Inc. , 542 F.3d 1099, 1105 (6th Cir. 2008) (quoting, Gribcheck v. Runyon, 245
F.3d 547, 550 (6th Cir. 2001). “If the defendant can satisfy its burden, the plaintiff must show by a
preponderance of the evidence that the proffered explanation is a pretext for discrimination.” Id.
The ADA prohibits covered employers from discriminating against a “qualified individual
on the basis of disability” with regard to hiring, advancement, training, termination, and “other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “The plaintiff shoulders
the initial burden of showing that he is disabled and “otherwise qualified” for the position, either
without accommodation from the employer, with an alleged essential job requirement eliminated,
or with a proposed reasonable accommodation.” Turner v. City of Paris, 534 F. App’x 299, 302 (6th
Cir. 2013) (citing, Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007)).
Upon initial review, the Court was inclined to grant summary judgment on Plaintiff’s ADA
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claim. This was because:
• Plaintiff cites only her deposition testimony for the proposition that she was
diagnosed with IBS in December 2012, but “Plaintiff’s uncorroborated testimony
[about diagnosis and treatment do] not raise a triable issue” on whether Plaintiff has
a disability within the meaning of the ADA, Holmes v. Alive Hospice, Inc., 2015
WL 459330, at *4 (M.D. Tenn. February 3, 2015).
• Plaintiff cites E.E.O.C. v. Ford Motor Co.,752 F.3d 634 (6th Cir. 2014) for the
proposition that IBS is a disability within the meaning of the ADA, but that case
stands only for the proposition that that particular patient’s IBS was disabling.
Moreover, the decision was vacated and a rehearing en banc was granted on August
29, 2014, months before Plaintiff filed her response in this case.
• Assuming that Plaintiff does in fact have IBS and/or another stomach ailment,
“merely having an ‘impairment’ does not make one disabled for purposes of the
ADA. Claimants also need to demonstrate that the impairment limits a major life
activity.” Toyota Motor Mfg., Ky. Inc. v. Williams, 534 U.S. 184, 195 (2002)
abrogated on other grounds by ADA Amendments Act of 2008, 42 U.S.C. §
12102(1), (2).
• Plaintiff does not indicate who made the diagnosis in December 2012, but it
probably was not Dr. Pruitt because his FMLA certification indicates that he saw
Plaintiff in January 2013 for the first time in seven years. Moreover, even if this is
who Plaintiff claims to have made the diagnosis, his FMLA certification does not
mention IBS, nor does it come close to suggesting that Plaintiff has “a physical or
mental impairment that substantially limits one or more major life activities of such
individual,” 42 U.S.C.A. § 12102(a), even if “working” is considered the major life
activity. While Dr. Pruitt’s Medical Certificate filed in conjunction with Plaintiff’s
request for unemployment benefits (which apparently was contemporaneous with his
FMLA certification) states that Plaintiff was seen in January and March 2013 for
IBS, it also states that Plaintiff was able to work without restriction.
However, none of these possible shortfalls5 in the proof are raised in Defendant’s supporting
Memorandum (so Plaintiff could not be expected to respond to them), and the ADA is not even
mentioned in Defendant’s reply brief. Rather, Defendant argues that Plaintiff was terminated
5
Lest their be any misunderstanding, the Court is not saying that IBS is not a disability within the
meaning of the ADA. Rather, while IBS can be a serious and debilitating condition which may substantially
limit a major life activity, the Court cannot simply assume Plaintiff’s condition is such. See, Deeds v. State
Farm Mut. Auto. Ins. Co., 2012 WL 1150755, at *3 (M.D. La. April 5, 2012) (collecting cases) (“A number
of opinions have addressed ADA claims premised on IBS, but the cases are fact-intensive[.]”)
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“because of” her attendance issues and failure to comply with the February 2013 PIP, and Plaintiff
cannot show that the stated reasons were a pretext for discrimination.
Defendant’s argument neglects to consider the fact that Plaintiff claims she requested more
bathroom breaks and made other entreaties to Defendant in order to accommodate her IBS, but those
requests were ignored. This suggest a failure to communicate in violation of what is contemplated
by the ADA.
Under the ADA “[t]he term ‘qualified individual’ means an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position[.]” 42
U.S.C. § 12111(8). The governing regulations indicate that “[t]o determine the appropriate
reasonable accommodation [for a given employee,] it may be necessary for the [employer] to initiate
an informal, interactive process with the [employee],” in order to “identify the precise limitations
resulting from the disability and potential reasonable accommodations that could overcome those
limitations.” 29 C.F.R. § 1630.2(o)(3).
“Accordingly, ‘[t]he interactive process requires
communication and good-faith exploration of possible accommodations.’” Kleiber, 485 F.3d at 871
(citation omitted). “Even though the interactive process is not described in the statute’s text, the
interactive process is mandatory, and both parties have a duty to participate in good faith.” Id.
(footnote omitted).
Here, when the facts are construed in Plaintiff’s failure, a reasonable jury could conclude that
Defendant wholly failed to engage in an interactive process and failed to make any effort to
reasonably accommodate Plaintiff’s condition. The Sixth Circuit has recently stated that “the failure
to engage in the interactive process” can be “an independent violation of the ADA.” Rorrer v. City
of Stow, 743 F.3d 1025, 1045 (6th Cir. 2014). And, there can be no doubt that an alleged non-
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discriminatory reason for termination is pretextual if the real reason is that the employer did not
want to make a reasonable accommodation to a known disability. See, A.C. ex rel. J.C. v. Shelby
Cnty. Bd. of Educ., 711 F.3d 687, 701-02 (6th Cir. 2013) (summary judgment inappropriate in ADA
case where factual issue existed as to whether reports to Department of Children’s Services were
motivated by concerns for child’s health or were a pretext for retaliating against parents for
requesting accommodations); Bryson v. Regis Corp., 498 F.3d 561, 577-78 (6th Cir. 2007) (summary
judgment inappropriate even though defendant claimed plaintiff was terminated because she failed
to return from leave where questions of fact existed as “whether possible opposition to [plaintiff’s]
request for an accommodation was a motivating factor in her termination”); Lovell v. Champion Car
Wash, LLC, 969 F. Supp. 2d 945, 955 (M.D. Tenn. 2013) (summary judgment not appropriate where
“inquiry necessarily segues into the ultimate question of whether the reason proffered for the failure
to transfer was but a pretext for retaliating against [plaintiff] for requesting an accommodation”).
The Court will allow Plaintiff’s ADA claim to go forward. However, this claim may well
be the subject of a viable motion for a directed verdict at the close of Plaintiff’s case given the
potential problems that the Court has identified.
C. TDA Claim
In a footnote to its Motion for Summary Judgment, Defendant asserts that it is entitled to
summary judgment on Plaintiff’s TDA claim for the same reasons that it is entitled to summary
judgment on her ADA claim. Plaintiff does not respond to that argument, and the only mention of
the TDA in her response brief is the conclusory statement that Defendant violated the TDA.
The Sixth Circuit’s “jurisprudence on abandonment of claims is clear: a plaintiff is deemed
to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary
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judgment.” Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (collecting cases).
When a claim is abandoned, the district court can “properly decline[] to consider the merits of th[e]
claim[.]” Hicks v. Concorde Career College, 449 F. App’x 484, 487 (6th Cir. 2011).
In any event, claims under Tenn. Code Ann. § 8-5-103(a) are “analyzed under the same
principles as those utilized for the [ADA],” Sasser v. Quabecor Printing (USA) Corp., 159 S.W.3d
579, 584 (Tenn. 2004), with one critical distinction that is dispositive here: the TDA does “not
include a ‘reasonable accommodation’ component.” Bennett v. Nissan No. Am., Inc., 315 S.W.3d
832, 841-42 (Tenn. Ct. App. 2009). Accordingly, the Court will grant summary judgment on Plaintiff’s
claim under the TDA.
IV. CONCLUSION
On the basis of the foregoing, Defendant’s Motion for Summary Judgment will be granted
with respect to Plaintiff FMLA retaliation and TDA claims, but denied with respect to Plaintiff’s
FMLA interference and ADA claims.
An appropriate Order will be entered.
_____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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